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., 09/22/2021
E.g., 09/22/2021

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.

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.

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