State v. Ray ( 2020 )


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  •                IN THE COURT OF APPEALS OF NORTH CAROLINA
    No. COA20-132
    Filed: 3 November 2020
    Harnett County, No. 17 CRS 52700
    STATE OF NORTH CAROLINA
    v.
    LORRIE LASHANN RAY
    Appeal by Defendant from judgment entered 28 August 2019 by Judge Gale M.
    Adams in Harnett County Superior Court. Heard in the Court of Appeals 6 October
    2020.
    Attorney General Joshua H. Stein, by Assistant Attorney General Ronald D.
    Williams, II, for the State-Appellee.
    Appellate Defender Glenn Gerding, by Assistant Appellate Defender Candace
    Washington, for Defendant-Appellant.
    COLLINS, Judge.
    Defendant Lorrie Lashann Ray appeals from judgment entered upon guilty
    verdicts for insurance fraud and obtaining property by false pretenses. Defendant
    argues that the trial court erred by (1) imposing a sentence based on both offenses
    and (2) improperly delegating authority to Defendant’s probation officer by failing to
    set a completion deadline for the active term of the sentence as a condition of special
    probation. We discern no error.
    STATE V. RAY
    Opinion of the Court
    I. Procedural History
    Defendant was indicted on charges of insurance fraud, obtaining property by
    false pretenses, and attempting to obtain property by false pretenses. At trial, the
    State voluntarily dismissed the attempt charge. The jury found Defendant guilty of
    insurance fraud and obtaining property by false pretenses.          The trial court
    consolidated the convictions for judgment and sentenced Defendant to 10 to 21
    months of imprisonment, suspended for 24 months of supervised probation. As a
    condition of probation, the trial court ordered Defendant to serve a 60-day active
    term.
    Defendant gave notice of appeal in open court.
    II. Factual Background
    The State’s evidence tended to show the following: Defendant’s home in Dunn,
    North Carolina, was damaged in the fall of 2016 by Hurricane Matthew. Defendant
    filed a claim on 24 October 2016 with her home insurance company, Universal
    Property and Casualty Insurance Company (“Insurer”). Defendant claimed her roof,
    windows, doors, porch, and electronics were damaged; there were leaks throughout
    the home due to the roof damage; she was living in her barn; and she lost all of the
    food in her refrigerator due to spoilage. An insurance adjustor inspected the home
    on 2 November and completed a report the next day, which included photographs and
    stated that Hurricane Matthew caused wind damage to the exterior and interior of
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    STATE V. RAY
    Opinion of the Court
    the home estimated at $1,578.99, that the house was habitable, and that living
    expenses would not be expected. The insurance adjustor issued a final report on
    21 November showing the gross claim of $1,578.99 less the deductible, resulting in
    an amount payable to Defendant of $452.99. The Insurer issued a check for $452.99
    to Defendant.
    Defendant contacted the Insurer on 6 December by phone, disputing the
    amount awarded on her claim and requesting that the Insurer perform another home
    inspection. The next day, Defendant submitted to the Insurer an inventory of food
    loss totaling $1,350.   On 21 December, Defendant submitted estimates for roof
    repairs for $6,240, window repairs for $1,520, and a door repair for $427. Defendant
    also submitted (1) a handwritten lease agreement signed by Defendant and her
    stepfather, Robert McEachin, stating that Defendant would pay $100 per day to
    McEachin to stay in his home; and (2) handwritten documents purporting to be 76
    paid daily receipts beginning 11 October 2016 for $100 each, signed by McEachin and
    stating that Defendant was living in his home. Twice in January 2017, Defendant
    contacted the Insurer claiming reimbursement for living expenses in the amount of
    $8,300. Defendant faxed the handwritten lease agreement and receipts totaling
    $8,300, explained that she was paying cash to McEachin, and gave the Insurer
    McEachin’s phone number. On 1 February, Defendant called the Insurer explaining
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    STATE V. RAY
    Opinion of the Court
    that she was going to be evicted from where she was staying and would need to spend
    $150 per night on a hotel.
    After reviewing Defendant’s claims, the Insurer made three additional
    payments to Defendant: $5,608.01 for additional home repairs; $500 for spoiled food;
    and $2,000 for living expenses, based on 20 days under the lease agreement that
    Defendant provided to the Insurer.
    Defendant called McEachin and told him that the Insurer was going to call him
    to ask him a few questions, and that “all [he] had to do was just tell them yes.”
    McEachin received a phone call from the Insurer but did not answer or return it. A
    representative of the Insurer visited McEachin at his home; showed him the receipts
    that Defendant had submitted; asked him if he had signed them, to which he replied
    “no”; and had him sign his name on a piece of paper. McEachin told the insurance
    representative that he did not have a lease agreement with Defendant and that
    Defendant had not stayed with him between October 2016 and January 2017.
    McEachin testified at trial that he did not write or sign the purported receipts and
    that Defendant did not stay in his house.
    III. Discussion
    Defendant argues that the trial court erred by sentencing her for both
    obtaining property by false pretenses and insurance fraud for the same alleged
    misrepresentation. Defendant also argues that the trial court improperly delegated
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    STATE V. RAY
    Opinion of the Court
    its authority to Defendant’s probation officer by failing to set a completion deadline
    for the active term of Defendant’s split sentence.
    We reject the State’s argument that these issues are not properly preserved for
    appellate review. When a defendant alleges that a trial court erred by imposing a
    sentence that is invalid as a matter of law, the defendant’s argument is preserved for
    appellate review, even if the defendant failed to object on this basis at sentencing.
    See N.C. Gen. Stat. § 15A-1446(d)(18) (2019); State v. Meadows, 
    371 N.C. 742
    , 747,
    
