An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-659

NORTH CAROLINA COURT OF APPEALS

Filed: 5 April 2005

STATE OF NORTH CAROLINA

v .                         New Hanover County
                            No. 03 CRS 10927
NIA MALIKA PERKINS

    Appeal by defendant from judgment entered 7 January 2004 by Judge Paul L. Jones in New Hanover County Superior Court. Heard in the Court of Appeals 13 January 2005.

    Attorney General Roy Cooper, Attorney General by Assistant Attorney General, Michelle B. McPherson, for the State.

    Haral E. Carlin, for the defendant-appellant.

    JACKSON, Judge.

    The issues presented on appeal to this court are whether: (1) amending the indictment altered an essential element of the offense; (2) there was insufficient evidence to charge defendant with obtaining property by false pretenses; (3) the court committed plain error by responding to the jury in open court without the jury present and by failing to allow the jury to review evidence; and (4) the court committed reversible error by allowing hearsay testimony.
    On 7 January 2004, a jury found Nia Perkins (“defendant”) guilty of one count of obtaining property by false pretenses. The original indictment alleges that defendant deposited a check drawn on Wachovia Bank from Blue Cross Blue Shield of North Carolina. The amount on the check had been altered so that it read $9,514.08 instead of $24.58, and the name of the payee had been changed from Laura Thomas to defendant. Prior to trial, the trial court granted the State's motion to amend the indictment to change the wording from “defendant deposited into her checking account a check drawn on Wachovia” to “defendant presented and cashed a check drawn on Wachovia.” The trial court also granted the State's motion to amend the 7 February 2003 date alleged in the indictment to 16 April 2003, the date of the offense as proved by the evidence. The Court dismissed defendant's renewed motion to dismiss made pretrial and defendant's motion to dismiss at trial the charges for lack of substantial evidence.
    On 16 April 2003, defendant entered the State Employees' Credit Union (the “Credit Union”) in Wilmington, North Carolina and presented teller Karen Johnson (“Johnson”) a Blue Cross Blue Shield check (“the check”) to be cashed for $9,514.08. Johnson's supervisor, Deborah Moore (“Moore”), initialed the check because it was over the cash disbursement limit. Subsequently, Blue Cross Blue Shield returned the check to the Credit Union with a “Suspect Fraud” stamp on the back. Over defendant's hearsay objection, Johnson testified that she recognized the check as the one she cashed for defendant and as the one that returned with the stamp “Suspect Fraud.” The check appeared to be unaltered except for a box where figures ere unusually “blacked.”
    Moore documented the check and contacted Blue Cross Blue Shield to confirm whether the check was fraudulent. Moore alsoleft messages at defendant's home telephone number and sent two letters to defendant demanding repayment of the money, one on 23 April 2003 both by regular mail and by certified mail and one on 24 April 2003 by regular mail. The Credit Union received defendant's signed return service card but defendant failed to respond. Subsequently, the Credit Union contacted the Wilmington Police Department regarding the matter.
    On 30 April 2003, the Wilmington Police Department assigned Detective Charles Bost (“Detective Bost”) to the case. Detective Bost contacted defendant on 9 May 2003. The Credit Union gave Detective Bost the check from defendant and photographs from a videotape showing defendant cashing the check. At trial, the State introduced photographs from this videotape and published them to the jury pursuant to defendant's stipulation.
    Detective Bost testified that defendant told him she was aware of the problem and believed it to be a clerical error. Detective Bost then urged defendant to correct the problem with Blue Cross Blue Shield. After researching defendant's case, Detective Bost unsuccessfully attempted to contact defendant again. On 13 May 2003, another person tried to cash a check from Blue Cross Blue Shield that contained the same routing number from defendant's check. This check was declined because of the earlier suspected fraud.
