Appeal by the State from order entered 26 May 2006
Timothy S. Kincaid in Gaston County Superior Court. Heard in the
Court of Appeals 27 March 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Christopher W. Brooks, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defenders Kristen L. Todd and Benjamin Dowling-Sendor, for
The State has appealed from the superior court's order
dismissing 10 counts of obtaining property by false pretenses on
the grounds of collateral estoppel arising out of the court's prior
dismissal of four counts of the same offense. According to the
State, each of the 14 counts were based on checks signed by
Beatrice Lawter _ leaving the amount and payee vacant _ and given
to defendant Stephen Michael Spargo for payment of medical expenses
of Ms. Lawter's son. We hold that even though the trial court
determined that the State had failed to prove that defendant
illegally converted Ms. Lawter's money with respect to the first
four checks, that finding does not necessarily mean that defendantacted legally with respect to the 10 checks at issue in this case.
The doctrine of collateral estoppel is, therefore, inapplicable
under the circumstances of this case, and the trial court erred in
dismissing the charges.
In April 2005, defendant was indicted on five counts of
obtaining property by false pretenses (the "April indictments").
All five April indictments alleged the same false pretense:
[D]efendant uttered a check drawn on the
account of Beatrice Lawter to an agent of
Wachovia Bank and thereby obtaining said
monies as if he were entitled to said funds
when in fact defendant did not have permission
to cash said instrument, or to convert said
monies to his own personal use.
Each of the April indictments varied only as to the amount of money
involved and the date of the alleged offense: the amounts ranged
between $750.00 and $1,700.00, and the dates of the alleged
offenses ranged between 19 November 2003 and 25 November 2003.
In October 2005, defendant was subsequently indicted on 10
additional counts of obtaining property by false pretenses (the
"October indictments"). Similar to the April indictments, the
October indictments alleged that defendant illegally obtained
Beatrice Lawter's money. The precise language of each of the
October indictments was, however, different from the April
The false pretense consisted of the following:
defendant presented a pre-signed check by
Beatrice Lawter for said amount for the care
of her disabled son when in fact the check was
intended for medical expenses of Ms. Lawter'sson and the defendant had no right to the
In the October indictments, the dates of the 10 offenses ranged
between 1 December 2003 and 16 January 2004, and the amounts
involved ranged from $1,657.62 to $7,700.00.
At the outset of his trial on the April indictments, defendant
made a motion to join the 10 charges specified in the October
indictments. Judge Timothy S. Kincaid of Gaston County Superior
Court denied the motion for joinder, and the case proceeded to
trial only on the five April indictments. At trial, the State
presented evidence from several witnesses, including Beatrice
Lawter and her son, Kevin Joe Lawter. Following the close of the
State's evidence, defendant moved to dismiss the charges. The
State voluntarily dismissed one of the five counts, conceding that
its evidence was insufficient. The trial court then dismissed the
four remaining counts on the grounds there was insufficient
evidence showing (1) defendant lacked permission to cash the checks
signed by Ms. Lawter and (2) defendant converted the funds to his
During pretrial proceedings with respect to the October
indictments, defendant moved to dismiss each of the 10 counts,
arguing that a trial would involve relitigation of issues already
decided in his favor at the prior trial. Defendant contended that,
as a result, the trial was barred by double jeopardy and collateral
estoppel. In an order signed 25 April 2006, Judge Kincaid granted
defendant's motion. In that order, Judge Kincaid noted that the April indictments
had been tried before him, and he had granted the motion to dismiss
those charges because "the State had failed to offer sufficient
evidence that the defendant did unlawfully with the intent to cheat
and defraud, obtain the money from Ms. Lawter, and that the State
failed to prove that the defendant did not have permission of Ms.
Lawter to cash the instrument or to convert the monies to some
personal use . . . ." He further noted: "the Court made a specific
finding in that ruling that, based on the evidence presented by the
State, the Defendant did in fact have consent to cash those checks
. . . ."
With respect to the 10 October indictments, Judge Kincaid
found that the indictments were "the same as those in the five
previous cases, with the exception of the offense date and the
amounts of United States currency . . . ." He noted that the
victim was the same, the indictments relied upon the same
allegation that money had been obtained from a bank by way of
presenting a check for cash, and the indictments alleged that
defendant converted Ms. Lawter's money to his own use. Judge
Kincaid pointed out, however, that the October indictments, as
opposed to the April indictments, specifically alleged that the
check was intended for medical expenses of Ms. Lawter's son, and
defendant had no right to the proceeds from the check. Judge
Kincaid then found "[t]hat the State offered evidence at the
previous trial of medical appointments for Kevin Joe Lawter, the
son of Beatrice E. Lawter, but did not present any evidence of anymedical bills, no evidence of whether any bills were outstanding
and owing, or and [sic] evidence at all as to how the money was
used by the defendant . . . ."
Based on those findings, Judge Kincaid concluded "[t]hat to
allow a subsequent prosecution of these ten crimes, would place the
defendant twice in jeopardy for the same offense and would allow
the State to relitigate the same issues that have already been
decided by a final judgment of the Court, a practice which is
barred by the doctrine of collateral estoppel." The State timely
appealed this order.
