State v. Everrette ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-88
Filed: 7 November 2017
Martin County, Nos. 13 CRS 51094–95
STATE OF NORTH CAROLINA
v.
THOMAS EVERRETTE, JR.
Appeal by defendant from judgments entered 16 August 2016 by Judge
Wayland J. Sermons, Jr. in Martin County Superior Court. Heard in the Court of
Appeals 9 August 2017.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Keith
Clayton, for the State.
Patterson Harkavy LLP, by Paul E. Smith, for defendant-appellant.
ELMORE, Judge.
Defendant Thomas Everrette, Jr. appeals from judgments entered after a jury
convicted him of three counts of obtaining property by false pretenses under N.C.
Gen. Stat. § 14-100. This case presents the issue of whether obtaining-property-by-
false-pretenses indictments charging a defendant with obtaining an unspecified
amount of “credit” secured through the issuance of an unidentified “loan” or “credit
card,” is a sufficiently particular description of what he allegedly obtained, such that
it conferred jurisdiction upon the trial court to enter judgments against him. Because
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we conclude this vague language fails to describe what was obtained with sufficient
particularity, as required to enable a defendant adequately to prepare a defense, we
hold the indictments failed to vest the trial court with jurisdiction. Accordingly, we
vacate defendant’s convictions and arrest the resulting judgments.
I. Background
In June 2013, defendant joined Weyco Community Credit Union (“Weyco”). On
25 June, defendant applied for a collateralized loan from Weyco. As part of the loan
application process, defendant completed a “verification of employment” form
indicating that Bail American Surety, LLC (“Bail American”) was his employer, and
listing its physical address and telephone number. On 27 June, defendant applied
for a secured vehicle loan of $14,399.00 to buy a Suzuki motorcycle (“Motorcycle
Loan”), as well as a credit card with a credit limit of $2,000.00 (“Credit Card”). These
applications listed Bail American as defendant’s employer and were approved by a
Weyco loan officer that same day. On 3 July, defendant applied for and obtained
another secured vehicle loan of $56,976.00 to buy a Dodge truck (“Truck Loan”). This
application did not list defendant’s employment information.
On 31 July, defendant submitted his first payment on the Motorcycle Loan via
a $281.95 check draft, which was later returned for insufficient funds. On 2 August,
defendant submitted his first payment of $891.27 on the Truck Loan. On 30 August,
defendant made his second payment on the Motorcycle Loan. But because defendant
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had defaulted on his first Motorcycle Loan payment, and since the Motorcycle Loan
and Truck Loan (collectively, the “Vehicle Loans”) were cross-collateralized,
defendant was in default on both loans.
Sometime after Weyco issued defendant the Vehicle Loans and Credit Card,
Bank Branch and Trust’s (“BB&T”) fraud department alerted a Weyco representative
that an unusual transaction had gone through Weyco’s BB&T checking account.
BB&T faxed Weyco a copy of the check from that transaction, and defendant’s name
was typewritten on the upper-left corner of the check. BB&T’s alert prompted a
Weyco loan officer supervisor, Gay Roberson, to investigate.
Roberson attempted to verify defendant’s employment information by calling
the telephone number listed for Bail American on defendant’s Motorcycle Loan and
Credit Card applications. The number returned a different company. After
Roberson’s internet search for the company name proved fruitless, she discovered the
physical address listed for Bail American belonged to a different business. Roberson
eventually contacted law enforcement.
Detective Sergeant Gene Bullock of the Williamston Police Department
searched the North Carolina Secretary of State’s records to locate the entity, Bail
American, and was unsuccessful. But Sergeant Bullock found records of an entity
named “Everette’s Bail Bonding, Inc.,” formed in 2000 and dissolved in 2005, as well
as an entity named “Thomas Everette, Jr., LLC,” formed in 2011 and dissolved in
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2014, at some point after Weyco had issued defendant the Vehicle Loans and Credit
Card. Defendant was later arrested and charged.
