State v. Hallum , 246 N.C. App. 658 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-526
Filed: 5 April 2015
Buncombe County, Nos. 13 CRS 61817, 14 CRS 128-29
STATE OF NORTH CAROLINA
v.
CHRISTOPHER LYNN HALLUM
Appeal by defendant from judgments entered 1 October 2014 and
27 February 2015 by Judge Marvin P. Pope in Buncombe County Superior Court.
Heard in the Court of Appeals 22 October 2015
Attorney General Roy Cooper, by Assistant Attorney General Susan Fountain,
for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Paul M.
Green, for defendant-appellant.
McCULLOUGH, Judge.
Christopher Lynn Hallum (“defendant”) appeals from judgments entered upon
his convictions for obtaining property by false pretenses, possession of stolen goods,
and attaining habitual felon status. For the following reasons, we find no error in
part and reverse in part.
I. Background
Defendant was arrested at Biltmore Iron & Metal Company “BIMCO” on
16 October 2013. In three separate indictments returned on 7 April 2014, a
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Opinion of the Court
Buncombe County Grand Jury indicted defendant on one count of obtaining property
by false pretenses in violation of N.C. Gen. Stat. § 14-100, one count of possession of
stolen goods in violation of N.C. Gen. Stat. § 14-71.1, and for attaining the status of
a habitual felon.1 Defendant’s cases were joined and called for trial in Buncombe
County Superior Court on 30 September 2014, the Honorable Marvin P. Pope, Judge
presiding.
The State’s evidence at trial tended to show that on the afternoon of
14 October 2013, defendant showed up at the Glenrock Hotel renovation site in
Asheville in search of scrap metal that he could sell. Terry Christie, an electrician
completing the electrical portion of the renovation, showed defendant some four-inch
rigid-steel conduit that had been torn out of the building and other scrap metal that
defendant could take from behind the building. Christie specifically told defendant
he could not have a spool of MC cable, described as copper cables in an aluminum
jacket and referred to at times as flexible aluminum conduit, that defendant inquired
about. After being shown the scraps behind the building, defendant told Christie
“[h]e was going to have to come back with his truck and trailer to get it[]” and then
left.
1 Defendant was also indicted on one count of felony breaking and entering and one count of
larceny after breaking and entering in a fourth indictment with file number 13 CRS 61816. Defendant,
however, was found not guilty of those charges and, besides subtle references to the charges in the
transcript and record, those charges are not mentioned in this appeal.
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When Christie later left the renovation site for the day, his work materials
were locked in storage beneath the stairs and the doors to the building were locked.
The next morning when Christie returned to work, 15 October 2013, the spool
of MC cable was nowhere to be found. Eight smaller rolls of cooper No. 12 wire were
also missing. As Christie walked out the backdoor to look around, he noticed the four-
inch rigid-steel conduit and other scraps he had shown defendant were gone. Christie
testified that “[t]here was nothing out there. They had cleaned everything out there
that day.” Christie also testified that the spool of MC cable was “pretty heavy, and it
looked like somebody had taken it and rolled it out across the ground. And the ground
was wet, so it left an impression about a-half inch into the ground.” There was also
evidence that one of the backdoors to the building was ajar and appeared to have been
jimmied open with a pry tool.
After informing his shop of the missing supplies, Christie called the police.
Christie was able to give a vague description of defendant to the officers who
responded and took the initial report.
At roughly two o’clock in the afternoon on 15 October 2013, defendant sold
scrap metal to BIMCO. Blake Cloninger, Vice-President of BIMCO, testified about
two separate transactions taking place on 15 October 2013. BIMCO’s records show
that defendant sold 960 pounds of steel in the first transaction. Cloninger more
precisely described the steel as “pipes” based on a picture of the materials that was
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taken when the materials were weighed at BIMCO. BIMCO’s records show that
defendant sold “[s]ome insulated copper, insulated aluminum, MLC -- that’s a grade
of aluminum -- and some No. 1 copper[]” in the second transaction. When shown a
picture of what Christie referred to as MC cable, Cloninger testified that the MC cable
would qualify as MLC.
