State v. Carter ( 2020 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-44
Filed: 7 January 2020
Duplin County, Nos. 15 CRS 52497, 17 CRS 111
STATE OF NORTH CAROLINA,
v.
DIANNA MICHELLE CARTER, Defendant.
Appeal by Defendant from judgments entered 1 February 2018 by Judge
Joshua W. Willey, Jr., in Duplin County Superior Court. Heard in the Court of
Appeals 17 September 2019.
Attorney General Joshua H. Stein, by Deputy General Counsel Blake W.
Thomas and Duplin County Assistant District Attorney Michele-Ellen Morton,
for the State-Appellee.
Kimberly P. Hoppin for Defendant-Appellant.
COLLINS, Judge.
Defendant Dianna Michelle Carter appeals from judgments entered upon jury
verdicts of guilty of financial card fraud, obtaining property by false pretenses,
identity theft, and attaining habitual felon status. On appeal, Defendant argues that
the trial court erred by denying her motion to dismiss the charges of identity theft for
insufficient evidence and by instructing the jury on false or conflicting statements.
We discern no error.
STATE V. CARTER
Opinion of the Court
I. Procedural History
A jury found Defendant guilty in July 2017 of financial card fraud, obtaining
property by false pretenses, identity theft, and attaining the status of habitual felon.1
The trial court entered judgments upon the jury’s verdicts on 1 February 2018,
sentencing Defendant to consecutive prison terms of 133 to 172 months and 96 to 128
months. Defendant gave oral notice of appeal in court.
II. Factual Background
The State’s evidence at trial tended to show: On 29 August 2015, Corporal
Jerry Wood of the Wallace Police Department received a phone call from the regional
manager of Aaron’s Rental (“Aaron’s”), reporting suspected fraud by Defendant.
Aaron’s had been charged back for four credit card transactions wherein Defendant
provided payment to Aaron’s by credit card over the phone, and payment to the credit
card companies was subsequently refused by the credit card holders. Wood learned
in telephone interviews with the regional manager and the sales manager that
Defendant called Aaron’s on 8 June 2015 and 7 July 2015 to make payments on her
own account at Aaron’s, and on her daughter’s account. Each time, Defendant
identified herself as Dianna Carter and gave the sales manager a credit card number,
expiration date, and security code for payment. The sales manager recognized
1 The charges were brought in two file numbers: 15 CRS 52497 (included four counts of identity
theft involving the use of credit card information of two victims) and 17 CRS 111 (included two counts
of identity theft involving the use of credit card information of one of the victims).
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Opinion of the Court
Defendant’s voice during the phone calls because the sales manager had spoken on
the phone with Defendant several times before. The regional manager was also
familiar with Defendant, as he had met with Defendant in person and spoken with
her several times by phone.
Lieutenant James P. Blanton, Jr., took over as the lead investigator on the
case. During his first interview with Defendant at the police station, Defendant told
Blanton that “she didn’t do it, that it was her ex-boyfriend and his girlfriend” who
were responsible. When Defendant returned to the police station a few days later,
she told Blanton that “she was the one that did it” and specifically admitted to the
four transactions at Aaron’s. Defendant explained that she had obtained credit card
information through an online customer service job. Upon Blanton’s request,
Defendant returned to the station a couple of days later with a hand-written
confession. In the signed statement, Defendant admitted that she had obtained other
people’s credit card information about a year earlier “through an at-home job.”
Although she intended when she obtained the information to use it right away, she
did not do so until she later felt “backed into a corner” in June and July 2015, when
she conducted the fraudulent transactions.
Blanton’s investigation revealed that Defendant used the credit card
information of Kathryn L. Griffin for two of the transactions at Aaron’s and that of
Janice K. Mooney for the other two transactions.
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Opinion of the Court
Blanton also learned that Defendant used Mooney’s credit card information to
make two purchases in person on 6 June 2015 at First Class Tanning in Wallace.2
Defendant gave the credit card information, which Defendant had written on a piece
of paper, verbally to the sales attendant and signed her own name on the receipts.
First Class Tanning was charged back for both of these purchases when payment was
refused by the credit card holder. The employees at First Class Tanning were familiar
with Defendant because she had been a customer there for about five years.
At trial, the State presented evidence including Defendant’s hand-written
confession, testimony of Aaron’s and First Class Tanning employees involved in the
transactions, receipts for payments made at Aaron’s, chargeback documents for the
four Aaron’s transactions, credit card statements and receipts for Griffin, bank
records and a fraud statement for Mooney, and testimony by the investigating
officers. Defendant did not present any evidence.
