State v. Koke, ___ N.C. App. ___, 824 S.E.2d 887 (Feb. 19, 2019)

(1) The trial court did not err in its obtaining property by false pretenses instructions. The charge arose out of the defendant’s alleged fraud in connection with an insurance claim. The trial court instructed the jury that to find the defendant guilty it must find that he made a representation, that the representation was false, that it was calculated and intended to deceive, that the victim was deceived by it, and that the defendant thereby obtained property from the victim. The defendant argued that the lack of specificity in the instructions would allow the jury to convict him if they found any false representation. The court noted prior case law holding that a jury instruction that is not specific as to the misrepresentation in the indictment is acceptable so long as there is no fatal variance between the indictment, proof at trial, and the jury instructions. Here, the indictment alleged that the defendant obtained the property by failing to disclose on his insurance application that he had previously pled guilty to a felony offense. At trial the defendant stipulated that he had pled guilty to a felony offense. The defendant failed to show any fatal variance between the indictment, proof, and jury instructions and thus no error occurred.

(2) The trial court did not err with respect to its instructions on insurance fraud. The instructions informed the jury that to find the defendant guilty they must find that an insurance policy existed; that the defendant presented a written statement in support of the claim; that the statement contained material false or misleading information; that the defendant knew the statement contained false or misleading information; and that the defendant acted with intent to defraud. The court noted that it has found plain error where there is evidence of various misrepresentations which the jury could have considered in reaching a verdict and the trial court fails to instruct on the specific misrepresentation. Here, however, the only evidence of false or misleading information was the defendant’s affidavit in which he failed to disclose that major repairs were done to the vehicle after purchase. Thus, no fatal variance exists between the indictment, the evidence, and the jury instructions, and no error occurred.