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1. Evidence--container full of Xanax in defendant's possession upon his arrest--failure to show prejudicial error
The trial court did not err in a theft and use of financial cards and forgery of a check case by admitting into evidence a container full of Xanax in defendant's possession upon his arrest, because: (1) the trial court issued an instruction to the jury to disregard the evidence at the close of trial; and (2) given that defendant readily acknowledge his past and continuing involvement with illegal drugs, no reasonable possibility exists that, without the admission of the Xanax, defendant would have been found not guilty of these charges.
2. Credit Card Crimes--financial card theft--motion to dismiss--sufficiency of evidence
The trial court did not err by denying defendant's motion to dismiss the charge of financial card theft under N.C.G.S. § 14-113.9(a)(1) based on alleged insufficient evidence, because: (1) the jury could have properly concluded from the evidence that defendant obtained two credit cards from the control of another without the owner's consent, and intended to use them; (2) although evidence was not presented that defendant himself stole the cards, evidence was presented that indicated defendant obtained both cards without consent and must have obtained them from either the victim directly or an intermediary; and (3) the evidence tended to show that defendant used the Visa and admitted that he planned to use the MasterCard.
3. Forgery--check--motion to dismiss--sufficiency of evidence
The trial court did not err by denying defendant's motion to dismiss the charge of forgery based on alleged insufficient evidence, because: (1) the State presented a witness's testimony that defendant brought her a check made out to her on an account bearing another individual's name, that defendant told her it belonged to his uncle and asked her to cash it for him, and that defendant signed the check or entered her name as payee in her presence; and (2) although defendant contends the witness was not credible since she admitted to using drugs during the time period of the incident and changed her story to the police about how much compensation she received from her acts, it is the province of the jury to assess and determine witness credibility.
4. Sentencing--prior record level--miscalculation
The trial court erred in a theft and use of financial cards and forgery of a check case by its determination of defendant's prior record level, and the case is remanded for resentencing, because: (1) N.C.G.S. § 15A-1340.14(d) provides that for purposes of determining prior record level, if an offender is convicted of more than one offense in a single superior court during one calendar week, only the conviction for the offense with the highest point total is used; (2) two of defendant's convictions for obtaining property by false pretenses came on the same day in Henderson County, and thus only one of them should have been used in the calculation; and (3) although defendant's stipulation as to prior record level is sufficient evidence for sentencing at that level, the trial court's assignment of level IV to defendant was an improper conclusion of law.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General M. Lynne Weaver, for the State.
William D. Auman for defendant-appellant.
James Kenneth Fraley (defendant) appeals from judgments entered on jury verdicts of guilty on counts related to theft and use of financial cards and forgery of a check. We affirm the convictions but remand for resentencing.
The State's evidence tended to show that on or around 15 January 2004, an acquaintance of defendant named Mary Johnson (Johnson) at defendant's behest cashed a check that had been stolen from David Bradley. According to Johnson, defendant brought her the check and told her it was from his uncle, but defendant had no identification card and could not cash it. He offered her a portion of the $800.00 for which the check was written to cash it for him. Defendant filled out a portion of the check in front of Johnson before she took it to the bank, where she cashed it and turned the money over to defendant.
At some point in January 2004, two financial cards -- one Visa check card and one MasterCard -- were stolen from Mark Alford (Alford). A local Wal-Mart store turned over to police register receipts showing that the stolen Visa was used there on 19 January2004, at 3:07 p.m., and videotape surveillance showing defendant making a purchase at that time and apparently paying with a credit card. The MasterCard was found on defendant's person incident to an unrelated search on 22 January 2004, when an officer found defendant and two others with drugs and drug paraphernalia in a motel room and located the card in defendant's pocket.
Defendant was arrested at Wal-Mart on 31 January 2004 pursuant to an outstanding warrant. (See footnote 1) He was detained in a security substation at the store and asked to empty his pockets. When he did so, defendant retained a small mint container with tablets inside. He began to eat them, and when the officer asked him to place the container with the other items from his pockets, he attempted to eat all the tablets at once. The container and tablets were then taken from defendant, and the tablets were later determined to be Xanax. No charges from that incident were included in this case at trial.
A jury found defendant guilty of two counts of financial card theft and one count each of financial card fraud, forgery, and possession of stolen property on 8 July 2004. Defendant was sentenced at a prior record level of IV to four consecutive sentences of eight to ten months, followed by an additional 120 day term.
The theft charges here relate to the two cards (a Visa and a
MasterCard) stolen from Alford, the cards' rightful owner. As the
judge noted in his ruling on the motion to dismiss, the evidence
tended to show that the last time Alford was in possession of thecards to his knowledge was on January 17th; that the Visa card was
used by someone other than Alford at Wal-mart on the 19th; and that
the MasterCard was found in defendant's possession on the 22nd.
As to the Visa, at trial, the State presented a security tape from Wal-Mart showing defendant shopping there, making a purchase at the time of the unauthorized charge on the Visa and apparently paying for it with a credit card. The State also presented register receipts obtained from Wal-Mart showing purchases made with Alford's Visa card corresponding to the time of defendant's purchases. The card itself was never located.
As to the MasterCard, a police detective found it in defendant's pocket during a search conducted at a motel room where drug use had been reported. (See footnote 2) It was produced at trial as State's Exhibit 1. During his testimony, when asked about the card defendant stated I obtained it and I planned to use it.
From this evidence, the jury could have properly concluded that defendant obtained the cards from the control of another without Alford's consent and intended to use them. Although evidence was not presented that defendant himself stole the cards,evidence was presented that indicated defendant obtained both cards without consent and must have obtained them from either Alford directly or an intermediary. Further, the evidence tends to show he actually used the Visa and he admitted that he planned to use the MasterCard. Thus, the motion to dismiss on these counts was properly denied.
 As to the sufficiency of the evidence regarding the forgery charge, the relevant statute states: It is unlawful for any person to forge or counterfeit any instrument, or possess any counterfeit instrument, with the intent to injure or defraud any person, financial institution, or governmental unit. N.C. Gen. Stat. § 14-119(a) (2005).
The State presented evidence in the form of testimony by Johnson that defendant brought to her house a check made out to her on an account bearing David Bradley's name. She further testified that defendant told her it belonged to his uncle and asked her to cash it for him, signing the check or entering her name as payee in her presence. Defendant argues that Johnson was not a credible witness because she admitted to using drugs during the time period of the incident and changed her story to the police about how much compensation she received for her actions. However, it is a long- standing principle in our jurisprudence that it is the province of the jury, not the court, to assess and determine witness credibility. State v. Hyatt, 355 N.C. 642, 666, 566 S.E.2d 61, 77 (2002). If the jury found her story credible, they could have properly concluded that defendant forged the check with the intentto defraud David Bradley. Thus, the motion to dismiss was properly denied.
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