An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-497

NORTH CAROLINA COURT OF APPEALS

Filed: 07 June 2005

STATE OF NORTH CAROLINA

v .                         Buncombe County
                            No. 96 CRS 8146
                             96 CRS 8147
LARRY ROLANDO LINNEY             96 CRS 8150

    Appeal by defendant from judgment entered 5 February 2003 by Judge James U. Downs in Buncombe County Superior Court. Heard in the Court of Appeals 8 December 2004.

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

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Anne M. Gomez, for defendant-appellant.

    STEELMAN, Judge.

    Defendant, Larry Rolando Linney, appeals his conviction of one count of embezzlement and two counts of perjury. For the reasons discussed herein, we find no error.
    In September 1992, defendant, then a practicing attorney, was appointed guardian of the estate of Georgiana Alexander, a senior citizen residing in a nursing home. Ms. Alexander suffered from dementia and was unable to communicate. She also was bedridden and unable to toilet and wash herself, and had to be fed through a tube. Defendant took over Ms. Alexander's financial affairs andopened a guardian checking and savings accounts at Wachovia Bank and Trust.
    Ms. Alexander also had several other accounts at Wachovia, including a certificate of deposit (CD) worth $10,006.04. In July 1993, defendant redeemed Ms. Alexander's CD and deposited the entire amount into his law firm's operating account. At the time defendant made the deposit, his operating account had a balance of $961.64. At trial, defendant repeatedly claimed he mistakenly placed Ms. Alexander's money into his operating account. However, defendant never removed Ms. Alexander's money from his operating account. Instead, defendant stated he decided to invest the money for Ms. Alexander in his law firm so she would receive a greater return on her investment.
    Defendant wrote numerous personal checks from his operating account, including a check to himself for $5,000.00, which reduced the balance of the operating account below $10,000.00. Defendant admitted he personally performed his office's accounting and that he had previously worked as a tax attorney for Arthur Andersen, at the time a prestigious accounting firm in New York City. He also stated the $5,000.00 check he wrote on the funds was a loan he used for paying the expenses of his office, “[a]mong other things.” On 14 November 1995, defendant closed both his operating account and trust account at BB&T. He subsequently opened trust and operating accounts at First Commercial Bank, which later became Centura Bank. Defendant deposited the exact amount from his trust account at BB&Tinto the trust account at First Commercial, demonstrating he did not attempt to move Ms. Alexander's funds into a trust account.
    Defendant filed an annual account of Ms. Alexander's assets on 15 October 1993. The annual account listed a First Union National Bank CD, a Wachovia Bank checking account, a Wachovia Bank savings account, and household furnishings. The accounting did not list the $10,000.00, which defendant claimed he invested in his law firm's operating account.
     Ms. Alexander died in June 1994 and defendant was appointed administrator of her estate. At some point in 1995, Gale Spencer, Ms. Alexander's granddaughter, became concerned that defendant was mishandling the decedent's estate. Ms. Spencer expressed her concerns to the district attorney of Buncombe County. As a result, the district attorney contacted the North Carolina State Bar , which in turn, notified defendant he faced allegations of ethical violations. The State Bureau of Investigation (SBI) also commenced an investigation into defendant's handling of Ms. Alexander's estate. During the investigation, defendant stated the $10,000.00 was probably in the BB&T trust account. However, at a subsequent State Bar hearing he claimed Ms. Alexander, who had been unable to communicate and suffered from dementia, gave him permission to transfer her funds to his operating account. Defendant also claimed Ms. Alexander's brother had approved the “investment” of Ms. Alexander's money in his law firm. At the time of the State Bar hearing and both court trials, Ms. Alexander and her brother were deceased.     