On 30 March 2015, a grand jury of Martin County indicted defendant for three
counts of obtaining property by false pretenses under N.C. Gen. Stat. § 14-100. The
indictment for the first count, arising from Weyco’s issuance of the Credit Card,
charged that defendant “obtain[ed] credit, from Weyco” and alleged that “this
property was obtained by means of giving false employment information on an
application for a credit card so as to qualify for said credit care [sic] which was issued
to him based upon the false information.” The indictments for the second and third
counts, arising from the Vehicle Loans, were identical save for the offense dates, and
charged that defendant “obtain[ed] credit, from Weyco” and that “this property was
obtained by means of giving false information on an application for a loan so as to
qualify for said loan which loan was made to defendant.”
At trial, Roberson testified that BB&T’s potential fraud alert prompted her to
investigate defendant’s employment. Over defendant’s objection, the State admitted
into evidence the fax from BB&T, a screenshot of the image of the check containing
defendant’s name typewritten in its upper-left corner. Handwritten under the check’s
image was “BB&T Ck fraud.” At the close of the State’s evidence, defendant
unsuccessfully moved to dismiss the charges. He argued the State failed to present
sufficient evidence he misrepresented his employment information, in light of the
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evidence he elicited on cross-examination indicating that the two entities he
previously owned, Everette’s Bail Bonding, Inc. and Thomas Everette, Jr., LLC, did
business as Bail American.
Defendant represented himself pro se with standby counsel. He called his
brother, Mr. James Joyner, and asked him about defendant’s prior work history as a
bail bondsman and his efforts to make timely loan payments. Joyner testified that
defendant had worked as a bail bondsman for most of his life, that defendant used
“Bail American” or “Bail American Bail Bondsman” on business cards and
advertisements, and that Joyner helped defendant make loan payments when
needed.
On cross-examination, the State asked Joyner how long he knew defendant to
be a bail bondsman; Joyner replied: “[B]asically, all his adult life.” The State asked
whether defendant was a licensed bail bondsman; Joyner replied: “[A]s far as I
know.” Then the State asked, over defendant’s objection, whether Joyner knew
defendant had previously been convicted for impersonating a bail bondsman; Joyner
replied: “Did I know that he was impersonating a bail bondsman? No. I don’t know
about that impersonating.” The State inquired no further. At the close of his
evidence, defendant renewed his motions to dismiss the charges for insufficient
evidence, which were again denied.
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On 16 August 2016, the jury found defendant guilty on all three charges of
obtaining property by false pretenses. The trial court entered three judgments
against defendant, imposing three consecutive active sentences of fifteen to twenty-
seven months in prison. Defendant appeals.
II. Alleged Errors
On appeal, defendant contends the trial court (1) lacked jurisdiction to enter
judgments against him because the indictments were facially invalid, arguing they
failed to specify the property obtained with reasonable certainty. Defendant also
contends the trial court erred by (2) denying his motion to dismiss the third charge
arising from the Truck Loan application due to a fatal variance between that
indictment and the trial evidence. Specifically, he argues that indictment alleged he
misrepresented his employment information on the Truck Loan application, when
trial evidence showed the application contained no employment information.
Defendant also asserts the trial court erred by (3) admitting over objection the State’s
question to Joyner about his knowledge of defendant’s prior impersonating-a-bail-
bondsman conviction, and (4) admitting allegedly inadmissible hearsay evidence
arising from the suspicious BB&T transaction that suggested defendant participated
in an unrelated bank fraud. Because we hold the indictments were insufficient and
therefore warrant vacating defendant’s convictions and arresting the resulting
judgments, resolving defendant’s first alleged error disposes of his entire appeal, and
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we thus decline to address his remaining arguments. See, e.g., State v. Downing, 313
N.C. 164, 165, 326 S.E.2d 256, 257 (1985) (vacating larceny conviction for fatal
variance between indictment and trial evidence and, therefore, declining to address
the defendant’s double-jeopardy argument related to the larceny conviction).
