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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. LOURETHA MAE KING
Filed: 20 June 2006
1. Forgery--sufficiency of indictments
The trial court did not err by concluding the thirteen forgery indictments were not fatally
defective, because: (1) the indictments set forth all of the elements of the offense; (2) the
indictments do not have to state the manner in which defendant forged the withdrawal form; (3)
the indictments informed defendant of the date and time of each offense, the amount of money
involved, and where the offense occurred; and (4) the indictments gave defendant notice of the
charge against her and enabled the court to know what judgment to pronounce in case of
2. Evidence_other crimes or bad acts--common plan or scheme--absence of mistake
The trial court did not abuse its discretion in a multiple obtaining property by false
pretenses, multiple forgery, and multiple uttering case by admitting evidence found in a vehicle
purchased by defendant which included a power of attorney defendant obtained naming her as
attorney in fact and a third person as the principal and personal papers and identification cards
belonging to two other persons, and evidence of defendant's purchase of a vehicle with the
power of attorney naming the victim as the principal, because: (1) the State offered the evidence
to show common plan or scheme and absence of mistake; (2) the evidence was particularly
relevant since the victim had died prior to trial and was unavailable to testify; (3) the evidence
tended to rebut defendant's contention that the victim initialed the power of attorney used to
withdraw funds from the victim's bank account, and showed defendant engaged in a plan or
scheme to obtain and use illegitimate powers of attorney to illegally withdraw funds from
individuals' bank accounts including that of the victim; (4) and the incidents were sufficiently
similar and not so remote in time as to be more probative than prejudicial under the balancing
test of N.C.G.S. § 8C-1, Rule 403.
3. Forgery--motion to dismiss--sufficiency of evidence
The trial court erred by denying defendant's motion to dismiss on all but the first three
forgery charges named in the indictment and the accompanying uttering charges, and defendant's
ten convictions for forgery and ten convictions for uttering in docket numbers 04 CRS 55303, 04
CRS 55304, 04 CRS 55306, and 04 CRS 55307 are reversed, because: (1) signing as the agent of
another without authority does not constitute forgery; and (2) all but the first three withdrawal
slips from 04 CRS 555302 that defendant presented to the bank bore defendant's own signature
and did not include the victim's name or purported signature.
4. Appeal and Error--mootness--prior record level
Although defendant contends the trial court erred in a multiple obtaining property by false
pretenses, multiple forgery, and multiple uttering case by calculating defendant's prior record
level, this argument is dismissed as moot because the case has already been remanded for
resentencing, and the trial court is required to calculate defendant's prior record level upon
Appeal by defendant from judgments entered 20 April 2005 by
Judge Paul L. Jones in Wayne County Superior Court. Heard in the
Court of Appeals 11 May 2006.
Attorney General Roy Cooper, by Assistant Attorney General
David P. Brenskelle, for the State.
Geoffrey W. Hosford, for defendant-appellant.
Louretha Mae King (defendant) appeals from judgments entered
after a jury found her to be guilty of thirteen counts of obtaining
property by false pretenses, thirteen counts of forgery, and
thirteen counts of uttering. We find no error in part, reverse in
part, and remand for resentencing.
In early 2004, Catherine Parker (Parker) advertised in the
newspaper for a care giver for her elderly sister, Agnes Canady
(Canady). Defendant responded to the advertisement. Parker
hired defendant to care of Canady every other Sunday from 2:00 p.m.
until 9:00 p.m. Defendant worked as Canady's care giver for three
or four Sundays before being terminated for failing to keep an
appointment to care for Canady. Parker paid defendant for her
services with three personal checks. The checks were drawn upon
Canady's Wachovia Bank personal checking account. Parker signed
the checks pursuant to a power of attorney, which Canady had issued
to Parker in 1986. The checks bore Canady's name, address,telephone number, and checking account number. The last of the
three checks was issued to defendant on 8 March 2004.
