An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA05-1385


Filed: 05 July 2006


         v.                        Edgecombe County
                                No. 03 CRS 07001-04

    Appeal by defendant from judgment entered 27 July 2005 by Judge Milton F. Fitch, Jr., in Edgecombe County Superior Court. Heard in the Court of Appeals 19 June 2006.

    Attorney General Roy Cooper, by Special Deputy Attorney General Ted R. Williams, for the State.

    Paul T. Cleavenger for defendant-appellant.

    STEELMAN, Judge.

     Defendant, Thomas Everette, Jr., appeals his conviction for insurance fraud. For the reasons discussed herein, we find no error.
     Defendant was indicted under N.C. Gen. Stat. § 58-2-161 for making a fraudulent statement to an insurance company. The State's evidence tended to show that defendant's newly constructed home incurred substantial damage in a fire on 2 January 2002. Approximately two weeks after the fire, defendant filed a “proof of loss” with his insurance company in which defendant listed personal property, including furniture, he claimed was damaged or destroyed in the fire. An investigation revealed that at the time of thefire, defendant's house was not inhabited and the interior of the house did not contain furniture.
    The jury found defendant guilty of insurance fraud. The trial court sentenced defendant to eight to ten months imprisonment, suspended the sentence, and placed him on supervised probation for twenty-four months. Defendant appeals.
    In his sole argument on appeal, defendant contends the trial court lacked jurisdiction to try him because the insurance fraud indictment was fatally flawed. We disagree.
    To be constitutionally valid, an indictment “must allege lucidly and accurately all the essential elements of the offense endeavored to be charged.” State v. Greer, 238 N.C. 325, 327, 77 S.E.2d 917, 919 (1953). To comport with our Criminal Procedure Act, an indictment must “assert[] facts supporting every element of a criminal offense and the defendant's commission thereof with sufficient precision clearly to apprise the defendant . . . of the conduct which is the subject of the accusation.” N.C. Gen. Stat. § 15A-924(a)(5)(2006). An indictment meets minimum standards for validity if it:
        (1) [provides] such certainty . . . as will identify the offense with which the accused is sought to be charged; (2) [protects] the accused from being twice put in jeopardy for the same offense; (3) [enables] the accused to prepare for trial, and (4) [enables] the court, on conviction or plea of nolo contendere or guilty to pronounce sentence according to the rights of the case.

Greer, 238 N.C. at 327, 77 S.E.2d at 919. “[A]n indictment which avers facts which constitute every element of an offense does nothave to be couched in the language of the statute [codifying the offense].” State v. Hicks, 86 N.C. App. 36, 40, 356 S.E.2d 595, 597 (1987).
    The instant case involves an indictment for making a fraudulent statement to an insurance company pursuant to N.C. Gen. Stat. § 58-2-161, which provides in part:
        (b) Any person who, with the intent to injure, defraud, or deceive an insurer or insurance claimant:

        (1) Presents or causes to be presented a written or oral statement, including computer- generated documents as part of, in support of, or in opposition to, a claim for payment or other benefit pursuant to an insurance policy, knowing that the statement contains false or misleading information concerning any fact or matter material to the claim, or

        (2) Assists, abets, solicits, or conspires with another person to prepare or make any written or oral statement that is intended to be presented to an insurer or insurance claimant in connection with, in support of, or in opposition to, a claim for payment or other benefit pursuant to an insurance policy, knowing that the statement contains false or misleading information concerning a fact or matter material to the claim is guilty of a Class H felony.

N.C. Gen. Stat. § 58-2-161(b)(2006). In State v. Carroll, this Court listed the elements for violating N.C. Gen. Stat. § 58-2-161: “(1) that a contract of insurance existed, (2) that defendant presented a claim for payment of a loss upon that contract, (3) that the claim was false or fraudulent, and (4) that the defendant acted willfully and knowingly.” 101 N.C. App. 691, 693-94, 401 S.E.2d 114, 115 (1991).
    The indictment in this case specifically stated that defendant:
        unlawfully, willfully and feloniously did, with the intent to deceive an insurer, State Farm Insurance Corporation, present a written statement as part of a claim for payment pursuant to a homeowners policy which includes contents coverage, knowing that the statement contained false information concerning a fact and matter material to the claim, to wit: that he purchased furniture from Rose Brothers Furniture, Incorporated, which totaled $6,720.27 on July 14, 2001 and that the furniture was in the home at the time of the reported fire; when in fact said furniture was not in the home.

    Citing Carroll, defendant asserts the indictment was fatally defective because it failed to allege the existence of a contract for insurance existed between defendant and State Farm, the owner of the policy, as well as failed to list the specific furniture. Contrary to defendant's assertion, neither Carroll nor N.C. Gen. Stat. § 58-2-161 require that the owner of the policy or the specific items be listed on the indictment. Although the indictment does not specifically assert the existence of a contract of insurance, we hold defendant was not prejudiced. This Court held in Carroll, that “[t]he failure of the indictment to assert the existence of a contract of insurance could in no way prejudice the defendant where he was clearly notified by the terms of the indictment of the particular insurance claim at issue.” 101 N.C. App. at 695, 401 S.E.2d at 116. The indictment here does allege that defendant made a fraudulent claim to State Farm Insurance pursuant to a homeowner's policy; therefore, defendant was notified of the “particular claim at issue.” We conclude the language ofthe indictment was sufficient and thus, hold defendant's argument without merit.
    Judges MCCULLOUGH and HUDSON concur.
    Report per 30(e).

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