III. Sufficiency of Indictments
A. Arguments
Defendant contends the trial court lacked jurisdiction to enter judgments
against him because the indictments were facially invalid on the ground that they
failed to describe with reasonable certainty the things he allegedly obtained. He
argues the Vehicle Loan application indictments, which merely described the
property obtained as “a loan” and “a loan,” but failed to specify what was loaned (e.g.
money or another valuable), or the property he obtained with those loans, were
insufficient to sustain the charges. He also contends the Credit Card application
indictment, which merely described the property as “a credit card,” but failed to
identify that card, its value, or what property he obtained using that card, similarly
was insufficient to sustain the charge. Defendant relies primarily on our Supreme
Court’s decisions in State v. Smith, 219 N.C. 400, 14 S.E.2d 36 (1941), and State v.
Jones, 367 N.C. 299, 758 S.E.2d 345 (2014), to support his argument.
The State retorts that each indictment was valid. It argues these indictments
should not be quashed based on such technicalities, and because the indictments
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describe the dates of the offenses, the name of the victim, and the things obtained by
the terms generally used to describe them (i.e. credit card and loan), the indictments
sufficiently apprised defendant of the charges against him and were specific enough
to allow him to prepare a defense. The State further contends that defendant’s
reliance on Smith and Jones is misplaced in light of this Court’s decision in State v.
Ricks, ___ N.C. App. ___, 781 S.E.2d 637 (2016).
B. Discussion
“[A] valid indictment is necessary to confer jurisdiction upon the trial court.”
State v. Murrell, ___ N.C. ___, ___, ___ S.E.2d ___, ___, No. 233PA16, slip op. at 9
(Sept. 29, 2017) (citing State v. Morgan, 226 N.C. 414, 415, 38 S.E.2d 166, 167 (1946);
State v. Synder, 343 N.C. 61, 65, 468 S.E.2d 221, 224 (1996)). “A defendant can
challenge the facial validity of an indictment at any time, and a conviction based on
an invalid indictment must be vacated.” State v. Campbell, 368 N.C. 83, 86, 772
S.E.2d 440, 443 (2015) (citing McClure v. State, 267 N.C. 212, 215, 148 S.E.2d 15, 17–
18 (1966)). We review de novo the sufficiency of an indictment to sustain a conviction.
See, e.g., State v. Barker, 240 N.C. App. 224, 228, 770 S.E.2d 142, 146 (2015) (citing
State v. McKoy, 196 N.C. App. 650, 652, 675 S.E.2d 406, 409 (2009)).
“An indictment must contain ‘a plain and concise factual statement in each
count which, . . . asserts facts supporting every element of a criminal offense . . . with
sufficient precision clearly to apprise the defendant . . . of the conduct which is the
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subject of the accusation.’ ” State v. Jones, 367 N.C. 299, 306, 758 S.E.2d. 345, 350–
51 (2014) (quoting State v. Cronin, 299 N.C. 229, 234, 262 S.E.2d 277, 281 (1980)).
Specificity in an indictment is required to ensure it:
(1) “apprises the defendant of the charge against him with
enough certainty to enable him to prepare his defense”; (2)
“protect[s] him from subsequent prosecution for the same
offense”; and (3) “enable[s] the court to know what
judgment to pronounce in the event of conviction.”
Murrell, slip op. at 9-10 (quoting State v. Coker, 312 N.C. 432, 434–35, 323 S.E.2d
343, 346 (1984)).
The elements of the crime of obtaining property by false pretenses follow:
(1) “knowingly and designedly by means of any kind of false
pretense”; (2) “obtain[ing] or attempt[ing] to obtain from
any person . . . any money, goods, property, services, chose
in action, or other thing of value”; (3) “with intent to cheat
or defraud any person of such money, goods, property,
services, chose in action or other thing of value.”
Jones, 367 N.C. at 307, 758 S.E.2d at 351 (quoting N.C. Gen. Stat. § 14-100(a) (2013)).
