An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 19 September 2006
STATE OF NORTH CAROLINA
No. 04 CRS 54194
DONNIE RAY THOMPSON
Appeal by defendant from judgment entered 12 August 2005 by
Judge Charles P. Ginn in Haywood County Superior Court. Heard in
the Court of Appeals 24 August 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Laura J. Gendy, for the State.
Michael E. Casterline for defendant-appellant.
Defendant appeals from his conviction of obtaining property by
false pretenses. For the reasons discussed herein, we find no
The State's evidence tended to show that on 3 November 2004,
Joe Dean Arwine (Arwine) entered an Ingles store in Hazelwood,
North Carolina, to purchase groceries. Arwine accidentally left
his wallet, containing $836.00 in cash, at the checkout counter and
returned to his home. Defendant, Donnie Ray Thompson, was
approximately two customers behind Arwine in the checkout line.
Andrea Kaufman (Kaufman), the Ingles cashier who had
previously assisted Arwine and defendant, found the wallet and
mistakenly believed it belonged to defendant. Kaufman approacheddefendant in the parking lot of Ingles where he was loading
groceries into his car. Kaufman asked if the wallet belonged to
defendant. Defendant reached into his back pocket, thought for a
second, and then said: Oh, yeah, I did, thank you. (R p. 18).
Kaufman was unable to see defendant's back pocket and handed the
wallet to him.
When Arwine arrived home, he realized he had left his wallet
at the Ingles checkout counter and returned to the store to inquire
about it. Kaufman told Arwine she had given the wallet to another
man earlier in the evening.
A couple of days later, Lauren Call (Call) found Arwine's
wallet on the floor of the Timeout Market. The wallet contained
credit cards, but no cash or driver's license. The next day, Call
returned the wallet to Arwine as he had found it.
Defendant presented no evidence at trial. The jury found
defendant guilty of obtaining property by false pretenses, and the
court sentenced defendant within the presumptive range to eight to
ten months imprisonment. The judge suspended the sentence and
placed defendant on supervised probation for thirty-six months and
ordered him to pay restitution, court costs, a fine and attorney's
fees. Defendant appeals.
Defendant first contends the trial court lacked jurisdiction
because the indictment did not contain all of the essential
elements of the offense and did not specify the amount of money
obtained. We disagree. The purpose of an indictment is to give the defendant notice
of the charge against [him] . . . [and] to enable the court to know
what judgment to pronounce in case of conviction. State v. King,
___ N.C. App. ___, ___, 630 S.E.2d 719, 723 (2006) (quoting State
v. Burton, 243 N.C. 277, 278, 90 S.E.2d 390, 391 (1955)). An
indictment must contain, [a] plain and concise factual statement
in each count which . . . asserts facts supporting every element of
a criminal offense and the defendant's commission thereof with
sufficient precision clearly to apprise the defendant or defendants
of the conduct which is the subject of the accusation. N.C. Gen.
Stat. § 15A-924(a)(5) (2005). The essential elements of obtaining
property by false pretenses 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 or attempts to obtain value
from another. State v. Cronin, 299 N.C. 229, 242, 262 S.E.2d 277,
286 (1980); See also State v. Parker, 354 N.C. 268, 553 S.E.2d 885
The indictment returned by the Haywood County Grand Jury in
this case reads as follows:
[The defendant] unlawfully, willfully and
feloniously did knowingly and designedly with
the intent to cheat and defraud obtain and
attempt to obtain money from Joe Dean Arwine,
II by means of a false pretense which was
calculated to deceive and did deceive. The
false pretense consisted of the following:
this property was obtained by means of the
defendant accepting a wallet that had been
left in Ingles, knowing that the wallet did
not belong to him.
Defendant first argues the element of false representation is
missing from the indictment because accepting a wallet knowing that
it does not belong to defendant does not constitute a false
representation. For the offense of obtaining property by false
pretenses, a representation of a false pretense 'need not come
through spoken words, but instead may be by act or conduct.'
State v. Ledwell, 171 N.C. App. 314, 319, 614 S.E.2d 562, 566
(2005) (quoting State v. Parker, 354 N.C. 268, 284, 553 S.E.2d 885,
897 (2001)). The indictment in question sufficiently alleged a
misrepresentation to put defendant on notice of the crime of
obtaining property by false pretenses.
Defendant also argues the indictment was invalid because it
does not allege the specific amount of money obtained. With regard
to the crime of obtaining property by false pretenses, '[i]t is
the general rule that the thing obtained . . . must be described
with reasonable certainty, and by the name or term usually employed
to describe it.' State v. Walston, 140 N.C. App. 327, 334, 536
S.E.2d 630, 635 (2000) (quoting State v. Gibson, 169 N.C. 318, 320,
85 S.E. 7, 8 (1915)). North Carolina General Statute
states that 'any money' obtained by false pretenses constitutes a
violation of the statute and does not specify that the indictment
include the specific amount of money. Ledwell, 171 N.C. App. at
318, 614 S.E.2d at 565 (quoting N.C. Gen. Stat. . 14-100 (2003)).
