State v. Mackey

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-715
No. COA22-348
Filed 1 November 2022
Cabarrus County, No. 20CRS50156-57
STATE OF NORTH CAROLINA
v.
NIKITA V. MACKEY
Appeal by defendant from judgment entered 4 June 2021 by Judge
William Anderson Long, Jr., in Cabarrus County Superior Court. Heard in the Court
of Appeals 19 October 2022.
Attorney General Joshua H. Stein, by Assistant Attorney General
Kayla D. Britt, for the State.
Shawn R. Evans for the defendant-appellant.
TYSON, Judge.
¶1 Nikita V. Mackey (“Defendant”) appeals from the judgment entered upon the
jury’s verdict from his two felony convictions of uttering a forged instrument and
obtaining property by false pretenses. Our review discloses no error.
I. Background
¶2 Defendant married Yvette Stewart in September 2016. The couple separated
two years later and divorced in 2021. Defendant and Stewart always maintained
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separate bank accounts, even while married. After the separation, Stewart moved to
Tennessee and took her vehicle with her.
¶3 Stewart’s vehicle needed repairs in March 2019. After Stewart had paid for
the repairs, she realized her vehicle was still under a third-party maintenance
warranty. She sought a reimbursement from the company issuing the warranty. The
company agreed to reimburse Stewart in the amount of $1,200.92.
¶4 Stewart waited for the check, but it never arrived. She contacted the warranty
company to inquire about her reimbursement. During that conversation, the
company informed Stewart the check had been mailed to Defendant’s address and it
had been deposited into a bank. Stewart asked for more information, and the
company sent her a copy of the cancelled check. Upon examination, she noticed the
check had been signed and recognized Defendant’s handwriting on the endorsement
line.
¶5 Stewart sought a replacement check because she believed Defendant had
forged her signature. The company informed Stewart they could not issue another
check unless she notified law enforcement. Stewart reported the incident and
provided handwriting samples to the Charlotte-Mecklenburg Police Department.
¶6 The officer in charge of investigating Stewart’s claim subpoenaed the bank for
all records related to the check. Bank records revealed Defendant had deposited the
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check into his personal bank account on 18 June 2019. Video footage from the bank
also showed Defendant visiting the bank on the same day the check was deposited.
¶7 Defendant was charged with uttering a forged instrument, obtaining property
by false pretenses, and forgery of an instrument on 2 March 2020. At trial, the State
entered the bank records and video footage into evidence. On 4 June 2021, a jury
found Defendant guilty of obtaining property by false pretenses and uttering a forged
instrument. The jury was unable to reach a unanimous verdict regarding forgery of
an instrument. Defendant moved for a mistrial. The court granted Defendant’s
motion on the forgery charge.
¶8 The trial court consolidated the remaining two charges into one judgment.
Defendant was sentenced as a level I offender and received an active sentence of 5 to
15 months, followed by 24 months of supervised probation. Defendant filed a timely
notice of appeal on 9 June 2021.
II. Issues
¶9 Defendant argues: (1) a fatal variance exists between the indictment and the
evidence entered at trial; and, (2) he is entitled to a new trial because eighteen bench
conversations were omitted from the transcript despite the trial judge ordering a
complete recordation.
III. Fatal Variance
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¶ 10 Trial courts do not possess jurisdiction over a criminal defendant without a
valid bill of indictment. State v. Snyder, 343 N.C. 61, 65, 468 S.E.2d 221, 224 (1996)
(citation omitted). An indictment “is fatally defective if it fails to state some essential
and necessary element of the offense of which the defendant is found guilty.” State v.
Ellis, 368 N.C. 342, 344, 776 S.E.2d 675, 677 (2015) (citation and quotation marks
omitted).
¶ 11 Rule 10(a)(1) of the North Carolina Rules of Appellate Procedure delineates
the procedures for preserving errors 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. It is also
necessary for the complaining party to obtain a ruling upon
the party’s request, objection, or motion.
N.C. R. App. P. 10(a)(1) (emphasis supplied).
¶ 12 A defendant must bring a motion to quash a fatally defective indictment to
preserve the issue on appeal. See State v. Waddell, 279 N.C. 442, 445, 183 S.E.2d 644,
646 (1971) (explaining a motion to quash an indictment “on the ground of variance
between the allegation in the indictment . . . and the evidence [ ] disclosed” at trial is
appropriate “when the purpose is to challenge its sufficiency to charge a criminal
offense,” but a “motion to dismiss is in order when the prosecution fails to offer
sufficient evidence the defendant committed the offense charged”); State v. Pickens,
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346 N.C. 628, 645, 488 S.E.2d 162, 172 (1997) (citing State v. Francis, 341 N.C. 156,
160, 459 S.E.2d 269, 271 (1995)) (“Regarding the alleged variance between the
indictment and the evidence at trial, defendant based his motions at trial solely on
the ground of insufficient evidence and thus has failed to preserve this argument for
appellate review.”).