Travis Barkley, a Detective with the Asheville Police Department, was
assigned the case and conducted his investigation on 16 October 2013. On that
morning, Barkley went to the renovation site, talked to Christie and other workers,
and observed what Barkley referred to as “the crime scene.” Because the police had
very limited information and not enough for an identification, Barkley requested that
Christie and other workers pay more attention if they saw defendant in order to get
a better description.
Evidence was introduced at trial showing that defendant also sold materials to
BIMCO in two transactions shortly after two o’clock in the afternoon on
16 October 2013. BIMCO’s records showed that in the first transaction, defendant
sold “insulated copper, stripped copper wire, and some aluminum.” In the second
transaction, defendant sold “[s]ome insulated copper.”
That same afternoon, Christie spotted defendant going through the dumpster
behind the renovation site and called Barkley. At that time, Christie was able to give
a detailed description of a tattoo on defendant’s neck and provide a license tag number
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Opinion of the Court
for a green Explorer that defendant was driving. Barkley then began to call metal
buyers in the area to see if they knew anyone matching the description. Barkley’s
first call was to BIMCO, where an employee was able to positively identify defendant
by name and indicated defendant had been in several times in the last couple days.
Barkley thought the description of the items defendant sold to BIMCO sounded
similar to what was stolen and asked the BIMCO employee to give him a call if
defendant returned.
A BIMCO employee called Barkley later that day and told Barkley that
defendant had returned. Barkley, who at the time was tied up with a different
investigation, had dispatch send uniformed officers to BIMCO to detain defendant
until he was able to get there. When Barkley arrived, defendant was standing next
to a green Explorer. A woman, who Barkley later learned was defendant’s girlfriend,
was in the driver’s seat. Once at BIMCO, Barkley received an update from the
responding officers and spoke to BIMCO employees about items defendant had
recently brought in. Because Barkley was unfamiliar with the items, Barkley called
Christie and requested that he come to BIMCO. When Christie arrived, Christie was
able to identify defendant and the four-inch rigid-steel conduit and MC cable in
pictures taken by BIMCO.
Barkley also spoke with defendant and defendant’s girlfriend. Defendant
initially denied anything about spools of wire. Yet, upon further questioning,
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Opinion of the Court
defendant got upset and his story began to change. Defendant indicated he got a
spool from a Mr. Daniel Atchley and figured it was probably stolen. Barkley was
never able to determine if Mr. Atchley was involved. The spool was never recovered,
but Cloninger testified that he remembered seeing a spool in the back of defendant’s
Explorer in the course of the 15 October 2013 transactions and believed there was
still aluminum conduit on the spool.
Defendant moved to dismiss all the charges at the close of the State’s evidence,
and then renewed the motion after he decided not to put on further evidence in his
defense. The trial court denied defendant’s motions.
The jury was instructed on the charges and given the case on 1 October 2014.
Within half an hour, the jury returned verdicts finding defendant guilty of attaining
property by false pretenses and possession of stolen goods. Upon hearing further
evidence from the State in the subsequent habitual felon stage, the jury returned an
additional verdict finding defendant guilty of attaining habitual felon status. The
trial court then entered a judgment sentencing defendant for obtaining property by
false pretenses as a habitual felon to a term of 97 to 129 months imprisonment. The
trial court entered a separate judgment sentencing defendant to a concurrent term of
10 to 21 months imprisonment for possession of stolen goods.
Defendant filed notice of appeal from the 1 October 2014 judgments on
6 October 2014 and then filed a motion for appropriate relief (“MAR”) on
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8 October 2014. In the MAR, defendant challenged his conviction for possession of
stolen goods on the basis that the trial court instructed the jury on a theory of
possession of stolen goods not supported by the indictment. Specifically, defendant
asserted as follows:
A defendant may not be convicted on a theory not
supported by the indictment. In this case, the substance of
the indictment alleged possession of stolen goods based on
the value of the goods. See N.C. Gen. Stat. [§] 14-72(a).
