An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-255

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.

    STEPHENS, Judge.
    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 from Defendant.
    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.

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    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 reasonableness. Id. at 562-63, 324 S.E.2d at 248 (citing 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. Furthermore,
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- 95) , 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- shirt.”
    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 property.
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 than these?
THE BAILIFF:    No.
THE COURT:    Well, then we'll have to keep going. He is not dressed in jail garment.

(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.

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    Defendant next contends that the trial court committed (1) plain error by failing to continue the trial sua sponte to allow 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, 173 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, 342 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, 323 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 a 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. denied, 350 N.C. 842, 538 S.E.2d 581 (1999). Likewise, in State v. Berry, 51 N.C. App. 97, 275 S.E.2d 269, cert. denied and appeal dismissed, 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 sponte so that Defendant's suit could be retrieved from the Buncombe County jail. This assignment of error is overruled.
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    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- 100 (2003).
    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.
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    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 error.
    No error.    
    Judges STEELMAN and GEER concur.
    Report per Rule 30(e).
     The judges concurred and submitted this opinion for filing prior to 31 December 2006.


Footnote: 1     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 statutory rights.
Footnote: 2     Indeed, the record contains no description whatsoever of Defendant's T-shirt.

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