State v. Gibson, ___ N.C. App. ___, 2021-NCCOA-308 (Jul. 6, 2021)

The defendant attempted to cash a forged check at a bank in Burke County. He submitted his driver’s license and social security card along with the check through the tube system at the bank’s drive-through. The bank teller handling the transaction became suspicious upon seeing the check and contacted the account owner. The account owner informed the bank employee that she had not authorized the check, did not know the defendant, and that the check had been recently taken from her mailbox. The defendant left the scene without recovering his documents and was later indicted for uttering a forged instrument. He was convicted at trial and appealed.

(1) Sufficient evidence existed for the jury to determine that the defendant was the perpetrator. The State introduced the defendant’s driver’s license and social security card, which had been left with the bank teller. A detective established the chain of custody of those items from the bank teller to the police. The bank teller testified that the defendant was the person who initially passed those documents to at the bank window, and that he verified at the time that the defendant was the person on the license. In the light most favorable to the State, this was sufficient evidence to show that the defendant was the person responsible for the crime.

(2) The defendant’s attorney testified that he had 28 hours in the case, and the trial judge awarded attorney fees as a condition of probation in the amount of $1,680.00. The defendant complained that he was not provided an opportunity to be heard on the award. Because the attorney fees were ordered as a condition of probation and not as a civil judgment, the defendant was not entitled to be heard. “[T]his Court has only required notice and an opportunity to be heard when the court has imposed a civil judgment against an indigent defendant for attorney fees pursuant to [G.S. 7A-]455(b).” Gibson Slip op. at 10 (citing State v. Jacobs, 172 N.C. App. 220 (2005) and State v. Friend, 257 N.C. App. 516 (2018)). G.S. 15A-1343(b)(10) authorizes payment of attorney fees as a condition of probation, and the trial court correctly calculated the rate for appointed attorney fees for the class of offense ($60 x 28 hours) to arrive at the award. Because the award was authorized as a matter of probation and no civil judgment was involved, the award would only be reversed for an abuse of discretion. Finding none, the award of attorney fees was affirmed. Judges Dietz and Collins concurred.