STATE OF NORTH CAROLINA
v
.
New Hanover County
No. 03 CRS 10927
NIA MALIKA PERKINS
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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