An indictment is generally sufficient when the charge tracks the governing
statute. State v. Palmer, 293 N.C. 633, 637–38, 239 S.E.2d 406, 409–10 (1977). But
where a statute uses generic terms, the indictment must descend to particulars. See,
e.g., Jones, 367 N.C. at 307–08, 758 S.E.2d at 351. Thus, in an obtaining-property-
by-false-pretenses indictment, “the thing obtained . . . must be described with
reasonable certainty, and by the name or term usually employed to describe it.” Id.
at 307, 758 S.E.2d at 351 (citing State v. Gibson, 169 N.C. 380, 383, 169 N.C. 318,
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320, 85 S.E. 7, 8 (1915)). An indictment “simply describing the property obtained as
‘money,’ State v. Reese, 83 N.C. 637, 640 (1880), or ‘goods and things of value,’ State
v. Smith, 219 N.C. 400, 14 S.E.2d 36 (1941), is insufficient to allege the crime of
obtaining property by false pretenses.” Jones, 367 N.C. at 307, 758 S.E.2d at 351.
Nor is an indictment merely describing the property as “services.” Id. at 307–08, 758
S.E.2d at 351.
In Jones, our Supreme Court was presented with an issue related to the
sufficiency of obtaining-property-by-false-pretenses indictments and specifically
addressed the adequacy of their descriptions of things allegedly obtained. 367 N.C.
at 306–07, 758 S.E.2d at 350–51. Despite those indictments identifying the offense
dates, the victim, and the stolen credit card used to acquire the automobile services
and parts the State sought to prove the defendant fraudulently obtained, our
Supreme Court held those indictments invalid because their property description of
“ ‘services’ from Tire Kingdom and Maaco” was insufficiently particular. Id. at 307–
08, 758 S.E.2d at 351.
Relying on authority from its prior decisions in Reese, 83 N.C. at 639–40
(holding indictment insufficient where it alleged “money” was obtained but did not
“describe[ it] at least by the amount, as for instance so many dollars and cents”), and
Smith, 219 N.C. at 401–02, 14 S.E.2d at 36–37 (holding indictment insufficient where
it alleged “goods and things of value” were obtained but failed to specify that it was
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money or describe its amount), the Jones Court concluded that “[l]ike the terms
‘money’ or ‘goods and things of value,’ the term ‘services’ [did] not describe with
reasonable certainty the property obtained by false pretenses.” 367 N.C. at 307–08,
758 S.E.2d at 351. The Jones Court reasoned further that “ ‘services’ is not the name
or term usually employed to adequately describe the tires, rims, wiper blades, tire
and rim installation, wheel alignment, and break services Jones allegedly obtained
from Tire Kingdom, or the paint materials and service, body supplies and labor, and
‘sublet/towing’ services Jones obtained from Maaco.” Id. at 308, 758 S.E.2d at 351.
Here, the Vehicle Loan application indictments were identical save for the
offense dates and alleged that defendant:
unlawfully, willfully and feloniously did knowingly and
designedly with the intent to cheat and defraud obtain
credit, from Weyco Community Credit Union, by means of
a false pretense which was calculated to deceive and did
deceive. The false pretense consisted of the following: this
property was obtained by means of giving false employment
information on an application for a loan so to qualify for
said loan which loan was made to defendant.
(Emphasis added.) The Credit Card application indictment alleged that defendant:
unlawfully, willfully and feloniously did knowingly and
designedly with the intent to cheat and defraud obtain
credit, from Weyco Community Credit Union, by means of
a false pretense which was calculated to deceive and did
deceive. The false pretense consisted of the following: this
property was obtained by means of giving false employment
information on an application for a credit card so to qualify
for said credit care [sic] which was issued to him based
upon the false information.
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(Emphasis added.)