The court, however, instructed on possession of stolen
goods pursuant to a breaking and or entering. See N.C.
Gen. Stat. [§] 14-72(b)(2).
In the State’s answer filed 30 October 2014, the State conceded a fatal variance in
that “the instruction [given for felony possession of stolen goods] did not match the
indictment.” The State then asked that the court allow defendant’s MAR, adding that
[d]efendant in 14CRS128 would be entitled to a new trial
and the remaining convictions would remain undisturbed.
Defendant in 13CRS61817 Obtaining Property by False
Pretense and 14CRS129 Habitual Felon would need to be
resentenced.
On 13 January 2015, the trial court issued an order granting defendant’s MAR
and setting aside the judgment for possession of stolen goods in favor of a new trial.
The trial court further indicated that defendant “should be resentenced on the
remaining matters.”
Following a resentencing hearing on 27 February 2015, the trial court entered
a new judgment sentencing defendant for obtaining property by false pretenses as a
habitual felon to 97 to 129 months imprisonment. The judgment was nearly identical
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to the original judgment, except that the credit for days in confinement was increased
to account for the time that elapsed between entry of the judgments. Defendant gave
notice of appeal from the new judgment in open court.
II. Discussion
Now on appeal, defendant argues the trial court erred (1) by denying his motion
to dismiss the obtaining property by false pretense charge, (2) instructing the jury on
acting in concert, and (3) resentencing defendant for obtaining property by false
pretenses. We address the issues in order.
1. Motion to Dismiss
Defendant was indicted and convicted of obtaining property from BIMCO,
specifically “U.S. Currency in the amount of $275.10[,]” by false pretenses. As
provided in the indictment, “[t]he false pretense consisted of the following: . . .
defendant sold electrical wire for scrap and represented that it was not stolen and
was his to sell, when in fact, the electrical wire was stolen and . . . defendant was not
entitled to sell it.” Now on appeal, defendant argues the trial court erred in denying
his motion to dismiss because the evidence was insufficient to sustain his conviction
for obtaining property by false pretenses.
“This Court reviews the trial court’s denial of a motion to dismiss de novo.”
State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). “ ‘Upon defendant’s
motion for dismissal, the question for the Court is whether there is substantial
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evidence (1) of each essential element of the offense charged, or of a lesser offense
included therein, and (2) of defendant’s being the perpetrator of such offense. If so,
the motion is properly denied.’ ” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451,
455 (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)), cert.
denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000). “In making its determination, the
trial court must consider all evidence admitted, whether competent or incompetent,
in the light most favorable to the State, giving the State the benefit of every
reasonable inference and resolving any contradictions in its favor.” State v. Rose, 339
N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d
818 (1995).
N.C. Gen. Stat. § 14-100 provides in pertinent part as follows:
If any person shall knowingly and designedly by means of
any kind of false pretense whatsoever . . . obtain or attempt
to obtain from any person within this State any money . . .
with intent to cheat or defraud any person of such money,
. . . such person shall be guilty of a felony[.]. . .
N.C. Gen. Stat. § 14-100(a) (2015). Construing this statute, our Courts have held
that the four essential elements to the offense are as follows: “ ‘(1) a false
representation of a subsisting fact or a future fulfillment or event, (2) which is
calculated and intended to deceive, (3) which does in fact deceive, and (4) by which
one person obtains or attempts to obtain value from another.’ ” State v. Simpson, 159
N.C. App. 435, 439, 583 S.E.2d 714, 716, (quoting State v. Cronin, 299 N.C. 229, 242,
