State v. MostafaviÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-1233
Filed: 6 June 2017
Forsyth County, No. 15CRS056971, 15CRS057188
STATE OF NORTH CAROLINA
v.
SEID MICHAEL MOSTAFAVI, Defendant.
Appeal by Defendant from judgment entered 9 June 2016 by Judge Anderson
D. Cromer in Forsyth County Superior Court. Heard in the Court of Appeals 20 April
2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Brent D.
Kiziah, for the State.
Joseph P. Lattimore for the Defendant.
DILLON, Judge.
Seid Michael Mostafavi (“Defendant”) appeals from judgment entered after he
was convicted in a bench trial of two counts of obtaining property by false pretenses.
We hereby vacate Defendant’s convictions.1
Defendant was also convicted of a single count of felony larceny. However,
Defendant did not properly preserve his challenge to this conviction. In our
1Because we have vacated Defendant’s convictions for obtaining property by false pretenses,
we need not reach Defendant’s IAC claim related to these convictions.
STATE V. MOSTAFAVI
Opinion of the Court
discretion, we decline to invoke Rule 2 and do not address Defendant’s challenge
regarding his conviction for felony larceny.
I. Background
Defendant was charged with a number of crimes in connection with a break-in
of a house where certain items were later discovered to have been stolen.
The State’s evidence tended to show as follows: A home shared by two
individuals was broken into while they were on vacation. The house-sitter testified
that she was indebted to Defendant and allowed Defendant to break into the home
and to help himself to certain items belonging to the two victims. Some of the missing
items were found and recovered at a pawn shop. These items were either sold or
pawned by Defendant.
Defendant testified and presented evidence tending to show that the house-
sitter claimed she owned the stolen items and that he bought the items from the
house-sitter for a negotiated price.
The trial court found Defendant guilty of one count of felony larceny and two
counts of obtaining property by false pretenses from the pawn shop. The trial court
sentenced Defendant accordingly. Defendant appeals.
II. Analysis
Defendant makes several arguments on appeal, which are addressed in turn
below.
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Opinion of the Court
A. Larceny Conviction
Defendant argues that there was a fatal variance between the indictment and
the evidence presented at trial on the larceny charge. Specifically, he notes that the
indictment identified one of the homeowners as the owner of the stolen property. This
is indicated by the State’s evidence, which showed that the stolen property was owned
by the other homeowner. See State v. Greene, 289 N.C. 578, 584-85, 223 S.E.2d 365,
369-70 (1976).
Defendant concedes that he failed to properly preserve this issue on appeal.
Defendant requests we invoke Rule 2 of the North Carolina Rules of Appellate
Procedure to review the merits of his claim.
Appellate Rule 2 authorizes this Court to “suspend or vary the requirements
or provisions of any of [the Rules of Appellate Procedure].” N.C. R. App. P. 2.
Although Appellate Rule 2 is available to prevent “manifest injustice,” our Supreme
Court has stated that this residual power to vary the default provisions of the
appellate procedure rules should only be invoked on “‘rare occasions’ and under
‘exceptional circumstances.’” Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co.,
362 N.C. 191, 201, 657 S.E.2d 361, 367 (2008).
Defendant has failed to demonstrate the “exceptional circumstances”
necessary to for us to invoke Appellate Rule 2. Id. In the exercise of our discretion,
we decline to invoke Appellate Rule 2 to reach the merits of Defendant’s argument
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Opinion of the Court
regarding his felony larceny conviction. Defendant’s larceny conviction remains
undisturbed.
B. Indictment – Obtaining Property By False Pretenses
Defendant contends the trial court erred by failing to dismiss the charges for
obtaining property by false pretenses. Defendant contends that the language in the
indictment describing the property obtained as “UNITED STATES CURRENCY” was
not sufficient to sustain the indictment. We agree.
“Where an indictment is alleged to be invalid on its face, thereby depriving the
trial court of its jurisdiction, a challenge to that indictment may be made at any time,
even if it was not contested in the trial court.” State v. Wallace, 351 N.C. 481, 503,
528 S.E.2d 326, 341 (2000).
We conclude that our Supreme Court’s decision in State v. Reese, 83 N.C. 637
(1880), which was reaffirmed by that Court in 1941 in State v. Smith, 219 N.C. 400,
14 S.E.2d 36 (1941), and reaffirmed again in 2014 in State v. Jones, 367 N.C. 299, 758
S.E.2d 345 (2014), compels us to conclude that the indictment charging Defendant
with obtaining “UNITED STATES CURRENCY” by false pretenses was fatally
defective because it failed to describe the United States Currency obtained with
sufficient specificity. These cases instruct that, where money is the thing obtained
by false pretenses, the money must be described “at least by the amount, as, for
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Opinion of the Court
instance, so many dollars and cents.” Smith, 219 N.C. at 401, 14 S.E.2d at 36-37
(emphasis added).
