Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

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E.g., 10/21/2021
E.g., 10/21/2021

A Kansas identity theft statute which criminalizes the “using” of any “personal identifying information” belonging to another person with the intent to “[d]efraud that person, or anyone else, in order to receive any benefit” was not preempted by the federal Immigration Reform and Control Act of 1986 (IRCA).  The IRCA makes it unlawful to hire and alien knowing that he or she is unauthorized to work in the United States.  To enforce this prohibition, the IRCA requires employers to use a federal work-authorization form (I-9) to comply with a federal employment verification system.  The IRCA also requires that employees complete an I-9 no later than their first day of work and it is a federal crime to provide false information on an I-9 or use fraudulent documents to show authorization to work.  In addition, the IRCA limits the use of information “contained in” I-9 forms “for law enforcement purposes” apart from the enforcement of certain federal statutes and the Immigration and Nationality Act, and also contains a provision that expressly “preempt[s] any State or local law imposing civil or criminal sanctions (other than through licensing or similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.”  The preemption provision makes no mention of state or local laws that impose criminal or civil sanctions on employees or applicants for employment.

The alien defendants in this case were not authorized to work in the United States and secured employment by using identities of other persons, including those persons’ social security numbers, on I-9 forms.  Each of them used these same false identities when they completed federal W-4 tax withholding forms and similar state K-4 tax withholding forms.  Each defendant was convicted of a Kansas identity theft offense related to their use of another person’s social security number on the tax forms, the same numbers they had used on the I-9 forms.  The Court reversed the decision of the divided Kansas Supreme Court which had determined that since the social security numbers had been used in the I-9 forms, the convictions were preempted by the IRCA based on the fact that the social security numbers were “contained in” the I-9 forms.  The Court held that the Kansas identity theft laws were neither expressly nor impliedly preempted by federal law.  With respect to express preemption, the court explained that (1) the express preemption contained in the IRCA applied only to State and local laws imposing sanctions on employers and recruiters; (2) the Kansas Supreme Court’s interpretion of the IRCA limitation on the use of information “contained in” an I-9 form to preempt a state prosecution based on the use of a false social security number in a tax form when that number also had been used in an I-9 form was “flatly contrary to standard English usage” of the term “contained in;” and (3) the defendants’ argument that a provision of the IRCA generally prohibiting the use of the federal employment verification system for “law enforcement purposes” rested on a misunderstanding of that system and its relationship to the circumstances of this case.  The court went on to find that the Kansas laws, as applied, were not preempted by implication, finding neither field preemption nor conflict preemption.    

Justice Thomas joined by Justice Gorsuch, each of whom also joined the majority opinion in full, filed a concurring opinion to separately reiterate the view that the court should abandon its “purposes and objective” preemption jurisprudence.

Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, concurred in part and dissented in part, agreeing with the majority opinion that the IRCA did not expressly preempt the Kansas criminal law at issue but disagreeing with the majority opinion’s implied preemption analysis on the basis that “Congress has occupied at least the narrow field of policing fraud committed to demonstrate federal work authorization.”

State v. Jones, 367 N.C. 299 (Mar. 7, 2014)

Affirming the decision below in State v. Jones, 223 N.C. App. 487 (Nov. 20, 2012), the court held that the evidence was sufficient to establish identity theft. The case arose out of a scheme whereby one of the defendants, who worked at a hotel, obtained the four victim’s credit card information when they checked into the premises. The defendant argued the evidence was insufficient on his intent to fraudulently use the victim’s cards. However, the court found that based on evidence that the defendant had fraudulently used other individuals’ credit card numbers, a reasonable juror could infer that he possessed the four victim’s credit card numbers with the intent to fraudulently represent that he was those individuals for the purpose of making financial transactions in their names. The defendant argued further that the transactions involving other individuals’ credit cards actually negated the required intent because when he made them, he used false names that did not match the credit cards used. He continued, asserting that this negates the suggestion that he intended to represent himself as the person named on the cards. The court rejected that argument, stating: “We cannot conclude that the Legislature intended for individuals to escape criminal liability simply by stating or signing a name that differs from the cardholder’s name. Such a result would be absurd and contravene the manifest purpose of the Legislature to criminalize fraudulent use of identifying information.”

When the defendant was treated at the hospital for gunshot wounds he sustained in his altercation with the victim, he provided another person’s name, date of birth, and address. A warrant for his arrest was issued under this false identity, and he was subsequently charged with identity theft. The trial court instructed the jury that a person’s name, date of birth, and address “would be personal identifying information” under the identity theft statute.

G.S. 14-113.20 sets forth fourteen examples of “identifying information,” none of which specifically reference the appropriation of a person’s name, date of birth, and address. A catch-all category incorporates “[a]ny other numbers or information that can be used to access a person’s financial resources.” The court rejected the notion that identifying information under the identity theft statute includes only the types of information listed by example. It also concluded that even if the list was exclusive, the defendant’s use of another person’s name, date of birth, and address would fall under the catch-all category. Thus, the court found no error in the trial court’s jury instruction.

