State v Byrd, (05-397) 06/06/2006

Appeal by defendant from judgments entered 24 June 2004 by Judge James E. Ragan in Craven County Superior Court. Heard in the Court of Appeals 3 November 2005.

Attorney General Roy Cooper, by Assistant Attorney General N. Morgan Whitney, Jr., for the State.

William D. Spence for defendant-appellant.

    ELMORE, Judge.

    Charles Byrd (defendant) was indicted for felony breaking or entering a motor vehicle, financial transaction card theft, obtaining property by false pretenses, and being an habitual felon. At trial, the State offered evidence tending to show that on 11 August 2002 Officer Ronnie Lovick observed defendant ride his bike past the New Bern Police Department between 7:00 and 8:00 a.m. Defendant was wearing a bright green basketball outfit. At approximately 9:30 a.m. that morning, Mr. Eddie Mayo was on the porch of the Salvation Army Church in New Bern when he observed defendant rummaging through boxes of donated clothing. Mr. Mayo had arrived at the church parking lot in a black Chevrolet Tahoe with his wife, Mrs. Montine Mayo. At the time Mr. Mayo observeddefendant, defendant was within three or four feet of the Tahoe. Mr. Mayo testified that defendant was wearing a lime green basketball uniform and that defendant left the area on a bike.
    Mr. and Mrs. Mayo attended the church service at 11:00 a.m. When Mr. Mayo returned to the Tahoe after the service, around noon, he noticed that the front passenger side window was shattered. Mrs. Mayo had left her pocketbook in the vehicle, and the pocketbook was now missing. Mrs. Mayo's pocketbook contained several credit cards, including a Bank of America Visa card. This card had Mrs. Mayo's picture on it and had never been activated. Mrs. Mayo testified that she used the card for identification only.
    Earlier that morning, defendant went to the home of Mr. Ernest Tripp. Mr. Tripp testified that defendant arrived at his house at about 9:00 a.m. and was wearing a lime green basketball suit. Defendant asked Mr. Tripp if he could borrow a spark plug, and Mr. Tripp agreed. Defendant returned to Mr. Tripp's home at approximately 11:00 a.m. the same day. Defendant asked for a ride to the store. Mr. Tripp drove to the Handy Mart, where defendant attempted to pay for gas at the pump with a credit card. Defendant walked into the store and told the cashier, Ms. Kellee German, that his card was not working and that he wanted to pre-pay for gas. Defendant handed a credit card to Ms. German. Mr. Tripp identified State's Exhibit Number 2, Mrs. Mayo's Bank of America card, as the card that defendant tried to use at the Handy Mart.
    When Ms. German inquired about why the picture on the card was not of defendant, defendant stated that the card belonged to hiswife. Ms. German permitted defendant to use the card as a debit card. However, defendant was unable to enter the personal identification number (PIN) to complete the transaction. Defendant and Mr. Tripp left the Handy Mart without having purchased anything. Ms. German called Bank of America to report the attempted use of a stolen credit card. She identified the State's exhibit of Mrs. Montine's Bank of America card as the card that defendant had tried to use to make a purchase.
    When Mr. Tripp returned to his house later that day, he found a brown paper bag in his garage containing Mrs. Mayo's pocketbook and credit cards. Mr. Tripp removed the Bank of America card from the bag and placed it inside his house. The New Bern Police Department later recovered the pocketbook and credit cards during their investigation. Defendant offered no evidence at trial.

    Defendant assigns error to the trial court's denial of his motion to dismiss the charges for insufficiency of the evidence. Defendant's assignment of error states:
        2. The Court erred in failing to dismiss the charges against defendant at the close of all the evidence (defendant did not offer any evidence) for insufficiency of the evidence to sustain a conviction. All of the evidence presented was not sufficient to convince a rational trier of facts to find each element of each crime charged beyond a reasonable doubt.