The State's sole argument on appeal is that the trial court
wrongly dismissed the 10 October indictments because the issues
presented were different from the five indictments previously
dismissed and thus not barred by the doctrine of collateral
estoppel. As an initial matter, defendant maintains that we should
not consider the State's argument on appeal because it differs from
the prosecutor's argument in opposition to defendant's motion at
the trial level. According to defendant, the State is attempting
to "swap horses between courts in order to get a better mount,"
Weil v. Herring
, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934). We
believe the State's argument on appeal is fairly encompassed within
the State's presentation to the trial court and, therefore, we will
address the merits of the State's appeal.
As our Supreme Court has stated, "[t]he doctrine of collateral
estoppel was held to be a part of the constitutional guaranteeagainst double jeopardy in Ashe v. Swenson
, 397 U.S. 436, 25 L.Ed.
2d 469 (1970)." State v. Edwards
, 310 N.C. 142, 145, 310 S.E.2d
610, 613 (1984). "Under the doctrine of collateral estoppel, an
of ultimate fact, once determined by a valid and final
judgment, cannot again be litigated between the same parties in any
future lawsuit. Subsequent prosecution is barred only if the jury
could not rationally have based its verdict on an issue
the one the defendant seeks to foreclose." Id.
proceeding must have necessarily determined the factual issue; the
mere possibility that the issue was resolved does not prevent
relitigation of the issue. Id.
The burden of persuasion on a
collateral estoppel defense rests with the defendant. State v.
, 117 N.C. App. 701, 704, 453 S.E.2d 201, 204, disc. review
, 340 N.C. 117, 456 S.E.2d 325 (1995).
"The application of the common law doctrine of collateral
estoppel to criminal cases has been codified by N.C. Gen. Stat. §
15A-954(a)(7) . . . ." State v. Safrit
, 145 N.C. App. 541, 552,
551 S.E.2d 516, 524 (2001). N.C. Gen. Stat. § 15A-954(a)(7) (2005)
requires dismissal of criminal charges when "[a]n issue of fact or
law essential to a successful prosecution has been previously
adjudicated in favor of the defendant in a prior action between the
parties." Collateral estoppel, therefore, requires an "identity of
issues." State v. Summers
, 351 N.C. 620, 623, 528 S.E.2d 17, 20
Our Supreme Court has articulated a four-part test for
determining whether an "identity of issues" exists: (1) the issues must be the same as those
involved in the prior action, (2) the issues
must have been raised and actually litigated
in the prior action, (3) the issues must have
been material and relevant to the disposition
of the prior action, and (4) the determination
of the issues in the prior action must have
been necessary and essential to the resulting
We agree with the State that defendant has failed to establish
that the charges in this case meet this test.
"The crime of obtaining property by false pretenses consists
of the following elements: '(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. Cagle
, __ N.C. App. __, __, 641 S.E.2d
705, 708 (2007) (quoting State v. Parker
, 354 N.C. 268, 284, 553
S.E.2d 885, 897 (2001), cert. denied
, 535 U.S. 1114, 153 L. Ed. 2d
162, 122 S. Ct. 2332 (2002)). With respect to the April
indictments, Judge Kincaid determined that these elements were not
met because the State had not presented sufficient evidence (1)
that defendant lacked permission to cash the four checks at issue
(elements one through three) and (2) that defendant converted the
funds from those four checks to his own use (element four).
Because of the denial of the motion for joinder, these rulings did
not specifically address these two issues with respect to the 10
checks set forth in the October indictments.
The question remains, however, whether permission granted with
respect to the four checks already litigated necessarilyestablishes that defendant had permission as to the 10 checks in
this case. Judge Kincaid's ruling in the prior case did not
require a finding that permission existed for defendant to cash all
checks given by Ms. Lawter to him. It simply established that the
State failed to prove a lack of permission as to those four checks.
Even if Ms. Lawter gave permission as to the four, a jury could
still find that she did not give permission to defendant to cash
the 10 checks at issue in this case _ none of which were written at
the same time as the four checks previously litigated. For
example, a person might give permission to another person to take
$20.00 out of her purse on a particular occasion, but that does not
necessarily mean she has given that person permission to take
$20.00 a month later.
In a similar manner, a person may properly dispose of the
proceeds of some checks, but then misappropriate the funds for
subsequently received checks. Cf. State v. Perkins
, __ N.C. App.
__, __, 638 S.E.2d 591, 599 (2007) (holding that verdicts were not
inconsistent when "the jury could have determined that defendant
did not act in concert with respect to the afternoon entry into Ms.
Clough's office, but that she did act in concert with respect to
the larceny"). Thus, Judge Kincaid's determination that the State
did not show an improper conversion of funds for the first four
checks does not necessarily require the conclusion that defendant
acted properly as to the later-written 10 checks. In short, while
Judge Kincaid conclusively determined in the first trial that the
evidence was insufficient to convict defendant of the four countsof obtaining property by false pretenses alleged in the April
indictments, the court did not _ indeed, because of the lack of
joinder, could not _ make such a determination concerning the 10
counts alleged in the October indictments.
