An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 2 January 2007
STATE OF NORTH CAROLINA
v. Jackson County
No. 04 CRS 52958
DALTON CLAY GARRETT
Appeal by Defendant from judgment entered 11 October 2005 by
Judge J. Marlene Hyatt in Jackson County Superior Court. Heard in
the Court of Appeals 12 October 2006.
Attorney General Roy Cooper, by Assistant Attorney General
James M. Stanley, Jr., for the State.
Carol Ann Bauer for Defendant-Appellant.
Defendant appeals his conviction of obtaining property by
false pretenses and brings forward seven assignments of error for
our review. For the reasons stated herein, we find no error.
At trial, the State's evidence tended to show that Maxine
Cline is the owner and operator of Qualla Motel in Cherokee, North
Carolina. On 6 August 2004, Ms. Cline spoke with Defendant about
buying a new ice machine to replace her broken one. Defendant told
Ms. Cline that he could drive to Wilmington to pick up an ice
machine and have it delivered to her by 11 August 2004. He also
told her that he did not accept credit cards.
Defendant then drove
to Cherokee, and Ms. Cline wrote him a check for $1,120.29, halfthe cost of
the ice machine. Defendant gave Ms. Cline a receipt,
which showed the balance due and that the ice machine would be
[s]hipping on Monday, arrival by Wednesday.
When Defendant failed to deliver the ice machine on Wednesday,
11 August 2004, Ms. Cline telephoned Defendant, who stated that the
ice machine had been damaged in transit. Defendant told Ms. Cline
that he would have the ice machine delivered to her by the next
Wednesday, 18 August 2004. When Defendant failed to deliver the
ice machine on 18 August, Ms. Cline telephoned him again. However,
his business phone had been disconnected, and she was unable to
reach him at any other telephone number.
In January 2005, Ms. Cline finally reached Defendant by phone
and told him that she would press charges unless he returned her
money. Before January 2005, Defendant did not telephone Ms. Cline
or make any other effort to contact her.
Ms. Cline made a report to the Jackson County Sheriff's
Department and gave a statement to Detective Celeste Holloman, who
investigated the case. Ms. Cline reiterated to the detective that
she never received her money back and never received an ice machine
Defendant presented no evidence. At the close of the State's
evidence and at the close of all the evidence, Defendant moved to
dismiss the charge against him, arguing insufficiency of theevidence. The trial court denied both motions and sent the case to
the jury, which deliberated for approximately ten minutes and
returned a verdict of guilty of obtaining property by false
pretenses. The trial judge imposed a suspended sentence of eight
to ten months with thirty-six months on supervised probation.
By his assignments of error one and three, Defendant argues
that his trial counsel was ineffective because he did not subpoena
certain witnesses and did not instruct jail personnel to send
Defendant's civilian clothes to the trial court. We disagree that
Defendant received ineffective assistance of trial counsel.
To establish ineffective assistance of counsel, a defendant
must prove that his counsel's performance was deficient and that
his defense was thereby prejudiced. State v. Braswell
, 312 N.C.
553, 324 S.E.2d 241 (1985).
When a defendant attacks his
conviction on the basis that counsel was ineffective, he must show
that his counsel's conduct fell below an objective standard of
at 562-63, 324 S.E.2d at 248
Strickland v. Washington
, 466 U.S. 668, 80 L. Ed. 2d 674 (1984)).
In order to meet this burden, a defendant must satisfy a two-part
test: (1) he must show that counsel made errors so serious that
counsel was not functioning as the counsel guaranteed the
defendant by the Sixth Amendment, and (2) the defendant must showthat counsel's errors were so serious as to deprive the defendant
of a fair trial. Id
because of the
difficulties inherent in making
the evaluation [of counsel's performance], a
court must indulge a strong presumption that
counsel's conduct falls within the wide range
of reasonable professional assistance[.] . . .
There are countless ways to provide effective
assistance in any given case. Even the best
criminal defense attorneys would not defend a
particular client in the same way.
State v. Stroud, 147 N.C. App. 549, 555, 557 S.E.2d 544, 547-48
(2001)(quoting Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694-
, cert. denied, 356 N.C. 623, 575 S.E.2d 758 (2002).
In this case,
Defendant wanted his trial counsel to request a
continuance to give the sheriff's office more time to deliver
subpoenas and to retrieve his civilian clothes from the Buncombe
County jail. He contends that without the witnesses and without
his suit, he was prejudiced because his defense was not properly
prepared, and the jury saw him in jail-issued flip-flops and a T-
After carefully reviewing the evidence before us, we hold that
Defendant has not shown that his trial counsel made an error that
would have resulted in a different jury verdict. The evidence
against Defendant was compelling, as demonstrated by the fact that
the jury required only ten minutes to reach its verdict.
In addition, the trial judge heard from Defendant and hiscounsel about Defendant's clothing before bringing in the jury.