    821 S.E.2d 402
    , 406 (2018) (“Although this Court has held several subdivisions of
    subsection 15A-1446(d) to be unconstitutional encroachments on the rulemaking
    authority of the Court, subdivision (18) is not one of them.”); State v. Mumford, 
    364 N.C. 394
    , 403, 
    699 S.E.2d 911
    , 917 (2010) (“[N.C. Gen. Stat. § 15A-1446(d)(18)] does
    not conflict with any specific provision in our appellate rules and operates as a ‘rule
    or law’ under [North Carolina Rule of Appellate Procedure] 10(a)(1), which permits
    review of this issue”).1
    1 Embedded within the discussion in Defendant’s appellate brief of her challenge to sentencing
    is a separate argument that legislative intent bars two convictions in this case. Defendant failed to
    preserve this argument for appellate review by failing to object to the jury instruction on both charges
    at trial. See N.C. R. App. P. 10(a)(1). Further, we decline to grant Defendant’s request that we invoke
    Rule 2 in order to review this argument. See N.C. R. App. P. 2. Declining review of this argument
    does not result in manifest injustice in this case because we would uphold both convictions for similar
    reasons we uphold the trial court’s sentence, as discussed below.
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    STATE V. RAY
    Opinion of the Court
    A. Sentencing Based on Both Convictions
    Defendant contends that the trial court erred by sentencing her based on both
    the conviction for obtaining property by false pretenses and the conviction for
    insurance fraud, arising from the same alleged misrepresentation. Defendant argues
    that the “General Assembly did not intend to doubly punish defendants for making a
    single misrepresentation merely because the victim happened to be an insurance
    company.”
    “Whether . . . multiple punishments may be imposed when a defendant, in a
    single trial, is convicted of multiple offenses when some are fully, factually embraced
    within others is to be determined on the basis of legislative intent.” State v. Gardner,
    
    315 N.C. 444
    , 460, 
    340 S.E.2d 701
    , 712 (1986).            Where the legislature “clearly
    expresses its intent to proscribe and punish exactly the same conduct under two
    separate statutes, a trial court in a single trial may impose cumulative punishments
    under the statutes.” State v. Pipkins, 
    337 N.C. 431
    , 433-34, 
    446 S.E.2d 360
    , 362
    (1994) (citations omitted). “Whether multiple punishments were imposed contrary to
    legislative intent presents a question of law, reviewed de novo by this Court.” State
    v. Hendricksen, 
    257 N.C. App. 345
    , 347, 
    809 S.E.2d 391
    , 393 (2018) (citations
    omitted).
    “The traditional means of determining the intent of the legislature where the
    concern is . . . one of multiple punishments for two convictions in the same trial
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    STATE V. RAY
    Opinion of the Court
    include the examination of the subject, language, and history of the statutes.”
    
