State v. Brantley-Phillips

• Decision Date: 06 July 2021
• Docket Number: No. COA20-608,COA20-608
• Parties: STATE of North Carolina v. Kimberly BRANTLEY-PHILLIPS
• Court: North Carolina Court of Appeals

862 S.E.2d 416

STATE of North Carolina

v.Kimberly BRANTLEY-PHILLIPS

No. COA20-608

Court of Appeals of North Carolina.

Filed July 6, 2021

Attorney General Joshua H. Stein, by Special Deputy Attorney General Ryan F. Haigh, for the State.

Benjamin J. Kull, Raleigh, for defendant-appellant.

HAMPSON, Judge.

Factual and Procedural Background

¶ 1 Kimberly Brantley-Phillips (Defendant) appeals from Judgments entered 26 September 2019 after a jury found her guilty of ten counts of Obtaining Property by False Pretense. The Record tends to reflect the following:

¶ 2 Between 20 November 2014 and 25 January 2018, Defendant made forty-eight online payments to the North Carolina Department of Revenue (NCDOR), which were "applied to Transaction Lists, or NCDOR ledgers, for tax years 2011 and 2014." These payments—which were made on Defendant's NCDOR taxpayer account, under Defendant's name, and in association with Defendant's Social Security Number—came from a total of ten banks. The routing numbers associated with each online payment all corresponded to valid bank routing numbers. Ultimately, each payment was rejected: one for insufficient funds, and the remaining forty-seven by reason of "Invalid Account[s][.]" These payments would have amounted to a total of $559,549.71.

¶ 3 NCDOR's internal online filing and payment system registered each payment, along with the pertinent personal information. After each payment was registered, Defendant's taxpayer account would be positively credited "virtually immediately[.]" Then, before it had time to realize these payments were invalid,¹ NCDOR would "either sen[d] money to other tax years to pay liabilities owed[,]" or "sen[d] [money] to external agencies to pay liabilities owed to them[.]" On a few occasions following these payments, NCDOR also stopped garnishments of Defendant's wages, previously put in place to recoup existing debts on Defendant's taxpayer account. Moreover, because Defendant's alleged payments resulted in overpayment on Defendant's tax account for the 2014 account period, Defendant received four refund checks, the first three of which she was able to cash before NCDOR realized Defendant's payments were invalid and issued a stop payment order.

¶ 4 In July 2017, Karli Hahn (Agent Hahn), a special agent in the criminal investigation section of NCDOR, was assigned to investigate Defendant's online payment activity. In February 2018, Agent Hahn spoke with Defendant directly. Agent Hahn testified, over the course of her interview with Defendant, Defendant admitted: she knew the payments in question and associated bank accounts were false; she had cashed the refund checks despite knowing she was not entitled to the money; and had made the invalid payments to "stop the wage garnishments from occurring[.]" "[E]ventually she realized that she was getting refund checks, so then she decided she wanted to continue the cycle."

¶ 5 On 14 August 2018, three warrants were issued for Defendant's arrest charging Defendant with a total of ten counts of Obtaining Property by False Pretense. The State subsequently gave notice it intended to use the remainder of the forty-eight payments as evidence of "an ongoing and substantially interconnected criminal enterprise." The warrants alleged: Defendant had submitted online filings to NCDOR in 2014, 2015, and 2016, respectively; had made these payments from invalid bank accounts under false pretenses; and had obtained or attempted to obtain a total of $1,092.48, $4,456.23, and $20,248.16, respectively.

¶ 6 On 9 October 2018, a grand jury in Wake County indicted Defendant on ten counts of Obtaining Property by False Pretense, alleging she had obtained or attempted to obtain "United States Currency[.]" On 30 July 2019, Defendant was indicted on the same charges via superseding indictments, this time alleging Defendant had obtained or attempted to obtain "a credit on her North Carolina Department of Revenue account in the approximate amount[s]" of $2,256.16, $35,500, and $40,000, respectively.

¶ 7 The matter came on for trial before a jury in Wake County Superior Court on 23 September 2019. At the close of the State's evidence, Defendant moved to dismiss all charges for insufficient evidence. The trial court denied the Motion, finding "there [wa]s substantial evidence as to each element of each charge charged in this case[.]" Defendant renewed her Motion to Dismiss at the close of all evidence. The trial court again denied the Motion. The trial court subsequently instructed the jury for each of the ten counts:

If you find from the evidence beyond a reasonable doubt ... the Defendant made a representation and that this representation was false, that this representation was calculated and intended to deceive, that the alleged victim was in fact deceived by it, and that the Defendant thereby obtained property or a thing of value from the alleged victim, it would be your duty to return a verdict of guilty.

