An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-1682


Filed: 18 January 2005


v .                         Craven County
                            Nos. 02-CRS-53157 through
                                02-CRS 53162

    Appeal by defendant from judgments entered 27 March 2003 by Judge John R. Jolly, Jr., in Craven County Superior Court. Heard in the Court of Appeals 1 November 2004.

    Roy A. Cooper, III, Attorney General, by David J. Adinolfi, II, Assistant Attorney General, for the State.

    Terry W. Alford, for defendant-appellant.

    MARTIN, Chief Judge.

    Defendant was convicted by a jury of four counts of obtaining property by false pretenses and two counts of engaging in the unauthorized practice of law. The State's evidence at trial tended to show that defendant was licensed to practice law in North Carolina in 1960 and that he was disbarred 15 November 1989. His license to practice law in North Carolina has never been reinstated.
    Shantese Williams testified that in April of 2002 she was approached by defendant in a Staples store where she was faxing to a pre-paid legal services organization a citation which had been issued to her husband. Defendant offered to represent Mr. Williams in the matter for a fee of $150.00. After repeated phone callsfrom defendant, Ms. Williams agreed to hire him and paid him. Despite repeated inquiries about the status of her husband's case, Ms. Williams never heard from defendant again. She later learned, after calling the office of the district attorney, that an order for her husband's arrest had been issued after he failed to appear in court. The district attorney's office informed her that defendant was not an attorney. Mr. Williams testified that defendant had performed no legal services on his behalf, despite defendant's having told Mr. Williams that he would represent him.
    Damien Brown testified that in May 2002 he had pending criminal charges and defendant agreed to represent him for a fee of $2500. Mr. Brown testified that defendant told him he would have the cases removed to federal court, and Mr. Brown paid defendant three payments of $1200.00, $200.00 and $45.00 toward the fee. Defendant never appeared in court on Mr. Brown's behalf, filed no documents, and performed no legal services on Mr. Brown's behalf in connection with the pending charges. Prior to Mr. Brown's court date, he discovered that defendant had been disbarred and could not represent him. When Mr. Brown confronted defendant, defendant told him that his case had been dismissed and declined to refund the money.
    Defendant did not present any evidence. The jury returned verdicts of guilty as to each of the offenses and defendant appeals from the judgments entered upon the verdicts.