On 18 March 2004, defendant visited the law office of attorney
Mario White (White) in Clinton requesting him to prepare a power
of attorney for her grandmother or aunt. White prepared a
power of attorney naming Canady as the principal and defendant as
attorney in fact. Defendant supplied the information necessary for
White to prepare the power of attorney, including Canady's social
security number. Defendant supplied her own address as the address
for Canady. The power of attorney was not signed or notarized at
White's office since Canady was not present to sign or initial the
document. Defendant left White's office with the power of attorney
Later that day, defendant visited Donnie McIntyre
(McIntyre), the owner of McIntyre Funeral Home in Goldsboro,
seeking to have Canady's power of attorney notarized. McIntyre
knew defendant from church and took for granted that the power of
attorney presented by defendant was legitimate. Defendant
represented to McIntyre that Canady was defendant's grandmother and
that she was caring for her. Defendant further represented to
McIntyre that she had some things that needed to be taken care of
right then. At the time defendant presented the power of attorney
to McIntyre for his notarization, it bore the initials APC next
to portions of the document indicating defendant had the authority
to engage in certain transactions on behalf of Canady. Defendantsigned the document in McIntyre's presence and McIntyre notarized
The following day, 19 March 2004, defendant presented the
power of attorney to Tesia Lemelle (Lemelle), the financial
services manager of a Wachovia Bank branch located in Mt. Olive.
Defendant told Lemelle that her aunt was in the hospital and that
she was in a rush. Lemelle processed the power of attorney.
Defendant's name was added to Canady's account within the bank's
computer system as a person authorized to conduct transactions on
behalf of Canady. Defendant withdrew $3,500.00 from Canady's
checking account using a generic withdrawal slip, which had been
completed prior to her approach to the bank teller's window.
On 2 April 2004, defendant twice withdrew $500.00 from
Canady's account. Thereafter, defendant made numerous other
withdrawals from Canady's checking and money market accounts using
generic withdrawal slips. On 5 April 2004, defendant twice
withdrew $500.00. On 9 April 2004, defendant withdrew $500.00.
Defendant withdrew $250.00 on 14 April 2004 and again on 15 April
2004. Defendant withdrew $500.00 on 16 April 2004. On 25 May
2004, defendant withdrew $4,500.00 from Canady's account and
$1,000.00 more on 28 May 2004. On 2 June 2004, defendant withdrew
another $1,000.00. Defendant withdrew $800.00 twice on 3 June
2004. On 8 June 2004, defendant withdrew $4,700.00.
Parker reviewed Canady's bank statement and discovered that
money was being taken from her sister's checking and money market
accounts. The statement was addressed to Canady with defendant'sname beneath it followed by POA. Parker discovered that
defendant had been withdrawing money from Canady's account using
generic withdrawal slips. Parker contacted Wachovia to inform them
that money had been improperly withdrawn from her sister's
accounts. Parker received two boxes of checks at her address from
Wachovia that she had not ordered. The name designation on the
checks was Agnes P. Canady, Louretha King, POA.
After being contacted by Parker, Wachovia's loss management
department commenced an investigation. The case was assigned to
Reggie Whitley (Whitley) on 16 April 2004. Whitley began the
investigation on 19 April 2004 and discovered: (1) the power of
attorney was invalid because it had never been signed by Canady;
and (2) defendant's signature was located where Canady should have
signed. On 27 April 2004, Whitley advised defendant the
transactions she had made were not legitimate and to return the
money she had withdrawn from Canady's account.
Defendant told Whitley that she had been working for Canady
for many years, and that she was paying some of Canady's bills and
handling some of her own expenses too. Defendant further told
Whitley that Canady was helping defendant establish a group home
for drug addicts and recovering alcoholics. Defendant acknowledged
that she owed the money and told Whitley she would bring $2,500.00
to Wachovia the following Friday. Defendant never repaid any
funds. Instead, defendant continued to withdraw funds from
Canady's account until June 2004. On 2 June 2004, defendant attempted to withdraw funds from
Canady's account at the Goldsboro Wachovia branch. The bank teller
recognized defendant and asked her to come inside the bank. Bank
personnel called the police who removed defendant from the
premises. Defendant returned to the same branch later that day and
attempted to withdraw money from one of Canady's accounts. Bank
personnel instructed defendant to leave the bank and that she would
not be allowed to withdraw any more money from Canady's accounts.