1. Current Supreme Court Jurisprudence Compels our Conclusion that the
Indictment is Fatally Defective
Our Supreme Court has repeatedly held that an indictment is constitutionally
sufficient if it “apprises the defendant of the charge against him with enough
certainty to enable him to prepare his defense and to protect him from subsequent
prosecution for the same offense.” State v. Snyder, 343 N.C. 61, 65, 468 S.E.2d 221,
224 (1996) (citation omitted).
Here, Defendant was indicted for violating N.C. Gen. Stat. § 14-100, which
provides that a person is guilty of obtaining property by false pretenses where he
obtains “any money, goods, . . . , services . . . , or other thing of value” by means of a
false pretense. N.C. Gen. Stat. § 14-100 (2011).
For indictments charging under N.C. Gen. Stat. § 14-100, our Supreme Court
has held that “the thing obtained [(i.e., the money, goods, services, etc.) by false
pretenses] must be described with reasonable certainty, and by the name or term
usually employed to describe it.” Jones, 367 N.C. at 307, 758 S.E.2d at 351 (emphasis
added) (internal quotation marks omitted).
In 1880, our Supreme Court held in State v. Reese that an indictment
describing the property obtained as “money” was fatally defective, stating that “the
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Opinion of the Court
money obtained should have been described at least by the amount – as, for instance,
so many dollars and cents.” Reese, 83 N.C. at 639 (emphasis added).
In 1941, our Supreme Court reaffirmed its 1880 holding. See Smith, 219 N.C.
at 401, 14 S.E.2d at 36-37. In Smith, the indictment described the money as “goods
and things of value.” Id. The Court held that this description was fatally defective.
Relying on its 1880 decision in Reese, the Court stated that the money “should have
been described [in the indictment] at least by the amount, as, for instance, so many
dollars and cents.” Id. at 401, 14 S.E.2d at 36-37 (emphasis added).
More recently, in 2014, our Supreme Court reaffirmed both the 1880 Reese and
the 1941 Smith decisions, stating as follows:
This Court has not had occasion to address this issue
recently, but consistently has held that 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, 401, 14 S.E.2d 36, 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. Following the reasoning in these older
cases, our Supreme Court held that an indictment alleging that the defendant
obtained “services” without some description as to the type of services which were
fraudulently obtained, was fatally defective. Id. at 307-08, 758 S.E.2d at 351. The
Court so held even though, like in the present case, the indictment was specific in
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Opinion of the Court
identifying the name of the victim, the date of the offense, and the stolen credit card
defendant used to obtain the services.2
“United States Currency” is synonymous with “money,” though the former
language does provide some further description of the money as some unspecified
amount of “dollars and cents” issued by our federal government, rather than by a
foreign government. See State v. Gibson, 169 N.C. 318, 320, 85 S.E. 7, 9 (1915)
(defining “money” as “any lawful currency, whether coin or paper, issued by the
Government as a medium of exchange”). However, this description – “UNITED
STATES CURRENCY” – still falls short of the specificity which our Supreme Court
has repeatedly indicated is minimally required in describing money in a false
pretenses indictment, namely, that the description “at least [state] the amount” of
“dollars and cents.” Reese, 83 N.C. at 639 (emphasis added).
And where the amount of money is not known to the pleader, our Supreme
Court instructs that describing the money by the name of the victim from whom it
was obtained, the date it was obtained, and the false pretense used to obtain the
money is still not sufficiently specific. For instance, the indictment found to be fatal
in the 1880 Reese case alleged that “on 1 January 1876,” the defendant defrauded
“Henderson Pritchard and John A. Pritchard” out of “goods and money” by stating
that he was the owner of “a large and valuable farm, with team and stock thereon, in
2The indictment at issue in Jones alleged, in part, that “on or about the 19th day of May, 2010,
in Mecklenburg County,” the defendant did “obtain services from Tire Kingdom, Inc.”
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Opinion of the Court
the county of Northampton[.]” Reese, 83 N.C. at 638. The indictment found to be
fatal in the 1941 Smith case alleged that the defendant defrauded “Freeman Grady”
of “goods and things of value” by pretending that he owned “two certain mules . . .
free and clear of all encumbrances[.]” Smith, 219 N.C. at 401, 14 S.E.2d at 36. And
in the 2014 Jones case, the indictment found to be fatal alleged the name of the victim
as a certain auto service business, the date of the offense, and that the item used by
the defendant to obtain “services” was “the credit card number belonging to Mary
Berry.” See Record on Appeal at 7, State v. Jones, No. COA12-282.
