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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 June 2007
STATE OF NORTH CAROLINA
Nos. 05 CRS 54624-54629,
LISA FAYE WHITFIELD 05 CRS 55220-55225
Appeal by Defendant from judgment entered 16 February 2006 by
Judge J. B. Allen, Jr. in Superior Court, Alamance County. Heard
in the Court of Appeals 27 March 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Dana B. French, for the State.
Irving Joyner, for the Defendant-appellant.
Defendant appeals from her convictions for obtaining property
by false pretenses. After careful review, we find no error in her
The underlying facts tend to show that Martha Covington hired
Defendant Lisa Faye Whitfield to provide care for her father,
Lucian King. During Defendant's employment, Ms. Covington received
notice from First Union/Wachovia Bank informing her that Mr. King's
bank account was overdrawn. She contacted the bank after the
second notice and the bank informed her that six checks, dated from
15 May 2005 to 23 May 2005, were written to Defendant under Mr.
King's signature. The checks had been cashed at a store in Mebane,
North Carolina. Ms. Covington contacted the police and informed them that
several of Mr. King's checks were missing from her home. She also
stated that Defendant had access to her home where all of Mr.
King's checks were kept.
Thereafter, Defendant was charged with six counts each of
forgery, uttering, and obtaining property by false pretenses.
Following a jury trial, Defendant was convicted on all counts. The
trial court sentenced Defendant to consecutive terms of ten to
twelve months for four of her convictions on obtaining property by
false pretenses, suspended sentences for the remaining two
convictions of obtaining property by false pretenses, and entered
prayers for judgment continued on all of the forgery and uttering
convictions. The trial court further ordered Defendant to pay
restitution to the store.
Preliminarily, we address the State's Motion to Dismiss
Defendant's Appeal from the trial court's entry of prayer for
judgment continued on all of her forgery and uttering convictions.
The State contends a prayer for judgment continued is not a final
judgment and, therefore, Defendant does not have a right to appeal
from those convictions. We agree.
Under Section 15A-101(4a) of the North Carolina General
Statutes, an entry of judgment occurs when a sentence is
pronounced. Additionally, a prayer for judgment continued upon
payment of costs, without more, does not constitute the entry of
judgment. N.C. Gen. Stat. § 15A-101(4a) (2005). Here, the trial court entered prayer for judgment, without any
other conditions attached for the convictions of forgery and
uttering. Because there is no entry of judgment for these
convictions, this Court does not have jurisdiction over these
matters. See State v. Southern, 71 N.C. App. 563, 566, 322 S.E.2d
617, 619 (providing that when a prayer for judgment is continued,
no judgment is entered and no appeal is possible), aff'd, 314 N.C.
110, 331 S.E.2d 688 (1985). Thus, we grant the State's Motion to
Dismiss Defendant's appeal from the trial court's entry of prayer
for judgment continued on all of her forgery and uttering charges.
On appeal, Defendant contends that the trial court erred by
(I) failing to dismiss the convictions for obtaining property by
false pretenses; (II) admitting statements in violation of
Defendant's constitutional right of confrontation; and (III)
preventing Defendant from introducing evidence of unsuccessful
attempts to serve a subpoena on Mr. King.
Defendant first argues that the trial court erred by failing
to dismiss the convictions for obtaining property by false
pretenses because there was insufficient evidence. Because
Defendant did not preserve this issue for appellate review, we
dismiss this assignment of error.
Under Rule 10(b)(3) of the North Carolina Rules of Appellant
Procedure, [a] defendant in a criminal case may not assign as
error the insufficiency of the evidence to prove the crime chargedunless he moves to dismiss the action . . . at trial. N.C. R.
App. P. 10(b)(3).
Here, Defendant concedes that she failed to make a motion at
trial to dismiss the charges for obtaining property by false
pretenses; nonetheless, she asks this Court to apply plain error
review. However, our Supreme Court has limited plain error review
to jury instructions and the admissibility of evidence; therefore,
we are without authority to extend plain error to sufficiency of
evidence. State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31
(1996). Accordingly, we dismiss this assignment of error.