III. Discussion
A. Motion to Dismiss for Insufficient Evidence
Defendant contends that the trial court erred by denying her motion to dismiss
the six charges of identity theft for insufficient evidence that Defendant “intended to
2 File number 15 CRS 52497 included four counts of identity theft (two counts for using
Griffin’s credit card information at Aaron’s and two counts for using Mooney’s credit card information
at Aaron’s). File number 17 CRS 111 included two counts of identity theft for using Mooney’s credit
card information at First Class Tanning.
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Opinion of the Court
represent that she was either Janice Mooney or Kathryn Griffin, or anyone other than
herself, in any of these transactions.”
Preservation of Argument for Appellate Review
As a preliminary matter, we address the State’s contention that Defendant’s
argument is not properly before us because Defendant’s motion at trial only
challenged the two counts of identity theft related to Kathryn Griffin and presented
a different argument than Defendant now raises on appeal.
“In order to preserve an issue for appellate review, a party must have
presented to the trial court a timely request, objection, or motion, stating the specific
grounds for the ruling the party desired the court to make if the specific grounds were
not apparent from the context.” N.C. R. App. P. 10(a)(1). A general motion to dismiss
for insufficient evidence preserves a defendant’s arguments on all elements of all
charged offenses, even if the defendant proceeds to specifically argue about fewer
than all of the elements or charges. State v. Pender, 243 N.C. App. 142, 153, 776
S.E.2d 352, 360 (2015). If, however, a defendant’s motion to dismiss does not present
a general challenge, and instead only challenges the sufficiency of the evidence of
specific elements of specific offenses, the defendant preserves for appellate review
only those arguments as to the specified elements of the specified offenses. State v.
Walker, 252 N.C. App. 409, 413, 798 S.E.2d 529, 532 (2017).
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Opinion of the Court
Moreover, “the law does not permit parties to swap horses between courts in
order to get a better mount before an appellate court.” Geoscience Grp., Inc. v. Waters
Constr. Co., 234 N.C. App. 680, 691, 759 S.E.2d 696, 703 (2014) (internal quotation
marks and citation omitted). “Consequently, when a defendant presents one
argument in support of her motion to dismiss at trial, she may not assert an entirely
different ground as the basis of the motion to dismiss before this Court.” State v.
Chapman, 244 N.C. App. 699, 714, 781 S.E.2d 320, 330 (2016) (citation omitted).
In this case, at the close of the State’s evidence, Defendant moved to dismiss
the two charges of identity theft which pertained to Kathryn Griffin, based on the
argument that there was no evidence that those transactions were not authorized by
Ms. Griffin, stating:
Well, I think, at this time, it would be appropriate
for me to make a motion. I don’t know that I wish to be
heard on all of the charges in the indictments, but there are
some of them I would like to specifically . . . talk to the
Court about.
....
. . . . And those charges would deal with – in 15 CRS
52497, Ms. Carter is charged with numerous counts that
deal with a Wells Fargo Bank Visa card that Ms. Kathryn
Griffin was the holder of. . . .
....
So the counts I pointed out there in 15 CRS 52497,
financial card fraud being one; obtaining property being
one; identity theft being one; I don’t think any evidence
about obtaining property by false pretense. I don’t think
there’s been any evidence, if you take it in the light most
favorable to the State, that those transactions weren’t
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Opinion of the Court
authorized by Ms. Griffin. And we would ask the Court to
dismiss those. I don’t wish to be heard as to the other
charges.
Defendant renewed her motion to dismiss at the close of all of the evidence, “rel[ying]
upon [her] earlier arguments,” and her motion was denied.
Defendant does not raise the same argument on appeal, however. Instead,
Defendant now argues that the trial court erred by denying her motion to dismiss the
six charges of identity theft for insufficient evidence that Defendant “intended to
represent that she was either Janice Mooney or Kathryn Griffin[.]” Defendant failed
to preserve any argument as to the four charges of identity theft pertaining to
Mooney. Likewise, Defendant failed to preserve the specific argument—that there
was insufficient evidence that Defendant intended to represent that she was Griffin—
which she now seeks to make on appeal. We thus decline to reach the merits of her
argument. See Chapman, 244 N.C. App. at 714, 781 S.E.2d at 330.
Defendant argues that “[t]he interest of justice would be served if this Court
reviewed the sufficiency of the evidence in this case” by invoking Rule 2 of the
Appellate Rules to suspend or vary the preservation requirements.
An appellate court may address an unpreserved argument “[t]o prevent
manifest injustice to a party, or to expedite decision in the public interest[.]” N.C. R.