262 S.E.2d 277, 286 (1980)), aff’d per curiam, 357 N.C. 652, 588 S.E.2d 466 (2003).
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Defendant only challenges the third element in this case. Specifically,
defendant argues there was no evidence that anyone at BIMCO was deceived by
defendant. Defendant asserts the BIMCO employee who purchased the items from
defendant was never identified and, even if defendant’s signature on the transaction
records is sufficient to show a false representation, there is no evidence that BIMCO
employees believed the representation. Defendant claims the evidence instead
“described a regimen in which [BIMCO] and its employees were indifferent to the
legal ownership of metal presented for sale as scrap.” Defendant asserts the evidence
“describes a ‘nod and wink’ system in which actual deception did not occur. It falls
short of proof beyond a reasonable doubt that anyone at [BIMCO] was actually
deceived by [defendant’s] signature on a transaction form.” Defendant specifically
refers to Cloninger’s testimony that when “[BIMCO] ask[s] where [the material]
comes from, . . . everybody says ‘from home,’ and then they drop it off.”
We first note that it is for the jury to determine whether the evidence proves
beyond a reasonable doubt that defendant is guilty. As explained above, all that is
required to survive a motion to dismiss is that there be substantial evidence.
“Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d
164, 169 (1980).
Circumstantial evidence may withstand a motion to
dismiss and support a conviction even when the evidence
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does not rule out every hypothesis of innocence. If the
evidence presented is circumstantial, the court must
consider whether a reasonable inference of defendant’s
guilt may be drawn from the circumstances. Once the court
decides that a reasonable inference of defendant’s guilt
may be drawn from the circumstances, then it is for the
jury to decide whether the facts, taken singly or in
combination, satisfy [it] beyond a reasonable doubt that the
defendant is actually guilty.
Fritsch, 351 N.C. at 379, 526 S.E.2d at 455 (internal quotation marks, citation, and
emphasis omitted).
Here, the evidence was that defendant signed paperwork representing he was
the lawful owner of the materials he was selling. Cloninger specifically explained
that “[o]n the signature it says that they are the lawful owner or legal person to sell
that material.” BIMCO then paid defendant for the materials that defendant
represented were his to sell. At that point, the transaction was complete. When
viewed in the light most favorable to the State, we hold a reasonable inference of
deception and defendant’s guilt may be drawn from these circumstances.
Although addressing a separate issue, the Court’s reasoning in State v. Cronin,
299 N.C. 229, 262 S.E.2d 277 (1980), is informative in the present case. In arguing
an indictment for obtaining property by false pretenses was defective because it failed
to allege actual deception, the defendant in Cronin attempted to distinguish prior
decisions that dealt with the causal connection between a false representation and
the obtainment of something of value from cases concerned with the question of
whether the false pretense in fact deceived the victim. Id. at 237-38, 262 S.E.2d at
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283. Upon review, the Court overruled the defendant’s argument holding that it was
a “distinction without a difference[]” because “[i]f the false pretense caused the victim
to give up his property, it logically follows that the property was given up because the
victim was in fact deceived by the false pretense.” Id. at 238, 262 S.E.2d at 283.
Applying the same rationale, it can be reasonably inferred from the evidence
in this case that defendant’s false representation caused BIMCO to pay defendant.
It then logically follows that BIMCO was in fact deceived.
Furthermore, although Cloninger did testify that everybody represents that
materials they are selling come from home when BIMCO inquires, Cloninger’s
testimony does not establish that BIMCO was not deceived in the present case. At
most, Cloninger’s testimony shows BIMCO may have been suspicious of defendant’s
representation that he was the lawful owner of the items. Yet, it is clear from this
Court’s holding in Simpson that evidence that a victim is suspicious of a seller’s
representation as to ownership does not preclude the charge from surviving a motion
to dismiss.