    On appeal, defendant argues that the trial court erred (1) by refusing to permit defendant to cross-examine an employee of the North Carolina State Bar, and to offer evidence, with respect to various matters relating to the authority of the State Bar to revoke defendant's law license; (2) in denying his motion to dismiss the charges for insufficient evidence; and (3) in responding to an inquiry by the jury during its deliberations. We find no error.
    Defendant first argues that the trial court excluded relevant evidence when it failed to allow him to offer evidence, and to cross-examine the employee of the North Carolina State Bar who testified at trial, with respect to the validity of defendant's license to practice law and the authority of the State Bar to revoke it. Initially, we note that although there were extensive pretrial proceedings in this matter, defendant never attempted, either therein or at trial, to present evidence regarding the matters of which he now complains. It is well-settled that in order to preserve an assignment of error to the exclusion of evidence, the evidence must be offered either at or before trial. State v. Anthony, 354 N.C. 372, 412, 555 S.E.2d 557, 584 (2001), cert. denied, 536 U.S. 930, 153 L. Ed. 2d 791 (2002); see also N.C. Gen. Stat. § 8C-1, Rule 103(a)(2) (2003).
    Though his argument to the trial court, and to this Court in his brief, is difficult to follow, it essentially appears to us that defendant contends that notwithstanding his completion of law school and passage of the bar examination, he was only permitted topractice law pursuant to some exception to the law which allowed African American attorneys to practice law while institutional segregation prevented them from being members of the North Carolina Bar Association. Therefore, according to his argument, he was never admitted to the Bar of the State of North Carolina and could not have been disbarred. The trial court ruled that defendant could not collaterally attack the disbarment proceeding, noting that testimony about the contested disbarment and defendant's arguments about racial discrimination would confuse the jury.
    Defendant contends this evidence was relevant and it was error for the trial court to exclude it. Relevant evidence makes the existence of consequential facts more or less probable than it would be without it. N.C. Gen. Stat. § 8C-1, Rule 401 (2003). Evidence which is not relevant is inadmissible. N.C. Gen. Stat. § 8C-1, Rule 402. When the proffered evidence does not tend to prove a fact in issue in the case, the evidence is not relevant. See State v. Cronan, 100 N.C. App. 641, 644, 397 S.E.2d 762, 764 (1990). We do not consider evidence regarding defendant's alleged exclusion from membership in the North Carolina Bar Association, a voluntary organization, probative of any fact relating to his admission to the Bar of the State of North Carolina, a regulatory agency, or to the revocation of his license to practice law. Therefore, evidence with respect to the matter was not relevant and was properly excluded.
    We note as well, that despite repeated requests from the trial court, defendant provided no evidence that his disbarment had beenoverturned or held in abeyance nor did he offer any evidence to show that his conduct fell within any exception to the requirements of N.C. Gen. Stat. § 84-4 (2004).
    In his next assignment of error, defendant contends the trial court erred in denying his motion to dismiss the charges for insufficiency of the evidence. To survive a defendant's motion to dismiss, the State must offer substantial evidence of each element of a criminal offense. Substantial evidence is evidence which, when viewed in the light most favorable to the State, “a reasonable mind might accept as adequate to support a conclusion” of defendant's having committed each element of the offense with which the defendant is charged. State v. Barfield, 127 N.C. App. 399, 401, 489 S.E.2d 905, 907 (1997).
    False pretense is “(1) a false representation of a subsisting fact or a future fulfillment or event, (2) which is calculated and intended to deceive, (3) which does in fact deceive, and (4) by which one person obtains or attempts to obtain value from another.” State v. Cronin, 299 N.C. 229, 242, 262 S.E.2d 277, 286 (1980). The offense of engaging in the unauthorized practice of law, as it arises upon the pleadings in this case, consists of holding one's self out as competent and qualified to give legal advice and acting as a lawyer, without being an active member of the Bar of the State of North Carolina, having been admitted and licensed to practice as an attorney-at-law. N.C. Gen. Stat. § 84-4 (2003).
    Viewed in a light most favorable to the State, the evidence showed that at the time defendant offered to represent Mr. Williamsas his attorney and accepted a fee for such employment, and at the time he agreed to represent Mr. Brown and accepted three payments for a fee for such representation, defendant was not a licensed member of the Bar, but held himself out as able to provide legal services. The evidence further showed that notwithstanding his acceptance of fees upon representing that he would provide legal services, he performed no such services on behalf of either Mr. Williams or Mr. Brown. From such evidence, a jury could reasonably determine that defendant made false representations as to his ability to represent each of them to deceive the persons to whom the statements were made in order to obtain money from them. Thus, there was sufficient evidence to support the jury's verdicts of guilty. This assignment of error is overruled.
    In defendant's final assignment of error he argues that the the court erroneously re-instructed the jury when answering its question. After deliberating for thirty-five minutes, the jury queried the trial court: “If the State does not prove something, but the defendant admits it, can we use it as evidence?” and the judge instructed the jury, “The burden is on the State to prove . . . the case. But in determining . . . whether all of the elements have been proved, it's appropriate for the jury to examine and use any facts that are before it, regardless of where they come from.” Defendant contends that this instruction was too broad, arguing that since he stipulated to some facts and chose not to present any evidence, the jury perhaps considered stricken evidence. We disagree.     “After the jury retires for deliberation, the judge may give appropriate additional instructions to: (1) Respond to an inquiry of the jury made in open court.” N.C. Gen. Stat. § 15A-1234(a) (2003); State v. Weddington, 329 N.C. 202, 210, 404 S.E.2d 671, 677 (1991). These instructions need only be as explicit as needed “to enable the jury to understand and apply the law to the evidence bearing upon the elements of the crime charged.” Weddington, 329 N.C. at 210, 404 S.E.2d at 674. “The trial judge is not required to repeat instructions correctly given during the original charge, but may do so in his discretion.” State v. Harper, 96 N.C. App. 36, 43, 384 S.E.2d 297, 301 (1989). Unless the original charge is erroneous, the trial court “is in the best position to determine whether instructions should be repeated.” Id. Regarding stricken testimony, “we must presume that the jury followed the instructions” to disregard stricken testimony. State v. Allen, 141 N.C. App. 610, 615, 541 S.E.2d 490, 494 (2000), disc. review denied, 353 N.C. 382, 547 S.E.2d 816 (2001).
    The trial court properly reiterated the pertinent instruction from the charge when responding to the jury's question. Furthermore, defendant fails to cite any instances of stricken testimony or stipulations improperly considered by the jury; a careful review of the record reveals that the only stricken testimony related to defendant's improper questioning of witnesses and that defendant stipulated that he was Reginald L. Frazier and conceded receipt of payments from Damien Brown. Additionally, in his closing statement the pro se defendant stated “I'm actuallyguilty of all of this.” Even if the jury's consideration of these statements as evidence could be held erroneous, there was sufficient other evidence to support the jury's verdict. This assignment is overruled and we find that the defendant received a fair trial free of prejudicial error.
    No error.
    Judges McCULLOUGH and GEER concur.
    Report per Rule 30(e).

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