Appeal by defendant from a judgment dated 28 April 2005 by
Judge Michael E. Beale in Richmond County Superior Court. Heard in
the Court of Appeals 10 April 2006.
Attorney General Roy Cooper, by Assistant Attorney General J.
Douglas Hill, for the State.
Sue Genrich Berry for defendant.
Lowell Dean Johnson (defendant) appeals from a judgment dated
28 April 2005, entered consistent with a jury verdict finding him
guilty of obtaining property by false pretenses. We affirm the
judgment of the trial court.
On 15 April 1997 John Edward Tannahill purchased a mobile home
and placed it on a lot located at 100 Cactus Ridge Road in Hoffman,
North Carolina. In the Spring of 2004 Tannahill fell behind on the
loan payments due on the mobile home. On 26 May 2004, Vanderbilt
Mortgage and Finance, Inc. (VMF) sent a notice of default to
Tannahill informing him that if he did not pay his past due
payments VMF may repossess the mobile home. When no attempt wasmade by Tannahill to correct his default on the loan, VMF sent a
notice of private sale to Tannahill on 15 June 2004, informing him
the mobile home would be sold on 25 June 2004.
In May or June of 2004, Christopher and Jocelyn Smith
contacted defendant regarding an advertisement in the newspaper
concerning a mobile home for rent. Defendant subsequently showed
the Smiths the mobile home located at 100 Cactus Ridge Road which
was not the mobile home for which defendant had originally placed
the advertisement. Roger Pociask, Re-marketing Field Manager for
VMF, testified that neither he nor his company gave defendant the
right to rent the mobile home located at 100 Cactus Ridge Road.
Upon viewing the mobile home, the Smiths noticed a For Sale
sign containing an account number in the window of the mobile home.
When the Smiths asked defendant about the sign, he told them It
was for sale, but I bought it, removed the sign from the window
and threw it away. The Smiths moved into the mobile home on 1 July
2004, paying defendant a security deposit of $100.00 and the first
month's rent of $350.00. Mr. Smith testified he subsequently paid
another $150.00 in cash toward the rent due in August. A few weeks
after the Smiths moved in, deputies from the Richmond County
Sheriff's Department attempted to serve eviction notices upon the
prior owners. The Smiths contacted defendant regarding the
eviction notices, and he told them not to worry, he was in the
process of buying the mobile home from the bank himself.
In July 2004, Charles Smith Mobile Homes (Charles Smith) was
in the process of purchasing the mobile home located at 100 CactusRidge Road. Scott Oliver, an employee of Charles Smith was sent to
secure the property on Cactus Road, take pictures of it, and to
generally determine its condition. When he arrived he found the
Smiths living in the trailer and asked them why they were there.
Oliver informed the Smiths the trailer was being purchased by
Charles Smith from VMF; and that defendant did not own the trailer.
Oliver gave the Smiths the telephone number for VMF so they could
verify that the trailer was being sold by VMF and he was there to
begin the process. Oliver testified that Charles Smith eventually
purchased the trailer from the bank.
The Smiths moved out of the mobile home on 30 August 2004. In
early August 2004 the Smiths contacted Detective Larry Bowden of
the Richmond County Sheriff's Department complaining of their
dealings with defendant. After investigating the Smith's
complaints, Detective Bowden verified that defendant was not the
owner of the mobile home and drew up an arrest warrant for
obtaining property by false pretenses. Defendant was arrested
under this warrant on 10 September 2004.
On 4 October 2004, defendant was indicted for obtaining
property by false pretenses. Defendant was tried before a jury at
the 25 April 2005 session of Superior Court for Richmond County,
the Honorable Michael E. Beale, presiding. On 28 April 2005, the
jury returned its verdict finding defendant guilty of obtaining
property by false pretenses. The trial court subsequently imposed
a sentence of eight to ten months imprisonment and ordereddefendant to pay court costs, restitution and attorney's fees
totaling $3,666.27. The active sentence was suspended and
defendant was placed on supervised probation for thirty-six months
with several special conditions including an active term of
imprisonment of sixty days. Defendant appeals.
