State v. Jones
| Citation | 734 S.E.2d 617 |
| Decision Date | 20 November 2012 |
| Docket Number | No. COA12–282.,COA12–282. |
| Parties | STATE of North Carolina v. Eric Steven JONES and Jerry Alvin White. |
| Court | Court of Appeal of North Carolina (US) |
OPINION TEXT STARTS HERE
Appeals by Defendant Eric Steven Jones from judgment entered 7 September 2011 and by the State from orders entered 7 September 2011 by Judge Robert C. Ervin in Mecklenburg County Superior Court. Heard in the Court of Appeals 29 August 2012.
Attorney General Roy Cooper, by Assistant Attorneys General Kimberly N. Callahan and Joseph L. Hyde, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Andrew J. DeSimone, for Defendant Eric Steven Jones.
Brock, Payne & Meece, P.A., by C. Scott Holmes, for Defendant Jerry Alvin White.
On 28 June 2010, Defendant Jerry Alvin White (“White”) was indicted on three counts of trafficking in stolen identities pursuant to N.C. Gen.Stat. § 14–113.20. On 7 September 2010, the grand jury returned a superseding indictment against White for four counts of trafficking in stolen identities. On the same date, Defendant Eric Steven Jones (“Defendant”) was indicted on four counts of trafficking in stolen identities, two counts of obtaining property by false pretenses, and one count of identity theft. The State's pretrial motion for joinder of the cases was unopposed and joinder was granted.
At the close of the State's evidence, both White and Defendant moved to dismiss all charges, asserting insufficiency of the evidence and fatally flawed indictments. The trial court denied the motion as to insufficiency of the evidence and delayed its ruling on the indictment issue. Neither White nor Defendant presented evidence, and both renewed their motions to dismiss at the close of all evidence.
On 7 September 2011, the jury returned guilty verdicts against White on all four counts of trafficking in stolen identities, and against Defendant on two counts of obtaining property by false pretenses and one count of identity theft. After receiving the jury's verdicts, the court dismissed the charges of obtaining property by false pretenses against Defendant and all counts of trafficking in stolen identities against White, concluding that those indictments were “insufficient as a matter of law.” The court denied Defendant's motion to dismiss as to the offense of identity theft.
The trial court determined Defendant was a Prior Record Level II for sentencing purposes and imposed an active term of 18 to 22 months imprisonment on the identity theft conviction. From this judgment, Defendant appeals. From the orders dismissing the remaining charges against Defendant and all charges against White, the State appeals. We find no error.
The evidence at trial tended to show the following: On 2 June 2010 between 4:30 and 5:00 a.m., Officer Steven Maloney of the Charlotte–Mecklenburg Police Department (“CMPD”) observed a silver Hyundai Accent he believed to be suspicious and began following it. Maloney ran a computer check on the car's tag number and discovered it was a suspect vehicle in a financial transaction card theft case committed at Tire Kingdom. Maloney initiated a traffic stop. Defendant, the driver, was unable to produce a valid driver's license or registration card.
When Maloney searched the car, he found two bags of marijuana and a work order from Maaco Collision Repair (“Maaco”) listing James Coleman as the customer. Maloney arrested Defendant, and upon searching him, discovered a debit card bearing the name “Elaine Taylor” and an EBT (food stamp) card in the name of “Lonnie Bickman,” as well as pieces of paper listing the name, address, and credit card information of four victims in this case: James Payton, Charles Batchelor, Sean Daly, and John Rini. A subsequent police investigation revealed that each of the four men had been checked in by White, a front desk clerk, for stays at the Blake Hotel in Charlotte in May 2010.
On 12 May 2010, Payton stayed at the Blake Hotel and paid with a credit card assigned to him and bearing his name, but issued on a corporate account in the name of JEL Construction, Inc. Later, Payton was notified by the fraud department of the credit card company that there had been suspicious charges made to his account, including $54.13 and $43.30 to Cricket Communications, $650.78 and $369.46 to Duke Energy, and $236.47 to Foot Action.
Also on 12 May 2010, Batchelor stayed at the Blake Hotel and paid with a credit card issued directly to him; however, the card was a corporate card with Batchelor listed as a secondary cardholder on the account. The primary account holder was his employer, Christina Close of C & C Swimming, Inc. Fraudulent charges in the amount of $5.42 were made for purchases at Cricket Communications using this card number.
