State v. Cagle

• Decision Date: 06 March 2007
• Docket Number: No. COA06-69.,COA06-69.
• Citation: 641 S.E.2d 705
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Wendae Lynne CAGLE.

641 S.E.2d 705

STATE of North Carolina v. Wendae Lynne CAGLE.

No. COA06-69.

Court of Appeals of North Carolina.

March 6, 2007.

Appeal by defendant from judgment entered 13 April 2005 by Judge James U. Downs in Buncombe County Superior Court. Heard in the Court of Appeals 5 February 2007.

Roy Cooper, Attorney General, by Dana F. Barksdale, Assistant Attorney General, for the State.

Hall & Hall, Attorneys at Law, P.C., by Susan P. Hall, Morganton, for respondent-appellant.

MARTIN, Chief Judge.

Defendant Wendae Cagle was charged in a bill of indictment with obtaining property by false pretenses. She entered a plea of not guilty, but was convicted by a jury. She appeals from the judgment entered upon conviction. We find no error in her trial.

Evidence adduced at trial tended to show that defendant purchased five gift certificates from Biltmore Square Mall ("the Mall") in Asheville between 16 September 2002 and 20 September 2002. The certificates ranged in value from $100 to $500. Defendant paid for the purchases by presenting her personal check at each transaction. At trial, several mall employees identified defendant as the presenter of the checks.

After defendant had engaged in several high-value transactions, the Mall instructed its employees not to accept any additional checks from her in payment for gift certificates. All of the defendant's prior checks were later returned unpaid because of Stop Payment orders. Defendant did not subsequently pay for the certificates.

Before proceeding to the merits of this appeal, we note that defendant-appellant's brief fails to comply with the requirements of our Rules of Appellate Procedure. Rule 28(b)(5) requires that an appellant's brief contain a "full and complete statement of the facts" which "should be a non-argumentative summary of all material facts underlying the matter in controversy which are necessary to understand all questions presented for review, supported by references to pages in the transcript of proceedings, the record on appeal, or exhibits, as the case may be." N.C. R.App. P. Rule 28(b)(5) (2005). The "Statement of Facts" contained in defendant-appellant's brief states, in its entirety:

Wendae Cagle has been wrongfully convicted based upon inadmissible hearsay evidence, and innuendo. Her conviction must be reversed based upon the most basic evidentiary rules being cast to the winds during her trial.

Wendae purchased gift certificates from Biltmore Mall in Asheville in September, 2002. She wrote personal checks for the purchase of these gift certificates and was identified by the person who accepted the checks from her. Later, payment on these checks was stopped, but there was no competent evidence of this fact. The only evidence was the detective interpreting the bank markings on these checks. There was no evidence of who had requested payment be stopped, nor was there any evidence that the Defendant had obtained anything of value from the entire transaction. To the contrary, the evidence was that if the gift certificates were purchased but not redeemed, then the victim shopping mall would not be out anything of value at all.

Because the State failed to prove essential elements of the crime charged, these charges should have been dismissed at the close of State's evidence. Because they were not, the verdict in this case should be vacated and this matter remanded for retrial.

The foregoing statement is neither full, complete, nor non-argumentative. We note that defendant-appellant's counsel's firm has been admonished on at least two previous occasions for similar violations of our appellate rules in a proceeding before this Court. See In re B.B., ___ N.C.App. ___, 628 S.E.2d 867, 2006 WL 1147771, *3, 2006 N.C.App. Lexis 956, *8-9 (2006) (unpublished) (dismissing appeal for rule violations, with Judge Steelman in concurrence stating that "[t]he bombast which appellant labels as `Statement of Facts' meets none of the stated requirements for that portion of the brief" and suggesting counsel "should be personally sanctioned"). See also In re T.M., ___ N.C. ___, ___, 638 S.E.2d 236, 237, 2006 WL 3716446, 1 (2006) (unpublished) (sanctioning counsel).