Our Court has on occasion sustained indictments which seemingly conflict
with our Supreme Court’s decisions. See State v. Ricks, ___ N.C. App. ___, 781 S.E.2d
637 (2016); see also State v. Ledwell, 171 N.C. App. 314, 614 S.E.2d 562 (2005). 3
In Ricks – the recent case from our Court relied upon by the dissenting judge
in the present case – our Court decided not to follow the Supreme Court precedent
cited above, reasoning that the Supreme Court’s analysis in those cases was “faulty”
and “incorrect.” Ricks, ___ N.C. App. at ___, 781 S.E.2d at 644. In Ricks, our Court
sustained an indictment which described the property as “a quantity of U.S. currency”
relying on N.C. Gen. Stat. § 15-149, which was originally codified in 1877. Id. at ___,
3 Other decisions from our Court are in accord with Ricks and Ledwell. For instance, in 1993,
an indictment which identified the thing obtained as “United States money” was sustained. See State
v. Almond, 112 N.C. App. 137, 148, 435 S.E.2d 91, 98 (1993). In an unpublished 2006 opinion, an
indictment which identified the thing obtained as “money” was sustained. See State v. Thompson,
2006 N.C. App. LEXIS 1962, *7.
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Opinion of the Court
781 S.E.2d at 642. The Ricks panel distinguished the 1880 Reese opinion, stating that
Reese was based on the law prior to the enactment of N.C. Gen. Stat. § 15-149.
However, we conclude infra that our Supreme Court in Reese did apply the language
in N.C. Gen. Stat. § 15-149. Id. at ___, 781 S.E.2d at 648. Then, our Ricks panel
chose not to apply our Supreme Court’s 1941 Smith and 2014 Jones decisions which
reaffirmed Reese, stating as follows:
The [1941 Supreme] Court failed to look to the statute
when deciding Smith. The Court quoted Reese, but failed
to follow Reese as a whole by not considering the statute
governing the description of money in indictments. This
faulty citation to Reese . . . led our [Supreme] Court to the
incorrect conclusion again in Jones.
Ricks, ___ N.C. App. at ___, 781 S.E.2d at 644. Therefore, rather than relying on
Supreme Court precedent which had been reaffirmed as recently as 2014, our Ricks
panel relied on a 2005 opinion from our Court which sustained an indictment
describing the property merely as “a quantity of U.S. Currency.” See State v. Ledwell.
171 N.C. App. 314, 318, 614 S.E.2d 562, 565 (2005). In Ledwell, our Court held that
the case was distinguishable from Reese and Smith because “the [Ledwell] indictment
mentions the specific item which defendant used to obtain the money,” and therefore
provided the defendant with “notice of the crime of which he [was] accused.” Id. It
could be argued that the additional facts gave the defendant notice; however, the
indictments in Reese, Smith, and more recently Jones also described the items used
by the defendants to obtain the property.
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Opinion of the Court
In general, and as noted by the dissent, where a panel of the Court of Appeals
has decided an issue, “a subsequent panel of the same court is bound by that
precedent, unless it has been overturned by a higher court.” In re Civil Penalty, 324
N.C. 373, 384, 379 S.E.2d 30, 36 (1989). However, “where there is a conflict between
an opinion from this Court and one from our Supreme Court, we are bound to follow
the Supreme Court’s opinion” Employment Staffing Grp., Inc. v. Little, ___ N.C. App.
___, ___ n.3, 777 S.E.2d 309, 313 n.3 (2015); see also Crawford v. Commercial Union
Midwest Ins. Co., 147 N.C. App. 455, 459 n.5, 556 S.E.2d 30, 33 n.5 (2001) (“When
there is a conflict in the opinions of this Court and opinions of our Supreme Court,
we are bound by the Supreme Court opinion.” (citing Mahoney v. Ronnie’s Rd. Serv.,
122 N.C. App. 150, 153, 468 S.E.2d 279, 281 (1996), aff’d per curiam, 345 N.C. 631,
481 S.E.2d 85 (1997))). Because we determine here that Ricks, Ledwell, and their
progeny are in conflict with Jones, Smith, and Reese – binding precedent from our
Supreme Court – we are not bound by this Court’s prior opinions and must instead
follow the guidance of our Supreme Court. Employment Staffing, ___ N.C. App. at
___ n.3, 777 S.E.2d at 313 n.3.
In sum, our Court “has no authority to overrule decisions of our Supreme Court
and we have the responsibility to follow those decisions until otherwise ordered[.]”
