STATE OF NORTH CAROLINA
v. Pitt County
Nos. 04 CRS 5571-72
DAVID GREEN
Attorney General Roy Cooper, by Assistant Attorney General J.
Bruce McKinney, for the State.
Brannon Strickland, PLLC, by Anthony M. Brannon, for
defendant-appellant.
MARTIN, Chief Judge.
Defendant appeals his convictions for two counts of obtaining
property by false pretenses. Finding no error, we affirm the
judgments entered by the trial court.
The State's evidence tended to show that defendant received
meat and seafood products from George Nugent in March of 2003, by
tendering to Nugent two checks for $300 drawn on an account
numbered 025-5250167 at RBC Centura Bank. Defendant had previously
closed the account on 31 December 2002.
Nugent testified that on 4 March 2003, he made a “routine
delivery” of beef and seafood to the residence of defendant and
Virginia Edwards, who had been regular customers for ten years. Nugent typically delivered between $600 and $800 worth of
merchandise to their residence at four-month intervals.
I was in their residence. . . . After
[Edwards] made a selection of what she wanted
to purchase, . . . [she] told [defendant] to
find his checkbook. They couldn't find the
checkbook and then she told [him] that he
needs to go ahead and sign the checks and they
sat right down there and signed the checks. I
left the product and I was gone.
Nugent watched as defendant wrote, signed, and handed the checks to
him. Edwards then asked Nugent to hold one of the checks and not
to deposit it until 20 March 2003. Nugent deposited the first
check immediately and it was returned unpaid with the explanation
“account closed.” After he was unable to contact defendant and
Edwards by telephone or at their residence, he attempted to deposit
the second check, which was also returned “account closed.” Nugent
later learned that the account had been closed prior to 4 March
2003. Nugent described his subsequent attempts to obtain payment
from defendant and Edwards as follows:
[T]hey wouldn't return my calls or answer the
door. I sent them certified letters. They
wouldn't sign for the letters, and I got
nothing . . . .
He never heard from defendant or Edwards again.
On 26 September 2003, defendant submitted to RBC Centura two
“Affidavit[s] of Forgery of Check” disavowing any knowledge of the
two checks written to Nugent on his closed account. In October of
2003, after being served with a criminal summons, defendant
contacted the Pitt County Sheriff's Department and reported that
the two checks tendered to Nugent had been stolen. He furtheraverred that he did not write the checks to Nugent and did not know
Nugent. When defendant and Edwards were later confronted by a
member of the sheriff's department about Nugent's account of their
transaction, “Edwards stated that she wrote the checks and that
[defendant] didn't know anything about it.”
The defense stipulated to the authenticity of documents
reflecting that defendant closed the account upon which the checks
to Nugent were drawn on 31 December 2002.
On appeal, defendant claims the trial court erred by
instructing the jury on the law of acting in concert, absent
evidence that he acted jointly with Edwards to obtain the
merchandise from Nugent by knowingly presenting him with the
worthless checks. While defendant purports not to challenge the
sufficiency of the State's evidence against him, he contends that
the State failed to show that he or Edwards knowingly deceived
Nugent, or that they possessed a common purpose to do so.
Defendant further argues that the instruction on concerted action
confused the jury and was inconsistent with the State's failure to
charge Edwards with a crime.
Initially, we observe that defendant did not move to dismiss
the charges at the conclusion of the evidence and has thus waived
any challenge to the sufficiency thereof. N.C.R. App. P. 10(b)(3)
(2004). However, defendant did raise a timely objection at the
charge conference to the State's request for an instruction on
acting in concert and has properly preserved this issue for
appellate review. N.C.R. App. P. 10(b)(2) (2004). “[W]hen a request is made for a specific instruction that is
supported by the evidence and is a correct statement of the law,
the court . . . must charge the jury in substantial conformity
therewith.” State v. Lea, 126 N.C. App. 440, 446-47, 485 S.E.2d
874, 878 (1997) (quoting State v. Holder, 331 N.C. 462, 474, 418
S.E.2d 197, 203 (1992)). Accordingly, in reviewing the trial
court's decision to instruct the jury on the doctrine of concerted
action, we must determine only whether the evidence viewed in the
light most favorable to the State would allow a reasonable juror to
find that defendant acted in concert with Edwards to obtain
property from Nugent by false pretenses. See generally State v.
Mann, 355 N.C. 294, 307, 560 S.E.2d 776, 784, cert. denied, 537
U.S. 1005, 154 L. Ed. 2d 403 (2002); State v. Taylor, 337 N.C. 597,
608-09, 447 S.E.2d 360, 367-68 (1994).
Under North Carolina law, “to be convicted of a crime under
the theory of acting in concert, the defendant need not do any
particular act constituting some part of the crime.” State v.
Lundy, 135 N.C. App. 13, 18, 519 S.E.2d 73, 78 (1999), disc. review
denied, 351 N.C. 365, 542 S.E.2d 651 (2000). The defendant need
only be present and act together with someone who does the acts
necessary to constitute the crime. Id. A defendant's knowing
“presentation of a worthless check in exchange for property is
[sufficient] to uphold a conviction for obtaining property by false
pretenses in violation of N.C.G.S. § 14-100.” State v. Rogers, 346
N.C. 262, 264, 485 S.E.2d 619, 621 (1997).
The evidence adduced by the State amply supported aninstruction on acting in concert. Taken as true, Nugent's
testimony showed that defendant and Edwards obtained meat and
seafood by tendering two worthless checks to Nugent in March of
2003. After receiving the checkbook from Edwards, defendant wrote,
signed and gave to Nugent two checks drawn on an account which he
had closed almost three months earlier. Edwards then asked Nugent
to delay cashing one of defendant's checks. The evidence further
showed subsequent conduct by both defendant and Edwards which
supported a reasonable inference of their shared intent to defraud
Nugent of the merchandise. Despite having been regular customers
of Nugent for several years, they refused to sign for Nugent's
certified letters, did not return his phone calls, and never
returned the merchandise obtained with the worthless checks.
Defendant executed affidavits of forgery denying that he wrote the
checks and made a false report to the sheriff's department that the
checks had been stolen and had been written without his knowledge.
When defendant and Edwards were later confronted by deputies with
Nugent's account of the transaction, Edwards falsely told a
sheriff's deputy that she had written the checks. In light of the
direct evidence of defendant's and Edwards' joint actions and the
circumstantial evidence of their shared knowledge and intent, the
court properly instructed the jury on acting in concert.
The record on appeal includes two additional assignments of
error which are not addressed in defendant's brief to this Court.
Pursuant to N.C.R. App. P. 28(b)(6) (2004), we deem them abandoned.
No error.
Judges BRYANT and GEER concur.
Report per Rule 30(e).
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