Converted WP file 051227-1

Appeal by Defendant from judgment entered 6 July 2005 by Judge J. Gentry Caudill in Superior Court, Jackson County. Heard in the Court of Appeals 20 March 2006.

Attorney General Roy Cooper, by Assistant Attorney General Lisa R. Schneider, for the State.

William D. Auman for defendant-appellant.

WYNN, Judge.

    To convict a defendant of obtaining property by false pretenses the State must prove, inter alia, a false representation which is intended to deceive.   (See footnote 1) In this case, Defendant Natasha Marie Harrell argues that there was insufficient evidence of intent. Because evidence when viewed in a light most favorable to the State (as our caselaw requires us to do   (See footnote 2) ) is sufficient to establish the element of intent, we hold that the trial court didnot err in denying Defendant's motion to dismiss.
    The State's evidence at trial tended to show that Rita Gust worked as the accounting manager for Cousins Property Services, a real estate management company in Atlanta, Georgia. On 13 October 2004, Ms. Gust wrote a check payable to Omni Landscaping Group in the amount of $27,633.20 to pay invoices submitted to an entity of Cousins Properties. When Ms. Gust was later notified that Omni had not received payment on its invoices, she confirmed the check had cleared the bank on 2 November 2004. Ms. Gust obtained the cancelled check and discovered it had been altered and had been made payable to “Ms. Natasha Marie Harrell” at a Decatur, Georgia address. Ms. Gust testified the check was the same one she had written to Omni and the name signed on the back of the check was Natasha Harrell. She further testified that she had never written a check payable to Defendant and that she had never consented to Defendant signing her name on the back of the check.     Gust notified James Blake Brown, the assistant controller for Cousins Property, about the check and sent him copies of the original check and the altered check. Brown was also the company's contact person for Bank of America. Brown filled out and submitted to Bank of America a form entitled, “Affidavit of Claimant _ Altered Item” regarding the alteration of the payee's name on the check. Over Defendant's objection, the affidavit was introduced into evidence at trial during Brown's testimony.
    Defendant was a college student living in Sylva, North Carolina in the fall of 2004. Defendant's friend, Ashley, was acquaintedwith a man named Chance who lived in Atlanta. Defendant allowed Chance to stay at her house for a weekend in October 2004, on the condition that Ashley stay at her house as well. Defendant testified that she learned that Chance allegedly had a business partner named Doc whom she spoke with on the telephone during October 2004. According to Defendant, Doc informed her that he ran a business for his uncle, “the cops were on to his uncle”, and he asked Defendant if he could use her savings account for a business transaction. Doc, however, asked Defendant to keep the transaction secret from his alleged business partner, Chance. Although Defendant had never met Doc, she agreed to participate in the transaction and gave Doc her savings account information. Doc instructed Defendant to deposit a check in the amount of $27,633.20 into her savings account, take out a money order made payable to Keith Demery in the amount of $13,800.00 and send it to him via UPS.     Thereafter, Doc sent to Defendant a check in the sum of $27,633.20 via UPS. The check, which had originally been made payable to Omni, had been changed and was made payable to Defendant. The check further listed Defendant's address as 2254 Wingford Place, Decatur, Georgia. Although Defendant never lived at that address, Defendant deposited the check into her savings account. Defendant followed Doc's instructions and took out a money order payable to Demery in the amount of $13,800.00 and sent it to him. Defendant then kept the remainder of the money.
    Shannon Ashe of the Sylva Police Department was contacted about the check and interviewed Defendant. Officer Ashe testified thatDefendant informed him of the following: Doc asked Defendant if she wanted to make some money; Defendant asked Doc if it was illegal and he told her it was not; Doc informed Defendant that the transaction involved his uncle's business and the “cops were on to his uncle”; and Doc's email address was Cashout@Tmail.com. Although Defendant had never met Doc in person, she informed Officer Ashe that she took out a money order payable to Demery after she deposited the check into her savings account. Defendant was allowed to keep $13,800.00 for herself and she used it to purchase a car and to pay bills. Defendant informed Officer Ashe that she did not do anything to earn this money and she thought she was being paid for the use of her savings account. Defendant also informed Officer Ashe that a woman called Defendant verifying the money order to Demery and Doc told Defendant to inform the woman that it was for music productions.
    On 6 July 2005, a jury found Defendant Natasha Marie Harrell guilty of obtaining property by false pretenses. A mistrial was declared as to the joined offenses of forgery and uttering. Following the jury verdict, the trial court sentenced Defendant to five to six months imprisonment, but suspended the sentence and placed Defendant on forty-eight months of supervised probation. From the judgment entered, Defendant appeals.
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    On appeal, Defendant argues the trial court erred by (1) failing to dismiss the charge of obtaining property by false pretenses due to insufficiency of the evidence to prove the element of intent to defraud, and (2) admitting Brown's affidavit intoevidence on the ground its admission violated her Sixth Amendment right of confrontation.
    Defendant assigns error to the trial court's failure to dismiss the charge of obtaining property by false pretenses based upon insufficiency of the evidence. A motion to dismiss should be denied if 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.” Barnes, 334 N.C. at 75, 430 S.E.2d at 918 (citation omitted). When reviewing a motion to dismiss based on insufficiency of the evidence, this 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 of the case but are for the jury to resolve. . . . Once the court decides that a reasonable inference of defendant's guilt may be drawn from the circumstances, then it is for the jury to decide whether the facts, taken singly or in combination, satisfy [it] beyond a reasonable doubt that the defendant is actually guilty.

