State Of North Carolina v. Wiggins
| Decision Date | 06 July 2010 |
| Docket Number | NO. COA0 9-165 0,Martin County No. 08 CRS 50137-39,COA0 9-165 0 |
| Parties | STATE OF NORTH CAROLINA v. SHIRLEY DENISE WIGGINS |
| Court | North Carolina Court of Appeals |
Attorney General Roy Cooper, by Assistant Attorney General Brent D. Kiziah, for the State.
Kimberly P. Hoppin, for Defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Appeal by Defendant from judgment entered 20 May 2009 by Judge Quentin T. Sumner in Superior Court, Martin County. Heard in the Court of Appeals 25 May 2010.
"A verdict is deemed sufficient if it 'can be properly understood by reference to the indictment, evidence and jury instructions.'"1 In the present case, Defendant Shirley Denise Wiggins argues that her right to an unanimous verdict was violated when the jury was not instructed on each element of obtaining property by false pretenses for each of three separately identifiable offenses charged. Because the record supports theconclusion that there was no danger of a lack of unanimity in Defendant's verdict, we find no error in Defendant's trial.
At trial, the State's evidence tended to show the following: On 27 March 2007, Defendant called her nephew Toby Draughn and told him how he could get some money. Defendant met Draughn and she gave him a check, payable to him, that appeared to be a payroll check from Williamston Yarn Mill in the amount of $742.10. Although he had never been employed at Williamston Yarn Mill, Draughn cashed the check at Fida Mart and gave Defendant half of the money. The check was later returned to Fida Mart as invalid.
On 29 March 2007, Defendant met Draughn at Piggly Wiggly and gave him another payroll check made out to him from Williamston Yarn Mill in the amount of $560.44. Draughn cashed the check at Piggly Wiggly and gave Defendant half of the money. The check was later returned to Piggly Wiggly as invalid.
On that same day, Defendant met her niece Rinita Latimer at Piggly Wiggly. Defendant gave Latimer a check payable to Latimer that appeared to be from Williamston Yarn Mill in the amount of $560.44. Like Draughn, Latimer had never been employed by Williamston Yarn Mill; however, she cashed the check at Piggly Wiggly and gave Defendant half of the money. The check was later returned to Piggly Wiggly as invalid.2
Following these transactions, Draughn and Latimer were arrested for obtaining property by false pretenses, forgery, and uttering a forged instrument. Both told police that Defendant had provided them with the checks they had cashed.
Defendant did not present any evidence at trial. The jury convicted Defendant of three counts of obtaining property by false pretenses. At the sentencing phase of the hearing, Defendant expressed to the trial court some confusion regarding her right to testify. The trial court responded that this was a matter between Defendant and her attorney. Defendant appeals.
On appeal, Defendant argues that (I) she was provided ineffective assistance of counsel ("IAC"); and that the trial court erred by: (II) denying Defendant's motion to dismiss where the State failed to produce sufficient evidence of each element of the offense charged, and (III) failing to instruct the jury properly on each element of the offenses charged for each separately identifiable offense.
Defendant first argues that she was provided ineffective assistance of counsel.3
To establish ineffective assistance of counsel, our Supreme Court has held that a defendant must prove (1) her counsel's performance was deficient and (2) that her defense was thereby prejudiced. State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985)(quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, reh'g denied, 467 U.S. 1267, 82 L. Ed. 2d 864 (1984)). This Court has held that "[a] defendant's ineffective assistance of counsel claim may be brought on direct review 'when the cold record reveals that no further investigation is required, i.e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing.'" State v. Pulley, 180 N.C. App. 54, 69, 636 S.E.2d 231, 242 (2006)(quoting State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001), cert, denied, Fair v. North Carolina, 535 U.S. 1114, 153 L. Ed. 2d 162, (2002)), disc, review denied, 361 N.C. 574, 651 S.E.2d 375-76 (2007). However, "[i]f an ineffective assistance of counsel claim is prematurely brought, this Court may dismiss the claim without prejudice, allowing the defendant to reassert the claim during a subsequent motion for appropriate relief proceeding." Id.