¶ 13 Defendant failed to file a motion to quash his indictment for any variance
between the allegations in the indictment and the evidence disclosed at trial.
Defendant did not mention the words “fatal,” “defective,” or “variance” in his motion
to dismiss at the close of the state’s evidence. While the Defendant moved to dismiss
for insufficiency of the evidence, a motion to dismiss for insufficiency does not preserve
Defendant’s fatal variance argument for appeal. Waddell, 279 N.C. at 445, 183 S.E.2d
at 646; Pickens, 346 N.C. at 645, 488 S.E.2d at 172 (citation omitted).
IV. Recordation
¶ 14 Criminal defendants have a statutory right to recordation of their trial in
North Carolina. N.C. Gen. Stat. § 15A-1241 provides:
(a) The trial judge must require that the reporter make a
true, complete, and accurate record of all statements from
the bench and all other proceedings except:
(1) Selection of the jury in noncapital cases;
(2) Opening statements and final arguments of
counsel to the jury; and
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(3) Arguments of counsel on questions of law.
...
(c) When a party makes an objection to unrecorded
statements or other conduct in the presence of the jury,
upon motion of either party the judge must reconstruct for
the record, as accurately as possible, the matter to which
objection was made.
N.C. Gen. Stat. § 15A-1241 (2021) (emphasis supplied).
¶ 15 Our Supreme Court in State v. Cummings contrasts the disparate treatment
of statements made in open court before a jury and those made in private bench
conferences under N.C. Gen. Stat. § 15A-1241. 332 N.C. 487, 498, 422 S.E.2d 692,
698 (1992). The Court in Cummings concluded N.C. Gen. Stat. § 15A-1241 “appears
to be designed to ensure that any statement by the trial judge, in open court and
within earshot of jurors or others present in the courtroom, be available for appellate
review.” Id. Statements made in private bench conferences, however, are only
required to be transcribed if “either party requests that the subject matter of a private
bench conference be put on the record for possible appellate review.” Id. If a party
requests a bench conference to be transcribed per N.C. Gen. Stat. § 15A-1241, “the
trial judge should comply by reconstructing, as accurately as possible, the matter
discussed.” Id. (citing N.C. Gen. Stat. § 15A-1241(c)).
¶ 16 “This Court has repeatedly held that [N.C. Gen. Stat. §] 15A-1241 does not
require recordation of ‘private bench conferences between trial judges and attorneys.’”
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State v. Blakeney, 352 N.C. 287, 307, 531 S.E.2d 799, 814 (2000) (quoting Cummings,
332 N.C. at 497, 422 S.E.2d at 697); accord State v. Speller, 345 N.C. 600, 605, 481
S.E.2d 284, 287 (1997). In Blakeney, the defendant argued the “unrecorded bench
conferences violated his statutory right to recordation under [N.C. Gen. Stat.] § 15A-
1241 and deprived him of his constitutional right to due process by rendering
appellate review impossible.” Id. at 306, 531 S.E.2d at 814. Our Supreme Court held
the trial court did not err by failing to record the bench conferences because the
“defendant never requested that the subject matter of a bench conference be
reconstructed for the record.” Id. at 307, 531 S.E.2d at 814.
¶ 17 Defendant asserts the trial court ordered a complete recordation. This
assertion is unfounded. Defendant only requested a complete recordation of the voir
dire of an expert witness. Here, the trial court did not err for the same reasons the
trial court did not err in Blakeney. Defendant “never requested that the subject
matter of a bench conference be reconstructed for the record.” Blakeney, 352 N.C. at
307, 531 S.E.2d at 814. Defendant’s argument is overruled.
V. Conclusion
¶ 18 Defendant failed to preserve his fatal variance of indictment argument for
appeal through a motion to quash. Defendant has also failed to show the trial court
committed plain error by failing, in the absence of a request, to make a complete
recordation of the eighteen bench conference conversations. Defendant never
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requested the trial court reconstruct the bench conversations for the record, despite
requesting a complete recordation of the voir dire at another point during the trial.
¶ 19 Defendant received a fair trial, free from prejudicial errors he preserved and
argued on appeal. We find no error in the jury’s verdicts or in the judgment entered
thereon. It is so ordered.
NO ERROR.
Judges ZACHARY and HAMPSON concur.