The State Bar requested all of defendant's records for the bank accounts related to defendant's handling of the Alexander guardianship and estate. Defendant submitted some of the bank records, but withheld the records of his firm's BB&T operating account and his personal account at First Citizens. The State Bar was able to obtain those bank records pursuant to the Financial Privacy Act (Chapter 53B of the General Statutes). Investigator Jones of the State Bar testified the balance in the Wachovia estate account at the end of September 1994 was $17,885.22, not the $27,885.00 balance defendant had sworn to on the 90-day inventory filed with the court on 27 March 1995; a difference of approximately $10,000.00. Based upon his review of the bank records, Investigator Jones testified there was no indication that Ms. Alexander's $10,000.00 was ever transferred into any of defendant's trust accounts. In September 1995, defendant filed his annual account of the estate's assets. The annual account listed as an asset a BB&T trust account in the amount of $10,000.00. Assistant Clerk of Court Elaine Hunter questioned defendant as to that amount. Defendant swore to its veracity before Assistant Clerk Hunter. Defendant's sworn statement that $10,000.00 of Ms. Alexander's money was in his trust account was false.
    On 9 September 1996 defendant was indicted on three counts of perjury and two counts of embezzlement related to his mishandling of Ms. Alexander's estate. He was tried at the 8 September 1997 criminal session of Buncombe County Superior Court, where the jury found him guilty of two counts of perjury and two counts ofembezzlement. Defendant appealed and this Court vacated one embezzlement conviction and remanded the remaining counts for a new trial. State v. Linney, 138 N.C. App. 169, 531 S.E.2d 245, disc. review denied and appeal dismissed, 352 N.C. 595, 545 S.E.2d 214 (2000). Defendant's second trial was held on 27 January 2003 before Judge Downs. The jury found defendant guilty of one charge of embezzlement committed 21 July 1993. They also found defendant guilty of two charges of perjury. The first was in case 96 CRS 8146 for representing on the 90-day inventory there was $27,855.00 in the Wachovia estate account when there was only $17,855.22 in the account; the difference being the $10,000.00 deposited into his firm's operating account. The second was in case 96 CRS 8147 for listing on the annual account there was $10,000.00 in a BB&T trust account, when the money had never been in a trust account and had been deposited into his firm's operating account. The trial court sentenced defendant to an active sentence of three years imprisonment on the embezzlement charge pursuant to the Fair Sentencing Act (Article 81A Chapter 15A) and to a suspended sentence of thirteen to sixteen months imprisonment on the perjury charges under Structured Sentencing (Article 81B of Chapter 15A). This sentence was suspended, to run at the expiration of the active sentence. Defendant appeals.
    I. Financial Privacy Act
    In defendant's first argument he contends the trial court erred by denying his motion to suppress his bank records, which heasserts were obtained in violation of the Financial Privacy Act (FPA).
    “[A] pretrial motion to suppress evidence is not sufficient to preserve for appellate review the issue of whether the evidence was properly admitted if the defendant fails to object at the time the evidence is introduced at trial.” State v. Barden, 356 N.C. 316, 332, 572 S.E.2d 108, 120 (2002), cert. denied, 538 U.S. 1040, 155 L. Ed. 2d 1074 (2003). As such, defendant's pretrial motion to suppress the bank records, standing alone, was not sufficient to preserve the question for appeal since defendant did not object at trial when the State offered the bank records into evidence. Nevertheless, defendant asserts that he was not required to renew his objection at trial in order to preserve this issue for appeal. Defendant bases this assertion on the 2003 amendment to Rule 103(a)(2) of the Rules of Evidence. N.C. Gen. Stat. § 8C-1, 103(a)(2). “This amendment, however, applies only to rulings made on or after 1 October 2003.” State v. Pullen, 163 N.C. App. 696, 701, 594 S.E.2d 248, 251-252 (2004) (citing 2003 N.C. Sess. Laws ch. 101). Since defendant's trial was held in January 2003, the prior rule applies. As a result, defendant has failed to preserve the issue of the admissibility of the bank records for appellate review.
