State v. Baynard , 79 N.C. App. 559 ( 1986 )

339 S.E.2d 810 (1986)

STATE of North Carolina
v.
Loretta Jane BAYNARD.

No. 8527SC860.

Court of Appeals of North Carolina.

March 4, 1986.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. W.F. Briley, Dept. of Justice, Raleigh, for the State.

Acting Appellate Defender Malcolm Ray Hunter, Jr. by Asst. Appellate Defender Louis D. Bilionis, Raleigh, for defendant-appellant.

PARKER, Judge.

Defendant first assigns as error the form of the indictments in these cases, alleging that they were insufficient to charge the crimes of obtaining and attempting to obtain a controlled substance by fraud and forgery. The indictments read, in essential part, as follows: "that ... defendant ... unlawfully, willfully and feloniously did intentionally acquire (and attempt to acquire) a controlled substance ... by misrepresentation, fraud, deception and subterfuge in that [she] presented a prescription which was ... a false or forged prescription." Defendant contends this indictment is insufficient because it fails to allege that defendant presented the prescription with knowledge that it was forged.

An indictment in this State must allege all the essential elements of the offense with sufficient clarity to (i) identify the offense, (ii) protect the accused from being twice put in jeopardy for the same offense, (iii) enable the accused to prepare for trial, and (iv) support judgment upon conviction. State v. Sparrow, 276 N.C. 499, 173 S.E.2d 897 (1970). Knowledge that the prescription is false or forged is an essential element of the offense under G.S. 90-108(a)(10). State v. Church, 73 N.C. App. 645, 327 S.E.2d 33 (1985).

Even though the indictments do not specifically state that defendant presented the forged prescriptions with knowledge that they were forged, the language of the indictments is sufficient to meet the requirements of Sparrow, supra. First, both indictments allege that the offense was done "intentionally." This allegation implies that the defendant knew the prescriptions were forged when she attempted to have them filled. Second, the indictments contained the words "misrepresentation, fraud, deception and subterfuge," all of which imply that the person committing the acts had the specific intent to misrepresent, deceive, etc. See Church at 646, 327 S.E.2d at 34.

Also noteworthy is that two previous decisions of this Court have upheld indictments under this statute which followed the same language. See State v. Fleming, 52 N.C.App. 563, 279 S.E.2d 29 (1981); State v. Booze, 29 N.C.App. 397, 224 S.E.2d 298 (1976). While neither case addressed the specific question of the need to allege knowledge of the falsity of the prescription, both cases involved similar indictments which were upheld against challenge.

Defendant argues by analogy to the forgery and uttering statute, G.S. 14-120. To support a conviction for a violation of that statute, the indictment must allege that the defendant actually knew of the falsity of the instrument. State v. Daye, 23 N.C.App. 267, 208 S.E.2d 891 (1974). However, G.S. 14-120 is distinguishable from G.S. 90-108(a)(10), the statute at issue here. General Statute 14-120 specifically states that the person violates the statute if he publishes or utters a forged instrument "knowing the same to be falsely forged or counterfeited." No such language appears in G.S. 90-108(a)(10). Because the indictment alleged that the offense was done "intentionally" and because the terms used in the indictment imply a specific intent to deceive, we hold that an indictment charging an offense under G.S. 90-108(a)(10) need not specifically allege that the defendant presented the false prescription knowing it was false. This assignment of error is overruled.

Defendant next assigns as error the failure of the trial judge to poll the jury after a request by the defendant. General Statute 15A-1238 gives any party the right to have the jury polled after a verdict is returned but "before the jury has dispersed." The defendant's motion in this case was made after the jury had dispersed and, therefore, his right to have the jury polled is deemed waived. State v. Froneberger, 55 N.C.App. 148, 285 S.E.2d 119 (1981), appeal dismissed and cert. denied, 305 N.C. 397, 290 S.E.2d 367 (1982). Defendant contends, however, that the trial judge did not give her the opportunity to request a polling by dismissing the jury without allowing time for motions or requests.

