An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-824

NORTH CAROLINA COURT OF APPEALS

Filed: 15 November 2005

STATE OF NORTH CAROLINA

v .                         Cabarrus County
                            Nos. 02 CRS 7367
DANNY RAY WILLIAMS,                    02 CRS 10596
        Defendant.

    Appeal by defendant from judgment entered 23 July 2003 by Judge W. David Lee in Cabarrus County Superior Court. Heard in the Court of Appeals 21 March 2005.

    Attorney General Roy Cooper, by Assistant Attorney General J. Philip Allen, for the State.

    Daniel F. Read, for defendant-appellant

    HUDSON, Judge.

    In July 2003, a jury found defendant guilty of attempting to obtain property by false pretenses (OPFP). Defendant admitted his status as a habitual felon and received an active sentence of 117 to 150 months. Defendant appeals, and for the reasons discussed below, we conclude that there was no error.
    The evidence tends to show that on 18 April 2002, defendant attempted to write a check at an Athlete's Foot store. The store clerk, Jamie Vanzandt, testified that defendant picked out merchandise, brought it to the register, and handed him a check. The check, which bore the name and address “Rocky E. Pack 2nd”, already had the date filled out and a “squiggle” on the signature line. Defendant filled in the store name and purchase amount(about $250). Vanzandt asked to see defendant's identification and defendant handed him the driver's license of Donovan Cornelius McCaskill. Vanzandt noted that the name on the check and on the driver's license did not match and defendant said that the checkbook belonged to his stepfather. The check and ID were sitting on a tray by the register. Vanzandt called over the store manager, Jason Lee, but defendant picked up the check and the driver's license and quickly left the store.
    Lee called the police from his cell phone and followed defendant from a distance. About five minutes after leaving the store, police approached defendant, after being identified by Lee. When an officer told defendant that they were investigating an attempt to pass a check, defendant pulled out a checkbook of blank Rocky Pack checks and said that Mr. Pack, a friend, had given him the checks in repayment of a debt. The officer asked for defendant's identification and he presented his own driver's license. Lee pointed out that the driver's license presented in the store had not been defendant's and defendant said that he also had his cousin's driver's license and produced McCaskill's license. Defendant said that he had McCaskill's ID from the night before, had forgotten to give it back to him, and that if he had shown it to Vanzandt, it was an accident. The police searched for, but did not find, the filled-in check that defendant presented at the Athlete's Foot; the partially completed check was still in the book when defendant left the store. A police officer called the bank and determined that the Rocky Pack account had been closed. Defendant claimed he did not know the account was closed.
    At trial, defendant testified that he never wrote a check at Athlete's Foot, but merely asked if they would accept a check. He also testified that he never showed Vanzandt the McCaskill license and that he was unaware that the Pack account was closed.
    In his first assignment of error, defendant contends that the trial court erred in denying his motion to dismiss for insufficiency of the evidence. We disagree.
    On review of the trial court's ruling on a motion to dismiss, we consider whether the State presented “substantial evidence” in support of each element of the charged offense and of defendant's identity as the perpetrator. State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980) (internal citation omitted). The ultimate question is whether a reasonable inference of the defendant's guilt may be drawn from the circumstances. State v. Lee, 348 N.C. 474, 488, 501 S.E.2d 334, 343 (1998). On appeal, this Court evaluates the evidence in the light most favorable to the State. State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998). And we must resolve contradictions in favor of the State. Id. However, the evidence supporting the State's case must be real and substantial, not merely speculative. State v. Reese, 319 N.C. 110, 139, 353 S.E.2d 352, 368 (1987), overruled on other grounds, State v. Barnes, 345 N.C. 184, 231, 481 S.E.2d 44, 71 (1997) .     The offense of obtaining property by false pretenses (OPFP) has four elements:
        (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); N.C. Gen. Stat. § 14-100(a) (2003). Defendant argues that there was insufficient evidence of the representation element. He contends that there was no evidence that he represented that he was
Rocky Pack or the owner of the account--that he never claimed it was his. He also contends that he produced McCaskill's ID in error. However, we note that defendant only told the store clerk that the check was not his after he was asked for identification. We conclude that as the State's evidence showed that defendant presented a check off of Rocky Pack's account to Vanzandt, without first explaining that he was not Rocky Pack, that the jury could reasonably conclude that defendant misrepresented his identity. Further, although defendant contends that he produced McCaskill's ID in error, we conclude that there was sufficient evidence for a “reasonable mind [to] accept as adequate to support a conclusion” of defendant's guilt. Smith, 300 N.C. at 78-79, 265 S.E.2d at 169.