    Defendant also assigns plain error to the admission of the bank records. To constitute plain error, “defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.”State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993). It is truly an exceptional case where the plain error rule is found to apply. State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 378 (1983). In deciding whether an error by the trial court constituted plain error, we examine the entire record. Id. at 661, 300 S.E.2d at 379. In order to determine if the trial court committed plain error, we must first consider whether the trial court even erred in admitting defendant's bank records. See Pullen, 163 N.C.App. at 701, 594 S.E.2d at 252.
    The North Carolina State Bar began investigating defendant after receiving allegations of mishandling and misuse of Ms. Alexander's assets and estate from the assistant district attorney in Buncombe County. In December 1995, the State Bar presented defendant with audit subpoenas requesting Ms. Alexander's bank records, as well as defendant's bank records from his personal and operating accounts. Defendant turned over all the bank records listed in the subpoena, except for his law firm's operating account and his personal accounts. In order to obtain the bank records of those accounts, the State Bar proceeded under the provisions of the Financial Privacy Act (FPA) (Chapter 53B of the General Statutes). In accordance with the FPA, the State Bar obtained an order from the Wake County Superior Court, and pursuant to that order, issued a subpoena and notice to the bank, sending a copy to defendant. The bank furnished the requested records to the State Bar. Defendant did not challenge the subpoena by seeking an order quashing it under the provision of N.C. Gen. Stat. § 53B-7. Subsequently, the SBI contacted the State Bar requesting access to those bank records. The State Bar provided defendant's bank records to the SBI.
    Defendant does not argue the State Bar obtained the bank records of his operating or personal account in violation of Chapter 53B. Rather, he contends it was improper for the State Bar to share the records it obtained under the FPA with the SBI. The issue before this Court is whether the provisions of the FPA prohibit the dissemination of the information acquired from one state agency to another, once those bank records were properly acquired.
    “It is the stated policy of the Financial Privacy Act 'that financial records should be treated as confidential and that no financial institution may provide to any government authority and no government authority may have access to any financial records except in accordance with the provisions of this Chapter.'” Velez v. Dick Keffer Pontiac-GMC Truck, Inc., 144 N.C. App. 589, 592, 551 S.E.2d 873, 875-76 (2001) (quoting N.C. Gen. Stat. § 53B-3) (emphasis added). It was improper for the SBI to obtain defendant's bank records from the State Bar, as the SBI is a governmental authority as defined by N.C. Gen. Stat. § 53B-2(4) and they did not comply with the requirements of the FPA in obtaining those records. Nevertheless, even if the trial court had not admitted the bank records, there was plenary evidence admitted at trial from other bank records that were not challenged, as well as testimony from witnesses, including defendant himself, from whichthe jury could have found defendant guilty. Thus, defendant has failed to demonstrate that the admission of the bank records amounted to plain error, such that absent the error the jury probably would have reached a different verdict. This argument is without merit.
    II. Jury Instructions
    In defendant's second argument, he contends the trial court committed reversible error because (1) the jury instructions were confusing; (2) the trial court deviated from the language in the pattern jury instructions; (3) the jury instructions pertaining to the charge of perjury committed on 18 September 1995 deviated from the indictment and evidence; and (4) the verdict sheet regarding that same perjury charge was inadequate. We disagree.
    First, defendant points to several instances in which he contends the trial court erred or committed plain error when instructing the jury, including but not limited to the trial court's: (1) deviation from the pattern jury instructions, which he contends amounted to an improper expression of opinion; and (2) instruction relating to the 18 September 1995 perjury charge, which defendant asserts was confusing and varied from the indictment and evidence. Defendant has combed through the transcript, pointing out every minor deviation or word misstatement of the trial court during its charge to the jury, including alleged errors in verb tense, which defendant asserts resulted in material prejudice to him.
    A. Deviation from Pattern Jury Instructions