In Simpson, a jury found the defendant guilty of one count of misdemeanor
possession of stolen goods and two counts of obtaining property by false pretenses
based on evidence tending to show that the defendant sold three stolen cameras to a
pawn shop upon representations that he owned the cameras. 159 N.C. App. at 436,
583 S.E.2d at 715. The defendant in Simpson appealed arguing the trial court erred
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in denying his motion to dismiss. This Court summarized the defendant’s argument
to the trial court in that case as follows:
“I think one of the elements is that [the] defendant, in fact,
does deceive the party listed as the victim. The victim in
this case is . . . the [pawn shop]. However, by the testimony
of [the pawn shop owner], the pawn shop owner was not
deceived whatsoever. [The pawn shop owner] took the
cameras[,] suspected they were stolen[,] called the Sheriff's
Department[,] and didn't place the cameras out for sale.
[The pawn shop owner] knew there was a problem or
certainly suspected there was a problem. The element of
actual deception . . . is not present.”
Id. at 438, 583 S.E.2d at 716 (alterations in original omitted). Over a dissent, this
Court upheld the trial court’s denial of the defendant’s motion to dismiss explaining
as follows:
[the d]efendant contends the State failed to present any
evidence that the victim, [the pawn shop owner], was
actually deceived by [the] defendant's false
representations. As a basis for that contention, [the]
defendant asserts that [the pawn shop owner’s] suspicion
that the cameras were stolen, coupled with the fact that the
cameras were actually stolen, proves that the victim, [the
pawn shop owner], was not, in fact, deceived. [The
d]efendant's argument, however, relies on a retrospective
interpretation of the facts. At the time of the transaction,
[the pawn shop owner] did not know that the cameras were
stolen. In fact, [the pawn shop owner] testified that he
“called [the detective] and told him that he had some
cameras there that he needed to look at.” Although [the
pawn shop owner] had a suspicion that the cameras were
stolen, [the pawn shop owner]'s testimony, when viewed in
the light most favorable to the State, reasonably permits a
jury to make an inference that [the pawn shop owner]
called [the detective] in order to confirm that the items
were not stolen property. As this inference is reasonable,
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and adequate to support the conclusion that [the pawn
shop owner] was, in fact, deceived, this assignment of error
is overruled.
Id. at 439, 583 S.E.2d at 716-17 (footnote and alterations in original omitted). Our
Supreme Court later affirmed this Court’s majority opinion per curiam. 357 N.C. 652,
588 S.E.2d 466 (2003).
As in Simpson, the evidence in this case viewed in the light most favorable to
the State was sufficient to support a reasonable inference of deception and
defendant’s guilt. Thus, the trial court did not err in denying defendant’s motion to
dismiss the obtaining property by false pretenses charge.
2. Acting In Concert Instruction
Defendant objected to the proposed issuance of an acting in concert instruction
during the charge conference. Following a discussion of the issue, the trial court
determined the instruction was proper based on the evidence and proceeded to
instruct the jury on acting in concert as to all offenses over defendant’s objection. As
an alternative to issue one, defendant argues that even if the trial court did not err
in denying his motion to dismiss, the trial court erred by instructing the jury on the
theory of acting in concert because there was no basis in the evidence to support the
theory.
“The prime purpose of a court’s charge to the jury is the clarification of issues,
the elimination of extraneous matters, and a declaration and an application of the
law arising on the evidence.” State v. Cameron, 284 N.C. 165, 171, 200 S.E.2d 186,
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191 (1973), cert. denied, 418 U.S. 905, 41 L. Ed. 2d 1153 (1974). Thus, “[i]t is the duty
of the trial court to instruct the jury on all substantial features of a case raised by the
evidence.” State v. Shaw, 322 N.C. 797, 803, 370 S.E.2d 546, 549 (1988). “[A] trial
judge should not give instructions to the jury which are not supported by the evidence
produced at the trial.” Cameron, 284 N.C. at 171, 200 S.E.2d at 191. “[Arguments]
challenging the trial court’s decisions regarding jury instructions are reviewed de
novo by this Court.” State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149
(2009).