On 20 May 2010, Daly stayed at the Blake Hotel and paid with a corporate credit card issued to Identity Theft 911, LLC. The card bore the company name as well as Daly's name, who was the president and CEO of the company. Daly verified that no fraudulent charges were made to his card.
On 20 May 2010, Rini also stayed at the Blake Hotel and used a personal credit card to pay for his stay. Rini's credit card statement revealed fraudulent charges for purchases made at Cricket Communications in the amount of $64.95.
On 10 June 2010, CMPD Detective Kevin Stuesse and Special Agent Tom Hunter interviewed White. During the interview, White admitted to writing down the credit card information, names, and addresses for Payton, Batchelor, and Daly, and did not deny passing the information to another individual. White denied writing down Rini's information. After the interview, White was arrested.
Further investigation revealed that, on 18 May 2010, a Hyundai Accent with the same vehicle identification number as the car Defendant was driving when arrested had been dropped off at Tire Kingdom for the installation of four new tires and rims, an alignment, and brake services. The work order listed the customer as James Payton. The serial numbers on the tires purchased at Tire Kingdom matched the serial numbers on the tires of the Hyundai Accent. The $1,181.09 bill was paid for over the phone with a Visa credit card ending in 3501. Upon pickup of the vehicle, the receipt was signed by a male who used the name James Payton. On 20 May 2010, Melanie Wright's Visa ending in 3501 was charged in the amount of $1,181.09; the evidence tended to show that Wright had previously stayed at the Blake Hotel. On 24 May 2010, Defendant, representing himself as James Coleman, brought the Hyundai Accent to Maaco to be painted and paid with a credit card in the name of Mary Berry.
On appeal, Defendant brings forward four arguments: that the trial court erred in denying his motion to dismiss the identity theft charge where the State failed to prove (1) that he possessed the specific intent required and (2) that he possessed the credit card numbers of three or more natural persons; and where (3) there existed a fatal flaw in his identity theft indictment; and (4) in allowing the State to introduce certain evidence under Rule 404(b). We dismiss in part and find no error in part.
The State brings forward two arguments on appeal: that the trial court erred by granting (1) Defendant's motion to dismiss the charges of obtaining property by false pretenses; and (2) White's motion to dismiss the charges of trafficking in stolen identities. We find no error.
Defendant first argues that the trial court erred in denying his motion to dismiss because the State failed to prove that he possessed the specific intent necessary to be convicted of identity theft, to wit, the intent to fraudulently represent himself as the persons whose credit card numbers he used to make various purchases. We disagree.
“This Court reviews the trial court's denial of a motion to dismiss de novo.” State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007).
On a motion to dismiss, the trial court's task is to determine whether there is substantial evidence of each essential element of the charged offense. Substantial evidence is such evidence as a reasonable mind would accept as sufficient to support a conclusion. All of the evidence actually admitted, both competent and incompetent may be considered. Such evidence should be viewed in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom.... If the State has offered substantial evidence of each essential element of the crime charged, the defendant's motion must be denied.
State v. Rupe, 109 N.C.App. 601, 607–08, 428 S.E.2d 480, 485 (1993) (citations omitted).
Identity theft occurs when a person
knowingly obtains, possesses, or uses identifying information of another person, living or dead, with the intent to fraudulently represent that the person is the other person for the purposes of making financial or credit transactions in the other person's name, to obtain anything of value, benefit, or advantage, or for the purpose of avoiding legal consequences[.]
N.C. Gen.Stat. § 14–113.20(a) (2011) (emphasis added). State v. Little, 278 N.C. 484, 487, 180 S.E.2d 17, 19 (1971). Thus, “[i]t is not necessary that the State offer direct proof of fraudulent intent if facts and circumstances are shown from which it may be reasonably inferred.” Rupe, 109 N.C.App. at 609, 428 S.E.2d at 486. Specifically, the appellate courts of this State have long recognized that fraudulent intent in various financial crimes need not be shown by a verbal misrepresentation, but can also be established based upon a defendant's conduct or actions. See, e.g., id. (embezzlement); State v. Parker, 354 N.C. 268, 553 S.E.2d 885 (2001), cert. denied,535...
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State v. Jones
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