State v. Carter, ___ N.C. App. ___, ___ S.E.2d ___ (Jan. 7, 2020)

In this Duplin County case, the defendant was convicted by a jury of financial card fraud, obtaining property by false pretenses, identity theft, and habitual felon. She appealed, arguing that her motion to dismiss for insufficiency of the evidence should have been granted as to the identity theft and that she received ineffective assistance of counsel. The Court of Appeals unanimously affirmed.

(1) The evidence showed that the defendant used the credit cards of two other people to make purchases for herself, representing herself as the owner of the cards. The defendant eventually admitted to police that she used the credit cards and provided a full written confession. At the close of evidence, the defendant asked the trial court to dismiss two (of six) counts of identity theft regarding Victim #1 based on a lack of proof that the defendant acted without that victim’s permission. On appeal, the defendant challenged all six identity theft convictions, contending that there was no evidence she meant to represent herself as the two victims. This was a different argument than the one made to the trial court and was not preserved under State v. Walker, 252 N.C. App. 409 (2017) (holding that, without a “global” motion to dismiss, sufficiency arguments not raised in the trial court are waived on appeal).

Defendant failed to preserve any argument as to the four charges of identity theft pertaining to [Victim #2]. Likewise, the defendant failed to preserve the specific argument—that there was insufficient evidence that Defendant intended to represent that she was [Victim #1]. We thus decline to reach the merits of her argument.

The court declined to invoke its discretionary authority under Rule 2 of the Appellate Rules of Procedure to consider the unpreserved arguments.

(2) The defendant argued that she received ineffective assistance of counsel based on her trial lawyer’s failure to preserve the above issues, arguing that the motion to dismiss for insufficiency would have been granted if had her trial lawyer made the argument. While ineffective assistance claims should normally be litigated through a motion for appropriate relief, here, the “cold record” was sufficient to allow appellate review of the claim. The defendant’s argument that the State failed to present evidence that she represented herself as the victims was meritless under State v. Jones, 367 N.C. 299, 304 (2014) (rejecting interpretation of identity theft statute to require use of the victim’s name, which would cause “absurd” results). The defendant’s use of the victims’ credit card numbers was sufficient “identifying information” under the statute and it was not error for defense counsel to fail to make this argument. The defendant did not therefore receive ineffective assistance of counsel.

(3) The trial court instructed the jury on false or conflicting statements of the defendant under N.C. P. I.—Crim. 105.21. The defendant originally told police that an ex-boyfriend was responsible for the fraud before later admitting to the conduct. On appeal, she argued that this instruction to the jury prejudiced her trial by impugning her character. The court disagreed.

[This] instruction is proper not only where defendant’s own statements contradict each other but also where the defendant’s statements flatly contradict relevant evidence. The instruction is in appropriate if it fails to make clear to the jury that the falsehood does not create a presumption of guilt.

The statements of the defendant to law enforcement were contradictory and conflicting, “tending to reflect the mental processes of a person possessed of a guilty conscience seeking to divert suspicion and to exculpate [her]self.” The instruction was given in accordance with the considerable warnings in the commentary to that pattern instruction, was supported by the evidence, and was therefore proper under these facts.