App. P. 2. However, “the authority to invoke Rule 2 is discretionary, and this
discretion should only be exercised in exceptional circumstances in which a
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Opinion of the Court
fundamental purpose of the appellate rules is at stake.” Pender, 243 N.C. App. at
148-149, 776 S.E.2d at 358 (internal quotation marks, citations, and ellipsis omitted).
This case does not involve exceptional circumstances, and we, in our discretion,
decline to invoke Rule 2.
Ineffective Assistance of Counsel
Alternatively, Defendant argues that her trial counsel provided ineffective
assistance of counsel (“IAC”) by failing to preserve this argument for appellate review.
Claims of ineffective assistance of counsel generally should be considered
through motions for appropriate relief. State v. Stroud, 147 N.C. App. 549, 553, 557
S.E.2d 544, 547 (2001). However, we may decide the merits of this claim because the
trial transcript reveals that no further investigation is required. See State v. Fair,
354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001)) (“[IAC] claims brought on direct review
will be decided on the merits when the cold record reveals that no further
investigation is required . . . .”).
To prevail on a claim for IAC, a defendant must satisfy a two-part test:
First, the defendant must show that counsel’s performance
was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is
reliable.
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Opinion of the Court
State v. Banks, 367 N.C. 652, 655, 766 S.E.2d 334, 337 (2014) (quoting Strickland v.
Washington, 466 U.S. 668, 687 (1984)).
To establish whether an attorney’s error satisfies the first prong of Strickland,
a defendant must overcome the strong presumption that defense counsel’s conduct
falls within the wide range of reasonable professional assistance. State v. McNeill,
371 N.C. 198, 219, 813 S.E.2d 797, 812-13 (2018) (internal quotation marks and
citation omitted).
Defendant argues on appeal that Defendant’s motion to dismiss would have
been granted at trial because the State did not put on evidence that Defendant used
the names of the two credit card holders, Griffin and Mooney, when she used their
credit card information to make purchases. We disagree.
Denial of a motion to dismiss is proper if there is substantial evidence of each
essential element of the offense and that the defendant was the perpetrator. State v.
Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000) (internal quotation marks and
citation omitted). “Substantial evidence is relevant evidence that a reasonable person
might accept as adequate, or would consider necessary to support a particular
conclusion.” State v. Jones, 367 N.C. 299, 304, 758 S.E.2d 345, 349 (2014) (internal
quotation marks and citation omitted) (explaining that evidence may be direct,
circumstantial, or both). When reviewing a challenge to the sufficiency of the
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Opinion of the Court
evidence, we view the evidence in the light most favorable to the State and give the
State the benefit of “every reasonable inference supported by that evidence.” Id.
A person is guilty of identity theft when she (1) “knowingly obtains, possesses,
or uses identifying information of another person, living or dead,” (2) “with the intent
to fraudulently represent that [she] is the other person for the purposes of making
financial or credit transactions in the other person’s name, to obtain anything of
value, benefit, or advantage, or for the purpose of avoiding legal consequences . . . .”
N.C. Gen. Stat. § 14-113.20(a) (2015). Identifying information includes credit card
numbers. N.C. Gen. Stat. § 14-113.20(b)(5) (2015).
“[I]ntent is seldom provable by direct evidence and ordinarily must be proved
by circumstances from which it may be inferred.” State v. Hardy, 299 N.C. 445, 449,
263 S.E.2d 711, 714 (1980). In Jones, the Supreme Court applied this well-settled
principle to determining fraudulent intent for identity theft: “Based upon the
evidence that [defendant] had fraudulently used other individuals’ credit card
numbers, a reasonable juror could infer that he possessed [the victims’] credit card
numbers with the intent to fraudulently represent that [defendant] was those
individuals for the purpose of making financial transactions in their names.” Id. at
305, 758 S.E.2d at 350 (internal quotation marks and citation omitted).
Our Supreme Court also specifically addressed in Jones whether a literal
interpretation of the “in the other person’s name” language in the identity-theft
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Opinion of the Court
statute is required to establish fraudulent intent. See id. at 306, S.E.2d at 350; N.C.
Gen. Stat. § 14-113.20(a) (“with the intent to fraudulently represent that [she] is the
other person for the purposes of making financial or credit transactions in the other
person’s name”) (emphasis added). The defendant gave merchants fictitious names
that were different from the card holders’ names when making purchases with
victims’ credit card numbers. Jones, 367 N.C. at 305-06, 758 S.E.2d at 350. The
defendant argued that N.C. Gen. Stat. § 14-113.20(a) required the State to prove that
the defendant intended to represent to the merchants that he was each of the victims,
“and not some other individual or an authorized user.” Id. at 306, 758 S.E.2d at 350.