    Gardner, 315 N.C. at 461
    , 340 S.E.2d at 712.
    With regard to language, “[t]he legislative intent of the statutes defining the
    offenses in question can be extrapolated from the provisions of each statute.” State
    v. Banks, 
    367 N.C. 652
    , 657, 
    766 S.E.2d 334
    , 338 (2014) (citations omitted). “When a
    statute is unambiguous, this Court will give effect to the plain meaning of the words
    without resorting to judicial construction.”
    Id. (citations omitted). The
    elements of insurance fraud are: “(1) a defendant presents a statement for
    a claim under an insurance policy; (2) that statement contained false or misleading
    information; (3) the defendant knows the statement is false or misleading; and,
    (4) the defendant acted with the intent to defraud.” State v. Koke, 
    264 N.C. App. 101
    ,
    107, 
    824 S.E.2d 887
    , 892 (2019) (citing N.C. Gen. Stat. § 58-2-161(b)) (other citation
    omitted). The elements of obtaining property by false pretenses are: “(1) A false
    representation of a past or 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
    the defendant obtains or attempts to obtain anything of value from another person.”
    State v. Saunders, 
    126 N.C. App. 524
    , 528, 
    485 S.E.2d 853
    , 855-56 (1997) (brackets
    and citation omitted). See N.C. Gen. Stat. § 14-100(a) (2019).
    While both offenses require a misrepresentation intended to deceive, they each
    require an element not required by the other. Insurance fraud requires proving that
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    STATE V. RAY
    Opinion of the Court
    the defendant presented a statement in support of a claim for payment under an
    insurance policy; obtaining property by false pretenses requires proving that the
    defendant’s misrepresentation did in fact deceive. Based on the separate and distinct
    elements that must be proven, the legislature clearly expressed its intent to proscribe
    and punish a misrepresentation intended to deceive under both statutes. See Banks,
    367 N.C. at 
    659, 766 S.E.2d at 339
    (Given the separate and distinct elements of
    second-degree rape and statutory rape, “it is clear that the legislature intended to
    separately punish the act of intercourse with a victim who, because of her age, is
    unable to consent to the act, and the act of intercourse with a victim who, because of
    a mental disability or mental incapacity, is unable to consent to the act” (citations
    omitted)).
    With regard to the subject of the two crimes, “it is clear that the conduct of the
    defendant is violative of two separate and distinct social norms.” 
    Gardner, 315 N.C. at 461
    , 340 S.E.2d at 712. Where obtaining property by false pretenses is generally
    likely to harm a single victim, a broader class of victims is harmed by insurance fraud.
    Fraud perpetrated on insurers through the submission of false claims increases
    insurers’ cost of doing business—beyond simply the financial loss of having paid an
    insured a finite amount on a fraudulent claim—because it requires insurers to
    investigate fraudulent claims and establish ongoing processes for avoiding future
    fraudulent claims. These costs must be passed on to consumers of insurance through
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    STATE V. RAY
    Opinion of the Court
    increased premiums. Hence, there are policy concerns unique to insurance fraud that
    the legislature seeks to achieve by criminalizing this activity.
    Finally, regarding the history of the treatment of the two crimes for sentencing
    purposes, this Court has sustained sentencing for convictions of obtaining property
    by false pretenses and insurance fraud arising from the same misrepresentation. See,
    e.g., Koke, 264 N.C. App. at 
    105, 824 S.E.2d at 890
    ; State v. Locklear, 
    259 N.C. App. 374
    , 
    816 S.E.2d 197
    (2018); State v. Pittman, 
    219 N.C. App. 512
    , 
    725 S.E.2d 25
    (2012).
    “Had conviction and punishment of both crimes in a single trial not been intended by
    our legislature, it could have addressed the matter during the course of these many
    years.” Gardner, 315 N.C. at 
    462-63, 340 S.E.2d at 713
    .
    Accordingly, because our legislature has expressed its intent to proscribe and