The transcript shows that the clerk read the verdicts and asked the jurors collectively if the verdict was unanimous. All appeared to respond in the affirmative. Then, there was a delay as the clerk delivered the verdict sheets up to the judge. The opportunity to request a polling was then presented. However, defendant let the opportunity pass and the trial judge, on his own initiative conducted an informal poll by asking, for each charge, that the jurors who voted guilty to raise their right hands. All the jurors did so. The jury was then dismissed. Defendant argues that the polling and comments by the trial judge precluded her opportunity to request a formal poll. We do not agree as the time to request a poll had been available earlier and, in any event, in light of the trial judge's own informal poll, any error was harmless beyond a reasonable doubt.

Defendant next assigns as error that the trial judge improperly considered the seriousness of the offense as an aggravating factor in sentencing her. It is assumed that the legislature took such factors as the seriousness of the offense and the need to deter others into consideration when setting the presumptive term and they are not proper factors for aggravation of a sentence. State v. Blackwelder, 309 N.C. 410, 306 S.E.2d 783 (1983). The record shows that the trial judge did not find that the seriousness of the crime aggravated defendant's sentence. Instead, defendant argues that evidence admitted and comments made by the trial judge during the sentencing hearing indicates that he did consider the seriousness of the crime to be an aggravating factor, regardless of whether he formally found such to be in rendering judgment. The evidence challenged by defendant was the testimony of a Shelby police officer concerning the street value and "street use" of the drugs defendant bought and attempted to buy. In response to defendant's objection to this testimony, Judge Stephens replied:

I understand that and I will not consider that as an aggravating circumstance. I do not consider that as an aggravating circumstance.

However, it is some evidence as it relates to a possible motive in commission of this type of crime and the seriousness of this type of crime—the type of drugs that are the subject of this crime—and, therefore, I will consider that in determining the seriousness of the crime, how I evaluate that as to whether or not to impose the presumptive sentence, and for that purpose only.

Defendant contends that these comments show Judge Stephens' belief that the seriousness of defendant's crime would be an aggravating factor to consider in imposing greater than the presumptive sentence. This isolated comment and the fact that the evidence was received do not necessarily lead to the conclusion that the trial judge improperly considered the seriousness of the crime as an aggravating factor. In fact, no such finding appears in the record and, in the quoted statement above, the judge specifically stated that he did not consider the evidence to constitute an aggravating circumstance. This assignment of error is overruled.

However, we do believe that a new sentencing hearing is required in 85CRS66, in which the trial judge used a non-statutory aggravating circumstance to elevate the sentence to the maximum of five years. The trial judge found in aggravation:

That the defendant acted with and was aided by a white male person in the commission of this crime; that such white male person was present during the prepetration [sic] of this crime; that this white male person was armed with a pistol and that he shot a police officer with that pistol when the officer attempted to question the defendant at the scene of this crime and attempted to prevent the defendant from escaping; that the defendant knew that this white male person aiding her was armed with a deadly weapon and that this shooting was committed to aid the defendant in escaping after the commission of this crime.

This relates to the gun battle between Deputy Barkley and the "white male person," who was defendant's husband, which occurred outside the Revco where defendant had attempted to buy Dilaudid. Defendant's husband was killed and the deputy was wounded. However, there was no evidence presented that the defendant knew her husband was armed or that he intended to use a weapon. In fact, the evidence showed defendant never posed any threat to the police and that she was generally a person of good character and had no criminal record.

In order to be valid, an aggravating factor must be supported by evidence sufficient to allow a reasonable judge to find its existence by a preponderance of the evidence. State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983). As no evidence was presented which tended to show defendant knew her accomplice was armed, the non-statutory aggravating factor as found by the trial judge was improper and a new sentencing hearing is required.

No. 85CRS169—No Error.

No. 85CRS66—New Sentencing Hearing.

WHICHARD and BECTON, JJ., concur.