In an identity theft case, the evidence was sufficient to establish that the defendant "used" or "possessed" another person’s social security number to avoid legal consequences. After being detained and questioned for shoplifting, the defendant falsely gave the officer his name as Roy Lamar Ward and provided the officer with the name of an employer, date of birth, and possible address. The officer then obtained Ward's social security number, wrote it on the citation, and issued the citation to the defendant. The defendant neither signed the citation nor confirmed the listed social security number.

The defendant’s active (and false) acknowledgement to an officer that the last four digits of his social security number were “2301” constituted the use of identifying information of another within the meaning of G.S. 14-113.20(a).

The defendant was charged with offenses under the current (G.S. 14-112.2) and prior (G.S. 14-32.3) statutes proscribing the crime of exploitation of an elder adult. (1) There was sufficient evidence that the victim was an elder adult. The victim was either 99 or 109 years old and had not driven a vehicle for years. Individuals helped him by paying his bills, driving him, bringing him meals and groceries, maintaining his vehicles, cashing his checks, helping him with personal hygiene, and making medical appointments for him. (2) There was sufficient evidence that the defendant was the victim’s caretaker. The defendant assisted the victim by, among other things, performing odd jobs, running errands, serving as a driver, taking him shopping, purchasing items, doing projects on the victim’s property, writing checks, visiting with him, taking him to file his will, making doctor appointments, and cutting his toenails. Additionally, the two had a close relationship, the defendant was frequently at the victim’s residence, and was intricately involved in the victim’s financial affairs. The court rejected the defendant’s argument that these activities were not sufficient to transform the “friendly relationship” into that of caretaker and charge.

The evidence was sufficient to establish financial transaction card theft. The defendant argued that the evidence was insufficient to prove the took or obtained the victim’s card with the intent to use it. The evidence showed that on the day that the card was stolen someone other than the victim used it at Food Lion and The Pantry. Surveillance video showed the defendant at The Pantry at the time the card was swiped and an employee testified that the defendant tried to use a card with another person’s name on its face. This was sufficient evidence that the defendant obtained the card with the intent to use it.

In this Cleveland County case, the defendant was convicted of forgery of an endorsement pursuant to G.S. 14-120, uttering a forged check pursuant to G.S. 14-120 and attaining habitual felon status pursuant to G.S. 14-7.1. (1) The defendant argued on appeal that the State failed to prove the falsity of the instrument. The Court of Appeals determined that the State presented substantial evidence to show that the defendant wrote and signed a check on the account of John McGinnis without McGinnis’s authority. The State’s evidence tended to show that the defendant wrote a check on McGinnis’s account weeks after his house and car were broken into. A driver’s license and phone number handwritten on the check were similar to defendant’s. The defendant falsely told the person to whom she wrote the check that McGinnis was her father and had given her permission to use the check. McGinnis was hospitalized when the check was written and had no children. Malcom Parker was the sole power of attorney for McGinnis and handled all of his financial matters.

(2) The trial court properly admitted a photocopy of the forged check pursuant to G.S. 8-97 to illustrate the testimony of the witness to whom the check had been provided. The Court found no indication that the photocopy was used as substantive evidence, and further concluded that the State put forth substantial evidence that the defendant had forged and uttered an instrument as defined by G.S. 14-119.

Forgery and larceny of a chose in action are not mutually exclusive offenses. The defendant argued that both forgery and uttering a forged check require a counterfeit instrument while larceny of a chose in action requires a “valid instrument.” The court concluded that larceny of a chose in action does not require that the bank note, etc. be valid. 

The evidence was sufficient to sustain the defendant’s convictions for uttering a forged instrument and attempting to obtain property by false pretenses. Both offenses involved a fraudulent check. The court rejected the defendant’s argument that there was insufficient evidence to establish that the check was falsely made. An employee of the company that allegedly issued the check testified that she had in her possession a genuine check bearing the relevant check number at the time the defendant presented another check bearing the same number. The employee testified the defendant’s check bore a font that was “way off” and “really different” from the font used by the company in printing checks. She identified the company name on the defendant’s check but stated “it’s not our check.”

(1) The evidence was insufficient to support a charge of uttering a forged check. For forgery, the “false writing must purport to be the writing of a party other than the one who makes it and it must indicate an attempted deception of similarity.” Here, the State presented no evidence that the check was not in fact a check from the issuer. (2) For the same reason the court held that the evidence was insufficient to support a conviction for obtaining property by false pretenses.

There was sufficient evidence of forgery under G.S. 14-119 when the evidence showed that the defendant signed a law enforcement officer’s name on five North Carolina Uniform Citations.