The following day, defendant withdrew $800.00 from Canady's
account at Wachovia's Berkeley Branch in Goldsboro and $800.00 from
Canady's account at Wachovia's Mt. Olive branch. Defendant's final
withdrawal from Canady's accounts took place on 8 June 2004 when
she withdrew $4,700.00, leaving only $36.00 remaining in Canady's
Defendant was indicted on thirty-nine counts: thirteen counts
of obtaining property by false pretenses in violation of N.C. Gen.
Stat. § 14-100, thirteen counts of forgery in violation of N.C.
Gen. Stat. § 14-119, and thirteen counts of uttering in violation
of N.C. Gen. Stat. § 14-120. Defendant was tried in Wayne County
Superior Court beginning 18 April 2005.
At trial, following a voir dire hearing, the trial court
allowed testimony regarding a subsequent power of attorney that
White had prepared for defendant. This power of attorney, prepared
on 11 May 2004, names Robert L. Goodson (Goodson) as the
principal and defendant as the attorney in fact. The 11 May 2004
power of attorney was notarized by an employee of McIntyre FuneralHome. Goodson testified that defendant was a friend of his
roommate, and that he had never given defendant a power of attorney
or authorized her to act on his behalf. Using this power of
attorney, defendant engaged in a failed attempt to withdraw funds
from Goodson's Wachovia bank account.
Following another voir dire hearing, the trial court allowed
testimony that on 23 March 2004, defendant visited a used car
dealership and presented the power of attorney bearing Canady's
name as principal and defendant as attorney in fact to purchase a
Ford Explorer. Defendant represented she was Canady's guardian and
that she was purchasing the Ford Explorer to transport Canady and
pick up her medications. The Ford Explorer was financed in
Canady's name for $11,909.85.
The trial court allowed testimony that the Ford Explorer was
searched following defendant's arrest and was found to contain
Goodson's social security number, his driver's license, his birth
certificate, and the false power of attorney which defendant had
obtained naming Goodson as principal and defendant as attorney in
fact. The vehicle also contained Parker's social security number,
date of birth, checking account numbers, bank account balance
amounts, and personal bank identification number.
The jury found defendant to be guilty on all thirty-nine
counts named in the indictment. Defendant was sentenced within the
presumptive range with a Prior Record Level IV to thirteen
consecutive prison terms of ten to twelve months. Defendant
Defendant argues: (1) the forgery indictments were fatally
defective; (2) the trial court abused its discretion in admitting
evidence in violation of the North Carolina Rules of Evidence, Rule
404(b); (3) the trial court erred in failing to dismiss the forgery
charges; and (4) the trial court erred in calculating her Prior
III. Forgery Indictments
 Defendant argues the bills of indictment for forgery were
fatally defective and judgment should be arrested. She asserts the
bills of indictment failed to sufficiently state the elements of
forgery. We disagree.
It is well established that an indictment must charge all of
the essential elements of the alleged criminal offense. State v.
Thomas, 153 N.C. App. 326, 335, 570 S.E.2d 142, 147, disc. rev.
denied, 356 N.C. 624, 575 S.E.2d 759 (2002) (citation omitted).
The crime of forgery requires allegations of three elements: (1)
There must be a false making or alteration of some instrument in
writing; (2) there must be a fraudulent intent; and (3) the
instrument must be apparently capable of effecting a fraud. State
v. Phillips, 256 N.C. 445, 447, 124 S.E.2d 146, 147 (1962). Here,
the thirteen forgery indictments, of which Count 2 is
representative, provide as follows:
AND THE JURORS FOR THE STATE UPON THEIR OATH
DO FURTHER PRESENT that on or about the 19th
day of March, 2004, in Wayne County Louretha
Mae King unlawfully, willfully, feloniously
and with the intent to injure and defraud, did
forge, falsely make, and counterfeit aWachovia withdrawal form, which was apparently
capable of effecting a fraud, and which is as
appears on the copy attached hereto as Exhibit
A and which is hereby incorporated by
reference in this indictment as if the same
were fully set forth.