    Amy Styles (“Styles”), director of Blue Cross Blue Shield's finance department, maintained records of every check issued and testified that the check issued to defendant was not issued by BlueCross Blue Shield. The State entered into evidence another check (“the second check”) with the same number as defendant's check. Styles testified as to the difference between the second check and the check presented by defendant, explaining that Blue Cross Blue Shield keeps images of every check it issues.
    Defendant testified that she believed her check was from a workers' compensation claim regarding an injury sustained on 23 April 2002. Defendant acknowledged she previously had received two checks from her workers' compensation carrier, Liberty Mutual Group. David Hanes (“Hanes”), the regional sales manager for Blue Cross Blue Shield, testified that Blue Cross Blue Shield does not sell workers' compensation coverage and that defendant had never filed any workers' compensation claim with the company.
    Defendant testified that she cashed the check because her checkbook and identification were stolen in 2001. Because of the identity theft, there were several warrants out for her arrest. She was afraid to return Detective Bost's telephone calls because of this identity theft. Defendant offered no corroborating evidence regarding the identity theft. There is no evidence that defendant contacted the Credit Union where she cashed the check, nor any evidence defendant attempted to speak with anyone regarding the check, although defendant did contact a Credit Union near her home concerning her child's account.
     During their deliberations, the jury sent a note to the trial judge. The judge read the note in open court and in the presence of defendant and her attorneys, but the jury was not escorted intothe courtroom during the reading of the note. The trial judge informed the jury they could review the exhibits, but he could not recite the evidence for them. The jury made a second inquiry and the court escorted the jury into the courtroom. The trial judge instructed the jury not to assume or to add anything not in evidence. During this discussion, juror nine explained to the trial judge that gaps were being generated because they were unable to ask questions while they were deliberating. The trial judge explained to the juror that this is “why we have jury trials.”
    Defendant first contends the trial court erred when it allowed the State to alter an essential element of the offense of false pretenses when it amended the indictment. Defendant asserts that this court should reverse the false pretenses conviction because this amendment prejudiced her.
    Based on our General Statutes, a bill of indictment cannot be amended. N.C.G.S. § 15A-923(e)(2003). However, our Supreme Court has interpreted this statute to mean that a bill of indictment can be amended if the change does not substantially alter the charge set forth in the indictment. State v. Brinson, 337 N.C. 764, 767, 448 S.E.2d 822,824 (1994); see also State v. Cathey, 162 N.C. App. 350, 352, 590 S.E.2d 408,410 (2004). Further, because defendant is charged with a statutory offense, the State must set forth all essential elements of that offense in the indictment. State v. Grady, 136 N.C. App. 394, 396, 524 S.E.2d 75, 77 (2000), disc. rev. denied, 352 N.C. 152, 544 S.E.2d 232 (2000).     “Our Supreme Court has defined the offense of false pretenses as '(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. Edwards, 150 N.C. App. 544, 547, 563 S.E.2d 288, 290 (2002)(quoting State v. Cronin, 299 N.C. 229, 242, 262 S.E.2d 277, 286 (1980)).
    N.C.G.S. § 14-100(a) defines obtaining property by false pretenses and provides, in pertinent part:
        knowingly and designedly by means of any kind of false pretense . . . obtain or attempt to obtain from any person within this State any money, . . . property, . . . or other thing of value with intent to cheat or defraud any person . . . shall be guilty of a felony.