Andrews v. Haygood, 188 N.C. App. 244, 248, 655 S.E.2d 440, 443, aff’d, 362 N.C. 599,
669 S.E.2d 310 (2008) (internal quotation marks omitted). It is not for the Court of
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Opinion of the Court
Appeals to say that the Supreme Court’s jurisprudence is “faulty” or “incorrect.”
Therefore, following Reese, Smith and Jones, as we are bound to do, we must conclude
that the indictments charging Defendant with obtaining “UNITED STATES
CURRENCY” by false pretenses are fatally defective, and the judgments convicting
him of those crimes are therefore vacated.
2. N.C. Gen. Stat. § 15-149 Does Not Overrule Supreme Court Precedent
Our Court in Ricks relied, in part, on language in N.C. Gen. Stat. § 15-149 to
conclude that the language in the indictment in that case describing the thing
obtained as “U.S. Currency” is sufficient. This statute provides in relevant part as
follows:
In every indictment which it is necessary to make any
averment as to the larceny of any money, or United States
treasury note, or any note of any bank whatsoever, it is
sufficient to describe such money, or treasury note, or bank
note, simply as money, without specifying any particular
coin, or treasury note, or bank note[.]
N.C. Gen. Stat. § 15-149 (2013).
The predecessor of N.C. Gen. Stat. § 15-149 was originally enacted by our
General Assembly in 1877 (the “1877 Act”) and is referenced in the 1880 Reese
decision. See Reese, 83 N.C. at 639. Our Ricks panel suggests that Reese stands for
the proposition that N.C. Gen. Stat. § 15-149 was intended to relieve the drafter of an
indictment from having to describe money obtained by false pretenses “at least” by
its amount. However, we conclude that Reese stands for the proposition that N.C.
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Opinion of the Court
Gen. Stat. § 15-149 merely relieved the drafter of the more stringent requirement of
that day to also “[describe] and [identify] [the exact type of] bank bills, Treasury
notes, [etc.]” that were obtained. Id. Unlike today, where our paper money consists
solely of “federal reserve notes,” paper money in the 1800’s was issued in a variety of
forms, including “bank notes” issued by state and federally-chartered banks and
“treasury notes” issued by the federal government.4
Prior to the passage of the 1877 Act, drafters of indictments were generally
required to describe not only the amount of money obtained, but also the type of
money obtained, e.g. three $10 bank notes or two $5 dollar treasury notes, etc. See
State v. Fulford, 61 N.C. 563, 563 (1868) (stating that “[i]t is sufficient to describe
[the money] as a bank note for so many dollars on a certain bank, of the value of so
many dollars”); see also State v. Thomason, 71 N.C. 146, 146-47 (1874) (holding that
language indicating “two five dollar United States Treasury notes” to be sufficient);
State v. Rout, 10 N.C. 618, 618 (1825) (holding that language indicating “one twenty
dollar bank note on the State Bank of North Carolina” was sufficient). As stated by
the Supreme Court in Reese, a pre-1877 indictment which merely described the thing
4 The Citizens’ State Bank in New Orleans issued a $10 bank note containing the word “DIX”
(French for “ten”), which some historians believe is the genesis for the word “Dixie,” an historical
nickname for the southern region of the United States. See “Dixie” Originated From Name “Dix” An
Old Currency, New Orleans American, May 29, 1916, vol. 2, no. 150, at 3. The word “greenbacks”
originally described certain treasury notes with green ink used on the reverse side issued by the United
States to help fund the Civil War. See Lackey v. Miller, 61 N.C. 26 (1866).
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Opinion of the Court
obtained as “money” without any further description was fatally defective. Reese, 83
N.C. at 639.
The Reese Court noted that the General Assembly had passed the 1877 Act “to
remedy the difficulty of describing and identifying bank bills, Treasury notes, etc.”
Id. at 639 (emphasis added). However, the Court still held that even under the
recently enacted statute, describing the thing obtained merely as “‘money’, without
anything added to make it more definite, is too loose in indictments of this kind[,]” id.
at 640, and that the money should be “described at least by the amount.” Id. at 639.
Our Supreme Court reaffirmed this understanding of our law in the 1941 Smith
decision and again more recently in its 2014 Jones decision.
