State v. Baynard

• Decision Date: 04 March 1986
• Docket Number: No. 8527SC860,8527SC860
• Citation: 79 N.C.App. 559,339 S.E.2d 810
• Parties: STATE of North Carolina v. Loretta Jane BAYNARD.
• Court: North Carolina Court of Appeals

Page 810

339 S.E.2d 810

79 N.C.App. 559

STATE of North Carolina v. Loretta Jane BAYNARD.

No. 8527SC860.

Court of Appeals of North Carolina.

March 4, 1986.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. W.F. Briley, Dept. of Justice, Raleigh, for the State.

Acting Appellate Defender Malcolm Ray Hunter, Jr. by Asst. Appellate Defender Louis D. Bilionis, Raleigh, for defendant-appellant.

PARKER, Judge.

Defendant first assigns as error the form of the indictments in these cases, alleging that they were insufficient to charge the crimes of obtaining and attempting to obtain a controlled substance by fraud and forgery. The indictments read, in essential part, as follows: "that ... defendant ... unlawfully, willfully and feloniously did intentionally acquire (and attempt to acquire) a controlled substance ... by misrepresentation, fraud, deception and subterfuge in that [she] presented a prescription which was ... a false or forged prescription." Defendant contends this indictment is insufficient because it fails to allege that defendant presented the prescription with knowledge that it was forged.

An indictment in this State must allege all the essential elements of the offense with sufficient clarity to (i) identify the offense, (ii) protect the accused from being twice put in jeopardy for the same offense, (iii) enable the accused to prepare for trial, and (iv) support judgment upon conviction. State v. Sparrow, 276 N.C. 499, 173 S.E.2d 897 (1970). Knowledge that the prescription is false or forged is an essential element of the offense under G.S. 90-108(a)(10). State v. Church, 73 N.C.App. 645, 327 S.E.2d 33 (1985).

Even though the indictments do not specifically state that defendant presented the forged prescriptions with knowledge that they were forged, the language of the indictments is sufficient to meet the requirements of Sparrow, supra. First, both indictments allege that the offense was done "intentionally." This allegation implies that the defendant knew the prescriptions were forged when she attempted to have them filled. Second, the indictments contained the words "misrepresentation, fraud, deception and subterfuge," all of which imply that the person committing the acts had the specific intent to misrepresent, deceive, etc. See Church at 646, 327 S.E.2d at 34.

Also noteworthy is that two previous decisions of this Court have upheld indictments under this statute which followed the same language. See State v. Fleming, 52 N.C.App. 563, 279 S.E.2d 29 (1981); State v. Booze, 29 N.C.App. 397, 224 S.E.2d 298 (1976). While neither case addressed the specific question of the need to allege knowledge of the falsity of the prescription, both cases involved similar indictments which were upheld against challenge.

Defendant argues by analogy to the forgery and uttering statute, G.S. 14-120. To support a conviction for a violation of that statute, the indictment must allege that the defendant actually knew of the falsity of the instrument. State v. Daye, 23 N.C.App. 267, 208 S.E.2d 891 (1974). However, G.S. 14-120 is distinguishable from G.S. 90-108(a)(10), the statute at issue here. General Statute 14-120 specifically states that the person violates the statute if he publishes or utters a forged instrument "knowing the same to be falsely forged or counterfeited." No such language appears in G.S. 90-108(a)(10). Because the indictment alleged that the offense was done "intentionally" and because the terms used in the indictment imply a specific intent to deceive, we hold that an indictment charging an offense under G.S. 90-108(a)(10) need not specifically allege that the defendant presented the false prescription knowing it was false. This assignment of error is overruled.

Defendant next assigns as error the failure of the trial judge to poll the jury after a request by the defendant. General Statute 15A-1238 gives any party the right to have the jury polled after a verdict is returned but "before the jury has dispersed." The defendant's motion in this case was made after the jury had dispersed and, therefore, her right to have the jury polled is deemed waived. State v. Froneberger, 55 N.C.App. 148, 285 S.E.2d 119 (1981), appeal dismissed and cert. denied, 305 N.C. 397, 290 S.E.2d 367 (1982). Defendant contends, however, that the trial judge did not give her the opportunity to request a polling by dismissing the jury without allowing time for motions or requests.

The transcript shows that the clerk read the verdicts and asked the jurors collectively if the verdict was unanimous. All appeared to respond in the affirmative. Then, there was a delay as the clerk delivered the verdict sheets up to the judge. The opportunity to request a polling was then presented. However, defendant let the opportunity pass and the trial judge, on his own initiative conducted an informal poll by asking, for each charge, that the jurors who voted guilty to raise their right hands. All the jurors did so. The jury was then dismissed. Defendant argues that the polling and comments by the trial judge precluded her opportunity to request a formal poll. We do not agree as the time to request a poll had been available earlier and, in any event, in light of the trial judge's own informal poll, any error was harmless beyond a reasonable doubt.

Defendant next assigns as error that the trial judge improperly...