N.C.G.S. 14-100(a)(2003). Notably, the statute does not require defendant to accomplish the completed act of “obtaining property” by false pretenses. Defendant can meet the definition of obtaining property under false pretenses by merely “ attempt[ing] to obtain money [or] . . . property . . . with the intent to cheat or defraud.” (emphasis added) N.C.G.S.§ 14-100(a)(2003). Changing the indictment wording from “defendant deposited into her checking account a check drawn on Wachovia” to “defendant presented and cashed a check drawn on Wachovia” did not alter substantially the false pretenses charge. Under the definition stated in N.C.G.S. § 14-100(a), the State still could charge defendant with obtaining property under false pretenses whether defendant “presented and cashed a check” or whether “defendant deposited the check into herchecking account.” There was no substantial change of the wording in the indictment that would alter the charge of false pretenses.
    Defendant further contends that she was prejudiced when the trial court allowed the State to alter an essential element of false pretenses in the indictment. However, defendant was aware of the false pretenses charge and had reasonable opportunity to prepare a defense to this charge. Both state statute and case law set out the definition of false pretenses and obtaining property by false pretenses. Thus, defendant knew of the crime charged and had every opportunity to present a defense to this charge regardless of whether defendant believed the indictment stated that she cashed rather than deposited the check.
    Accordingly, the trial court did not substantially alter the charge set forth in the indictment, and this assignment of error is overruled.
    Defendant further contends the State violated N.C.G.S. § 15A- 923(a)(2003) when the trial court allowed amendment of the indictment to reflect accurately the date of the offense, thereby substantially altering an essential element of the offense.
    As previously noted, this statute only prohibits amending an indictment that substantially alters the charge set forth in the indictment. State v. Carrington, 35 N.C. App. 53, 58, 240 S.E.2d 475, 478, disc. rev. denied, 294 N.C. 737, 244 S.E.2d 155 (1978). Our Supreme Court has stated that “[when] time is not of the essence of the offense charged, an indictment may not be quashed for failure to allege the specific date on which the crime wascommitted.” State v. Price, 310 N.C. 596, 599, 313 S.E.2d 556, 559 (1984)(quoting State v. Best, 5 N.C. App. 379, 382, 168 S.E.2d 433, 435 (1969)). Thus, “where time is not an essential element of the crime, an amendment relating to the date of the offense is permissible. . . .” State v. May, 159 N.C. App. 159, 162, 583 S.E.2d 302, 304 (2003).
    Defendant correctly states time is material when it prevents her from preparing an adequate defense. However, when examining the elements of obtaining property by false pretenses set out by our Supreme Court, time clearly is not an essential element of the crime. Therefore, when the trial court allowed the State to amend the indictment reflecting a different date, there was no substantial alteration of the charge set forth in the indictment. Because time is not an essential element of obtaining property by false pretenses, defendant could, and did, prepare a defense in anticipation of the crime charged. Further, “the State may prove that an offense charged was committed on some date other than the time named in the bill of indictment.” Price, 310 N.C. at 599, 313 S.E.2d at 559 (1984)(citing State v. Wilson, 264 N.C. 373, 377, 141 S.E.2d 801, 804 (1965)). Defendant did not rely on the defense of alibi, and therefore, she can show no prejudice from this amendment. Accordingly, this assignment of error is overruled.
    Defendant next asserts that the trial court erred when it did not grant her motion to dismiss based on insufficiency of the evidence. Defendant alleges that the State failed to presentsufficient evidence to show defendant's representation was calculated and that she intended to deceive. We disagree.
    When denying a defendant's motion to dismiss, “the trial court must determine only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.” State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996)(citing State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991)); see also State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255-66, disc. rev. denied, 537 U.S. 1006, 154 L. Ed. 2d 404 (2002). Our Supreme Court defines “substantial evidence” as evidence “relevant and adequate to convince a reasonable mind to accept a conclusion.” Robinson, 355 N.C. at 336, 561 S.E.2d at 255 (citing State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995)). The trial court does not weigh the evidence, consider evidence unfavorable to the State, or determine any witness' credibility. State v. Lucas, 353 N.C. 568, 581, 548 S.E.2d 712, 721 (2001).
    Because defendant is charged with obtaining property by false pretenses, the State must show that the act was done “knowingly and designedly . . . with intent to cheat or defraud.” N.C.G.S. § 14-100(a)(2003). We believe the record reveals sufficient evidence that would allow a jury to draw a reasonable inference demonstrating that defendant intended to defraud and deceive. State v. Walston, 140 N.C. App. 327, 331, 536 S.E.2d 630, 633 (2000).    The State presented evidence that defendant: (1) presented and cashed a check made out to her for $9,514.08 and requested the full amount; (2) drove to a Credit Union other than the Credit Union she regularly visited; (3) refused to return phone calls placed to her by both Credit Union representatives and Detective Bost; (4) failed to contact the Credit Union to “clear up the matter” as advised by Detective Bost; and (5) had never filed a workers' compensation claim with Blue Cross Blue Shield, contrary to her trial testimony. In considering this evidence in the light most favorable to the State, a jury could draw a reasonable inference that defendant knew the check was fraudulent, presented and attempted to cash a check at the Credit Union, and had the requisite intent to defraud the Credit Union of those funds. Thus, we find the trial court properly denied defendant's motion to dismiss and we overrule this assignment of error.
    Next, defendant asserts that the trial court erred when it responded to the jury in open court without the jury present and when it failed to allow the jury to review evidence.
    A jury must be in the courtroom when requesting to review evidence and when the court responds to such request. N.C.G.S. § 15A-1233 (2003); State v. Ashe, 314 N.C. 28, 34, 331 S.E.2d 652, 656 (1985). When the trial court instructs the jury, N.C.G.S. § 15A-1232 states:
        the judge shall not express an opinion as to whether or not a fact has been proved and shall not be required to state, summarize, or recapitulate the evidence, or to explain the application of the law to the evidence.
    Defendant argues the trial court inappropriately responded to two separate jury inquiries. Regarding the first inquiry, the jury did not make a request to review testimony or exhibits. Rather, the jury requested the court to “recapitulate the evidence,” which the court is not required to do:
        Jury:         Please inform the jury of the dates of the checks (all three of them) the $2,683.78, $3,951.43, $9,014.08 Blue Cross/Blue Shield and please provide any information concerning any other checks, such as the $24 check. Please provide any information concerning the State Employees Credit Union intercepted the second counterfeit check, the date, amount, any discrepancies.