The trial court erred in its jury instructions for the crime of impersonating an officer under G.S. 14-277(b). The court noted that while G.S. 14-277(a) makes it a crime for an individual to make a false representation to another person that he is a sworn law enforcement officer, G.S. 14-277(b) makes it a crime for an individual, while falsely representing to another that he is a sworn law enforcement officer, to carry out any act in accordance with the authority granted to a law enforcement officer. Accordingly, the court concluded, a charge under G.S. 14-277(b) includes all of the elements of a charge under G.S. 14-277(a). The court further concluded that while NCPJI – Crim. 230.70 correctly charges an offense under G.S. 14-277(a), NCPJI – Criminal 230.75 “inadequately guides the trial court regarding the elements of [an offense under G.S. 14-277(b)] . . . by omitting from the instruction the ways enumerated in [G.S. 14-277(a)] and N.C.P.I. – Crim. 230-70 by which an individual may falsely represent to another that he is a sworn law enforcement officer.” The trial court’s instructions based on this pattern instruction were error, however the error was harmless.

State v. Barnett, 245 N.C. App. 101 (Jan. 19, 2016) rev’d on other grounds, 369 N.C. 298 (Dec 21 2016)

(1) The evidence was sufficient to support a conviction for deterring an appearance by a witness under G.S. 14-226(a). After the defendant was arrested and charged with assaulting, kidnapping, and raping the victim, he began sending her threatening letters from jail. The court concluded that the jury could reasonably have interpreted the letters as containing threats of bodily harm or death against the victim while she was acting as a witness for the prosecution. The court rejected the defendant’s contention that the state was required to prove the specific court proceeding that he attempted to deter the victim from attending, simply because the case number was listed in the indictment. The specific case number identified in the indictment “is not necessary to support an essential element of the crime” and “is merely surplusage.” In the course of its ruling, the court noted that the victim did not receive certain letters was irrelevant because the crime “may be shown by actual intimidation or attempts at intimidation.” (2) The trial court did not commit plain error in its jury instructions on the charges of deterring a witness. Although the trial court fully instructed the jury as to the elements of the offense, in its final mandate it omitted the language that the defendant must have acted “by threats.” The court found that in light of the trial court’s thorough instructions on the elements of the charges, the defendant’s argument was without merit. Nor did the trial court commit plain error by declining to reiterate the entire instruction for each of the two separate charges of deterring a witness and instead informing the jury that the law was the same for both counts.

On appeal from the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 802 S.E.2d 508 (2017), the court reversed, holding that the obtaining property by false pretenses indictment was not defective and that the evidence was sufficient to sustain the conviction on that charge.

(1) The obtaining property by false pretenses indictment, that described the property obtained as “United States Currency” was not fatally defective. The indictment charged the defendant with two counts of obtaining property by false pretenses, alleging that the defendant, through false pretenses, knowingly and designedly obtained “United States Currency from Cash Now Pawn” by conveying specifically referenced personal property, which he represented as his own. The indictment described the personal property used to obtain the money as an Acer laptop, a Vizio television, a computer monitor, and jewelry. An indictment for obtaining property by false pretenses must describe the property obtained in sufficient detail to identify the transaction by which the defendant obtained money. Here, the indictment sufficiently identifies the crime charged because it describes the property obtained as “United States Currency” and names the items conveyed to obtain the money. As such, the indictment is facially valid; it gave the defendant reasonable notice of the charges against him and enabled him to prepare his defense. The transcript makes clear that the defendant was not confused at trial regarding the property conveyed. Had the defendant needed more detail to prepare his defense, he could have requested a bill of particulars. In so holding the court rejected the defendant’s argument that the indictment was fatally defective for failing to allege the amount of money obtained by conveying the items.

(2) The State presented sufficient evidence of the defendant’s false representation that he owned the stolen property to support his conviction for obtaining property by false pretenses. The pawnshop employee who completed the transaction verified the pawn tickets, which described the conveyed items and contained the defendant’s name, address, driver’s license number, and date of birth. The tickets included language explicitly stating that the defendant was “giving a security interest in the . . . described goods.” On these facts, the State presented sufficient evidence of the defendant’s false representation that he owned the stolen property that he conveyed.

In this obtaining property by false pretenses case, there was sufficient evidence that the victim was a “person within this State” as the term is used in G.S. 14-100(a) as well as sufficient evidence of the value of the property at issue.  Addressing what it characterized as an issue of first impression, the court determined that even if it is an essential element of a violation of G.S. 14-100 that the victim of the offense by “a person within this State” as that phrase is used in the statute, an issue that the court did not decide, the element was satisfied in this case involving AT&T.  The defendant’s fraud scheme involved the resale of iPhones falsely obtained from AT&T, and the court reasoned that because the phones came from a store operated by AT&T located in North Carolina, AT&T was operating as “a person within this state” for purposes of the offense and the trial court properly denied the defendant’s motion to dismiss.