Defendant raises the issues of whether the trial court erred
in: (I) denying defendant's motion to set aside the jury verdict
due to a variance between the indictment and the evidence presented
by the State; (II) denying defendant's motion to dismiss for
insufficient evidence to support a charge of obtaining property by
false pretenses; (III) failing to instruct the jury as requested by
defendant; and (IV) instructing the jury in a manner resulting in
a verdict that is ambiguous as to its unanimity. For the reasons
below, we find no error in the trial or the judgment of the trial
Defendant argues the trial court erred in denying his motion
to set aside the jury verdict due to a variance between the
indictment and the evidence presented by the State. In order to
prevail on such a motion, the defendant must show a fatal variance
between the offense charged and the proof as to 'the gist of the
offense.' This means that the defendant must show a variance
regarding an essential element of the offense. State v. Pickens
346 N.C. 628, 646, 488 S.E.2d 162, 172 (1997) (citations omitted).
This Court has further held that [a]llegations beyond theessential elements of the offense are irrelevant and may be treated
as surplusage and disregarded when testing the sufficiency of the
indictment. To require dismissal any variance must be material and
substantial and involve an essential element. State v. Pelham
164 N.C. App. 70, 79, 595 S.E.2d 197, 203 (citations omitted),
appeal dismissed, disc. review denied
, 359 N.C. 195, 608 S.E.2d 63
Here, the indictment charged defendant with obtaining property
by false pretenses and stated that on or about 1 July 2004,
willfully and feloniously did knowingly and
designedly with the intent to cheat and
defraud obtain and attempt to obtain U.S.
Currency from Christopher and Jocelyn Smith by
means of a false pretense which was calculated
to deceive and did deceive.
The false pretense consisted of the following:
the defendant rented a Mobile Home to the
victims representing it to be his property,
when in truth and in fact, at the time the
defendant knew the mobile home did not belong
to him and that the home had been repossessed
by and owned by the Bank.
Defendant argues in the instant case, the gist of the offense not
proven by the State is that defendant rented the home knowing that
it did not belong to him and that it belonged to the bank
Defendant's argument is misplaced.
The crime of obtaining property by false pretenses is
[i]f any person shall knowingly and designedly
by means of any kind of false pretense
whatsoever, whether the false pretense is of a
past or subsisting fact or of a future
fulfillment or event, obtain or attempt toobtain from any person within this State any
money, goods, property, services, chose in
action, or other thing of value with intent to
cheat or defraud any person of such money,
goods, property, services, chose in action or
other thing of value[.]
N.C. Gen. Stat. § 14-100(a) (2005). To convict a defendant of
obtaining property by false pretenses, the State must prove beyond
a reasonable doubt: '(1) a false representation of a subsisting
fact or a future fulfillment or event, (2) which is calculated and
intended to deceive, (3) which does in fact deceive, and (4) by
which one person obtains or attempts to obtain value from
another.' State v. Hutchinson
, 139 N.C. App. 132, 138, 532 S.E.2d
569, 573 (2000) (quoting State v. Cronin
, 299 N.C. 229, 242, 262
S.E.2d 277, 286 (1980)). At trial the State produced evidence
showing that defendant offered to rent the mobile home to the
Smiths, telling them at the time that he owned the mobile home.
Based upon this representation, the Smiths agreed to rent the
mobile home from defendant with a monthly payment of $350.00 and a
$100.00 security deposit and, on 1 July 2004, paid $450.00 to
The incontrovertible evidence at trial established that
defendant was not the owner of the mobile home and did not have the
authority to rent the mobile home to the Smiths. Whether or not
the Bank owned the mobile home is not material to defendant's
false representation that he
owned the mobile home. The allegation
that the Bank owned the mobile home was not necessary to the
charge of obtaining property by false pretenses and is thereforemere surplusage in the indictment. This assignment of error is
Defendant next argues the trial court erred in denying his
motion to dismiss for insufficient evidence to support a charge of
obtaining property by false pretenses. Defendant contends the
State failed to prove that defendant knew the Bank owned the
mobile home and that the evidence at trial was insufficient to show
that he knew that the mobile home did not belong to him at the time
he rented it to the Smiths.
In addressing a criminal defendant's motion to
dismiss for insufficiency of the evidence, the
trial court must determine whether there is
substantial evidence: (1) of each essential
element of the offense charged; and (2) of
defendant's being the perpetrator of the
offense. Substantial evidence is that amount
of relevant evidence necessary to persuade a
rational juror to accept a conclusion. The
court must view the evidence in the light most
favorable to the State, giving the State the
benefit of all reasonable inferences.