THE COURT: Is there a suit [in the
Buncombe County jail]?
THE BAILIFF: I don't know, Your Honor.
THE COURT: Can you check on that?
[DEFENDANT]: My clothes are in Buncombe
County, they are in my
THE COURT: Well, we can't get them from
Buncombe County this morning.
[DEFENDANT]: Well, that's where they are at
because . . . there was no
instructions to bring them
. . . .
THE COURT: [H]e has no other clothes here
THE BAILIFF: No.
THE COURT: Well, then we'll have to keep
going. He is not dressed in
(Emphasis added). It is clear that the trial judge considered the
issue and ruled in accordance with section 15-176
. Indeed, there
is no evidence in the record before us contrary to the judges's
observation that Defendant was not dressed in jail garment.
These assignments of error are overruled.
Defendant next contends that the trial court committed (1)
plain error by failing to continue the trial sua sponte
additional time for serving subpoenas, and (2) prejudicial error by
not requiring that his suit be retrieved and brought to him from
the Buncombe County jail.
This Court reviews for plain error in the trial of a criminalcase when alleged error was not properly preserved by objection
taken at the time. N.C. R. App. P. 10(c)(4); State v. Verrier
N.C. App. 123, 617 S.E.2d 675 (2005). In this case, Defendant's
trial counsel did not object to proceeding with the trial, and
thus, the trial court's alleged error in not continuing the trial
was not preserved. However, our Supreme Court has held that plain
error review extends only to issues involving jury instructions or
rulings on the admissibility of evidence. State v. Gregory
N.C. 580, 467 S.E.2d 28 (1996). Defendant's contention that the
trial court committed plain error by denying his motion to continue
is thus misplaced. W
e hold that plain error review of the trial
court's failure to continue the trial sua sponte
is not available
before this Court.
Defendant also argues, however, by quoting State v. Hucks
N.C. 574, 579, 374 S.E.2d 240, 244 (1988),
that the trial court
has a duty to act sua sponte
to avoid statutory violations . . .
even in the absence of an objection by the defendant. While this
is a correct statement of the law, Hucks
is inapposite and provides
no support for Defendant's position that the trial judge here had
a duty to continue Defendant's trial on her own motion to prevent
violation of a statutory mandate.
(See footnote 1)
Defendant directs our attentionto no other authority, statutory or case law, to support this
argument, and our research reveals none. This argument is wholly
lacking in merit, and this assignment of error is dismissed.
Defendant next contends that the trial court prejudiced his
case by making him appear in front of the jury wearing a jail-
issued T-shirt and bright orange flipflops [sic] in violation of
section 15-176, which provides that
[i]t shall be unlawful for any sheriff, jailer
or other officer to require any person
imprisoned in jail to appear in any court for
trial dressed in the uniform or dress of a
prisoner or convict, or in any uniform or
apparel other than ordinary civilian's dress,
or with shaven or clipped head. And no person
charged with a criminal offense shall be tried
in any court while dressed in the uniform or
dress of a prisoner or convict, or in any
uniform or apparel other than ordinary
civilian's dress, or with head shaven or
clipped by or under the direction and
requirement of any sheriff, jailer or other
officer, unless the head was shaven or clipped
while such person was serving a term of
imprisonment for the commission of a crime.
N.C. Gen. Stat. § 15-176 (2005).
This Court has previously held
that although it is unlawful to require
prisoner to appear in
court for trial dressed in a prison uniform pursuant to N.C. Gen.Stat. § 15-176, it is not unlawful for a prisoner to so appear.
State v. Johnson
, 128 N.C. App. 361, 496 S.E.2d 805 (1998), cert.
350 N.C. 842, 538 S.E.2d 581 (1999). Likewise, in
, 51 N.C. App. 97, 275 S.E.2d 269, cert. denied
, 303 N.C. 182, 280 S.E.2d 454
(1981), there was no error
in permitting the defendant to be tried in prisoner garb, absent a
showing that he was required by his jailers to thus appear.
Here, there is no evidence that Defendant appeared for trial
in prisoner garb nor that the T-shirt he wore was jail-issued.
(See footnote 2)
On the contrary, as previously noted, the trial judge's observation
that Defendant was not dressed in jail garment is uncontradicted
by the record before us.
Additionally, there is no evidence that
any jailer or officer required Defendant to appear at trial in a
prisoner uniform. Defendant has failed to demonstrate grounds to
support this argument, and we thus hold that the trial court did
not commit prejudicial error in failing to continue the trial sua
so that Defendant's suit could be retrieved from the
Buncombe County jail. This assignment of error is
By his next assignment of error, Defendant argues that the
trial court erred by denying his motions to dismiss the charge ofobtaining property by false pretenses for insufficiency of the
evidence. We disagree.