N.C. Gen. Stat. § 15-149 does state that “it is sufficient to describe such money,
or treasury note, or bank note, simply as money,” which could be construed to relieve
an indictment drafter from any requirement to provide some further description of
the money obtained, for instance, the amount of money. N.C. Gen. Stat. § 15-149
(emphasis added.) However, the phrase “simply as money” in the statute is followed
by the qualifying language, “without specifying any particular coin, or treasury note,
or bank note[,]” which clarifies that the statute is intended only to relieve a drafter
of the requirement of describing the type of money obtained, e.g., type of bank note or
treasury note or coins.
III. Conclusion
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Opinion of the Court
In conclusion, as our Supreme Court restated in its 2014 Jones decision, there
remains a requirement to describe the thing obtained in an indictment for false
pretenses with “reasonable certainty.” Jones, 367 N.C. at 307, 758 S.E.2d at 351.
Where the thing obtained is money, N.C. Gen. Stat. § 15-149 does not require that
the indictment provide a description of each piece of money in detail (e.g. “three $10
federal reserve notes”). However, some further description of the money must be
included in the indictment to be sufficient. Our Supreme Court has held that
describing the victim, date, and manner by which the money was obtained is simply
not enough. There must be some further description of the money itself, “at least” by
its amount (e.g. “$30 in U.S. Currency”). Accordingly, we vacate Defendant’s
obtaining property by false pretenses convictions. Defendant’s felony larceny
conviction is affirmed.
AFFIRMED IN PART; VACATED IN PART.
Chief Judge McGEE concurs.
Judge TYSON concurs in part and dissents in part by separate opinion.
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No. COA16-233 – State v. Mostafavi
TYSON, Judge, concurring in part, dissenting in part.
I fully concur with those portions of the majority’s opinion, which affirm
Defendant’s felony larceny conviction and holds Defendant’s IAC claims are without
merit. I respectfully dissent from the majority’s notion that the description of the
property obtained as “UNITED STATES CURRENCY” is insufficient to lawfully
sustain the indictment for obtaining property by false pretenses. This Court is bound
by its previous un-appealed and precedential decisions. See State v. Ricks, __ N.C.
App. __, __, 781 S.E.2d 637, 645 (2016); State v. Ledwell, 171 N.C. App. 314, 317-18,
614 S.E.2d 562, 565 (2005); State v. Almond, 112 N.C. App. 137, 148, 435 S.E.2d 91,
98 (1993); see also In Re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989).
Defendant’s convictions for obtaining property by false pretenses are properly
affirmed.
I. Indictments for Obtaining Property by False Pretenses
“Where a panel of the Court of Appeals has decided the same issue, albeit in a
different case, a subsequent panel of the same court is bound by that precedent,
unless it has been overturned by a higher court.” In Re Civil Penalty, 324 N.C. at 384,
379 S.E.2d at 37.
A. State v. Ricks
STATE V. MOSTAFAVI
TYSON, J., concurring in part, dissenting in part.
Last year, this Court considered “the same issue” in Ricks. Id. In Ricks, this
Court upheld a conviction for obtaining property by false pretenses where the
indictment described the property obtained as “a quantity of U.S. Currency.” State v.
Ricks, __ N.C. App. at __, 781 S.E.2d at 645.
This Court held the indictment did not contain a fatal defect to deprive the
trial court of jurisdiction. Id. This conclusion was based upon application of N.C. Gen.
Stat. § 15-149 and a review of the prior Supreme Court decisions cited by Defendant
and in the majority’s opinion. Id.; see State v. Jones, 367 N.C. 299, 307-08, 758 S.E.2d
345, 351 (2014) (holding the indictment alleging defendant obtained “services” failed
to describe with reasonable certainty the property obtained); State v. Smith, 219 N.C.
400, 401, 14 S.E.2d 36, 36 (1941) (holding the indictment alleging defendant obtained
“goods and things of value” was insufficient); State v. Reese, 83 N.C. 637, 639 (1880)
(holding the indictment alleging defendant obtained “goods and money” was too
vague and uncertain).
The majority opinion in Ricks explained:
[N.C. Gen. Stat. § 15-149] which says describing money
simply as “money” is sufficient suggests that term is
enough to put a defendant on notice of the property
obtained in order to prepare for his or her trial. Here, we
have an indictment describing the property as “U.S.
Currency,” a term more specific than money.
Ricks, __ N.C. App. at __, 781 S.E.2d at 645.
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STATE V. MOSTAFAVI
TYSON, J., concurring in part, dissenting in part.