    Defendant also contends that there was insufficient evidence of intent to deceive and actual deception. He argues that because he and McCaskill look so different, that he could not have intendedto deceive or actually deceive when he produced McCaskill's ID. Defendant cites State v. Linker, 309 N.C. 612, 308 S.E.2d 309 (1983), in support of his assertion that he lacked the necessary intent to deceive. In Linker, the Court overturned Barry L. Linker's conviction for cashing a check on Barry W. Linker's account because defendant Barry L. Linker never misrepresented himself as Barry W. Linker, as alleged in the indictment. Id. However, Linker is inapposite, as the Court in that case overturned the conviction because of a fatal variance between the indictment and the proof. Id. at 612, 308 S.E.2d at 309. Here, we have no such issue. We conclude that here there was sufficient evidence for the jury to conclude that defendant intended to deceive Vanzandt when he produced McCaskill's ID. Regarding defendant's assertion that there was no actual deception, it is well-established that actual deception need not be proved to sustain a charge of attempted OPFP. State v. Armstead, 149 N.C. App. 652, 653, 562 S.E.2d 450, 452 (2002); State v. Wilburn, 57 N.C. App. 40, 46, 290 S.E.2d 782, 786 (1982).
    In his next argument, defendant contends that the evidence supports, at most, a charge of attempting to pass a worthless check. In support of this argument, defendant cites State v. Freeman, 308 N.C. 502, 302 S.E.2d 779 (1983). However, defendant concedes that in State v. Rogers, 346 N.C. 262, 485 S.E.2d 619 (1997), the Court expressly overturned the portion of Freeman that held additional misrepresentation beyond the presentation of a worthless check was required to sustain a conviction of OPFP: “thewriting and passing of a worthless check, in exchange for property, standing alone, is sufficient to uphold a conviction for obtaining property under false pretenses.” Rogers, 346 N.C. at 263, 485 S.E.2d at 620. While defendant disagrees with the holding of Rogers, it is the law; thus, we overrule this assignment of error.
    Defendant also asserts that the trial court committed plain error by instructing the jury on OPFP when the evidence only supported a charge of attempting to pass a worthless check. Reversal of the trial court is rarely warranted for plain error and “the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury's finding of guilt.” State v. Odom, 307 N.C. 655, 661; 300 S.E.2d 375, 379 (1983) (internal citations omitted). Here, we have already concluded that there was sufficient evidence of OPFP. Furthermore, passing or attempting to pass worthless checks is not a lesser included offense of OPFP. Freeman, 308 N.C. at 514, 302 S.E.2d at 786. Accordingly, defendant's next argument, that his counsel's failure to request a charge to the jury on attempting to pass a worthless check constituted ineffective assistance of counsel, fails as well.
    We conclude that defendant's final argument, that his sentence as a habitual felon was unconstitutionally cruel and unusual punishment, also lacks merit. Defendant received a sentence of 115 to 150 months due to his status as a habitual felon per N.C. Gen. Stat. 14-7.1 (2003). He argues that this sentence was grosslydisproportionate to his crime, in violation of the Eighth Amendment of the United States Constitution. However, both the United States and North Carolina Supreme Courts have concluded that recidivist statutes, which enhance the sentences of habitual felons, do not violate the Eighth Amendment. See Ewing v. California, 538 U.S. 11, 25, 155 L. Ed. 2d 108, 120 (2003); Lockyer v. Andrade, 538 U.S. 63, 155 L. Ed. 2d 144 (2003); State v. Todd, 313 N.C. 110, 119, 326 S.E.2d 249, 254 (1985). More specifically, this Court held in State v. Clifton, that a sentence of 168 to 211 months for two counts of OPFP and being a habitual felon was not so “grossly disproportionate” to the crime as to violate the Eighth Amendment ban on cruel and unusual punishment. 158 N.C. App. 88, 96, 580 S.E.2d 40, 46, cert. denied, 357 N.C. 463, 586 S.E.2d 266 (2003). Defendant attempts to distinguish Clifton by arguing that his case only involved attempted OPFP. However, this Court applies the “grossly disproportionate principle, remembering that only in exceedingly unusual non-capital cases will the sentences imposed be so grossly disproportionate as to violate the Eighth Amendment's proscription of cruel and unusual punishment.” Id. at 94, 580 S.E.2d at 45 (internal quotations and citations omitted). We conclude that, as in Clifton, this sentence is not “exceedingly rare” or “extreme,” nor is it “grossly disproportionate.”
    No error.
    Judges MARTIN and JACKSON concur.
    Report per Rule 30(e).

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