“To act in concert means to act together, in harmony or in conjunction one with
another pursuant to a common plan or purpose.” State v. Joyner, 297 N.C. 349, 356,
255 S.E.2d 390, 395 (1979). Thus, “[a]n instruction on . . . acting in concert is proper
when the State presents evidence tending to show the defendant was present at the
scene of the crime and acted together with another who did acts necessary to
constitute the crime pursuant to a common plan or purpose to commit the crime.”
State v. Cody, 135 N.C. App. 722, 728, 522 S.E.2d 777, 781 (1999) (internal quotation
marks and citation omitted).
In this case, the only evidence indicating the involvement of someone other
than defendant was testimony from Barkley that defendant “[s]tated that he got [the
spool] from Mr. Atchley[]” and “[defendant] figured it was probably stolen.” Although
the evidence regarding Mr. Atchley may support the issuance of an acting in concert
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instruction as to offenses for which defendant was acquitted, the State’s evidence was
that defendant acted alone in obtaining property from BIMCO by false pretenses.
There was no evidence that Mr. Atchley committed any of the acts necessary to
constitute obtaining property from BIMCO by false pretenses. Furthermore, the
presence of defendant’s girlfriend at BIMCO at the time of defendant’s arrest, without
more, is not evidence of her involvement in a common plan or purpose to commit the
crime. Because, there was a complete lack of evidence in this case that anyone but
defendant committed the acts necessary to constitute the crime of obtaining property
by false pretenses, it was error for the trial court to instruct the jury that it could find
defendant guilty of the offense based on a theory of acting in concert.
“[A]n error in jury instructions is prejudicial and requires a new trial only if
‘there is a reasonable possibility that, had the error in question not been committed,
a different result would have been reached at the trial out of which the appeal
arises.’ ” State v. Castaneda, 196 N.C. App. 109, 116, 674 S.E.2d 707, 712 (2009)
(quoting N.C. Gen. Stat. § 15A-1443(a) (2007)). Although, “[i]t is generally prejudicial
error for the trial judge to permit a jury to convict upon a theory not supported by the
evidence[,]” State v. Moore, 315 N.C. 738, 749, 340 S.E.2d 401, 408 (1986), it is evident
the error was not prejudicial in this case.
Unlike the cases cited by defendant, see State v. Hargett, 255 N.C. 412, 121
S.E.2d 589 (1961), State v. Brown, 80 N.C. App. 307, 342 S.E.2d 42 (1986), State v.
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Windley, 173 N.C. App. 187, 617 S.E.2d 682 (2005), where there was evidence that
others were present with the defendants at the times, or just before or after the times
the defendants were alleged to have committed the crimes from which it was
plausible the jury could have erroneously convicted the defendants based on a theory
of acting in concert, there is no such evidence in the present case. Defendant was
the only one on trial for obtaining property from BIMCO by false pretenses and all
the evidence was that defendant was the sole perpetrator of the offense – defendant
signed the paperwork falsely representing he was the lawful owner of the materials
and received payment from BIMCO for the materials. There was no evidence that
anyone was with defendant during the transactions.
Based on the facts of this case, we hold the trial court’s acting in concert
instruction does not amount to prejudicial error because it is implausible the jury
would have reached a different result absent the acting in concert instruction.
3. Resentencing
Lastly, defendant contends the second judgment for obtaining property by false
pretenses entered on 27 February 2015 is void for lack of jurisdiction and, therefore,
the original judgment entered 1 October 2014 remains in full force and effect.
Specifically, defendant contends the trial court did not retain jurisdiction to
resentence defendant for obtaining property by false pretenses because the MAR only
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concerned his conviction for possession of stolen goods, which was entered on a
separate judgment.
At the outset, it important to explain the context for defendant’s challenge
since the 27 February 2015 judgment is nearly identical to the 1 October 2014
judgment. Between the times the original judgment and second judgment were
entered, defendant had prior suspended sentences activated because of probation
violations. Therefore, while the sentence imposed in the original judgment began to
run immediately upon entry on 1 October 2014, defendant contends that, pursuant
to N.C. Gen. Stat. § 14-7.6, he is now forced to serve a longer term of imprisonment
because the sentence imposed in the 27 February 2015 judgment does not begin to
run until his activated sentences have been served.