The court went on to conclude that the State met its burden of proving that the value of the iPhones falsely obtained by the defendant was at least $100,000.  The court noted that North Carolina case law has defined the term “value” for purposes of obtaining property by false pretenses to be synonymous with “fair market value” and explained that evidence presented at trial showed that the actual retail value of the iPhones as calculated by the price AT&T paid to its supplier for the phones met or exceeded $100,000.  The court discussed State v. Kornegay and State v. Hines in the process of rejecting the defendant’s argument that the value issue should take into account net value and setoffs to calculate the particular economic damage to the victim.  The court explained: “Hines establishes that we are only concerned with the gross fair market valuation of the property obtained, not the net gain in value to the criminal.”

The defendant engaged in a scheme whereby she would submit electronic payments towards delinquent taxes to the North Carolina Department of Revenue (“NCDOR”) from invalid accounts (or, in one case out of 48, an account with insufficient funds). The payments to NCDOR were all made towards matters connected to the defendant. The electronic payments (from a total of ten different banks) had valid bank routing numbers and were all initially processed by NCDOR—resulting in immediate credits on the defendant’s NCDOR accounts. Only days after the electronic payment would the bank receive notice that payment had not been received due to an invalid account or insufficient funds. NCDOR immediately applied the payments to defendant’s various tax liabilities, and occasionally stopped garnishing the defendant’s wages based on the fraudulent payments. The defendant made several overpayments to NCDOR, and refund checks were issued to her. The defendant was able to cash three of four refund checks before NCDOR realized the electronic payments never materialized. When interviewed by law enforcement, the defendant confessed. She was subsequently charged with ten counts of obtaining property by false pretenses in Wake County. The jury convicted on all counts and the defendant appealed. 

(1) The defendant argued that there was insufficient evidence that she obtained a “thing of value” for purposes of obtaining property by false pretense. Any thing of value will suffice for this purpose, and the determination of whether something is a thing of value is a factual question for the jury. Ample evidence showed that the defendant received a thing of value:

[T]he benefit Defendant incurred from her purported ‘payments’ was the elimination or diminution of liabilities owed to NCDOR . . . in addition to the tangible benefit of cash by way of the refund checks. Moreover, Defendant herself admitted she committed these offenses to ‘stop the wage garnishments from occurring,’ and deliberately ‘continue[d] the cycle’ to redeem additional refund checks. Brantley-Phillips Slip op. at 10.

There was also sufficient evidence that NCDOR was actually deceived by the defendant for related reasons—the agency issued refund checks, credited the defendant’s accounts with the agency (and others), and stopped garnishing the defendant’s wages at times. The convictions were therefore supported by sufficient evidence.

(2) The indictments alleged that the defendant made false representations to obtain credits on her NCDOR account. The trial court instructed the jury that the defendant could be found guilty if it found that the defendant fraudulently obtained property or a thing of value. The instruction did not specifically name the NCDOR tax credits as the item of value at issue. The defendant argued that the jury instructions impermissibly varied from the language of the indictment. The State argued this issue should only be reviewed for plain error since the defendant did not object at trial. The defendant argued that her properly timed motion to dismiss for insufficient evidence preserved all issues relating to sufficiency, including variance issues, and should be reviewed de novo. Assuming without deciding that the motion preserved the variance argument, the court applied de novo review.

Jury instructions should generally match the allegations of the indictment, and a fatal variance may result where they do not. However, an exception to this rule exists: “[A] jury instruction that is not specific to the misrepresentation in the indictment is acceptable so long as the court finds ‘no fatal variance between the indictment, the proof presented at trial, and the instructions to the jury.’” Id. at 14 (citation omitted). The jury instructions here were consistent with the allegations of the indictment and the proof at trial, and it was unlikely the jury was confused as to the thing of value at issue. There was therefore no fatal variance between the jury instructions and the indictment.

(3) The State conceded on appeal that the restitution award in the case was unsupported by sufficient evidence, and the matter was remanded for resentencing on that issue alone. The judgment of the trial court was otherwise affirmed. Judges Wood and Tyson concurred.

The defendant was charged with insurance fraud and obtaining property by false pretenses based on her submission of claims for living expenses that she did not incur. Following Hurricane Matthew, the defendant submitted a lease agreement purportedly signed by her stepfather providing that the defendant would pay $100 per day to stay in his home. Defendant’s stepfather subsequently told investigators that he did not have a lease agreement with the defendant and that she had not stayed in his home. The defendant was convicted of both charges at a jury trial.  The trial court consolidated the convictions for judgment and sentenced the defendant to 10 to 21 months imprisonment, suspended for 24 months of supervised probation. The trial court ordered the defendant to serve 60 days imprisonment as a condition of special probation.  The defendant appealed, arguing that the trial court erred by sentencing her for both obtaining property by false pretenses and insurance fraud for the same alleged misrepresentation. She also argued that the trial court improperly delegated its authority to the defendant’s probation officer by failing to set a date by which the term of special probation had to be completed.

