Smith's Criminal Case Compendium
Smith's Criminal Case Compendium
Table of Contents
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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In this New Hanover County case, defendant appealed her convictions for felony forgery of endorsement and felony uttering a forged endorsement, arguing error in (1) denying her motion to dismiss the uttering a forged instrument charge due to a flawed indictment, and (2) admitting an out-of-court identification based on a photograph in violation of the Eyewitness Identification Reform Act (EIRA), or in the alternative, (3) ineffective assistance of counsel. The Court of Appeals found no error and no ineffective assistance of counsel, but remanded to correct the judgment’s clerical error of a guilty verdict as opposed to a guilty plea.
On February 7, 2019, defendant was assigned as a home care assistant for the victim’s husband, who had dementia. On that day, the victim went out to run errands while defendant was at home with her husband. The following day, the victim noted two checks were missing, and reported this to defendant’s employer, as well as to her bank. In August of 2019, the victim received a notice regarding one of the checks she had reported stolen; Wilmington police later determined the check was made out to one of defendant’s aliases.
Beginning with (1), the Court explained that defendant’s argument was “that the indictment fails to allege the facts and elements of the crime of felony uttering a forged endorsement with sufficient precision, leaving her without notice of the offense being charged and unable to prepare a defense.” Slip Op. at 6. This was a nonjurisdictional defect under recent North Carolina Supreme Court precedent, so defendant had to show a statutory or constitutional defect that prejudiced her defense to prevail. The court did not see any such statutory or constitutional issue after examining the elements of the offense and the indictment, concluding “Count III of the indictment is facially valid, having sufficiently alleged each essential element of [G.S.] 14-120.” Id. at 8.
Moving to (2), the court first explained that “the EIRA bans photographic show-ups; however, not all out-of-court identifications are show-ups as defined in and subject to the EIRA.” Id. at 9 (cleaned up). Here, the victim identified defendant in an out-of-court photograph, but this identification was after the victim had already identified defendant as a possible perpetrator to the police. Since the identification was not intended to identify defendant as the perpetrator, “the EIRA [was] inapplicable here.” Id. at 13. The court also determined that the identification did not violate defendant’s due process rights, declining to invoke Rule of Appellate Procedure 2 to consider her argument.
Because the court did not establish any error in (2), the court likewise found no ineffective assistance of counsel for (3). Even though defense counsel failed to move to suppress the out-of-court identification on EIRA and due process grounds (although counsel did object to testimony on EIRA grounds), based on the analysis above, these arguments lacked merit.
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.