        Court:        I will be inclined to tell them that, look, if you want to see the exhibits, fine, but the other information for you to recall the evidence and that's all we can do. Tell them the Court says we can give them exhibits, but that's all the information we can provide that the jury would be able to examine the exhibits but it was their job to recall the evidence.

    Approximately twelve minutes after the trial court requested the Bailiff to relay this information, the jury was escorted into the courtroom, and the trial court responded in open court to the jury's second inquiry.
        Court:        I understand you have another question or inquiry?

        Juror:        Related to the counterfeit check in the amount of$9,514.08, that it has a part at the bottom of it, it looks like it was part of another piece of paper that was perforated and you could just tear it off. But there was a small white strip of paper that was stuck to the back of the side of the check that looked like it was cut with scissors and we'd just like to know if there was another part of that check or why that piece of paper, that stripped white paper adhering to the back of the check, is there?

        Court:        Let me say this here: You can't assume anything which is not in evidence so don't add anything which is not in evidence so don't add anything to it, take anything from it. You have to take the exhibit just like you find it, period. Anything further?

        Juror:        The other bogus check which we referred to but really don't have any background information on with the same routing number, it doesn't have any pertinence on this or is it just somebody else that fabricated the check with the same numbers?

        Court:        You have to determine whether or not it's relevant. I mean, that's why we have jury trials, you discuss that. I can't add anything to it, they can't add anything to it. You have to determine for yourself. It's up to you to recall the evidence. All the evidence has been presented by the Defendant, so you can't after you begin deliberations, request information that was not presented into evidence.
        Juror:        The problem being we can't ask questions while we're sitting here and gaps are generated.

        Court:        Well, that's why we have jury trials. Okay, resume your deliberations. Does anybody else have a question before I send you back? Okay.