    Defendant did not request that the judge charge the jury from the pattern jury instructions, nor did he object to any deviation from the pattern jury instructions at trial. Thus, defendant failed to preserve this issue for review. See State v. Keel, 333 N.C. 52, 56-57, 423 S.E.2d 458, 461 (1992). However, defendant asserts in his brief on appeal the deviation from the pattern jury instructions amounted to plain error. In order to constitute plain error, defendant must demonstrate to the appellate court that the error had a probable impact on the jury's verdict. Odom, 307 N.C. at 661, 300 S.E.2d at 379.
    After careful review of the entire instruction given we do not believe the trial judge's minor deviations from the pattern jury instructions prejudiced defendant in any manner as the judge's charge substantially complied with the applicable pattern jury instruction and was a substantially correct statement of the law. See State v. Singletary, 344 N.C. 95, 102, 472 S.E.2d 895, 899 (1996) . Thus, defendant has failed to meet his burden under plain error review.
    B. Judge's Expression of Opinion
    At trial, defendant did not assert that the judge impermissibly expressed his opinion in the giving of the jury instructions. However, defendant was not required to do so in order to preserve these issue for appellate review. State v. Young, 324 N.C. 489, 494, 380 S.E.2d 94, 97 (1989) (holding that since the prohibition against a trial judge expressing theiropinion is mandatory, a defendant need not object at trial to preserve the issue for appeal).
    When considering whether the trial court stated an impermissible opinion, its words “may not be detached from the context and the incidents of the trial and then critically examined for an interpretation from which erroneous expressions may be inferred.” State v. Nicholson, 355 N.C. 1, 59, 558 S.E.2d 109, 147, cert. denied, 537 U.S. 845, 154 L. Ed. 2d 71 (2002) (citations and internal quotation marks omitted). After careful review of the trial judge's instruction to the jury we are unable to discern any indication that the judge expressed any impermissible opinions.
    C. Jury Instructions on Perjury Counts
    Next, defendant contends the trial court's instructions regarding the two counts of perjury were confusing and erroneous.
    A review of the transcript indicates the trial court instructed the jury three times regarding the two perjury charges. Defendant objected to the first instruction given, which the court immediately corrected in accordance with defendant's objection. Following the trial court's reinstruction to the jury regarding the perjury charge, the judge asked defendant if he had any objections to the instruction. Defendant replied he had no further objections.
    Defendant failed to object to the court's subsequent instructions at trial, but asserts on appeal that the instructions given amounted to plain error. Therefore, we review this assignment of error in accordance with the plain error rule. Odom,307 N.C. at 661, 300 S.E.2d at 378-79. As previously noted, in order to constitute plain error, this Court must be convinced that absent the error, the jury probably would have reached a different verdict. Id.
    As previously stated, when reviewing a trial court's instructions to the jury for possible error, an appellate court must read the jury charge as a whole. Nicholson, 355 N.C. at 59, 558 S.E.2d at 147. The jury charge must be “construed contextually, and isolated portions will not be held prejudicial when the charge as [a] whole is correct. If the charge presents the law fairly and clearly to the jury, the fact that some expressions, standing alone, might be considered erroneous will afford no ground for reversal.” Id. (citations and internal quotation marks omitted). After carefully reviewing the instructions given as a whole, we cannot say they were confusing, much less rose to the level constituting plain error.
    Defendant further contends the trial court failed to properly differentiate between the two perjury counts in the subsequent instructions it gave when it stated: “The State must prove beyond a reasonable doubt that the Defendant made a statement in the 90- day account and/or that the Defendant made a statement in the final account of the estate of Georgiana Alexander[,]” when setting forth the elements in each of the charges of perjury. Defendant argues this type of instruction might have caused the jury to cumulate the evidence against him and find him guilty of either or both charges.    Defendant failed to object at trial to this asserted error, and relies on State v. Diaz, 317 N.C. 545, 346 S.E.2d 488 (1986) for the proposition that he did not need to object at trial in order to preserve this issue for appeal. Even assuming arguendo that defendant was not required to object at trial to preserve this issue on appeal, we would still conclude the trial court's instructions as to the perjury charges did not result in prejudice to defendant requiring a new trial.
    We must consider the entire jury charge “in the same connected way that the judge is supposed to have intended it and the jury to have considered it” in order to determine if there was error. Nicholson, 355 N.C. at 59, 558 S.E.2d at 147 (citations and internal quotation marks omitted). In the original jury charge, the trial court gave two separate instructions, one for each count of perjury. In the trial court's second instruction it used the phrase “and/or” when referring to the two separate counts of perjury. Although this Court highly disapproves of the term “and/or” as used by the trial judge, it does not constitute prejudicial error per se. State v. Ruffin, 90 N.C. App. 712, 717, 370 S.E.2d 279, 282 (1988). Finally, when the trial judge charged the jury for the third time on the two counts of perjury it stated:
        Now, to the perjury matters -- and again, members of the jury, remember my previous instructions as if I had repeated them all, and that is, that you will consider each case separate and apart one from the other and deal with them separately one from the other.
    In light of this instruction and considering the entire charge as given, we hold defendant has failed to demonstrate prejudicial error.
    C. Instructions Varied from Indictment and Evidence
    Defendant also asserts the judge's instructions regarding the 18 September 1995 perjury charge varied from the indictment and evidence presented at trial. Defendant also raises this issue in his fourth argument. We address this issue in that portion of the opinion.