In the present case, after the jury returned the verdict, the trial court asked Defendant directly if she had anything to say. Defendant asserted that she did not know that she could crossexamine people; that she had some witnesses present that did not testify; and that she did not know that not testifying would hurt her case. Defendant now asserts that this exchange indicates thather counsel was ineffective because Defendant's waiver of her right to testify and right to present witnesses may not have been voluntary and knowing.
Fair, 354 N.C. at 167, 557 S.E.2d at 525. The record before us is insufficient to determine whether there is merit to Defendant's claim. We therefore dismiss Defendant's IAC claim, without prejudice to Defendant's right to file a motion for appropriate relief in the superior court based on an allegation of IAC. See State v. Long, 354 N.C. 534, 540, 557 S.E.2d 89, 93 (2001)(recognizing the need for the development of evidentiary issues before defendant will be in position adequately to raise an IAC claim).
Defendant next argues that the trial court erred in denying her motion to dismiss the charges against her.
The test of the sufficiency of the evidence in a criminal case is "whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense." State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996). "Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion." Id. On review, the evidence must be viewed "in thelight most favorable to the State, giving the State the benefit of all reasonable inferences" that can be drawn from the evidence. State v. Fritsch, 351 N.C. 373, 378-79, 526 S.E.2d 451, 455 (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)), cert, denied, Fritsch v. North Carolina, 531 U.S. 890, 148 L. Ed. 2d 150 (2000).
Id. at 242, 262 S.E.2d at 286.
In the present case, the jury was instructed on the theory of acting in concert.
To be convicted of a crime under the theory of acting in concert, the defendant need not do any particular act constituting some part of the crime. [State v. Moore, 87 N.C. App. 156, 159, 360 S.E.2d 293, 295 (1987), disc, review denied, 321 N.C. 477, 364 S.E.2d 664 (1988).] All that is necessary is that the defendant be "present at the scene of the crime" and that he "act[] together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime." Id. at 159, 360 S.E.2d at 295-96.
State v. Lundy, 135 N.C. App. 13, 18, 519 S.E.2d 73, 78 (1999), appeal dismissed, disc, review denied, 351 N.C. 365, 542 S.E.2d 651 (2000). "For purposes of the [acting in concert] doctrine, '[a]person is constructively present during the commission of a crime if he or she is close enough to be able to render assistance if needed and to encourage the actual perpetration of the crime.'" State v. Mann, 355 N.C. 294, 306, 560 S.E.2d 776, 784 (2002) (quoting State v. Willis, 332 N.C. 151, 175, 420 S.E.2d 158, 169 (1992)), cert, denied, Mann v. North Carolina, 537 U.S. 1005, 154 L. Ed. 2d 403 (2002).
Defendant here argues that the State presented insufficient evidence that Defendant was present at the Fida Mart, or that she and Draughn acted with a common plan or purpose when he cashed the check there. Defendant argues moreover that the State presented insufficient evidence that Defendant and Draughn, or Defendant and Latimer, acted with a common plan or purpose when Draughn and Latimer cashed checks at Piggly Wiggly.
Defendant notes that no testimony was presented of how Defendant came into possession of the checks. But the State was not required to present such evidence where the property allegedly obtained was the proceeds of the worthless checks, not the checks themselves. See State v. Cagle, 182 N.C. App. 71, 75, 641 S.E.2d 705, 708 (2007)("passing a worthless check in order to obtain property will suffice to uphold a conviction for obtaining property by false pretenses."). Defendant notes that no testimony was presented that Defendant knew that Draughn or Latimer would not be entitled to the proceeds of the checks. But Draughn testified that he knew he was committing fraud, and the State demonstrated that Defendant was involved in that transaction. Significantly, regarding...
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