(1) The court of appeals determined that the trial court did not err by sentencing her for obtaining property under false pretenses and insurance fraud even though both offenses arose from the same misrepresentation. To determine whether multiple punishments may be imposed for multiple convictions in a single trial based on a single course of conduct, the court must look to the intent of the legislature. Each of the offenses for which the defendant was convicted contained an element the other did not. Insurance fraud requires proving that the defendant presented a statement in support of a claim for payment under an insurance policy; obtaining property by false pretenses requires proving that the defendant’s misrepresentation did in fact deceive. Based on the separate and distinct elements that must be proven, the appellate court reasoned that the legislature clearly expressed its intent to proscribe and punish a misrepresentation intended to deceive under both statutes. Additionally, the court noted that the subject of each crime is violative of two separate, distinct social norms: “Where obtaining property by false pretenses is generally likely to harm a single victim, a broader class of victims is harmed by insurance fraud.” Slip. op. at 8. Finally, regarding the history of the treatment of the two crimes for sentencing purposes, the court noted that previous panels had sustained sentencing for convictions of obtaining property by false pretenses and insurance fraud arising from the same misrepresentation. For these reasons, the court of appeals determined that the trial court did not err by consolidating the Class H felony convictions for judgment and sentencing the defendant in the high presumptive range for one Class H felony.

(2) The trial court did not err by delegating authority to the defendant’s probation officer and by not setting a completion deadline for the active term of the sentence as a condition of special probation. G.S. 15A-1351(a) permits a trial court to require that a defendant submit to periods of imprisonment during probation at “whatever time or intervals within the period of probation . . . the court determines,” so long as the total period of such confinement does not exceed one-fourth of the maximum sentence imposed. It further requires that imprisonment imposed as a condition of special probation be completed within two years of conviction.

In this case, the trial court sentenced the defendant to 10 to 21 months of imprisonment and suspended that sentence for 24 months of supervised probation. As a condition of probation, the trial court ordered the defendant to serve 60 days of imprisonment as a condition of special probation. The court specified that the defendant was “‘TO SERVE 30 DAYS AT ONE TIME AND 30 DAYS AT ANOTHER TIME AS SCHEDULED BY PROBATION.’” Slip op. at 11. The court of appeals held that the trial court appropriately determined the “intervals within the period of probation” as two 30-day periods, and the completion date was set by statute as August 27, 2021—which, in defendant’s case, was both the end of the two-year probationary period and two years from the date of conviction.

The trial court committed plain error with respect to its obtaining property by false pretenses instructions. The case was before the court on certification from the state Supreme Court for consideration of whether the trial court committed plain error by failing to instruct the jury that it could not convict the defendant of obtaining property by false pretenses and attempting to obtain property by false pretense because such a verdict would violate the “single taking rule.” The defendant was indicted for two counts of false pretenses for signing a bank check fraud/forgery affidavit disputing three checks from his account totaling $900. In fact, the defendant pre-signed the checks, gave them to the mother of his daughter, and authorized her to use them for their child’s care. Based on the defendant’s representation in the affidavit, the bank gave him a temporary credit for one of the three checks (in the amount of $600) but denied him credit for the two other checks. The defendant was convicted of obtaining property by false pretenses for the $600 provisional credit and of attempting to obtain property by false pretenses for the two other checks. Because the defendant did not object to the instructions at trial, plain error applied. Here, plain error occurred. The defendant submitted one affidavit disputing three checks. The submission of the affidavit is the one act, or one false representation, for which the defendant was charged. Therefore there was only a single act or taking under the “single taking rule,” which prevents the defendant from being charged or convicted multiple times for a single continuous act or transaction.

The evidence was insufficient to support the defendant’s conviction of obtaining property by false pretenses. The case arose out of false information submitted by the defendant in connection with his work as a bail bondsman. The indictment alleged that the thing of value obtained was a Professional Bail Bondsman’s License. At the time of the alleged acts, the defendant already had a bail bondsman license. The State argued, however, that the defendant’s false representations allowed him to retain his license, which--according to the State--constituted obtaining property. The court disagreed, concluding that retaining is not the same as obtaining. Among other things, it noted that the Department of Insurance has different processes and requirements for obtaining a bail bondsman license and renewing such a license.

The doctrine of recent possession applies to obtaining property by false pretenses. Thus, the trial court did not err by instructing the jury on this doctrine.