Defendant asserts the indictments are defective because they
must allege how [defendant] committed a false making. The
language of the indictment clearly sets forth all of the elements
of the offense. Id. The indictments are not fatally defective for
failing to state the manner in which defendant forged the
Further, the exhibits attached to the forgery indictments are
copies of the withdrawal slips defendant used to remove funds from
Canady's bank accounts. The exhibits show the date and time of
day, amount of money withdrawn, account number, and particular bank
branch from which the funds were withdrawn. The forgery
indictments alleged all of the necessary elements of the offense
and informed defendant of the date and the time of each offense,
the amount of money involved, and where the offense occurred. The
forgery indictments fulfilled the purposes of an indictment, which
are: (1) to give the defendant notice of the charge against [her]
to the end that [she] may prepare [her] defense and to be in a
position to plead former acquittal or former conviction in the
event [she] is again brought to trial for the same offense; [and]
(2) to enable the court to know what judgment to pronounce in case
of conviction. State v. Burton, 243 N.C. 277, 278, 90 S.E.2d 390,
391 (1955). This assignment of error is overruled.
IV. Character Evidence
 Defendant argues the trial court abused its discretion in
admitting evidence, in violation of the North Carolina Rules of
Evidence, Rule 404(b), of: (1) the power of attorney she obtained
naming her as attorney in fact and Goodson as the principal; (2)
personal papers and identification cards belonging to Parker and
Goodson found in her vehicle after her arrest; and (3) her purchase
of the Ford Explorer with the power of attorney naming Canady as
the principal. Defendant argues this evidence is irrelevant and
was offered solely to show her propensity to commit the offenses
charged. We disagree.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2005) provides:
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
In State v. Coffey, our Supreme Court stated that Rule 404(b) is:
a clear general rule of inclusion of relevant
evidence of other crimes, wrongs or acts by a
defendant, subject to but one exception
requiring its exclusion if its only probative
value is to show that the defendant has the
propensity or disposition to commit an offense
of the nature of the crime charged.
326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990).
Thus, even though evidence may tend to show
other crimes, wrongs, or acts by the defendant
and his propensity to commit them, it is
admissible under Rule 404(b) so long as it
also is relevant for some purpose other than
to show that defendant has the propensity for
the type of conduct for which he is being
Id. at 279, 389 S.E.2d at 54. Relevant evidence is evidence
having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence. N.C. Gen.
Stat. § 8C-1, Rule 401 (2005).
The State offered this evidence to show common plan or
scheme and absence of mistake. This evidence was particularly
relevant since Canady had died prior to trial and was unavailable
to testify. Defendant contended Canady had initialed the power of
attorney which she utilized to withdraw funds from Canady's bank
accounts. This evidence tended to rebut defendant's contention and
showed she engaged in a plan or scheme to obtain and use
illegitimate powers of attorney to illegally withdraw funds from
individuals' bank accounts, and that Canady was one of the victims
of this scheme.
The use of evidence under Rule 404(b) is guided by two
constraints: similarity and temporal proximity. State v.
Bidgood, 144 N.C. App. 267, 271, 550 S.E.2d 198, 201, cert. denied,
354 N.C. 222, 554 S.E.2d 647 (2001) (citation omitted). The
incidents are sufficiently similar and not so remote in time as to
be more probative than prejudicial under the balancing test of
N.C.G.S. § 8C-1, Rule 403. State v. Boyd, 321 N.C. 574, 577, 364
S.E.2d 118, 119 (1988). This evidence was relevant and admissible
pursuant to Rule 404(b). Under an abuse of discretion review,
defendant has failed to show the admission of this evidence was
manifestly unsupported by reason or [was] so arbitrary that itcould not have been the result of a reasoned decision. State v.
Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988). This
assignment of error is overruled.
V. Motion to Dismiss
 Defendant argues the trial court erred by denying her
motion to dismiss the forgery charges at the close of the State's
evidence. We agree in part.
When ruling on a motion to dismiss, the trial court must
decide whether there is substantial evidence (1) of each essential
element of the offense charged, or of a lesser offense included
therein, and (2) of defendant's being the perpetrator of such
offense. If so, the motion is properly denied. State v. Fritsch,
351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000) (citing State v.
Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)), cert. denied,
531 U.S. 890, 148 L. Ed. 2d 150 (2001). Evidence is viewed in the
light most favorable to the State, giving the State the benefit of
all reasonable inferences. Id. at 378-79, 526 S.E.2d 455 (citing
State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992)).
As previously noted, the essential elements of the offense of
forgery are: (1) a false making or alteration of some instrument
in writing; (2) fraudulent intent; and (3) the instrument must
be apparently capable of effecting a fraud. Phillips, 256 N.C. at
447, 124 S.E.2d at 147. Defendant contends the State failed to
present sufficient evidence of the first element of forgery. The
first three withdrawal slips defendant presented to the bank, dated19 March and 2 April 2004, bore the forged signature of Canady
along with defendant's signature.
To show that the defendant signed the name of
some other person to an instrument, and that
he passed such instrument as genuine, is not
sufficient to establish the commission of a
crime. It must still be shown that it was a
false instrument, and this is not established
until it is shown that a person who signed
another's name did so without authority.
Id. at 448, 124 S.E.2d at 148 (quotation omitted). The State
presented sufficient evidence from which a jury could conclude that
defendant forged Canady's name and uttered withdrawal slips without
Canady's authority. The trial court did not err in denying
defendant's motion to dismiss with respect to these three
transactions in docket number 04 CRS 55302.
As for the remaining withdrawal slips defendant presented to
the bank, each contains a representation stating defendant was the
account holder. Each of these withdrawal slips contains the
language, I wish to withdraw from my account, along with one of
Canady's account numbers and defendant's signature alone. Our
Supreme Court's holding in State v. Lamb, 198 N.C. 423, 152 S.E.
154 (1930) controls this issue.
In Lamb, the Court held, Forgery is the attempted imitation
of another's personal act. Hence signing as the agent of another
without authority does not constitute forgery. 198 N.C. at 425,
152 S.E. at 155 (citations omitted) (emphasis supplied).
If a man draw . . . a bill of exchange in the
name of another, without his authority it is
forgery. But if he sign it with his own name,
per procuration . . . it is no forgery. The
reason is that forgery cannot be predicated ofa writing not intended to be a semblance of
something which it does not purport to be and
which is in itself not false.
Id. at 426, 152 S.E. at 156 (quotation omitted) (emphasis
supplied). In Lamb, our Supreme Court reversed the defendant's
forgery conviction because the State failed to prove the
defendant's writing falsely purported to be the writing of another.
198 N.C. at 426-27, 152 S.E. at 156.
The United States Supreme Court cited Lamb in Gilbert v.
United States, 370 U.S. 650, 8 L. Ed. 2d 750 (1962) and considered
the issue of agency endorsement. The defendant in Gilbert was
convicted of forgery under 18 U.S.C. § 495. The defendant, an
accountant, forged the endorsements of others on government tax-
refund checks and endorsed his own name on the checks as trustee.
Id. at 653, 8 L. Ed. 2d at 753. In considering the question of
whether forgery under 18 U.S.C. § 495 included agency
endorsement, the Court inquired into the common law meaning of
forgery. Id. at 655, 8 L. Ed. 2d at 754 (For in the absence of
anything to the contrary it is fair to assume that Congress used
that word in the statute in its common-law sense.).