This holding is wholly consistent with multiple binding precedents of this
Court. See Ledwell, 171 N.C. App. at 317-18, 614 S.E.2d at 565 (holding the
indictment was sufficient where it mentioned the specific item which defendant used
to obtain the money); Almond, 112 N.C. App. at 148, 435 S.E.2d at 98 (holding there
was nothing ambiguous about the indictment where it alleged defendant obtained
“United States money”); see also State v. Crowder, __ N.C. App. __, 795 S.E.2d. 833
(2017) (unpublished) (holding this Court is bound by Ricks to hold the indictment was
not fatally defective); State v. Thompson, 179 N.C. App. 652, 634 S.E.2d 641 (2006)
(unpublished) (holding the indictment was sufficient where it alleged the defendant
obtained “money” by accepting a wallet that did not belong to him).
Neither Defendant nor the majority’s opinion attempts to distinguish this case
from Ricks or the other cases cited above. The majority’s opinion acknowledges U.S.
Currency “is practically synonymous with ‘money,’ though admittedly, the former
language does provide some further description of the money . . . issued by our federal
government.” (emphasis original). Rather, Defendant and the majority’s opinion
assert this Court in Ricks misconstrued N.C. Gen. Stat. § 15-149 and attempted to
“overrule” the Supreme Court precedent in Jones, Smith, and Reese. This Court
cannot so rule.
The majority’s opinion attempts to resurrect and re-assert the identical
arguments stated in the dissenting opinion in Ricks, even though the Defendant in
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STATE V. MOSTAFAVI
TYSON, J., concurring in part, dissenting in part.
Ricks did not exercise his appeal as of right to our Supreme Court, nor his right to
petition for discretionary review before the Supreme Court. See Ricks, __ N.C. App.
at __, 781 S.E.2d at 645 (Dillon, J., concurring in part, dissenting in part). The
defendant in Ricks also chose not to file a motion to withdraw the opinion or any
motion for reconsideration before this Court. N.C. R. App. P. 37.
This Court has no power to overrule our Supreme Court, and “we are bound by
the rulings of our Supreme Court.” Mahoney v. Ronnie’s Rd. Serv., 122 N.C. App. 150,
153, 468 S.E.2d 279, 281 (1996). However, contrary to the majority’s re-assertion of
the dissent in Ricks, the Ricks majority opinion in no way attempted to overrule
Supreme Court precedent. Ricks expressly considered, applied, and distinguished
the above-referenced Supreme Court decisions from the case presented in Ricks,
which is within this Court’s authority to do. Ricks, __ N.C. App. at __, 781 S.E.2d at
643-45.
Under binding Supreme Court precedents, we are bound by our prior decision
and analysis in Ricks. See In Re Civil Penalty, 324 N.C. at 384, 379 S.E.2d at 37.
Ricks clearly held an indictment, which alleges the defendant obtained “U.S.
Currency,” is legally sufficient to give the trial court jurisdiction. I am compelled to
conclude the indictment in 15 CRS 57188 was not fatally defective. See id.; Almond,
112 N.C. App. at 148, 435 S.E.2d at 98.
B. State v. Ledwell
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STATE V. MOSTAFAVI
TYSON, J., concurring in part, dissenting in part.
Presuming, arguendo, that the failure to allege the specific amount of United
States Currency is error, such “error” in this case is not fatal. See Ledwell, 171 N.C.
App. at 317-18, 614 S.E.2d at 565.
Chapter 15, Article 15 of the North Carolina General Statutes provides the
indictment requirements for certain crimes, including N.C. Gen. Stat. § 15-149, at
issue in this case. However, the General Assembly also clearly provided:
Every criminal proceeding by warrant, indictment,
information, or impeachment is sufficient in form for all
intents and purposes if it express [es] the charge against
the defendant in a plain, intelligible, and explicit manner;
and the same shall not be quashed, nor the judgment
thereon stayed, by reason of any informality or refinement,
if in the bill or proceeding, sufficient matter appears to
enable the court to proceed to judgment.
N.C. Gen. Stat. § 15-153 (2015) (emphasis supplied); see also State v. Greer, 238 N.C.
325, 327, 77 S.E.2d 917, 919 (1953) (holding “[q]uashing indictments is not favored,”
N.C. Gen. Stat. § 15-153 was enacted to simplify forms of indictments, and this
statute “has received a very liberal construction”).
An indictment must contain, “[a] plain and concise factual statement in each
count which . . . asserts facts supporting every element of a criminal offense and the
defendant’s commission thereof with sufficient precision clearly to apprise the
defendant or defendants of the conduct which is the subject of the accusation.” N.C.
Gen. Stat. § 15A-924(a)(5) (2015).
