State v. Brantley-Phillips, ___ N.C. App. ___, 2021-NCCOA-307 (Jul. 6, 2021)

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.