¶ 8 On 26 September 2019, the jury found Defendant guilty on all ten counts of Obtaining Property by False Pretense. The trial court entered Judgments in each of the three cases. The first Judgment (file number 18 CRS 215090) consolidated four of the convictions and sentenced Defendant in the presumptive range of six-to-seventeen months. The second Judgment (file number 18 CRS 215091) consolidated three of the convictions, sentencing Defendant to a consecutive, active term of six-to-seventeen months, suspended for a period of thirty-six months. The third Judgment (file number 18 CRS 215092) consolidated the remaining three convictions sentencing Defendant to a further consecutive term of six-to-seventeen months, also suspended. As a monetary condition of probation in 18 CRS 215091, Defendant was ordered to pay restitution in the amount of $14,506.56. A separate notation in the Judgment entered in 18 CRS 215092 reflects it applies the same conditions of probation as in 18 CRS 215091. Defendant gave timely, oral Notice of Appeal in open court, consistent with N.C.R. App. P. 4.

Issues

¶ 9 The dispositive issues on appeal are whether: (I) the trial court erred in denying Defendant's Motion to Dismiss the charges of Obtaining Property by False Pretense for insufficient evidence; (II) the jury instructions varied fatally from the indictments by failing to specify the credits to Defendant's NCDOR account as the "thing of value" obtained; and (III) the trial court committed error in ordering Defendant to pay restitution in the amount of $14,506.56.

Analysis

I. Motion to Dismiss

A. Standard of Review

¶ 10 "Upon [a] defendant's motion for dismissal, the question for the Court is whether there is 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. If so, the motion is properly denied." State v. Fields , 265 N.C. App. 69, 71, 827 S.E.2d 120, 122 (2019), review allowed, writ allowed , 372 N.C. 705, 830 S.E.2d 816 (2019), and aff'd as modified , 374 N.C. 629, 843 S.E.2d 186 (2020) (citation and quotation marks omitted). "Substantial evidence is [the] amount ... necessary to persuade a rational juror to accept a conclusion." State v. Golder , 374 N.C. 238, 249-50, 839 S.E.2d 782, 790 (2020) (alterations in original; quotations marks omitted) (quoting State v. Mann , 355 N.C. 294, 301, 560 S.E.2d 776, 781 (2002) ). "In evaluating the sufficiency of the evidence to support a criminal conviction, the evidence must be considered ‘in the light most favorable to the State; the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom.’ " Id. at 249-50, 839 S.E.2d at 790 (quoting State v. Powell , 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980) ). "Whether the State presented substantial evidence of each essential element of the offense is a question of law; therefore, we review the denial of a motion to dismiss de novo." Id. at 250, 839 S.E.2d at 790 (quotation marks omitted) (quoting State v. Chekanow , 370 N.C. 488, 492, 809 S.E.2d 546, 550 (2018) ).

B. Obtaining Property by False Pretense

¶ 11 Our General Statutes set out the felony of Obtaining Property by False Pretense as follows:

If any person shall knowingly and designedly by means of any kind of false pretense whatsoever, whether the false pretense is of a past or subsisting fact or of a future fulfillment or event, obtain or attempt to obtain from any person within this State any money, goods, property, services, chose in action, or other thing of value with intent to cheat or defraud any person of such money, goods, property, services, chose in action or other thing of value, such person shall be guilty of a felony[.]

N.C. Gen. Stat. § 14-100(a) (2019).

Our Supreme Court has defined the elements of the crime of obtaining property by false pretenses in N.C. Gen. Stat. § 14-100 as follows: "(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. Bradsher , ––– N.C. App. ––––, ––––, 852 S.E.2d 716, 729 (2020) (emphasis added) (quoting State v. Cronin , 299 N.C. 229, 242, 262 S.E.2d 277, 286 (1980) ).

¶ 12 Here, Defendant argues the trial court erred in denying her Motion to Dismiss on the basis the State failed to present substantial evidence that Defendant's positive credits to her NCDOR taxpayer account constituted "property or a thing of value," or that NCDOR was deceived by Defendant's invalid payments.

1. Evidence Defendant Obtained Property or a Thing of Value

¶ 13 Defendant first argues the State presented insufficient evidence to establish Defendant obtained "property or a thing of value." Specifically, Defendant argues the credit to Defendant's taxpayer account resulting from her invalid payments does not constitute "property or a thing of value." In fact, De...