State v. Hussain, COA22-1024, ___ N.C. App. ___ (Nov. 7, 2023)

In this Brunswick County case, defendant appealed her convictions for forgery, uttering forged paper, altering court documents, residential mortgage fraud, and obtaining property by false pretense, arguing error in (1) denying her motion to dismiss the charges of altering court documents and obtaining property by false pretense, (2) ordering restitution, and (3) imposing an extended probation term. The Court of Appeals found error in denying the motion to dismiss the charge of altering court documents and remanded for resentencing, but otherwise affirmed the trial court.  

Defendant applied for a home loan in 2016, and submitted documentation showing her income from a full time job, a part time job, and from child support payments under a Florida court order. After the bank granted the loan, defendant applied for several forbearances, claiming a hardship due to losing her part-time job. The bank suspected fraud after her third application for forbearance, and an investigation determined there were many inconsistencies in the documentation; the bank eventually foreclosed on defendant’s home. Defendant eventually came to trial for submitting altered and forged documents to the bank, and the jury convicted defendant on all charges. The trial court imposed a 6 to 17 month imprisonment sentence, suspended for 30 months probation, but then extended the probation to 60 months to allow defendant to pay $25,061 in restitution.  

Considering (1), the Court of Appeals noted that the State had conceded it did not present evidence to show defendant altered the child support records from Florida. Under G.S. 14-211.2, evidence that the defendant altered official court records is required for a conviction, but at trial the State only admitted evidence the defendant altered a copy of an order showing income. Because the court could not determine “what weight, if any, the trial court gave to each of Defendant’s convictions, and because Defendant was sentenced at the top of the presumptive range of sentences rather than the lowest,” the court vacated the conviction and remanded for resentencing. Slip Op. at 7. The court did not find error with the obtaining property by false pretense charge, as the bank funded defendant’s loan based upon the false information she submitted. 

Turning to (2) the order of restitution, the court disagreed with defendant’s argument that the record did not contain evidence showing the banks’ monetary loss, as the record showed the bank relied on defendant’s statements to fund the loan and grant the forbearances. Additionally, the court noted that the trial court was aware of defendant’s marital and employment status, and gave her an extended term of probation to allow her more time to pay, indicating that it properly considered defendant’s ability to pay restitution. 

Finally, reviewing (3) the court explained that G.S. 15A-1343.2(d) permits a trial court to extend the term of probation when necessary for payment of restitution. Because the court found that the order of restitution was appropriate in (2), defendant’s argument that the probation term was improperly extended due to an erroneous restitution award also failed.