The Court rejected this argument, explaining:
We generally construe criminal statutes against the State.
However, this does not require that words be given their
narrowest or most strained possible meaning. A criminal
statute is still construed utilizing common sense and
legislative intent. Where a literal interpretation of the
language of a statute will lead to absurd results, or
contravene the manifest purpose of the Legislature, . . . the
reason and purpose of the law shall control and the strict
letter thereof shall be disregarded. We cannot conclude
that the Legislature intended for individuals to escape
criminal liability simply by stating or signing a name that
differs from the cardholder’s name. Such a result would be
absurd and contravene the manifest purpose of the
Legislature to criminalize fraudulent use of identifying
information.
Id. (internal quotation marks and citation omitted). “Because the State’s evidence
was sufficient to raise an inference of [the defendant’s] fraudulent intent in
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Opinion of the Court
possessing [the victims’] credit card numbers, the trial court did not err by denying
[the defendant’s] motion to dismiss the charge of identity theft.” Id.
This case is analogous to Jones. Here, Defendant argues that this Court must
strictly construe the statute and require the State to present evidence that Defendant
intended to fraudulently represent that she was Griffin and Mooney for the purposes
of making financial or credit transactions in their names. Defendant contends that
she did not purport to the merchants to be Griffin or Mooney when she presented
their credit card information, as Defendant did not verbalize or sign the victims’
names when making the purchases. Defendant bolsters her argument by
emphasizing that the Aaron’s and First Class Tanning employees who processed the
transactions were familiar with Defendant personally.
Notwithstanding the merchants’ familiarity with Defendant, the State
presented evidence that Defendant presented credit card information belonging to
Griffin and Mooney in order to conduct transactions with the merchants. The State’s
evidence included Defendant’s hand-written confession, testimony of Aaron’s and
First Class Tanning employees involved in the transactions, receipts for payments
made at Aaron’s, chargeback documents for the four Aaron’s transactions, credit card
statements and receipts for Griffin, bank records and a fraud statement for Mooney,
and testimony by the investigating officers.
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Opinion of the Court
In light of this evidence that Defendant fraudulently used Griffin’s and
Mooney’s credit card information, a reasonable juror could infer from the
circumstances that Defendant possessed this information with the intent to
fraudulently represent that she was Griffin and Mooney for the purpose of making
financial transactions in their names, see Hardy, 299 N.C. at 449, 263 S.E.2d at 714,
even if Defendant did not explicitly state the card holders’ names or sign the credit
card receipts in their names, see Jones, 367 N.C. at 306, 758 S.E.2d at 350. As the
Supreme Court explained in Jones, a literal interpretation of the “in the other
person’s name” language in the identity-theft statute is not required, and demanding
it here would lead to an absurd result—a person who fraudulently uses identifying
information could “escape criminal liability simply by stating or signing a name that
differs from the cardholder’s name.” Jones, 367 N.C. at 306, 758 S.E.2d at 350.
Because the State presented substantial evidence of fraudulent intent, the trial
court would have denied Defendant’s motion to dismiss for insufficient evidence even
if presented with this argument. Accordingly, defense counsel did not commit error,
much less a serious error falling below the reasonableness standard set forth in
Strickland, by failing to assert this futile argument. Defendant’s argument that she
was denied effective assistance of counsel is meritless.
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Opinion of the Court
B. Jury Instruction
Defendant argues that the trial court committed reversible error by instructing
the jury on Defendant’s prior false or contradictory statements. Defendant contends
that the instruction impugned her character and on this basis requests a new trial.
This Court reviews challenges to a trial court’s decisions regarding jury
instructions de novo. State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149
(2009). Under a de novo review, this Court “considers the matter anew and freely
substitutes its judgment” for that of the lower court. State v. Williams, 362 N.C. 628,
632-33, 669 S.E.2d 290, 294 (2008).
“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,
191 (1973). Generally, a new trial is required if an error in jury instructions is
prejudicial. State v. Castaneda, 196 N.C. App. 109, 116, 674 S.E.2d 707, 712 (2009).
Prejudice is established by a showing that “‘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.’” Id. (quoting N.C. Gen. Stat. § 15A-1443(a)
(2007)).
“Our Supreme Court has held that false, contradictory, or conflicting
statements made by an accused concerning the commission of a crime may be
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Opinion of the Court
considered as a circumstance tending to reflect the mental processes of a person
possessed of a guilty conscience seeking to divert suspicion and to exculpate himself.”
State v. Scercy, 159 N.C. App. 344, 353, 583 S.E.2d 339, 344 (2003) (citations omitted).