Defendant next argues that the trial court committed plain
error by allowing Martha Covington and Corporal Dean Culler to
testify to statements by Mr. King, a cell phone representative, and
bank officials, in violation of the holdings in Crawford v.
Washington, 541 U.S. 36, 158 L.Ed.2d 177 (2004) and Davis v.
Washington, 126 S. Ct. 2266, 165 L.Ed.2d 224 (2006). We disagree.
Under the plain error rule, a defendant must convince this
Court, with support from the record, that the claimed error is so
fundamental, so basic, so prejudicial, or so lacking in its
elements that absent the error the jury probably would have reached
a different verdict. State v. Cummings, 352 N.C. 600, 636, 536
S.E.2d 36, 61 (2000) (citation omitted).
Before we can determine whether the rulings in Crawford and
Davis apply, we must first determine whether the statements
Defendant assigns error to are hearsay. This Court has definedhearsay as a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted. In re Mashburn, 162 N.C. App.
386, 390, 591 S.E.2d 584, 588 (2004) (citing State v. Carroll, 356
N.C. 526, 542, 573 S.E.2d 899, 910 (2002)). However, out of court
statements offered for purposes other than to prove the truth of
the matter asserted are not considered hearsay. Id.
Here, Defendant contends that Ms. Covington's statement that
Mr. King never authorized Defendant to write the checks constituted
hearsay. The record, however, does not reveal that Ms. Covington
made this statement. Instead the record shows Ms. Covington made
statements as to whether her father allowed anyone to have access
to his paperwork. Those statements constituted permissible
opinion. She was not testifying as an expert and her testimony
[was] in the form of opinions or inferences, which was limited to
those opinions or inferences which . . . [were] . . . rationally
based on her . . . perception . . . and . . . helpful to a clear
understanding of . . . [her] testimony or the determination of a
fact in issue. N.C. Gen. Stat. § 8C-1, Rule 701 (2005).
Additionally, Ms. Covington's statements concerning the bank
official's statements that Mr. King's account was overdrawn and
that Defendant was the payee are not considered hearsay because the
statements were not admitted to prove the truth of matter asserted.
As Mr. King's attorney-in-fact, she was concerned with his account
being overdrawn and the reason behind the overdrawn account.
Moreover, Defendant waived her right to challenge the evidencebecause all six checks were admitted into evidence without
objection. See State v. Wright, 270 N.C. 158, 159, 153 S.E.2d 883,
883 (1967) (providing that [i]f incompetent evidence is admitted
over objection but the same evidence has theretofore or thereafter
been given in other parts of the examination without objection, the
benefit of the exception is ordinarily lost) (internal quotes and
Defendant also challenges statements made by Corporal Culler
regarding cell phone bills as being hearsay. However, Defendant
was not convicted of obtaining property by false pretenses as it
relates to the cell phone bills. Thus, any admission of those
statements was harmless.
Since the statements were not hearsay, there is no need to
analyze whether the statements were admitted in violation of
Crawford or Davis. Hence, Defendant's assignments of error are
Defendant last argues that the trial court erred by preventing
her from introducing evidence of unsuccessful attempts to serve a
subpoena upon Mr. King because this evidence was relevant. We
Under Rule 401 of the North Carolina Rules of Evidence,
relevant evidence is evidence having any tendency to make the
existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence. N.C. Gen. Stat. § 8C-1, Rule 401 (2005). If evidence is relevant, then it is admissible (except as
otherwise provided by the Constitution of the United States, by the
Constitution of North Carolina, by Act of Congress, by Act of the
General Assembly or by these rules); if evidence is not relevant,
then it is inadmissible. N.C. Gen. Stat. § 8C-1, Rule 402 (2005).
Here, Defendant's counsel attempted to self serve Mr. King
with a subpoena the night before trial. The trial court found that
Defendant was not blocked from subpoenaing Mr. King because she did
not seek the court's assistance in getting the witness to court.
We agree that the evidence regarding Defendant's alleged blocked
efforts to self serve the subpoena was irrelevant.
Dismissed in part, no error in part.
Judges BRYANT and GEER concur.
Report per Rule 30(e).
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