Contradictions and discrepancies do not
warrant dismissal, but are for the jury to
State v. Yelton
, __ N.C. App. __, __, 623 S.E.2d 594, 599 (2006)
(citing State v. Scott
, 356 N.C. 591, 595-97, 573 S.E.2d 866, 868-
69 (2002)). As discussed in Issue I
, the State presented
substantial evidence of each of the elements of obtaining property
by false pretenses. Evidence at trial showed that defendant first
stated he owned the mobile home but then later stated that he was
in the process of purchasing the mobile home when the Smiths
confronted him regarding the notices of eviction brought by theRichmond County Sheriff's Department. The evidence at trial was
sufficient to show that he knew that the mobile home did not belong
to him at the time he rented it to the Smiths. This assignment of
error is overruled.
Defendant also argues the trial court erred in failing to
instruct the jury as he requested. Defendant contends the trial
court should have given the jury an instruction which was specific
to the misrepresentation alleged in the indictment; instead, the
trial court gave the following instruction to the jury:
The defendant has been charged with the
offense of obtaining property by false
pretense. For you to find the defendant guilty
of this offense the State must prove five
things beyond a reasonable doubt.
First, the defendant made a representation to
another. Second, that this representation was
false. Third, that this representation was
calculated and intended to deceive. Fourth,
that the victim was in fact deceived by this
representation. And, Fifth, that the defendant
thereby obtained property from the victim.
So I charge if you find from the evidence
beyond a reasonable doubt that on or about the
alleged date the defendant made a
representation, and that this representation
was false, that this representation was
calculated and intended to deceive, that the
victim was in fact deceived by it, and that
the defendant thereby obtained property from
the victim, it would be your duty to return a
verdict of guilty.
A jury instruction that is not specific to the
misrepresentation in the indictment is acceptable so long as the
court finds 'no fatal variance between the indictment, the proof
presented at trial, and the instructions to the jury.' State v.Ledwell
, 171 N.C. App. 314, 320, 614 S.E.2d 562, 566 (2005)
(quoting State v. Clemmons
, 111 N.C. App. 569, 578, 433 S.E.2d 748,
753 (1993)). As any ownership of the mobile home by the Bank and
knowledge thereof by defendant has been held as surplusage in the
indictment, see Issues I
, an instruction on who owned
the mobile home was not necessary to the charging offense and a
request for such instruction was properly disregarded by the trial
court. This assignment of error is overruled.
Defendant lastly argues the jury instructions as submitted by
the trial court violate his right to a unanimous verdict.
Defendant argues the jury instructions did not set out a date
certain, a certain amount of U.S. currency or a certain
misrepresentation calculated and intended to deceive and thus, it
is impossible to discern whether all twelve jurors found the
defendant guilty of the same misrepresentation on the same date
resulting in the same harm.
Where, however, a defendant is charged under a statute that
criminalizes a single wrong which may be proved by evidence of
the commission of any one of a number of acts then there is no
risk of a nonunanimous verdict. State v. Petty
, 132 N.C. App. 453,
460, 512 S.E.2d 428, 433 (1999). This Court has held that N.C.
Gen. Stat. . 14-100 establishes a single wrong and does not
enumerate any specific activities which are separately
punishable. State v. Almond
, 112 N.C. App. 137, 145, 435 S.E.2d
91, 96 (1993). In the instant case, the only representation before the jury
was whether defendant owned the mobile home and thus had the
authority to lease it to the Smiths. The multiple statements made
by defendant supporting this misrepresentation and the separate
instances of defendant taking money through this representation are
merely alternative ways to establish a single offense of obtaining
property by false pretenses. See State v. Lawrence
, __N.C. __, __,
__ S.E.2d __, __ (Apr. 7, 2006) (No. 293A05) (Affirming convictions
for three counts of taking indecent liberties with a minor where
one juror might have found some incidents of misconduct and
another juror might have found different incidents of misconduct,
the jury as a whole found that improper sexual conduct occurred.)
Therefore, defendant's challenge to the jury instruction is without
merit. We are satisfied that the jury was unanimous in its verdict
as to each element of obtaining property by false pretenses. This
assignment of error is overruled.
Chief Judge MARTIN and Judge HUDSON concur.
Report per Rule 30(e).
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