    As noted previously, the court is not required to “recapitulate the evidence” or explain how to apply the law in comparison with the evidence presented at trial. N.C.G.S. § 15A-1232 (2003).
    Defendant also asserts that in both the jury's first and second inquiries, the court refused to allow the jury to examine the exhibits. However, based on the record before this Court, the trial court properly informed the jury that all exhibits were available for their review upon request. Additionally, the trial court appropriately rejected the jury's request for a summary or recital of the evidence. Thus, we overrule this assignment of error.
    Finally, defendant asserts that the trial court committed reversible error by allowing hearsay testimony in violation of the North Carolina Rules of Evidence. Defendant contends the State did not: (1) present any witnesses to attest to the authenticity of the “Suspect Fraud” stamp on the back of the check at issue; (2) lay proper foundation for the admissibility of the check; or (3) offer testimony of any witness who was present at the time the bank stamped and processed the check. (DB26-27)     North Carolina Rules of Evidence 801(a) and (c) defines hearsay as follows:
        “Hearsay” is a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. . . . A statement is an oral or . . . written assertion or nonverbal conduct of a person, if it is intended by him as an assertion.

    Hearsay is not admissible absent an applicable exception. N.C.G.S § 8C-1, Rule 802 (2003). When a statement is not being offered for the “truth of the matter asserted,” the statement is not considered hearsay and, therefore, is admissible. State v. Gainey, 355 N.C. 73, 87, 558 S.E.2d 463, 473 (2002), cert. denied, 537 U.S. 896, 154 L. Ed. 2d 165 (2002).
    During trial, defendant objected to Johnson's testimony on the grounds that her testimony constituted hearsay as follows:
        State:        Ms. Johnson, I show you what's marked for identification as State's Exhibit No. 1. What is that?

        Witness:        It's a check from Blue Cross Blue Shield made payable to Ms. Perkins for $9,514.08.

        State:        And do you recognize that check?

        Witness:        I sure do.
        State:        How do you recognize it?

        Witness:        Because I saw it the day that I cashed it for her and I saw it when it came back stamped “Suspect Fraud.”

        Defense:        Objection.
        Court:        Objection to what?        Defense:        Hearsay, the stamp on it, there is no foundation for the business record exception.

        Court:        Well, the check says what it says.

        Defense:        This is something that was added to the check, You Honor.

        State:        And, Your Honor, it's not really being offered for the proof of that, but she's just saying what the check says. Yes, sir, and it's not really offered for the proof of what's stamped on it. . . .

        State:        Your Honor, it's not offered for the proof of what it says at this time, but just as a check that was presented to this teller.

    Based on the record evidence before this court, the State offered the check into evidence as the same check defendant presented and cashed on 16 April 2003. The stamp on the back of the check was not being offered to prove that the check was fraudulent, merely to identify it as the check presented by defendant. The record also indicates that the State offered additional evidence to prove the check was fraudulent.
    Defendant relies on State v. Sibley, 140 N.C. App. 584, 537 S.E.2d 835 (2000), to support her hearsay contention. In Sibley, the defendant was convicted of possession of a firearm by a felon. Id. at 585, 537 S.E.2d at 837. At trial, the State offered a videotape into evidence over the objection of the defendant. Id. The defendant argued that the date in the videotape was being offered to prove the defendant carried a firearm after the date ofhis prior felony. Id. at 586-87, 537 S.E.2d at 838. The court found that the date on the videotape was inadmissible hearsay. Id. at 588, 537 S.E.2d at 839. In Sibley, the date in the videotape was offered expressly to show that the defendant carried a firearm after his felony conviction. Id.
    Here, however, the stamp on the back of the check was not being offered to prove the truth of the matter asserted - that the check was fraudulent. Rather, the State offered the check and Johnson's testimony to prove that the check was the same one defendant presented and cashed. Therefore, defendant misapplies this Court's ruling in Sibley and thus, this assignment of error is overruled.
    Accordingly, we hold the trial court did not commit reversible error when it: (1) allowed the State to amend the indictment against defendant; (2) denied defendant's motion to dismiss based on insufficiency of the evidence; (3) responded to the jury's inquiries; and (4) overruled defendant's hearsay objection.
    No Error.
    Judges HUNTER and BRYANT concur.
    Report per Rule 30(e).

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