(1) The evidence was sufficient to sustain a conviction for obtaining property by false pretenses. After the defendant falsely reported that his girlfriend had written 3 checks on his account without authorization, he received a provisional credit on his bank account with respect to one of the checks. He asserted, in part, that the provisional credit did not constitute a “thing of value.” The court disagreed, concluding that the provisional credit was the equivalent of money placed into his account, to which the defendant had access, at least temporarily. (2) The trial court did not commit plain by failing to instruct the jury that the defendant could not be convicted of obtaining property by false pretenses and of attempting to obtain property by false pretenses based on a single transaction. The defendant attempted to obtain $900 from his bank by making a false representation in an affidavit that 3 unauthorized checks were written on his account. He obtained $600 of the $900 he had attempted to obtain; this amount was attributable to one of the checks. He was charged and convicted of both obtaining property by false pretenses and of an attempted version of the crime with respect to the money he did not obtain. Construing the statute, the court concluded: “the General Assembly did not intend to subject a defendant to multiple counts of obtaining property by false pretenses where he obtains multiple items in a single transaction. Rather, the statute provides for an increase in punishment if the value of the property taken exceeds $100,000.” Here, the defendant attempted to collect the value of three checks in a single transaction but was successful only in obtaining credit for one of the checks. Notwithstanding this, the court concluded that the trial court did not err in its jury instructions. The court reasoned that the error was a double jeopardy issue and because the defendant failed to object at trial, the issue was waived on appeal.

The trial court did not err by denying the defendant’s motion to dismiss a charge of attempting to obtain property by false pretenses. After an officer learned about larcenies of Michael Kors items from a local store, he found an online posting for similar items in an online flea market. Using a fake name and address, the officer created a social media account and started a conversation with the seller, later determined to be the defendant, to discuss purchase of the items. The two agreed to meet. Unbeknownst to the defendant, the officer decided to set up an undercover purchase for one of the items to determine if it in fact was stolen from the local store or whether it was counterfeit merchandise. The undercover purchase occurred and the item in question was determined to be counterfeit. Noting that actual deceit is not an element of attempting to obtain property by false pretenses, the court held that the evidence was sufficient to sustain the conviction. The court rejected the defendant’s argument that because he did not actually represent the item as an authentic Michael Kors item, there was no evidence of a false pretense or intent to deceive. The court noted that the defendant advertised the items as Michael Kors bags and described them as such to the undercover officer. Additionally, the defendant purchased the bags from a warehouse in Atlanta that sold them for only a fraction of their worth, suggesting that the defendant knew the merchandise was counterfeit. The court also rejected the defendant’s argument that because the offense was completed, a conviction for attempt was improper. The offense only occurs if the property actually is obtained in consequence of the victim’s reliance on the false pretense. Here, because of the undercover operation, the officer was never deceived by the defendant’s misrepresentation.

The trial court did not err by denying the defendant’s motion to dismiss a charge of obtaining property by false pretenses. The indictment alleged that the defendant obtained US currency by selling to a company named BIMCO electrical wire that was falsely represented not to have been stolen. The defendant argued only that there was insufficient evidence that his false representation in fact deceived any BIMCO employee. He argued that the evidence showed that BIMCO employees were indifferent to legal ownership of scrap metal purchased by them and that they employed a “nod and wink system” in which no actual deception occurred. However, the evidence included paperwork signed by the defendant representing that he was the lawful owner of the materials sold and showed that based on his representation, BIMCO paid him for the materials. From this evidence, it logically follows that BIMCO was in fact deceived. Any conflict in the evidence was for the jury to decide.

(1) In a case arising out of insurance fraud, the trial court did not err by denying the defendant’s motion to dismiss three counts of obtaining property by false pretenses. Two of the counts arose out of payments the defendant received based on false moving company invoices submitted to her insurance company. The defendant submitted the invoices, indicating that they were paid in full. The court rejected the defendant’s argument that the State failed to prove that the invoices contained a false representation noting that the evidence showed that investigators were unable to discover any indication that either of the purported moving companies existing in North Carolina. (2) The trial court did not commit plain error by failing to instruct the jury that under G.S. 14-100(b) that “[e]vidence of nonfulfillment of a contract obligation standing alone shall not establish the essential element of intent to defraud.” Because the jury was instructed that it was required to determine whether the defendant intended to defraud the insurance company through her submission of documents containing false representations in order to return a guilty verdict, no reasonable juror could have been left with the mistaken belief that she could be found guilty based solely on her failure to comply with contractual obligations under her insurance policy.

In an obtaining property by false pretenses case, the evidence was sufficient to support a conviction. The charges arose out of the defendant’s acts of approaching two individuals (Ms. Hoenig and Ms. Harward), falsely telling them their roofs needed repair, taking payment for the work and then performing shoddy work or not completing the job. The court rejected the defendant’s argument that the evidence showed only that he “charged a lot for poor quality work” and not that he “obtained the property alleged by means of a misrepresentation,” finding that “[the] evidence demonstrates that defendant deliberately targeted Ms. Harward and Ms. Hoenig, two elderly women, for the purpose of defrauding each of them by claiming their roofs needed significant repairs when, as the State’s evidence showed, neither woman’s roof needed repair at all.”