As our Supreme Court has noted:
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STATE V. MOSTAFAVI
TYSON, J., concurring in part, dissenting in part.
“it is not the function of an indictment to bind the hands of
the State with technical rules of pleading; rather, its
purposes are to identify clearly the crime being charged,
thereby putting the accused on reasonable notice to defend
against it and prepare for trial, and to protect the accused
from being jeopardized by the State more than once for the
same crime.”
State v. Spivey, 368 N.C. 739, 742, 782 S.E.2d 872, 874 (2016) (quoting State v.
Sturdivant, 304 N.C. 293, 311, 283 S.E.2d 719, 731 (1981)).
“An indictment must allege all the essential elements of the offense endeavored
to be charged[.]” Id. (citation and internal quotation marks omitted). The elements
of obtaining property by false pretenses are “(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. Childers, 80 N.C. App. 236, 242, 341 S.E.2d 760,
764 (1986).
In Ledwell, the challenged indictments alleged the defendant attempted to
obtain “United States currency” by false pretenses. Ledwell, 171 N.C. App. at 318,
614 S.E.2d at 565. This Court distinguished the indictment in Ledwell from those in
Smith and Reese, “because the [Ledwell] indictment mention[ed] the specific item
which defendant used to obtain the money.” Id. In concluding the indictment was
sufficient, this Court noted:
The term “United States currency” is sufficient to describe
the money and the inclusion of the watch band in the
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STATE V. MOSTAFAVI
TYSON, J., concurring in part, dissenting in part.
indictment provides defendant with notice of the crime of
which he is accused. The indictment in question set forth
the elements necessary to provide defendant with proper
notice regarding the conduct of attempting to obtain
property by false pretenses.
Id.
Here, the two counts of obtaining property by false pretenses alleged
Defendant obtained “UNITED STATES CURRENCY from CASH NOW PAWN” and
the false pretenses consisted of the following:
BY PAWING AN ACER LAPTOP, A VIZIO TELEVISION
AND A COMPUTER MONITOR AS HIS OWN
PROPERTY TO SELL, when in fact the property had been
stolen from GRAHAM HYDER and the defendant was not
authorized to sell the property.
BY PAWING JEWERLRY AS HIS OWN PROPERTY TO
SELL, when in fact the property had been stolen from
GRAHAM HYDER and the defendant was not authorized
to sell the property.
The specificity of these indictments includes: (1) all the essential elements of
the crime; (2) provides Defendant proper notice of the crimes with which he is
accused; and, (3) protects him from being placed in jeopardy by the State more than
once for the same crime.
Moreover, if Defendant wished for additional information in the nature of the
specific acts with which he was charged, he could have moved for a bill of particulars
from the State. See N.C. Gen. Stat. § 15A-925 (2015); see State v. Wadford, 194 N.C
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STATE V. MOSTAFAVI
TYSON, J., concurring in part, dissenting in part.
336, 338, 139 S.E.2d 608, 610 (1927) (holding while a bill of particulars cannot cure a
defect in the indictment, it may cure uncertainty and add specificity).
The majority’s opinion attempts to overrule Ledwell and Almond, just as it
attempts to overrule Ricks, and argues Ledwell also misconstrued the Supreme Court
decisions in Reese and Smith. However, as with the defendant in Ricks, the defendant
in Ledwell never appealed to the Supreme Court and our Supreme Court in Jones did
not overrule Ledwell. See Jones, 367 N.C. at 303, 758 S.E.2d at 348. Ledwell and
Almond also stand as binding precedent this Court must follow. See In Re Civil
Penalty, 324 N.C. at 384, 379 S.E.2d at 37.
It is for the Supreme Court to determine whether this Court erred in the
analysis and conclusions as set forth in Ricks and Ledwell. See id. Based upon the
reasoning in both Ricks and Ledwell, Defendant’s argument is without merit and the
indictment for obtaining property by false pretenses is legally sufficient. The trial
court did not err by failing to dismiss these charges. There is no error in Defendant’s
jury convictions for both charges.
II. Insufficient Evidence
As I vote to uphold the indictment alleging Defendant obtained property by
false pretenses, I briefly address Defendant’s contention the trial court erred by
failing to dismiss these charges due to insufficient evidence to show that Defendant
made a false representation of ownership.
8
STATE V. MOSTAFAVI
TYSON, J., concurring in part, dissenting in part.
A. Standard of Review
The standard of review for a trial court’s denial of a motion to dismiss for
insufficient evidence is de novo. State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29,
33 (2007). This Court must determine whether the State has offered “substantial
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.” State
v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). “Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Smith, 186 N.C. App. at 62, 650 S.E.2d at 33 (citation and quotation
marks omitted).