    D. Verdict Sheet in 96 CRS 8147
    Defendant also complains the verdict sheet as to the 18 September 1995 perjury charge was confusing.
    Defendant had been a licensed attorney who represented himself. At the charge conference, defendant repeatedly stated he was satisfied with the verdict sheets. Since defendant did not object at trial to the verdict sheet, our review is limited to plain error. State v. Gilbert, 139 N.C. App. 657, 672-74, 535 S.E.2d 94, 103 (2000). After careful review of the verdict sheet, as well as the instructions given regarding the September 1995 perjury charge, defendant has failed to demonstrate that absent the perceived error, the jury probably would have reached a different verdict. This argument is without merit.
     III. Sufficient Evidence of Criminal Intent
    In defendant's third argument he contends the State failed to produce sufficient evidence of criminal intent with respect to the charge of embezzlement and the two counts of perjury, and thereforethe trial court erred in denying his motion to dismiss. We disagree.
     Defendant waived his right to appeal his first motion to dismiss made at the close of the State's evidence, since he introduced evidence following the denial of that motion. State v. Stevens, 9 N.C. App. 665, 667, 177 S.E.2d 339, 341 (1970). Therefore, on appeal we consider all of the evidence introduced at trial to determine whether the essential elements of the offenses charged are supported by substantial evidence and that defendant is the perpetrator. Id.; State v. Lucas, 353 N.C. 568, 580, 548 S.E.2d 712, 721 (2001). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. at 580-81, 548 S.E.2d at 721. The court must view all the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom. Id. at 581, 548 S.E.2d at 721 . Unless favorable to the State, the defendant's evidence is not to be considered and any c ontradictions or discrepancies in the evidence are to be resolved in favor of the State. Id. No matter whether the evidence is direct, circumstantial or both, t he test of the sufficiency of the evidence to withstand the motion to dismiss is the same. Id.
    A. Embezzlement
    “The fraudulent intent required for embezzlement is defined as the intent to 'willfully and corruptly use or misapply' another's property for purposes other than that for which it was held.” State v. Morris, 156 N.C. App. 335, 340, 576 S.E.2d 391, 394, cert. denied, 357 N.C. 510, 588 S.E.2d 379 (2003) (citations and internal quotation marks omitted). Intent, however, is a condition of the mind and is rarely, if ever, susceptible to proof by direct evidence. State v. Pigott, 331 N.C. 199, 211, 415 S.E.2d 555, 562 (1992). As such, intent may be proven by either direct or circumstantial evidence, that is, by facts and circumstances from which intent may reasonably be inferred. Morris, 156 N.C. App. at 340, 576 S.E.2d at 395. It is, therefore, proper for the fact finder to infer such intent by facts and circumstances in evidence. Id.
     The evidence, taken in the light most favorable to the State tended to show: (1) defendant as guardian took over Ms. Alexander's financial affairs; (2) Ms. Alexander was unable to communicate and suffered from dementia, thus defendant would have been unable to procure her consent to any further actions; (3) on 20 July 1993 defendant redeemed Ms. Alexander's CD, but did not deposit the funds into a fiduciary account; (4) defendant admitted he deposited the money using a deposit slip which was clearly marked for his law firm's “operating account”; (5) defendant gave three different versions of what occurred regarding the deposit of the funds from the CD into his operating account; (6) defendant never removed the funds from his account and deposited them into a trust account upon discovering the money had been deposited into his operating account; (7) defendant testified he did the accounting for his law office and that he had previously worked as a tax attorney for anaccounting firm; and (8) defendant admitted he converted the money to his own use when he stated at trial that “it was no longer Ms. Alexander's money once I determined it was a loan. It is true, I didn't write it down. But once I made the determination that the loan was mine, it's my money, it's no longer Ms. Alexander's money.”
     From this evidence, the jury could properly infer that defendant willfully and corruptly used or misapplied Ms. Alexander's property for purposes other than that for which it was held.
    B. Perjury
    In order to find a defendant guilty of perjury, the State must prove that the defendant had the requisite intent, i.e., the defendant “knowingly, wilfully and designedly” made a false statement. State v. Basden, 110 N.C. App. 449, 453, 429 S.E.2d 740, 742 (1993) (citing State v. Smith, 230 N.C. 198, 52 S.E.2d 348 (1949)). As we stated above, intent may be proven by circumstantial evidence, that is, by evidence of facts and circumstances from which it may be inferred. Morris, 156 N.C. App. at 340, 576 S.E.2d at 395.
    Based on the evidence recited above, which tended to show defendant's intent to embezzle funds from Ms. Alexander, the jury could infer that he knowingly, wilfully and designedly made a false statement on the 90-day inventory and the annual account of Ms. Alexander's estate in order to cover up his embezzlement. Furthermore, the evidence taken in the light most favorable to theState tended to show that the two documents contained inaccurate information.
    From the totality of the evidence, the jury could also properly infer that defendant knowingly, wilfully and designedly made a false statement on both the 90-day inventory and the annual accounting. Consequently, we hold that the trial court did not err in denying defendant's motion to dismiss the two counts of perjury. This assignment of error is without merit.
    IV. Indictment in 96 CRS 8147
    In defendant's fourth and final argument he contends there was a fatal variance between the indictment for the 18 September 1995 perjury charge (96 CRS 8147) and the evidence produced by the State at trial. We disagree.
     The indictment in 96 CRS 8147 stated in pertinent part that Mr. Linney committed perjury by:
        falsely assert[ing], on oath and being duly sworn, that (1) a BB&T Trust account contained $10,000 belonging to the Estate, and (2) the Estate received $1,372.37 dollars in cash and checks from the sale of house goods (sic)deposited on December 23, 1994 and the sale of household goods deposited on March 28, 1995 . . . .