State v. Pendergraft, 238 N.C. App. 516 (Dec. 31, 2014) aff’d by an equally divided court, 368 N.C. 314 (Sep 25 2015)

The evidence was sufficient to establish obtaining property by false pretenses. After the defendant filed false documents purporting to give him a property interest in a home, he was found to be occupying the premises and arrested. The court rejected the defendant’s argument that the evidence shows that he honestly, albeit mistakenly, believed that he could obtain title to the property by adverse possession and that such a showing precluded the jury from convicting him of obtaining property by false pretenses. The court rejected the assertion that anyone who attempts to adversely possess a tract of property does not possess the intent necessary for a finding of guilt, a position it described as tantamount to making an intention to adversely possess a tract of property an affirmative defense to a false pretenses charge.

In an obtaining property by false pretenses case based on the defendant having falsely represented to a pawn shop that items sold to the shop were not stolen, there was sufficient evidence that the items were stolen. As to the first count, the serial number of the item sold as shown on the shop’s records matched the serial number reported by the theft victim; any variance between the model number reported by the victim and the model number reported on the shop’s records was immaterial. With respect to the second count, the model number of a recorder sold as shown on the shop’s records matched the model number of the item reported stolen by the victim, the item was uncommon and the victim identified it; any difference in the reported serial numbers was immaterial. As to a watch that was stolen with the recorder and described by the victim as a “Seiko dive watch with steel band,” the fact that the defendant sold the watch along with the recorder was sufficient to establish that it was stolen.

The evidence was sufficient to establish that the defendant obtained property by false pretenses where she sold products alleged to be gluten free but in fact contained gluten. The defendant argued that the evidence was insufficient as to one victim because he returned the check she gave him in exchange for his products after the victim became ill from consuming them. Noting that this offense covers attempts, the court found the evidence sufficient.

The trial court erred by denying the defendant’s motion to dismiss false pretenses charges. The State failed to offer sufficient evidence to establish that the defendant made a false representation with the intent to deceive when he told the victims that he intended to invest the money that they loaned him in legitimate financial institutions and would repay it with interest at the specified time. The evidence, taken in the light most favorable to the State, simply tends to show that the defendant, after seriously overestimating his own investing skills, made a promise that he was unable to keep.

The evidence was sufficient to sustain the defendant’s convictions for uttering a forged instrument and attempting to obtain property by false pretenses. Both offenses involved a fraudulent check. The court rejected the defendant’s argument that there was insufficient evidence to establish that the check was falsely made. An employee of the company that allegedly issued the check testified that she had in her possession a genuine check bearing the relevant check number at the time the defendant presented another check bearing the same number. The employee testified the defendant’s check bore a font that was “way off” and “really different” from the font used by the company in printing checks. She identified the company name on the defendant’s check but stated “it’s not our check.”

There was sufficient evidence to support a false pretenses conviction when the defendant falsely told a church congregation that his wife had died and that he was broke to elicit sympathy and obtain property.

State v. Moore, 209 N.C. App. 551 (Feb. 15, 2011) rev’d in part on other grounds, 365 N.C. 283 (Jan 1 2011)

There was sufficient evidence of obtaining property by false pretenses when the defendant received money for rental of a house that the defendant did not own or have the right to rent.

The evidence was sufficient to convict the defendant of unlawfully accessing a government computer in violation of G.S. 14-454.1. The case arose out of false information submitted by the defendant in connection with his work as a bail bondsman. On appeal the defendant first argued that the evidence did not establish that his actions were willful or without authorization. Here, although the defendant had authorization to use the computer system, the State presented evidence that he exceeded that authorization by inputting fraudulent information and that his actions were willful.

            The court went on to reject the defendant’s argument that there was insufficient evidence that he accessed a government computer. The defendant’s unique username and password were used to access the system and upload his monthly reports. Additionally his email was used to submit his reports. Thus, even if the court were to accept the defendant’s argument that he only transmitted information that was then uploaded by government personnel, the statute covers not only accessing but also causing a government computer to be accessed.

            Finally, the court rejected the defendant’s argument that the statute was not intended to cover mere submission of information and that it required the defendant to have some actual interaction with the government computer. The court noted that the plain language of the statute includes accessing or causing a government computer to be accessed, “directly or indirectly.”

(1) The evidence was sufficient to sustain a conviction under G.S. 14-454.1(a)(2) (unlawful to “willfully . . . access or cause to be accessed any government computer for the purpose of . . . [o]btaining property or services by means of false or fraudulent pretenses, representations, or promises”). The State alleged that the defendant, who worked for a private license plate agency, submitted false information into the State Title and Registration System (STARS) so that a car dealer whose dealer number was invalid could transfer title. The defendant admitted that she personally accessed STARS to make three transfers for the dealer, that she told a co-worker to run a fourth transaction in a similar fashion, and that she received payment for doing so. The court also found the evidence sufficient to support a conclusion that the defendant acted willfully. (2) In a case in which the defendant was charged with violations of G.S. 14-454.1(a)(2) and G.S. 14-454.1(b) (unlawful to “willfully and without authorization . . . accesses or causes to be accessed any government computer for any purpose other than those set forth in subsection (a)”) as to the same transaction, the indictment charging a violation of G.S. 14-454.1(b) was defective when it stated a purpose covered by G.S. 14-454.1(a)(2). The court concluded that the plain language of G.S. 14-454.1(b) requires that the purpose for accessing the computer must be one “other than those set forth” in subsection (a).