Mr. Justice Harlan, speaking for an unanimous Court, held:
In 1847 it was decided in the English case of
Regina v. White, 2 Car & K 404, 175 Eng Rep
167 (Nisi Prius, Book 6), that indorsing a
bill of exchange under a false assumption of
authority to indorse it per procuration, is
not forgery, there being no false making. .
. . [T]he Regina v. White view of forgery at
common law was early accepted in a federal
case as representing the English common law.
In re Extradition of Tully, 20 F 812. The
same view of forgery has since been followed
in most of the state and federal courts inthis country. See, e.g., . . . State v. Lamb,
198 N.C. 423, 425-426, 152 S.E. 154, 155-156 .
. . .
Id. at 655-56, 8 L. Ed. 2d at 754-55. The Court held 'forge' in
§ 495 should not be taken to include an agency endorsement. Id.
at 657, 8 L. Ed. 2d at 755. Because our forgery statute does not
include a definition of forgery, we review the common law for the
meaning of the word.
Here, all but the first three withdrawal slips defendant
presented to the bank bore her own signature, and did not include
Canady's name or purported signature. Under the common law, our
Supreme Court's precedent in Lamb, and the United States Supreme
Court's precedent in Gilbert, defendant cannot be guilty of forgery
for the transactions in which she signed her own name on the
withdrawal slip. The trial court erred by denying defendant's
motion to dismiss on all but the first three forgery charges named
in the indictment and the accompanying uttering charges. State v.
Greenlee, 272 N.C. 651, 657, 159 S.E.2d 22, 26 (1968) (Uttering a
forged instrument consists in offering to another the forged
instrument with the knowledge of the falsity of the writing and
with intent to defraud.) Defendant's ten convictions for forgery
and ten convictions for uttering in docket numbers 04 CRS 55303, 04
CRS 55304, 04 CRS 55306, and 04 CRS 55307 are reversed.
VI. Prior Record Level Points
 Defendant argues the trial court erred by calculating her
prior record level points because it counted two separate felony
convictions that occurred during the same superior court session. Because we have remanded this case to the trial court for
resentencing, this issue is moot. The trial court is required to
calculate defendant's prior record level upon resentencing her.
N.C. Gen. Stat. § 15A-1340.13 (2005) (Before imposing a sentence,
the court shall determine the prior record level for the offender
pursuant to G.S. 15A-1340.14.). This assignment of error is
Defendant has failed to show that the forgery indictments were
fatally defective or that the trial court abused its discretion in
admitting evidence to show her propensity to commit crimes in
violation Rule 404(b). The trial court did not err in failing to
dismiss the first three forgery and uttering charges listed on
defendant's indictment. Sufficient evidence was presented that
defendant forged Canady's name on the first three withdrawal slips
she presented to the bank. We find no error in defendant's three
convictions for forgery and three convictions for uttering in
docket number 04 CRS 55302.
The trial court erred in failing to dismiss the remaining
forgery and uttering convictions pursuant to our Supreme Court's
decision in Lamb
, 198 N.C. at 426-27, 152 S.E. at 156. Defendant
signed her own name, not Canady's, to the withdrawal slips she used
in procuring the funds from the bank. Canady's name or purported
signature does not appear on the withdrawal slips. The trial court
erred by denying defendant's motion to dismiss all but the firstthree forgery and uttering charges listed in the indictment. This
case is remanded for resentencing.
In all other respects, we hold defendant received a fair trial
free from errors she preserved, assigned, and argued. We find no
error in defendant's thirteen obtaining property by false pretenses
convictions. We reverse defendant's ten forgery convictions and
ten uttering convictions in docket numbers 04 CRS 55303, 04 CRS
55304, 04 CRS 55306, and 04 CRS 55307 and remand for resentencing.
The trial court is required to calculate defendant's prior record
level upon resentencing her.
No error in part, Reversed in part, and Remanded for
Judges MCCULLOUGH and HUDSON concur.
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