Applying Reese, Smith, and Jones, we hold that indictments charging a
defendant with obtaining “credit” of an unspecified amount, secured through two
unidentified “loan[s]” and a “credit card” are too vague and uncertain to describe with
reasonable certainty what was allegedly obtained, and thus are insufficient to charge
the crime of obtaining property by false pretenses. “Credit” is a term less specific
than money, and the principle that monetary value must at a minimum be described
in an obtaining-property-by-false-pretenses indictment extends logically to our
conclusion that credit value must also be described to provide more reasonable
certainty of the thing allegedly obtained in order to enable a defendant adequately to
mount a defense. Moreover, although the indictments alleged defendant obtained
that credit through “loan[s]” and a “credit card,” they lacked basic identifying
information, such as the particular loans, their value, or what was loaned; the
particular credit card, its value, or what was obtained using that credit card.
Nonetheless, the State argues that the indictments here contain the requisite
elements of N.C. Gen. Stat. § 14-100 as defined by our Supreme Court in State v.
Cronin, 299 N.C. 229, 242, 262 S.E.2d 277, 286 (1980); that “[f]urther, the indictments
specify the dates of the offenses and the victim of the alleged crimes (Weyco), as well
as the things obtained by Defendant using the name or term usually employed to
describe them (e.g., ‘credit card’ and ‘loan’)” and thus were sufficient to provide
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defendant with notice of the charges against him and were specific enough to allow
him to prepare a defense; and that defendant’s lack-of-specificity argument is
foreclosed by this Court’s decision in Ricks. We disagree.
First, even if the indictments charged in broad terms the elements of N.C. Gen.
Stat. § 14-100 as defined in Cronin, this is no cure for their lack of particularity of the
things allegedly obtained. Further, our Supreme Court in 2014 addressed the
sufficiency of an obtaining-property-by-false-pretenses indictment and, as mentioned
above, listed the elements of N.C. Gen. Stat. § 14-100(a) as follows:
(1) “knowingly and designedly by means of any kind of false
pretense”; (2) “obtain[ing] or attempt[ing] to obtain from
any person . . . any money, goods, property, services, chose
in action, or other thing of value”; (3) “with intent to cheat
or defraud any person of such money, goods, property,
services, chose in action or other thing of value.”
Jones, 367 N.C. at 307, 758 S.E.2d at 351 (quoting N.C. Gen. Stat. § 14-100(a) (2013)).
Thus, the State’s reliance on our Supreme Court’s 1980 description of these elements
in Cronin is misplaced and, nonetheless, its argument is unconvincing. Indeed,
Cronin illustrates a more sufficient indictment.
In Cronin, the defendant “obtained a loan of $5,704.54 by representing to the
bank that the security given was a new mobile home with a value of $10,850.00, when
in fact it was a fire-damaged mobile home having a value of $2,620.00.” 299 N.C. at
242, 262 S.E.2d at 285. That indictment specifically alleged the defendant obtained
from the bank “currency of the United States in the value of Five Thousand Seven
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Hundred and 54/100 Dollars ($5,704.54) . . . .” Id. at 234, 262 S.E.2d at 281. Here,
contrarily, the State attempted to charge defendant with obtaining from Weyco
secured vehicle loans of $14,399.00 and $56,976.00, but the indictments merely
alleged he obtained an unspecified amount of “credit” by being issued “loan[s]” of
unspecified values.
Second, the Jones Court held the indictments invalid for failing to specify with
sufficient particularity the things obtained, despite those indictments specifically
identifying the offense dates, the victims, and the stolen credit card used to obtain
the automobile services and parts. Additionally, even if “loan” and “credit card” are
terms generally used to describe how one secures credit, defendant was indicted for
“obtaining credit” and, as stated above, all three indictments lacked the most basic
identifying information with respect to the loans and credit card.
Third, the State’s reliance on Ricks is unpersuasive. Despite the Jones Court
relying on established precedent that an indictment alleging money was obtained
must specify its amount, the Ricks panel held that an indictment merely describing
an unspecified “quantity of U.S. Currency” was sufficient. ___ N.C. App. at ___, 781
S.E.2d at 645. As mentioned above, “credit” is a description less specific than “money”
and lesser still than “U.S. Currency.” Further, as defendant argues, merely
describing “a loan” without specifying whether it was a loan of real property, personal
property, or currency, is also less specific than describing “U.S. Currency.”
