State v. Fraley

• Decision Date: 17 April 2007
• Docket Number: No. COA06-663.,COA06-663.
• Citation: 643 S.E.2d 39
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. James Kenneth FRALEY.

643 S.E.2d 39

STATE of North Carolina v. James Kenneth FRALEY.

No. COA06-663.

Court of Appeals of North Carolina.

April 17, 2007.

Appeal by defendant from judgments entered 8 July 2004 by Judge E. Penn Dameron in Henderson County Superior Court. Heard in the Court of Appeals 5 February 2007.

Attorney General Roy A. Cooper, III, by Assistant Attorney General M. Lynne Weaver, for the State.

William D. Auman, Asheville, for defendant-appellant.

HUNTER, Judge.

James Kenneth Fraley ("defendant") appeals from judgments entered on jury verdicts of guilty on counts related to theft and use of financial cards and forgery of a check. We affirm the convictions but remand for resentencing.

The State's evidence tended to show that on or around 15 January 2004, an acquaintance of defendant named Mary Johnson ("Johnson") at defendant's behest cashed a check that had been stolen from David Bradley. According to Johnson, defendant brought her the check and told her it was from his uncle, but defendant had no identification card and could not cash it. He offered her a portion of the $800.00 for which the check was written to cash it for him. Defendant filled out a portion of the check in front of Johnson before she took it to the bank, where she cashed it and turned the money over to defendant.

At some point in January 2004, two financial cards—one Visa check card and one MasterCard—were stolen from Mark Alford ("Alford"). A local Wal-Mart store turned over to police register receipts showing that the stolen Visa was used there on 19 January 2004, at 3:07 p.m., and videotape surveillance showing defendant making a purchase at that time and apparently paying with a credit card. The MasterCard was found on defendant's person incident to an unrelated search on 22 January 2004, when an officer found defendant and two others with drugs and drug paraphernalia in a motel room and located the card in defendant's pocket.

Defendant was arrested at Wal-Mart on 31 January 2004 pursuant to an outstanding warrant.¹ He was detained in a security substation at the store and asked to empty his pockets. When he did so, defendant retained a small mint container with tablets inside. He began to eat them, and when the officer asked him to place the container with the other items from his pockets, he attempted to eat all the tablets at once. The container and tablets were then taken from defendant, and the tablets were later determined to be Xanax. No charges from that incident were included in this case at trial.

A jury found defendant guilty of two counts of financial card theft and one count each of financial card fraud, forgery, and possession of stolen property on 8 July 2004. Defendant was sentenced at a prior record level of IV to four consecutive sentences of eight to ten months, followed by an additional 120 day term.

I.

Defendant first argues that the trial court erred in admitting into evidence the container full of Xanax in defendant's possession upon his arrest, claiming that it is irrelevant and unduly prejudicial. This argument is without merit.

The trial court admitted the container over defendant's objection that, because defendant was not charged with any drug-related crimes, the evidence was irrelevant. The trial judge stated: "I will receive it into evidence and we may address an instruction about that later." The court did in fact issue an instruction to the jury to disregard the evidence at the close of the trial:

Now, members of the jury, evidence has been received tending to show that the defendant may have been in possession of certain controlled substances, specifically Xanax, at the time of his arrest. You are not to consider this evidence in any way in your deliberation in these cases, for this is not one of the things for which the defendant is on trial in these cases.

This Court has noted that:

Evidence is relevant if it tends to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence. The test of relevancy is whether the proffered evidence tends to shed any light on the subject of the inquiry or has the sole effect of exciting prejudice or sympathy.

State v. Jackson, 161 N.C.App. 118, 123, 588 S.E.2d 11, 15 (2003) (citations omitted). There seems no logical connection between the container of drugs and the charges against defendant; indeed, the only possible reason for its introduction could be to show that defendant is the kind of person who commits illegal acts, such as obtaining financial cards by theft and committing forgery— that is, to excite prejudice against defendant. The trial court seems also to have perceived it as an error, as evidenced by its later instruction to the jury to disregard it.

"However, when the trial court erroneously admits irrelevant evidence, the defendant must show that there is a `reasonable possibility that, had the error in question not been committed, a different result would have been reached' at trial." State v. Wallace, 104 N.C.App. 498, 502, 410 S.E.2d 226, 229 (1991) (citation omitted). Defendant has not shown that such a possibility exists.

During his testimony at trial, defendant stated repeatedly that he was a habitual and long-time drug user and sometime seller. To cite only a few examples, all made during direct questioning by his own attorney: In recounting the incident that led to the forgery charges, defendant stated that he was with Johnson and another person when they obtained money via the forgery, and "did get high" on drugs bought by that third person with the money; further, he stated that he was in possession at the time of methamphetamine, which he gave to Johnson. When describing how he came into possession of the credit card found on him upon arrest, he explained that he was in the motel room "getting high partying" with several other people. When asked whether he had used a stolen financial card for his purchases at Wal-Mart, defendant stated that he paid for them with "[c]ash money" that he got from "[s]elling drugs." Defendant also admitted to having been to prison and "rehab" for drug use.

Given that defendant readily acknowledged his past and continuing involvement with illegal drugs, no "`reasonable possibility'" exists that, without the admission of the Xanax, defendant would have been found not guilty of these charges. Id. at 502, 410 S.E.2d at 229. If its admission did in fact excite prejudice regarding defendant's propensity to break the law, any such prejudice is surely minute in comparison to the extensive evidence provided by defendant himself regarding his involvement with drugs and thus as a law-breaker. Defendant has not shown that the admission of the Xanax was unduly prejudicial, and, thus, this assignment of error is overruled.

II.

Defendant next argues that the trial court erred in denying his motion to dismiss the charges of financial card theft and forgery on the grounds of insufficient evidence. We disagree.

"When a defendant moves for dismissal, the trial court is to determine only 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. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). "If there is substantial evidence—whether direct, circumstantial, or both—to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied." State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988). This is true "even if the evidence likewise permits a reasonable inference of the defendant's innocence." State v. Butler, 356 N.C. 141, 145, 567 S.E.2d 137, 140 (2002). "In ruling on a motion to dismiss for insufficient evidence, `the trial court must consider the evidence in the light most favorable to the State and give the State every reasonable inference to be drawn therefrom.'" State v. Davidson, 131 N.C.App. 276, 282, 506 S.E.2d 743, 747 (1998) (citation omitted).

The charges of financial card theft were brought under N.C. Gen.Stat. § 14-113.9(a)(1) (2005), which states:

(a) A person is guilty of financial transaction card theft when the person does any of the following:

(1) Takes, obtains or withholds a financial transaction card from the person, possession, custody or control of another without the cardholder's consent and with the intent to use it; or who, with knowledge that it has been so taken, obtained or withheld, receives the financial transaction card with intent to use it or to sell it, or to transfer it to a person other than the issuer or the cardholder.

Id.

The theft charges here relate to the two cards (a Visa and a MasterCard) stolen from Alford, the cards' rightful owner. As the judge noted in his ruling on the ...