An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA05_409


Filed: 7 February 2006


         v.                        Pitt County
                                Nos.    04 CRS 5571-72

    Appeal by defendant from judgments entered 16 September 2004 by Judge W. Russell Duke, Jr. in Pitt County Superior Court. Heard in the Court of Appeals 23 January 2006.

    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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