Defendant made a pretrial motion for discovery requesting information as to whether the State intended to proceed on the false statement regarding the $10,000.00 or the false statement regarding the $1,372.37. Defendant also filed a motion for election or dismissal for duplicity of the September 1995 perjury charge, asking that the trial court order the State to elect and state a single offense alleged in the indictment upon which theState would proceed to trial. Defendant further requested that if the State failed to comply the court dismiss the indictment. The State responded that the two false statements were not two separate acts of perjury, but a single act of perjury that contained two false statements. The trial court denied defendant's motion for election or dismissal.
    Since defendant was found not guilty at his first trial of embezzling the checks and cash from the sale of Ms. Alexander's household goods, the trial court precluded the admission of any evidence regarding the sale of the household goods at the second trial. Therefore, the trial court did not instruct the jury on the September 1995 perjury charge concerning the false statement regarding the sale of household goods , but only submitted to the jury the crime of making a false statement that $10,000.00 of the estate's assets were in a BB&T trust account. Defendant maintains that the indictment charged two offenses; that is, the defendant could have been charged in two counts with two offenses, and thus, the prosecution should have been forced to elect between the two acts.
    Pursuant to N.C. Gen. Stat. § 15A-924(b), “[i]f any count of an indictment or information charges more than one offense, the defendant may by timely filing of a motion require the State to elect and state a single offense alleged in the count upon which the State will proceed to trial.” N.C. Gen. Stat. § 15A-924(b) (2004).     Defendant was charged with one offense of perjury for giving a false statement on the annual account for Ms. Alexander's estate. We agree with the State, that the two false statements were not two separate acts of perjury, but a single act of perjury arising out of a single document, the annual account, that contained two false statements . Therefore, when defendant made the two false statements on the annual account of Ms. Alexander's estate, it did not create two separate offenses. The trial court did not err in denying defendant's motion for election, as the indictment was not duplicative. See State v. Sellars, 52 N.C. App. 380, 387, 278 S.E.2d 907, 914 (1981) (holding the defendant was properly charged with committing one offense of armed robbery even though defendant obtained money both from an employee as well as the business).
    Defendant argues in the alternative that if we find the indictment was not duplicative, then the State should have been required to prove both allegations or face dismissal based on the insufficiency of the evidence.
     “'[W]here an indictment sets forth conjunctively two means by which the crime charged may have been committed, there is no fatal variance between indictment and proof when the state offers evidence supporting only one of the means charged.'” State v. Birdsong, 325 N.C. 418, 423, 384 S.E.2d 5, 8 (1989) (citations omitted). As such, the State was not required to put on evidence of both allegations of making a false statement on the annual account. The State introduced sufficient evidence with regard tothe false statement concerning the $10,000.00. This argument is without merit.
    The record on appeal contains numerous other assignments of error, which defendant failed to address in his brief to this Court. Pursuant to Rule 28(b)(6) of our Rules of Appellate Procedure they are deemed abandoned.
    NO ERROR.
    Judges MCGEE and HUDSON concur.
    Report per Rule 30(e).

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