    punish the same misrepresentation under both insurance fraud and obtaining
    property by false pretenses, the trial court did not err by consolidating both Class H
    felony convictions for judgment and sentencing Defendant in the high presumptive
    range for one Class H felony.
    B. Active Term of Sentence
    Defendant argues that the trial court improperly delegated its authority to
    Defendant’s probation officer by failing to set a completion deadline for the active
    term of Defendant’s split sentence.      Defendant contends that this delegation of
    authority is not permitted by N.C. Gen. Stat. § 15A-1351(a).
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    STATE V. RAY
    Opinion of the Court
    Although “[a] challenge to a trial court’s decision to impose a condition of
    probation is reviewed on appeal using an abuse of discretion standard,” State v.
    Chadwick, 
    843 S.E.2d 263
    , 264 (N.C. Ct. App. 2020) (citation omitted), “[a]n alleged
    error in statutory interpretation is an error of law, and thus our standard of review
    for this question is de novo,” State v. Wainwright, 
    240 N.C. App. 77
    , 79, 
    770 S.E.2d 99
    , 102 (2015) (citation omitted).
    Under North Carolina’s criminal statutes, a trial court may sentence a
    defendant to special probation as a form of intermediate punishment, under certain
    circumstances. N.C. Gen. Stat. § 15A-1351(a) (2019). When doing so,
    the court may suspend the term of imprisonment and place
    the defendant on probation . . . and in addition require that
    the defendant submit to a period or periods of
    imprisonment . . . at whatever time or intervals within the
    period of probation, consecutive or nonconsecutive, the
    court determines. . . .   [T]he total of all periods of
    confinement imposed as an incident of special probation,
    but not including an activated suspended sentence, may
    not exceed one-fourth the maximum sentence of
    imprisonment imposed for the offense, and no confinement
    other than an activated suspended sentence may be
    required beyond two years of conviction.
    Id. Thus, under the
    statute, a period or periods of imprisonment must be “within
    the period of probation,” and no portion of this imprisonment “may be required
    beyond two years of conviction.”
    Id. Accordingly, the statute
    itself sets the outer
    limit, or completion deadline, of an active term as a condition of special probation as
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    STATE V. RAY
    Opinion of the Court
    the end of the period of probation or two years after the date of conviction, whichever
    comes first.
    In this case, the trial court sentenced Defendant to 10 to 21 months of
    imprisonment, and suspended that sentence for 24 months of supervised probation.
    As a condition of probation, the trial court ordered Defendant to serve a 60-day active
    term.     On the Judgment Suspending Sentence form (AOC-CR-603D), under
    Intermediate Punishments, the trial court selected Special Probation and checked
    box A, ordering an active term of 60 days to be served in the custody of the Sheriff of
    Harnett County. The trial court also checked box H, labeled “Other,” and inserted
    the following: “TO SERVE 30 DAYS AT ONE TIME AND 30 DAYS AT ANOTHER
    TIME AS SCHEDULED BY PROBATION.”
    The trial court appropriately determined the “intervals within the period of
    probation” as two thirty-day periods, and the completion date is set by statute as
    27 August 2021—which, in this case, is both the end of the two-year probationary
    period and two years from the date of conviction.
    IV. Conclusion
    We conclude that the trial court did not err by imposing a sentence based on
    convictions for both obtaining property by false pretenses and insurance fraud based
    on the same misrepresentation, and the trial court did not err by failing to set a
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    STATE V. RAY
    Opinion of the Court
    completion deadline for the active term of Defendant’s sentence as a condition of
    special probation.
    NO ERROR.
    Judges BRYANT and TYSON concur.
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Document Info

Docket Number: 20-132

Filed Date: 11/3/2020

Precedential Status: Precedential

Modified Date: 11/3/2020