Defendant's assignment of error broadly encompasses three separate legal issues, i.e., the sufficiency of the evidence for three separate offenses. This assignment of error is in violation of Rule 10 of our Rules of Appellate Procedure. See N.C.R. App. P. 10(c)(1) (“Each assignment shall, so far as practicable, be confined to a single issue of law; and shall state plainly and concisely and without argumentation the legal basis upon which error is assigned.”). Nonetheless, we will exercise our discretionary authority pursuant to Rule 2 to consider defendant's arguments.     “Upon defendant's motion for dismissal, the question for the Court is 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.” State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). The evidence is viewed in the light most favorable to the State, with every reasonable inference drawn in favor of the State. Id. at 99, 261 S.E.2d at 117. Any contradictions in the evidence must be resolved by the jury. Id. First, defendant contends that the State did not offer sufficient evidence that defendant was the perpetrator of the breaking and entering into the Mayo's vehicle. Defendant points out that there was no direct evidence that he broke into the vehicle. However, the State need only present evidence that defendant was in possession of goods recently stolen from the vehicle.
    In State v. Durham, 74 N.C. App. 201, 328 S.E.2d 304 (1985), the defendant challenged the evidence supporting a charge of breaking and entering a motor vehicle. The State's evidence showed that a set of golf clubs was stolen from the victim's motor vehicle between 8:00 a.m. and noon, and that the defendant pawned the golf clubs at noon that same day at a local pawn shop. Id. at 202, 328 S.E.2d at 305. No evidence placed the defendant at the scene of the breaking and entering. However, the State's evidence established that the time interval between the theft and the defendant's pawning of the golf clubs was no more than four hours. Id. at 203-04, 328 S.E.2d at 306. This Court held that thedoctrine of possession of recently stolen goods applied to these facts, permitting the jury to infer the defendant's commission of the breaking and entering. Id.
    Here, the circumstantial evidence of defendant being the perpetrator of the breaking or entering included the following: Mr. Mayo testified that he observed defendant within three or four feet of the Mayo's Tahoe parked in the church lot around 9:30 a.m. on 11 August 2002. This evidence places defendant at the scene of the crime, a factor absent from the evidence in Durham. Also, the State presented evidence that defendant attempted to purchase gas at the Handy Mart using the Bank of America card with Mrs. Mayo's picture on it. This attempted purchase occurred in the late morning of 11 August 2002, within a few hours of when defendant was observed in the area of the Mayo's Tahoe. Mr. and Mrs. Mayo discovered the theft upon return to their vehicle at around noon that day. These facts are sufficient to support a reasonable inference that defendant was the perpetrator of the breaking and entering.
    Next, defendant contends that the State did not present sufficient evidence on the charge of defendant's attempt to obtain merchandise from the Handy Mart by false pretenses. Specifically, defendant asserts that the State failed to establish the essential element that the victim was actually deceived by defendant. This Court has previously addressed the very same argument, see State v. Wilburn, 57 N.C. App. 40, 46, 290 S.E.2d 782, 786 (1982), and heldthat actual deception is not an element of an attempt to obtain property by false pretenses.
        Defendant assigns error to the failure of the court to dismiss the case against him for insufficiency of the evidence. He first contends that since the State failed to present evidence of the essential element, that Andrews was actually deceived by any alleged misrepresentation of the defendant, there was insufficient evidence for the jury to find him guilty of attempting to obtain property by false pretenses. Defendant is incorrect in his belief that this is an essential element of an attempt to obtain property by false pretenses.

Id. (emphasis added) (citing State v. Cronin, 299 N.C. 229, 262 S.E.2d 277 (1980)). Defendant does not address the holding in Wilburn in his brief, but instead cites to authority discussing the element of intent where the defendant actually obtained property. See, e.g., State v. Saunders, 126 N.C. App. 524, 485 S.E.2d 853 (1997); State v. Cronin, 299 N.C. 229, 262 S.E.2d 277 (1980). The authority defendant cites is inapposite, as actual deception is not a necessary element of an attempt to obtain property by false pretenses. See State v. Armstead, 149 N.C. App. 652, 653, 562 S.E.2d 450, 452 (2002); Wilburn, 57 N.C. App. at 46, 290 S.E.2d at 786. Defendant's contention is without merit.
    Finally, defendant contends that the State failed to present sufficient evidence of the charge of financial transaction card theft. Defendant asks this Court to hold that defendant's unauthorized use of another person's inactive credit card is not a crime within the meaning of N.C. Gen. Stat. § 14-113.9. This statute provides:        (a) A person is guilty of financial transaction card theft when the person does any of the following:

        (1) Takes, obtains or withholds a financial transaction card from the person, possession, custody or control of another without the cardholder's consent and with the intent to use it; or who, with knowledge that it has been taken, obtained or withheld, receives the financial transaction card with intent to use it or to sell it, or to transfer it to a person other than the issuer or the cardholder.

N.C. Gen. Stat. § 14-113.9(a)(1) (2005). The definition of “financial transaction card,” which defendant asserts does not apply to the facts of the instant case, is “any instrument or device whether known as a credit card, credit plate, bank services card, banking card, check guarantee card, debit card, or by any other name, issued with or without fee by an issuer for the use of the cardholder . . . .” N.C. Gen. Stat. § 14-113.8(4) (2005). Defendant contends that, strictly construed, this statutory definition does not include cards that have not been activated. Although defendant is correct in that a criminal statute is strictly construed in favor of defendants, see State v. Ross, 272 N.C. 67, 69, 157 S.E.2d 712, 713 (1967), there is no ambiguity in the statute to be construed. N.C. Gen. Stat. § 14-113.8 does not require that the card be activated. N.C. Gen. Stat. § 14-113.9 does not state that the card actually be active; all the offense requires is that the defendant have the intent to use the financial transaction card. Here, defendant attempted to pay at the pump for gas and then attempted to pay inside the Handy Mart, both times with the Bank of America card. We hold there was ample evidencecreating a reasonable inference that defendant intended to use Mrs. Mayo's financial transaction card for a purchase of goods.