Upon a motion to dismiss, the trial court must determine
whether there is substantial evidence, taken in the light most
favorable to the State, of each essential element of the offense
charged or of a lesser offense included therein, and that the
defendant is the perpetrator of the offense. State v. Powell, 299
N.C. 95, 261 S.E.2d 114 (1980). Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion. State v. Smith, 300 N.C. 71, 78-79, 265
S.E.2d 164, 169 (1980).
The evidence is considered in the light
most favorable to the State, and the State is entitled to every
reasonable inference arising from it. Powell, 299 N.C. at 99, 261
S.E.2d at 117. The trial court is concerned only with the
sufficiency of the evidence to go to the jury, and not the weight
to be accorded the evidence. State v. Thaggard, 168 N.C. App. 263,
608 S.E.2d 774 (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.
Childers, 80 N.C. App. 236, 242, 341 S.E.2d 760, 764, disc. reviewdenied, 317 N.C. 337, 346 S.E.2d 142 (1986); N.C. Gen. Stat. § 14-
Defendant contends that because he did not seek out Ms. Cline,
there is no evidence that he intended to deceive her; he was just
an inept businessman. Defendant relies on State v. Compton, 90
N.C. App. 101, 104, 367 S.E.2d 353, 355 (1988), which held that
[e]vidence of conduct which shows merely that the defendant was
inept or that he failed to diligently pursue the accomplishment of
his promise, is insufficient to allow an inference that the promise
was made without the present intention to comply with it. We note
that a defendant's intent is seldom provable by direct evidence,
and must usually be shown through circumstantial evidence. State
v. Bennett, 84 N.C. App. 689, 353 S.E.2d 690 (1987).
However, in evaluating the sufficiency of the evidence for
submission to the jury, this Court must analyze the evidence in the
light most favorable to the State, resolving contradictions and
discrepancies in the State's favor. In that light, the evidence
here established that Ms. Cline contacted Defendant for a new ice
machine. He came to her place of business to obtain her check for
$1,120.29, refusing to accept a credit card payment and promising
that the ice machine would be delivered by 11 August 2004. The ice
machine was not delivered, and Defendant did not contact Ms. Cline
in any way to explain this failure. Instead, Ms. Cline calledDefendant, and he again promised that the equipment would be
delivered by 18 August 2004. When the ice machine still did not
arrive as promised, Ms. Cline attempted to call Defendant again,
but his telephone was disconnected. Knowing that he had Ms.
Cline's money and the ice machine had not been delivered, Defendant
made no attempt of any kind to contact Ms. Cline to let her know
why she had paid money for nothing. Ms. Cline then enlisted the
help of the Jackson County authorities to help her find Defendant.
When she finally spoke with him in January 2005, it was due solely
to her efforts to track him down to demand that he return her
money. Although Defendant told Ms. Cline when she advised him she
was pressing charges
that he would pay her money back, as of the
date of trial ten months later, Defendant had neither returned any
of her money nor delivered an ice machine to her.
We believe this evidence was plainly sufficient to let the
jury decide whether Defendant's intent to deceive Ms. Cline was
shown by his actions in taking her money, failing to deliver the
ice machine and never paying her back. Defendant's reliance on
Compton is misplaced because in that case, the evidence established
only that the defendant was an inept businessman. In contrast,
here, there is ample incriminating evidence from which the jury
could reasonably infer that Defendant intended to deceive Ms.
Cline. This assignment of error is overruled.
By his final assignments of error, Defendant argues that the
trial court committed plain error (1) by failing to inquire whether
he wished to testify on his own behalf, and (2) by failing to
inform Defendant of his statutory and constitutional right of
allocution at sentencing. We disagree.
As stated above, plain error review is available only for
issues involving jury instructions or rulings on the admissibility
of evidence. Gregory, 342 N.C. at 584, 467 S.E.2d at 31.
Defendant's reliance on the plain error doctrine to obtain review
of these alleged errors
is thus misplaced. The alleged errors were
not properly preserved by objection at trial, and Defendant has
cited no authority by which this Court can nevertheless review
these issues. See N.C. R. App. P. 10(c)(4)
. These assignments of
error are, accordingly, dismissed.
We hold that Defendant received a fair trial, free of any
Judges STEELMAN and GEER concur.
Report per Rule 30(e).
The judges concurred and submitted this opinion for filing
prior to 31 December 2006.
Hucks held that [w]hen a trial court acts contrary to a
statutory mandate, the error ordinarily is not waived by the
defendant's failure to object at trial. Hucks,
323 N.C. at 579,374 S.E.2d at 244
(citations omitted). However, Hucks is
distinguishable from the case sub judice because there was a
violation of the indigent defendant's statutory right to
additional counsel pursuant to N.C. Gen. Stat. § 7A-450(b1).
Here, on the contrary, there is no violation of Defendant's
Indeed, the record contains no description whatsoever of
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