We first note that it does not appear the trial judge intended to resentence
defendant so that defendant was required to serve additional time. In fact, because
the issue was never brought up during the resentencing hearing, the trial judge may
not even have been aware of the issue. The last sentence in N.C. Gen. Stat. § 14-7.6provides that habitual felon sentences “shall run consecutively with and shall
commence at the expiration of any sentence being served by the person sentenced
under this section.” N.C. Gen. Stat. § 14-7.6 (2015). Despite the mandate in N.C.
Gen. Stat. § 14-7.6, the trial judge failed to indicate on the 27 February 2015
judgment that he was ordering the habitual felon sentence imposed for obtaining
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property by false pretenses to begin at the expiration of all sentences which defendant
was presently obligated to serve. Thus, it appears the sentence imposed during
resentencing began upon entry of the judgment on 27 February 2015, not upon the
conclusion of the sentences activated upon revocation of defendant’s probation.
Although the trial judge’s failure to order the habitual felon sentence to begin
at the expiration of all sentences which defendant is presently obligated to serve
would be error, the failure to so order in this case is of no consequence because we
agree with defendant that in this case the trial court did not retain jurisdiction to
resentence defendant for obtaining property by false pretenses.
Pursuant to N.C. Gen. Stat. § 15A-1448, the trial court is divested of
jurisdiction when notice of appeal has been given and the period for filing notice of
appeal, fourteen days from entry of the judgment, see N.C. R. App. P. 4 (2016), has
expired. N.C. Gen. Stat. § 15A-1448(a)(2) (2015). However, the trial court retains
jurisdiction to act in a case when a MAR is made within ten days of entry of judgment,
whether or not notice of appeal has been given. See N.C. Gen. Stat. § 15A-1414(a)
and (c) (2015); N.C. Gen. Stat. § 15A-1448(a)(2).
As detailed above in the background, defendant filed notice of appeal from the
1 October 2014 judgments on 6 October 2014. Defendant then filed an MAR on
8 October 2014 within the ten day period to file such a motion. Although defendant’s
MAR listed the case numbers for all of the offenses for which he was indicted,
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defendant’s MAR only challenged defendant’s conviction for possession of stolen
goods in case number 14 CRS 128. Because defendant’s conviction for possession of
stolen goods in case number 14 CRS 128 was not consolidated with any other offenses
and entered on its own judgment, entirely separate from the judgment on defendant’s
convictions for obtaining property by false pretenses and attaining habitual felon
status, we hold the MAR only retained the trial court’s jurisdiction to act regarding
defendant’s conviction for possession of stolen goods in case number 14 CRS 128.
Thus, the 27 February 2015 judgment entered upon resentencing is void for lack of
jurisdiction.
There was no necessity or authority for the trial court to resentence defendant
in this case to a sentence identical to the one previously imposed, and thereby change
the date of the entry of judgment, when defendant successfully challenged a separate
conviction that had no effect on the convictions for which he was resentenced.
III. Conclusion
For the reasons discussed, we hold the trial court did not error in denying
defendant’s motion to dismiss. Although the trial court did err in instructing the jury
that it could find defendant guilty of obtaining property by false pretenses based on
a theory of acting in concert, that instruction was not prejudicial. As to resentencing,
the trial court lacked jurisdiction to resentence defendant for convictions entered on
a judgment not challenged in defendant’s MAR and not affected by the grant of
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defendant’s MAR. Thus, the judgment entered in file number 13 CRS 61817 on
27 February 2015 is a nullity and vacated and the original judgment entered on 1
October 2014 remains in full force and effect.
NO ERROR IN PART AND REVERSED IN PART.
Judges DIETZ and TYSON concur.
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