“The probative force of such evidence is that it tends to show consciousness of guilt.”
Id. (citation omitted).
A trial court may only use a jury instruction to this effect if the defendant’s
statement is relevant to proving that she committed the crime and indeed provides
“substantial probative force, tending to show consciousness of guilt.” State v. Walker,
332 N.C. 520, 537, 422 S.E.2d 716, 726 (1992). “The instruction is proper not only
where defendant’s own statements contradict each other but also where defendant’s
statements flatly contradict relevant evidence.” Id. at 537-38, 422 S.E.2d at 726. The
instruction is inappropriate if it fails to make clear to the jury that the falsehood does
not create a presumption of guilt. State v. Myers, 309 N.C. 78, 88, 305 S.E.2d 506,
512 (1983).
In Defendant’s first statement to Blanton at the police station, she initially
denied the crime and blamed it on her ex-boyfriend. However, in her second, hand-
written statement, Defendant expressly stated:
[T]o whom it may concern, I would like to admit to the
fraudulent transactions . . . . These transactions were
completed . . . by myself . . . . I obtained these numbers
through an at-home job I was working. I have had these
two numbers for about a year and never used. At the time
of getting these, I had intentions of using them but never
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Opinion of the Court
did because I rethought my actions. Then I was backed
into a corner and didn’t think – I am very sorry for my
actions and will do what is necessary to keep from being
prosecuted.
Thus, the trial court did not err in determining that Defendant made two conflicting
statements. The trial court gave the following pattern jury instruction on false,
contradictory, or conflicting statements by the defendant:
The State contends, and the defendant denies, that the
defendant made false, contradictory, or conflicting
statements. If you find that the defendant made such
statements, they may be considered by you as a
circumstance tending to reflect the mental process of a
person possessed of a guilty conscience seeking to divert
suspicion or exculpate the person, and you should consider
that evidence, along with all other believable evidence in
this case. However, if you find that the defendant made
such statements, they do not create a presumption of guilt
and such evidence standing alone is insufficient to
establish guilt.
See N.C.P.I.—Crim. 105.21 (2017).3
3 North Carolina Pattern Jury Instruction 105.21 contains the following note: NOTE WELL:
This instruction is ONLY proper where the defendant's statements and/or trial testimony is
contradictory to highly relevant facts proven at trial. HOWEVER, this instruction should NOT be used
if the statements are completely irrelevant and without substantial probative force in tending to show a
consciousness of guilt. EXTREME care should be used in first degree murder cases as such evidence
may not be considered as tending to show premeditation and deliberation. . . . EXTREME care should
also be taken to insure that the defendant's Fifth Amendment right to remain silent is not used against
the defendant. N.C.P.I.—Crim. 105.21 (2017) (emphasis in original). As explained in Discussion, Part
B, Defendant’s contradictory statements are highly relevant to proving Defendant’s “possess[ion] of a
guilty conscience seeking to divert suspicion and to exculpate [her]self.” Scercy, 159 N.C. App. at 353,
583 S.E.2d at 344. Thus, the jury instruction does not run afoul of the prohibitions or cautions
contained in this note.
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Opinion of the Court
In this case, it was proper for the jury to consider the existence of Defendant’s
false, contradictory, and conflicting statements as “a circumstance tending to reflect
the mental processes of a person possessed of a guilty conscience seeking to divert
suspicion and to exculpate [her]self.” Scercy, 159 N.C. App. at 353, 583 S.E.2d at 344.
In her first statement to police, Defendant sought to exculpate herself by blaming her
ex-boyfriend. Not only was Defendant’s second statement contradictory to the first,
but it was relevant to proving that she committed the crime, and it indeed provided
“substantial probative force, tending to show consciousness of [her] guilt.” Walker,
332 N.C. at 537, 422 S.E.2d at 726. Use of this jury instruction on these facts is
consistent with the Supreme Court’s application of the instruction because
Defendant’s own statements contradicted each other and they flatly contradicted
evidence presented at trial. See id. at 537-38, 422 S.E.2d at 726. Moreover, the trial
court made clear in the jury instruction that the statements “d[id] not create a
presumption of guilt[,] and such evidence standing alone is insufficient to establish
guilt.” Myers, 309 N.C. at 88, 305 S.E.2d at 512. For these reasons, we conclude that
the instruction was proper.
IV. Conclusion
We conclude that the trial court did not err by denying Defendant’s motion to
dismiss for insufficient evidence of identity theft or by instructing the jury regarding
false or contradictory statements.
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Opinion of the Court
NO ERROR.
Judges BRYANT and YOUNG concur.
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