The Rules of Appellate Procedure are mandatory and a violation subjects the appeal to dismissal. In re Adoption of Searle, 74 N.C.App. 61, 62, 327 S.E.2d 315, 317 (1985). However, we conclude, as we did in T.M. supra, that it would be unjust to penalize defendant for the conduct of her appointed counsel. Thus, we choose to sanction defendant's counsel. Pursuant to Rules 25 and 34 of the Rules of Appellate Procedure, we direct the Clerk of this Court to enter an order providing that defendant-appellant's counsel shall personally pay the costs of this appeal.

By her first assignment of error, defendant contends the trial court erred in denying her motion to dismiss made at the close of all the evidence. "When considering a motion to dismiss, the trial court must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences." State v. Morgan, 359 N.C. 131, 161, 604 S.E.2d 886, 904 (2004). "If substantial evidence exists to support each essential element of the crime charged and that defendant was the perpetrator, it is proper for the trial court to deny the motion." Id. "Substantial evidence is `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" State v. Earnhardt, 307 N.C. 62, 66, 296 S.E.2d 649, 652 (1982)(quoting State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)). "The trial court's function is to determine whether the evidence allows a `reasonable inference' to be drawn as to the defendant's guilt of the crimes charged." Id. at 67, 296 S.E.2d at 652 (quoting State v. Thomas, 296 N.C. 236, 244-45, 250 S.E.2d 204, 209 (1978)). Any inference should be drawn in the light most favorable to the prosecution, and "contradictions and discrepancies do not warrant dismissal of the case-they are for the jury to resolve." Id. at 67, 296 S.E.2d at 653.

To survive a defendant's motion to dismiss for insufficient evidence, the State must offer substantial evidence of every element of the crime. State v. Bethea, 156 N.C.App. 167, 170-71, 575 S.E.2d 831, 834 (2003). The crime of obtaining property by false pretenses consists of the following elements: "`(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. Parker, 354 N.C. 268, 284, 553 S.E.2d 885, 897 (2001) (quoting State v. Cronin, 299 N.C. 229, 242, 262 S.E.2d 277, 286 (1980)); see also N.C. Gen.Stat. § 14-100 (2003).

Defendant argues that merely writing a check that was subsequently dishonored does not meet the elements of the offense. However, our Supreme Court has explicitly stated that passing a worthless check in order to obtain property will suffice to uphold a conviction for obtaining property by false pretenses. State v. Rogers, 346 N.C 262, 264, 485 S.E.2d 619, 621 (1997). The Rogers holding is controlling here. Defendant obtained property by writing worthless checks. Therefore, this assignment of error is totally devoid of merit and is overruled.

In passing, we note that defense counsel did not cite, allude to, or attempt to distinguish Rogers, supra. Our Supreme Court explicitly stated that in Rogers it had overruled its own prior decisions and the decisions of this Court "insofar as they require proof of some additional misrepresentation beyond the presentation of a worthless check in such cases." Id. at 264, 485 S.E.2d at 621. Virtually all the authority defense counsel cites predates Rogers. In addition, failure to discuss Rogers violates counsel's duty of candor to this tribunal. See North Carolina Revised Rules of Professional Conduct Rule 3.3(a)(2)("A lawyer shall not fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.").

Defendant's second assignment of error contends the trial court erred in allowing into evidence the checks she had written to the Mall despite her hearsay objections. We cannot agree. North Carolina Rule of Evidence 803(6) provides that:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

...

Records of Regularly Conducted Activity.—A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

N.C. Gen.Stat. § 8C-1, Rule 803(6)(2005). In this case, Ms. Satterfield, the Director of Security at the Biltmore Mall at the time of the underlying events, was specifically instructed by the trial court to "[c]larify what the custom and practice is for bad checks to come back." During both her direct and cross-examination, she explained the procedures and processes for handling problematic checks. Defendant contends Ms. Satterfield should not have been able to testify as to the nature of the problematic checks since she did not witness their processing at the bank. However, a review of the transcript makes it clear that Ms. Satterfield testified with respect to the Mall's handling of the checks, not the bank's processing of the same. As Chief of Security for ten years, she had clear first hand knowledge of the...