    Defendant assigns error to the trial court's written response to a jury question without giving an additional instruction to the jury. Defendant's assignment of error arises out of the following statements by the trial judge after the jury had begun deliberation:
        The Court: The jurors have sent me back a question . . . The question is, “Is guilty of financial card theft the same as possession of stolen property? Thank you.” That's the question. And no, it's not. It's almost the same. I mean I've got to say no. It's not the same. That's sort of an unusual question. I don't know that I've ever had one exactly like that. But nevertheless, the answer is no. I don't know how to answer it . . . If you want further instruction, please advise - (writing answer to question to be returned to jurors).

        Mr. Barnhill [defense counsel]: Is that the way you are going to do it, rather than call them out and tell them that?

        The Court: Yes.

        Mr. Barnhill: May we approach and examine it? Are you going to mark that as an appellate exhibit?

        The Court: I put “No. If you want further instruction, please advise.”

        (Answer returned to the jurors.)

    Defendant's contention that the trial court was required by N.C. Gen. Stat. § 15A-1234 to instruct the jury as a whole in open court, instead of communicating by a note, is unpersuasive. N.C. Gen. Stat. § 15A-1234 provides that, after the jury beginsdeliberation, the trial judge may give additional instructions in order to clarify an ambiguous instruction or to respond to an inquiry made by the jury in open court. If there is no error in the instruction, N.C. Gen. Stat. § 15A-1234 does not require the trial judge to repeat any portion of the instruction previously given. See State v. Hockett, 309 N.C. 794, 800, 309 S.E.2d 249, 252 (1983) (in the absence of error in the original instruction, trial judge not required to repeat instruction; needless repetition may constitute error); State v. Bartow, 77 N.C. App. 103, 110, 334 S.E.2d 480, 484 (1985) (trial court not required to repeat instruction in response to question from jury during deliberation, but may do so in its discretion). Here, defendant does not assert that the original instruction was erroneous or ambiguous. We hold the trial court did not abuse its discretion in refusing to give re-instruction.

Defendant contends that the trial court erred in refusing to charge the jury on the lesser included offense of misdemeanor larceny with respect to the financial transaction card theft charge. The trial court must instruct the jury on a lesser included offense only where there is evidence to support it. State v. Kyle, 333 N.C. 687, 703, 430 S.E.2d 412, 421 (1993). “All of the essential elements of the lesser crime must also be essential elements of the greater crime. If the lesser crime has an essential element which is not completely covered by the greater crime, it is not a lesser included offense.” State v. Hudson, 345N.C. 729, 733, 483 S.E.2d 436, 439 (1997) (quoting State v. Weaver, 306 N.C. 629, 635, 295 S.E.2d 375, 379 (1982), overruled on other grounds, State v. Collins, 334 N.C. 54, 61, 431 S.E.2d 188, 193 (1993)). The crime of misdemeanor larceny contains the following elements: (1) the defendant took property of another person; (2) the defendant carried away the property; (3) the victim did not consent; (4) the defendant intended to permanently deprive the victim of the property; (5) the defendant knew that he was not entitled to take the property; and (6) the value of the property did not exceed $1,000.00. N.C. Gen. Stat. § 14-72(a) (2005); State v. Reeves, 62 N.C. App. 219, 223, 302 S.E.2d 658, 660 (1983); N.C.P.I.--Crim. 216.05. Here, the essential elements of misdemeanor larceny are not completely covered by the offense of financial transaction card theft. In particular, there is no requirement in the offense of financial transaction card theft that the defendant intended to permanently deprive the victim of the property or that the defendant carried away the property. As misdemeanor larceny is not a lesser included offense of financial card transaction theft, the trial court did not err in refusing to instruct the jury on misdemeanor larceny.

    Defendant asserts that the trial court erred, under Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004), in assigning an additional point to defendant's prior record level. The trial court assigned an additional point to defendant's prior record level because defendant had a prior conviction of breaking orentering a motor vehicle. See N.C. Gen. Stat. § 15A-1340.14(b)(6) (2005) (“If all the elements of the present offense are included in any prior offense for which the offender was convicted, whether or not the prior offense or offenses were used in determining prior record level, 1 point.”). Defendant does not dispute his previous conviction of breaking or entering a motor vehicle. Rather, he contends that N.C. Gen. Stat. § 15A-1340.14(b)(6) is unconstitutional pursuant to Blakely and State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005). Specifically, defendant contends that he is entitled to a new sentencing hearing because a jury did not find that all of the elements of his prior offense are included in his present offense.
    This Court recently addressed this particular issue. In State v. Poore, ___ N.C. App. ___, 616 S.E.2d 639 (2005), the defendant argued that the trial court's assigning a point to his prior record level pursuant to N.C. Gen. Stat. §15A-1340.14(b)(6) was Blakely error. The Court held that the trial court's determination under this statutory provision was analogous to assigning a point for a prior conviction. Id. at ___, 616 S.E.2d at 641-42. As the Court noted, neither Blakely nor Allen held that a trial court's determination of prior record level based upon convictions for prior offenses was unconstitutional. Id. We overrule defendant's assignment of error.
    No Error.
    Judges McCULLOUGH and LEVINSON concur.
    Report per Rule 30(e).

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