Id. at 75-76, 430 S.E.2d at 918-19 (internal citations and quotations omitted). The test for sufficiency of the evidence is the same whether the evidence is direct or circumstantial or both. Id. at 75, 430 S.E.2d at 918-19.
    Defendant was convicted of obtaining property by false pretenses. The essential elements of this offense are: “(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 orattempts to obtain value from another.” Cronin, 299 N.C. at 242, 262 S.E.2d at 286; see also N.C. Gen. Stat. § 14-100(a) (2005). Here, Defendant argues only that the State failed to present sufficient evidence to establish the element of intent. “Intent is 'seldom provable by direct evidence. It must ordinarily be proved by circumstances from which it may be inferred.'” State v. Bennett, 84 N.C. App. 689, 691, 353 S.E.2d 690, 691-92 (1987) (citation omitted).
    The facts of this case portray gross misjudgment on the part of this college student. Nonetheless, the evidence, considered in the light most favorable to the State and giving the State the benefit of every reasonable inference that may be drawn from the evidence, State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996), shows that a check originally made payable to Omni had been altered and made payable to Defendant. The address listed on the check under Defendant's name was for a location at which Defendant had never lived. Nevertheless, Defendant endorsed the check, deposited the check into her savings account, and kept approximately $13,000.00 for herself. Defendant did nothing to earn this money other than to allow the use of her savings account to a man whom she had never met and had only spoken to on the telephone. Further, the man from whom Defendant obtained this check informed her that he was running a business for his uncle and that “the cops were on to his uncle.” Defendant also was asked to keep the transaction a secret from Doc's alleged business partner. At the time Defendant engaged in this transaction, Defendant was a senior in college. Whenreviewing the evidence in the light most favorable to the State, we conclude there was substantial evidence to show Defendant had the requisite intent to defraud. See Bennett, 84 N.C. App. at 691, 353 S.E.2d at 691-92. Accordingly, this assignment of error is without merit.
    Defendant next argues that the trial court erred by admitting Brown's affidavit into evidence on the ground its admission violated her Sixth Amendment right of confrontation. We disagree.
    “[T]he confrontation clause is not violated by the admission of a declarant's out-of-court statements as long as the declarant testifies as a witness and is subject to full and effective cross-examination.” State v. Quick, 323 N.C. 675, 680, 375 S.E.2d 156, 159 (1989) (citing California v. Green, 399 U.S. 149, 26 L. Ed. 2d 489 (1970)).
    Here, Defendant argues Brown's affidavit is testimonial and the procedural guarantees of confrontation precluded its admission. Because Brown appeared for cross-examination at trial and defense counsel cross-examined Brown about the affidavit, however, the Confrontation Clause was not violated by the admission of Brown's affidavit. Crawford v. Washington, 541 U.S. 36, 59 n.9, 158 L. Ed. 2d 177, 197 n.9 (2004) (“[W]hen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.” (citing Green, 399 U.S. at 162, 26 L. Ed. 2d at 499)). Accordingly, we conclude this assignment of error is without merit.
    No error.
    Judges McGEE and HUNTER concur.
    Report per Rule 30(e).

Footnote: 1