Defendant argues, however, that the State's own evidence at
the first trial "disproved the elements of Obtaining Property by
False Pretenses for all fifteen
" counts. (Emphasis supplied by
defendant.) More specifically, defendant asserts that the
testimony of Ms. Lawter and her son showed that defendant actually
had "permission to fill in and cash all fifteen checks." Even
assuming that the testimony can be read as applying to "all" the
transactions alleged in all 15 indictments, our courts have
stressed that the focus of the collateral estoppel inquiry is not
on the evidence presented. As the Supreme Court stated in Edwards
310 N.C. at 145, 310 S.E.2d at 613, "[t]he determinative factor is
not the introduction of the same evidence [presented in the first
trial], but rather whether it is absolutely necessary to
defendant's conviction [in the second trial] that the second jury
find against defendant on an issue
upon which the first jury found
in his favor." See also Solomon
, 117 N.C. App. at 704-05, 453
S.E.2d at 204 ("The mere fact that the same evidence was introduced
in a prior criminal trial does not make a later criminal trial
subject to collateral estoppel. Rather, the determinative factor
in a collateral estoppel defense is whether it is absolutely
to a defendant's conviction for the second offense that
the second jury find against that defendant on an issue which wasdecided in his favor by the prior jury." (internal citation
Because of the lack of joinder and the fact that the
transactions at issue in this case occurred at a different time,
the only issues necessarily decided in the first trial were whether
defendant obtained money by false pretenses when negotiating each
of the first four checks. The defense of collateral estoppel would
only apply in this case if it were absolutely necessary for the
jury _ in rendering a verdict in this case _ to decide that
defendant did in fact obtain money by false pretenses with respect
to the first four checks. In, however, any trial arising out of
the October indictments, the propriety of defendant's actions as to
those four checks will not be a question before the jury.
Accordingly, we hold that collateral estoppel has no
application in this case, and the trial court erred in granting the
motion to dismiss. We, therefore, reverse the order of the trial
court dismissing the 10 October indictments.
Chief Judge MARTIN concurs.
Judge WYNN concurs in the result in a separate opinion.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 November 2007
STATE OF NORTH CAROLINA
Nos. 05 CRS 52734-43
STEPHEN MICHAEL SPARGO,
WYNN, Judge concurring in the result.
I agree with the result reached by the majority opinion but
write separately to discuss a conflicting rationale followed by the
Ohio Court of Appeals but not yet adopted in North Carolina.
As noted by the majority, this Court has previously recognized
our Supreme Court's holdings with respect to collateral estoppel in
the criminal context:
The mere fact that the same evidence was
introduced in a prior criminal trial does not
make a later criminal trial subject to
collateral estoppel. Rather, the
determinative factor in a collateral estoppel
defense is whether it is absolutely necessary
to a defendant's conviction for the second
offense that the second jury find against that
defendant on an issue which was decided in his
favor by the prior jury.
State v. Solomon, 117 N.C. App. 701, 704-05, 453 S.E.2d 201, 204
(quoting State v. Edwards, 310 N.C. 142, 145, 310 S.E.2d 610, 613
(1984)), disc. review denied, 340 N.C. 117, 456 S.E.2d 325 (1995).
Our opinion in Solomon is controlling in this case and
supports the majority's conclusion that collateral estoppel does
not apply here. However, in State v. Green, No. 83-05-046
Ohio App. LEXIS 13969 (unpublished, Ohio Ct. App.
, Dec. 12, 1983),a case very similar to the present case and cited by the trial
court judge, the Ohio Court of Appeals applied different reasoning
and found that collateral estoppel applied to bar a later
In Green, the defendant was indicted on two counts of theft
for writing checks payable to himself on a decedent's account. Id.
at *8. Count I was dismissed on the defendant's motion, and Count
II went to trial, where the judge found that the State failed to
prove that the defendant obtained control over the property with an
intent to deprive the owner, an element that was also an element of
Count I. Id. at *8-*9.
The Green court concluded that since the State failed to prove
in the first trial
that the defendant obtained control over the
property with the intent to deprive the owner, it was precluded
from trying to prove the same factual issue in a subsequent trial.
Id. at *10-*11. Additionally, the court noted that the two counts
involved the same property (money in a bank account), the same
parties, and the same essential issues. Id. at *11.
Similarly, this case involves the same parties, same issues,
same bank account, and the same conduct. At the first trial, the
judge specifically found that the State failed to offer sufficient
evidence to prove two elements of obtaining property by false
pretenses: (1) that Defendant unlawfully obtained money and (2)
that Defendant did not have permission to cash or convert the
checks. The elements that the State failed to prove in the first
trial are also elements of the second group of ten counts ofobtaining property by false pretenses. Under the reasoning of
Green, the State failed to prove two elements of obtaining property
by false pretenses at the first trial and would therefore
estopped from trying to prove the same factual issue in a later
However, because Solomon is the controlling case in North
Carolina, I must concur in the result reached by the majority.
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