In Ledwell, the indictment for obtaining property by false
pretenses alleged the defendant attempted to obtain United States
currency by represent[ing] to an employee of Wal-Mart that he wasentitled to a refund for a watch band, when in truth and in fact,
the defendant knew that he had unlawfully taken the watch band and
was not entitled to a refund. Id. This Court upheld the
defendant's conviction and stated that an indictment for obtaining
property by false pretenses, which mentioned the specific item the
defendant used to obtain the money, was sufficient to provide the
defendant with notice of the crime for which he was charged. Id.
In the case at bar, the term money combined with the
reference to the wallet left at Ingles in the indictment described
the property obtained with reasonable certainty. This combination
put the defendant on sufficient notice that he was being charged
with the crime of obtaining property by false pretenses. Thus, we
hold the indictment sufficiently alleged the essential elements of
the crime charged. This argument is without merit.
II. Motion to Dismiss for Insufficient Evidence
Defendant next contends the trial court erred in failing to
dismiss the case at the close of evidence because there was no
evidence that defendant deceived the victim. We disagree.
At the close of evidence, defendant moved to dismiss the case
for insufficiency of evidence pursuant to N.C. Gen. Stat.
1227(a)(2) (2005). The trial court denied this motion. In ruling
on a motion to dismiss for insufficient evidence, the trial court
must consider the evidence in the light most favorable to the
State, which is entitled to every reasonable inference which can be
drawn from that evidence. State v. Dick, 126 N.C. App. 312, 317,
485 S.E.2d 88, 91 (1997). If there is substantial evidence--whether direct, circumstantial, or both--to support a finding that
the offense charged has been committed and that the defendant
committed it, the case is for the jury and the motion to dismiss
should be denied. State v. Locklear, 322 N.C. 349, 358, 368
S.E.2d 377, 383 (1988).
Defendant contends the motion to dismiss should have been
granted because the State did not produce sufficient evidence of a
false representation. Specifically, defendant argues the State did
not offer any evidence of a false representation, and the State did
not prove any causal connection between a false representation and
the obtaining of property.
Upon review of the evidence presented at trial, we hold the
State produced substantial evidence that defendant made a false
representation about his entitlement to the wallet and that he
obtained the wallet and $836.00 through this representation.
Kaufman's testimony shows that she approached defendant in the
parking lot of Ingles. She asked, Sir, did you lose your wallet
or forget your wallet? Defendant responded by feeling in his back
pocket and answering, Oh, yeah, I did, thank you. Based on this
testimony, a reasonable jury could find that defendant falsely
represented that the wallet was his, that Kaufman was deceived by
this representation, and therefore, infer that this deceit caused
her to give the wallet to the defendant.
Defendant also asserts that, although he may have deceived
Kaufman, the State presented no evidence that he deceived the
actual victim, Arwine. However, a closer look at the statutorydefinition of obtaining property by false pretenses shows that the
false representation need not be made to the actual victim. N.C.
14-100(a) (2005) provides:
[I]t shall not be necessary to prove either an
intent to defraud any particular person or
that the person to whom the false pretense was
made was the person defrauded, but it shall be
sufficient to allege and prove that the party
accused made the false pretense charged with
an intent to defraud.
For these reasons, we find that the trial court did not err in
denying defendant's motion to dismiss for insufficient evidence.
III. Jury Instructions
Finally, defendant contends the trial court erred in failing
to instruct the jury on the lesser-included offense of misdemeanor
larceny. We disagree.
Since defendant failed to raise this issue before the trial
court, we review under plain error analysis. State v. Odom
N.C. 655, 659-62, 300 S.E.2d 375, 378-79 (1983). The plain error
rule only applies in truly exceptional cases. Id
. at 660, 300
S.E.2d at 378. To constitute plain error, the appellate court must
be convinced that absent the error, the jury probably would have
reached a different verdict. Id
In this case, the State requested the trial court charge the
jury on the lesser-included offense of misdemeanor larceny at the
charge conference. In response, defendant's attorney stated, I
don't believe it's a lesser included offense. I may be wrong. (R
p. 47). The trial court subsequently denied the State's requestfor the jury instruction, and defendant did not object to the jury
instructions at any time.
Defendant's attorney invited error by stating he did not
believe misdemeanor larceny to be a lesser-included offense and
responding in the negative when the trial court specifically asked
for any additions or deletions to the jury instructions. Under
the doctrine of invited error, 'a defendant is not prejudiced by .
. . error resulting from his own conduct.' State v. Walker
Browning & Hernandez
, 167 N.C. App. 110, 117, 605 S.E.2d 647, 653
(2004) (quoting N.C. Gen. Stat.
defendant may not decline an opportunity for instructions on a
lesser included offense and then claim on appeal that failure to
instruct on the lesser included offense was error.' Id
State v. Gay
, 334 N.C. 467, 489, 434 S.E.2d 840, 852 (1993)); See
also State v. Williams
, 333 N.C. 719, 727-28, 430 S.E.2d 888, 892-
93 (1993). Thus, defendant foreclosed any inclination of the trial
court to instruct on the lesser-included offense of misdemeanor
larceny and is not entitled to relief on appeal.
This argument is
JUDGES LEVINSON and STEPHENS concur.
Report per Rule 30(e).
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