An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 06 June 2006
STATE OF NORTH CAROLINA
No. 02 CRS 55245, 6
CHARLES BYRD 03 CRS 5447
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.
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 contends that the trial court erred in denying his
motion to dismiss the habitual felon indictment. Defendant argues
that the Habitual Felons Act violates the double jeopardy clause
and his rights of equal protection and due process. His argument
must fail, as our Supreme Court has held that the Habitual Felons
Act is constitutional. See State v. Todd, 313 N.C. 110, 117-18,
326 S.E.2d 249, 253 (1985). Defendant acknowledges the line of
cases recognizing this proposition, see, e.g., State v. Brown, 146
N.C. App. 299, 301, 552 S.E.2d 234, 235 (2001); State v. Wilson,
139 N.C. App. 544, 550, 533 S.E.2d 865, 870 (2000); State v.
Hairston, 137 N.C. App. 352, 354, 528 S.E.2d 29, 31 (2000), butasks this Court to overrule or modify these cases. Defendant cites
no authority in support of his argument. Although we could deem
this assignment of error abandoned, see N.C.R. App. P. 28(b)(6), we
hold that it is without merit. The procedures set forth in the
Habitual Felons Act, N.C. Gen. Stat. § 14-7.1 et seq., have been
held to comply with a defendant's constitutional rights.
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
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
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
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
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
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
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
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.
, 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
, ___ 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
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.
Judges McCULLOUGH and LEVINSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***