“In reviewing challenges to the sufficiency of evidence, we must view the
evidence in the light most favorable to the State, giving the State the benefit of all
reasonable inferences.” State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993).
Where “the evidence supports a reasonable inference of the defendant’s guilt, a
motion to dismiss is properly denied even though the evidence also permits a
reasonable inference of the defendant’s innocence.” State v. Miller, 363 N.C. 96, 99,
678 S.E.2d 592, 594 (2009) (citation and quotation marks omitted).
B. Analysis
“The gist of obtaining property by false pretense is the false representation of
a subsisting fact intended to and which does deceive one from whom property is
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STATE V. MOSTAFAVI
TYSON, J., concurring in part, dissenting in part.
obtained.” State v. Linker, 309 N.C. 612, 614-15, 308 S.E.2d 309, 310-11 (1983). Thus,
the State must prove the defendant made the representation as alleged. Id. at 615,
308 S.E.2d at 311. “If the state’s evidence fails to establish that defendant made this
misrepresentation but tends to show some other misrepresentation was made, then
the state’s proof varies fatally from the indictments.” Id.
Our Supreme Court has clearly stated, “the false pretense need not come
through spoken words, but instead may be by act or conduct.” State v. Parker, 354
N.C. 268, 284, 553 S.E.2d 885, 897 (2001); see State v. Perkins, 181 N.C. App. 209,
216, 638 S.E.2d 591, 596 (2007) (“[A] false pretense may be established by conduct
alone and does not necessarily depend upon the utterance of false or misleading
words.”); State v. Bennett, 84 N.C. App. 689, 691, 353 S.E.2d 690, 692 (1987) (“In
determining the absence or presence of intent, the jury may consider ‘the acts and
conduct of the defendant and the general circumstances existing at the time of the
alleged commission of the offense charged.’” (quoting State v. Hines, 54 N.C. App. 529,
533, 284 S.E.2d 164, 167 (1981)).
Defendant argues the State failed to present any evidence tending to show
Defendant made a false representation to Cash Now Pawn. I disagree. The State
called employee Austin Dotson to establish the events, which occurred at Cash Now
Pawn. Dotson first testified regarding the general procedure for sale or loan
transactions at the pawn shop. Dotson testified he requests the identification of the
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STATE V. MOSTAFAVI
TYSON, J., concurring in part, dissenting in part.
person presenting the property and “check[s] to make sure the person who handed
[him] the identification is the same person as reflected in the identification.” After
checking identification, he and the customer sign a ticket acknowledging the person
is “giving a security interest in the below described goods.”
Dotson testified he followed this procedure on 10 July 2015 and 21 July 2015.
Dotson testified he checked the identification presented by the individual who
pawned the items on both dates, and the identification listed Defendant’s name. The
State presented and entered into evidence the pawn tickets from both transactions,
which listed the customer as Defendant but were not signed at the bottom. The
tickets entered into evidence contained Defendant’s name, address, driver’s license
number, and birthday. Dotson explained original signed receipts are kept by the
owner pawning the property. Each ticket contained the following language, “[y]ou
are giving a security interest in the below described goods” and “[b]y signing, I
acknowledge . . . I agree to all terms and conditions on the front and back[.]”
Additional evidence shows Defendant had pawned items previously.
Defendant further testified he had prepared a bill of sale in a personal property
transaction. This bill of sale included language where the seller acknowledged the
“property items were lawfully hers.”
Viewed in the light most favorable to the State and resolving all reasonable
inferences in the State’s favor, the State presented sufficient evidence tending to
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STATE V. MOSTAFAVI
TYSON, J., concurring in part, dissenting in part.
show Defendant’s conduct constituted a false representation to submit the offense to
the jury. See Barnes, 334 N.C. at 75, 430 S.E.2d at 918. Defendant was aware of the
pawn shop’s policies and through his conduct indicated to Cash Now Pawn that he
had a right to sell or use the property being pawned as collateral. The trial court
correctly denied Defendant’s motion to dismiss the charges for insufficient evidence.
III. Conclusion
I fully concur with those portions of the majority’s opinion, which affirm
Defendant’s felony larceny conviction and hold Defendant’s IAC claims are without
merit. As this Court is bound by its previous decisions in Ricks and Ledwell, I
respectfully dissent from that portion of the majority’s opinion vacating Defendant’s
convictions for obtaining property by false pretenses. There is no error in Defendant’s
convictions for obtaining property by false pretenses or in the judgments entered
thereon.
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