STATE OF NORTH CAROLINA
v. Buncombe County
No. 03 CRS 62374
PAMELA YVONNE JAMES 04 CRS 2740
Attorney General Roy Cooper, by Special Deputy Attorney
General William P. Hart and Assistant Attorney General
Spurgeon Fields, III, for the State.
Thorsen Law Offices, by Haakon Thorsen for defendant-
appellant.
LEVINSON, Judge.
Pamela Yvonne James (defendant) appeals from her conviction of
attempt to obtain property by false pretenses and assault on a
government official/employee. For the reasons that follow, we find
no error.
The State's evidence at trial tended to show the following: On
25 September 2003 Kimberly Price (Price), was working as supervisor
of the cashiers at the Tunnel Road K-Mart. K-Mart cashiers are
trained to use a counterfeit detection pen on all bills $20 and
higher to determine if the bills are genuine or counterfeit. When
defendant attempted to purchase a purse and a carton of cigarettes
with two $20 bills, the cashier tested the bills as trained anddetermined the bills were counterfeit. The cashier brought the
counterfeit money to the attention of Price, who in turn, called
for the store's assistant manager, Janice Coxe (Coxe).
After Coxe observed that the two $20 bills were indeed
counterfeit, she took defendant to the service desk. While waiting
for the police to arrive, Coxe questioned defendant about the
counterfeit $20 bills and defendant told her that she obtained “the
money from the bank.” When the police arrived at the store,
defendant was yelling and screaming. The police observed a strong
order of alcohol emitting from defendant's person. The police
asked defendant why she used the $20 bills and defendant responded
that “she received [the $20 bills] from her landlord.”
A jury found defendant guilty of attempting to obtain property
by false pretense. Defendant subsequently pled guilty to assault
on a government official/employee. The trial court consolidated
the charges, sentenced defendant to a minimum of eleven months and
a maximum of fourteen months imprisonment. The trial court
suspended defendant's sentence and placed her on supervised
probation for thirty-six months. Defendant appeals.
Defendant first contends the trial court erred by not granting
her motion to dismiss based on insufficiency of the evidence.
Defendant alleges that the State failed to present sufficient
evidence to show defendant's representation was calculated and that
she intended to deceive. We disagree.
The standard for ruling on a motion to dismiss "is whether
there is substantial evidence (1) of each essential element of theoffense charged and (2) that defendant is the perpetrator of the
offense.” State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814
(1990). Substantial evidence is that relevant evidence which a
reasonable mind might accept as adequate to support a conclusion.
State v. Patterson, 335 N.C. 437, 449-50, 439 S.E.2d 578, 585
(1994) (citing State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61
(1991)). In ruling on a motion to dismiss, the trial court must
consider all of the evidence in the light most favorable to the
State, and the State is entitled to all reasonable inferences which
may be drawn from the evidence. State v. Davis, 130 N.C. App. 675,
679, 505 S.E.2d 138, 141 (1998).
N.C. Gen. Stat. § 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. . . .
N.C.G.S. § 14-100(a)(2003). Our Supreme Court has interpreted G.S.
§ 14-100(a) as consisting of the following 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. Parker, 354 N.C.
268, 284, 553 S.E.2d 885, 897 (2001) (quoting State v. Cronin, 299
N.C. 229, 242, 262 S.E.2d 277, 286 (1980)).
The State presented evidence that: (1) defendant presented
two $20 bills to buy a purse and cigarettes; (2) the two $20 billstested as counterfeit; and (3) defendant told the K-Mart assistant
manager that she obtained the bills from the bank, but told the
police who arrived at the scene that she received the bills from
her landlord. In considering this evidence in the light most
favorable to the State, a jury could draw a reasonable inference
that defendant attempted to purchase merchandise with counterfeit
money and had the requisite intent to deceive the store. Thus, we
hold the trial court properly denied defendant's motion to dismiss
and we overrule this assignment of error.
Defendant next contends the trial court erred in instructing
the jury on the elements of attempting to obtain property by false
pretenses. The court instructed the jury that the elements of
attempting to obtain property by false pretenses were:
First, that the Defendant made a
representation to another. Second, that this
representation was false. Third, that this
representation was calculated and intended to
deceive. Fourth, that the Defendant was in
fact deceived by misrepresentation. And fifth,
that the Defendant thereby attempted to obtain
property. (emphasis added).
After a discussion was held off the record, the trial court
informed the jurors that it may have misstated the elements of the
crime. The court then instructed the jury that the elements were:
First, that the Defendant made a
representation to another. Second, that this
representation was false. Third, that the
representation was calculated and intended to
deceive. Fourth, that the victim was, in fact,
deceived by the representation. And fifth,
that the Defendant thereby attempted to obtain
property from the victim.
While defendant admits that this instruction is consistentwith North Carolina Pattern Jury Instructions on obtaining property
by false pretense, defendant argues the trial court's instruction
did not require the State to prove she had the necessary intent.
Defendant failed to object to the jury instruction at trial.
Accordingly, to prevail on appeal, defendant must show that the
trial court's instruction constituted plain error. N.C.R. App. P.
10(b)(2) and (c)(4).
Plain error arises when the error is “'so
basic, so prejudicial, so lacking in its elements that justice
cannot have been done[.]'” State v. Odom, 307 N.C. 655, 660, 300
S.E.2d 375, 378 (1983)(quoting United States v. McCaskill, 676 F.2d
995, 1002 (4th Cir. 1982)).
Here, the trial court's jury instruction is consistent with
the North Carolina Pattern Jury Instruction on obtaining property
by false pretense, which comports with our Supreme Court's
interpretation of N.C.G.S. § 14-100. Accordingly, defendant has
failed to show that the trial court committed plain error in its
instructions and this assignment of error is overruled.
This opinion is without prejudice to defendant filing a motion
for appropriate relief regarding her ineffective assistance of
counsel claim.
No error.
Judges McGEE and HUDSON concur.
Report per Rule 30(e).
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