There was sufficient evidence to establish the offense of conversion of property by a bailee in violation of G.S. 14-168.1. The court rejected the defendant’s argument that because “[e]vidence of nonfulfillment of a contract obligation” is not enough to establish intent for obtaining property by false pretenses under G.S. 14-100(b), this evidence should not be sufficient to establish the intent to defraud for conversion. The court also rejected the defendant’s argument that there was insufficient evidence of an intent to defraud where the underlying contract between himself and the victim was unenforceable; the court found no prohibition on using unenforceable contracts to support a conversion charge.

In this food stamp fraud case, the trial court did not err by denying the defendant’s motion to dismiss where the evidence showed that the defendant knowingly submitted a fraudulent wage verification form to obtain food benefits to which he was not entitled.

The defendant was charged with insurance fraud and obtaining property by false pretenses based on her submission of claims for living expenses that she did not incur. Following Hurricane Matthew, the defendant submitted a lease agreement purportedly signed by her stepfather providing that the defendant would pay $100 per day to stay in his home. Defendant’s stepfather subsequently told investigators that he did not have a lease agreement with the defendant and that she had not stayed in his home. The defendant was convicted of both charges at a jury trial.  The trial court consolidated the convictions for judgment and sentenced the defendant to 10 to 21 months imprisonment, suspended for 24 months of supervised probation. The trial court ordered the defendant to serve 60 days imprisonment as a condition of special probation.  The defendant appealed, arguing that the trial court erred by sentencing her for both obtaining property by false pretenses and insurance fraud for the same alleged misrepresentation. She also argued that the trial court improperly delegated its authority to the defendant’s probation officer by failing to set a date by which the term of special probation had to be completed.

(1) The court of appeals determined that the trial court did not err by sentencing her for obtaining property under false pretenses and insurance fraud even though both offenses arose from the same misrepresentation. To determine whether multiple punishments may be imposed for multiple convictions in a single trial based on a single course of conduct, the court must look to the intent of the legislature. Each of the offenses for which the defendant was convicted contained an element the other did not. Insurance fraud requires proving that the defendant presented a statement in support of a claim for payment under an insurance policy; obtaining property by false pretenses requires proving that the defendant’s misrepresentation did in fact deceive. Based on the separate and distinct elements that must be proven, the appellate court reasoned that the legislature clearly expressed its intent to proscribe and punish a misrepresentation intended to deceive under both statutes. Additionally, the court noted that the subject of each crime is violative of two separate, distinct social norms: “Where obtaining property by false pretenses is generally likely to harm a single victim, a broader class of victims is harmed by insurance fraud.” Slip. op. at 8. Finally, regarding the history of the treatment of the two crimes for sentencing purposes, the court noted that previous panels had sustained sentencing for convictions of obtaining property by false pretenses and insurance fraud arising from the same misrepresentation. For these reasons, the court of appeals determined that the trial court did not err by consolidating the Class H felony convictions for judgment and sentencing the defendant in the high presumptive range for one Class H felony.

(2) The trial court did not err by delegating authority to the defendant’s probation officer and by not setting a completion deadline for the active term of the sentence as a condition of special probation. G.S. 15A-1351(a) permits a trial court to require that a defendant submit to periods of imprisonment during probation at “whatever time or intervals within the period of probation . . . the court determines,” so long as the total period of such confinement does not exceed one-fourth of the maximum sentence imposed. It further requires that imprisonment imposed as a condition of special probation be completed within two years of conviction.

In this case, the trial court sentenced the defendant to 10 to 21 months of imprisonment and suspended that sentence for 24 months of supervised probation. As a condition of probation, the trial court ordered the defendant to serve 60 days of imprisonment as a condition of special probation. The court specified that the defendant was “‘TO SERVE 30 DAYS AT ONE TIME AND 30 DAYS AT ANOTHER TIME AS SCHEDULED BY PROBATION.’” Slip op. at 11. The court of appeals held that the trial court appropriately determined the “intervals within the period of probation” as two 30-day periods, and the completion date was set by statute as August 27, 2021—which, in defendant’s case, was both the end of the two-year probationary period and two years from the date of conviction.

Because the State presented no evidence that the defendant made fraudulent representations in support of an insurance claim to The Hartford Insurance Company as alleged by the indictment, the trial court erred by denying the defendant’s motion to dismiss this charge. The evidence at trial showed only that the defendant made a statement in connection with a separate insurance claim to Nationwide Insurance. No statement from the defendant to Hartford was in evidence.

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