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Additionally, immediately before oral argument, the State submitted as
additional authority this Court’s decision in State v. Buchanan, ___ N.C. App. ___,
___ S.E.2d ___, No. 16-697 (Jun. 6, 2017), to support its position that, because
obtaining “credit” is a thing of value sufficient to sustain an obtaining-property-by-
false-pretenses conviction, the indictments returned against defendant were valid.
The State’s reliance on Buchanan is misplaced.
In Buchanan, the defendant was convicted of obtaining property by false
pretenses after allegedly misrepresenting to his bank that his girlfriend fraudulently
signed and cashed, inter alia, a $600 check drawn on his account, which resulted in
the bank placing $600 of provisional credit into his bank account. Id., slip op. at 1–
2. Although no evidence showed the defendant “attempted to withdraw, spend, or
otherwise access the $600,” id., slip op. at 2, we held the “provisional credit placed in
Defendant’s [bank] account was a ‘thing of value’ sufficient to sustain his conviction,”
id., slip op. at 4–5. We reasoned that “[t]he provisional credit was the equivalent of
money being placed in his account, to which he had access, at least temporarily.
Access to money for a period of time, even if it eventually has to be paid back, is a
‘thing of value.’ ” Id., slip op. at 5.
Buchanan is inapplicable because that panel was presented with an issue of
whether the trial evidence was sufficient to convict the defendant and not whether
the indictment was sufficient to charge the defendant. Id., slip op. at 3. Indeed, that
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indictment specifically charged the defendant with “obtain[ing] $600 from his
bank . . . .” Id., slip op. at 2 (emphasis added). Further, provisional credit placed into
a bank account is a valuable more akin to a deposit of money, and unlike the revolving
line of credit secured through a credit card or the secured vehicle loans at issue here.
Because the State sought to prove that defendant obtained by false pretenses
a $14,399 secured vehicle loan for the purchase of a Suzuki motorcycle and a $56,736
secured vehicle loan for the purchase of a Dodge truck, the indictments should have,
at a minimum, identified these particular loans, described what was loaned, and
specified what actual value defendant obtained from those loans. Because the State
sought also to prove that defendant obtained the Credit Card by false pretenses, that
indictment should have, at a minimum, identified the particular credit card and its
account number, its value, and described what defendant obtained using that credit.
In summary, defendant was indicted for obtaining an unspecified amount of
credit secured through an unidentified credit card and two unidentified loans of
unspecified values. The principle that when an indictment alleges “money” was
obtained, it must at least be described in “so many dollars and cents” extends logically
and soundly here. Indictments alleging that “credit” was obtained must at a
minimum specify the value of that credit. And despite these indictments alleging
that this credit was secured through the issuance of “loan[s]” and a “credit card,”
these vague descriptions fail to describe with reasonably certainty the things
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allegedly obtained. The indictments are thus insufficiently particular to sustain
charges of obtaining property by false pretenses. In light of our disposition, we
decline to address defendant’s remaining arguments. See, e.g., Downing, 313 N.C. at
165, 326 S.E.2d at 257.
IV. Conclusion
An indictment charging a defendant with obtaining property by false pretenses
under N.C. Gen. Stat. § 14-100 needs to describe what was allegedly obtained with
more particularity than “credit” of unknown value secured through being issued an
unidentified “loan” or “credit card.” Absent greater specificity, such an indictment
violates one of its core purposes to “apprise the defendant of the charge against him
with enough certainty to enable him to prepare his defense.” Murrell, slip op. at 9-10
(citation and quotation marks omitted). Because these indictments failed to describe
what was obtained with sufficient particularity, they failed to vest the trial court with
jurisdiction to try defendant on charges of obtaining property by false pretenses. We
thus vacate defendant’s three obtaining property-by-false-pretenses convictions and
arrest the resulting judgments.
VACATED.
Judges DIETZ and ARROWOOD concur.
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