State v. Mostafavi

• Citation: 253 N.C.App. 803,802 S.E.2d 508
• Decision Date: 06 June 2017
• Docket Number: No. COA16-1233,COA16-1233
• Court: Court of Appeal of North Carolina (US)
• Parties: STATE of North Carolina v. Seid Michael MOSTAFAVI, Defendant.

253 N.C.App. 803

802 S.E.2d 508

STATE of North Carolina

v.Seid Michael MOSTAFAVI, Defendant.

No. COA16-1233

Court of Appeals of North Carolina.

Filed: June 6, 2017

Attorney General Joshua H. Stein, by Assistant Attorney General Brent D. Kiziah, for the State.

Joseph P. Lattimore for the Defendant.

DILLON, Judge.

Seid Michael Mostafavi ("Defendant") appeals from judgment entered after he was convicted in a bench trial of two counts of obtaining property by false pretenses. We hereby vacate Defendant's convictions.¹

Defendant was also convicted of a single count of felony larceny. However, Defendant did not properly preserve his challenge to this conviction. In our discretion, we decline to invoke Rule 2 and do not address Defendant's challenge regarding his conviction for felony larceny.

I. Background

Defendant was charged with a number of crimes in connection with a break-in of a house where certain items were later discovered to have been stolen.

The State's evidence tended to show as follows: A home shared by two individuals was broken into while they were on vacation. The house-sitter testified that she was indebted to Defendant and allowed Defendant to break into the home and to help himself to certain items belonging to the two victims. Some of the missing items were found and recovered at a pawn shop. These items were either sold or pawned by Defendant.

Defendant testified and presented evidence tending to show that the house-sitter claimed she owned the stolen items and that he bought the items from the house-sitter for a negotiated price.

The trial court found Defendant guilty of one count of felony larceny and two counts of obtaining property by false pretenses from the pawn shop. The trial court sentenced Defendant accordingly. Defendant appeals.

II. Analysis

Defendant makes several arguments on appeal, which are addressed in turn below.

A. Larceny Conviction

Defendant argues that there was a fatal variance between the indictment and the evidence presented at trial on the larceny charge. Specifically, he notes that the indictment identified one of the homeowners as the owner of the stolen property. This is indicated by the State's evidence, which showed that the stolen property was owned by the other homeowner. See State v. Greene , 289 N.C. 578, 584-85, 223 S.E.2d 365, 369-70 (1976).

Defendant concedes that he failed to properly preserve this issue on appeal. Defendant requests we invoke Rule 2 of the North Carolina Rules of Appellate Procedure to review the merits of his claim.

Appellate Rule 2 authorizes this Court to "suspend or vary the requirements or provisions of any of [the Rules of Appellate Procedure]." N.C. R. App. P. 2. Although Appellate Rule 2 is available to prevent "manifest injustice," our Supreme Court has stated that this residual power to vary the default provisions of the appellate procedure rules should only be invoked on " ‘rare occasions’ and under ‘exceptional circumstances.’ " Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191, 201, 657 S.E.2d 361, 367 (2008).

Defendant has failed to demonstrate the "exceptional circumstances" necessary to for us to invoke Appellate Rule 2. Id. In the exercise of our discretion, we decline to invoke Appellate Rule 2 to reach the merits of Defendant's argument regarding his felony larceny conviction. Defendant's larceny conviction remains undisturbed.

B. Indictment—Obtaining Property By False Pretenses

Defendant contends the trial court erred by failing to dismiss the charges for obtaining property by false pretenses. Defendant contends that the language in the indictment describing the property obtained as "UNITED STATES CURRENCY" was not sufficient to sustain the indictment. We agree.

"Where an indictment is alleged to be invalid on its face, thereby depriving the trial court of its jurisdiction, a challenge to that indictment may be made at any time, even if it was not contested in the trial court." State v. Wallace , 351 N.C. 481, 503, 528 S.E.2d 326, 341 (2000).

We conclude that our Supreme Court's decision in State v. Reese , 83 N.C. 637 (1880), which was reaffirmed by that Court in 1941 in State v. Smith , 219 N.C. 400, 14 S.E.2d 36 (1941), and reaffirmed again in 2014 in State v. Jones , 367 N.C. 299, 758 S.E.2d 345 (2014), compels us to conclude that the indictment charging Defendant with obtaining "UNITED STATES CURRENCY" by false pretenses was fatally defective because it failed to describe the United States Currency obtained with sufficient specificity. These cases instruct that, where money is the thing obtained by false pretenses, the money must be described "at least by the amount , as, for instance, so many dollars and cents." Smith , 219 N.C. at 401, 14 S.E.2d at 36-37 (emphasis added).

1. Current Supreme Court Jurisprudence Compels our Conclusion that the Indictment is Fatally Defective

Our Supreme Court has repeatedly held that an indictment is constitutionally sufficient if it "apprises the defendant of the charge against him with enough certainty to enable him to prepare his defense and to protect him from subsequent prosecution for the same offense." State v. Snyder , 343 N.C. 61, 65, 468 S.E.2d 221, 224 (1996) (citation omitted).

Here, Defendant was indicted for violating N.C. Gen. Stat. § 14-100, which provides that a person is guilty of obtaining property by false pretenses where he obtains "any money, goods, ..., services ..., or other thing of value" by means of a false pretense. N.C. Gen. Stat. § 14-100 (2011).

For indictments charging under N.C. Gen. Stat. § 14-100, our Supreme Court has held that "the thing obtained [ (i.e., the money, goods, services, etc.) by false pretenses] must be described with reasonable certainty , and by the name or term usually employed to describe it." Jones , 367 N.C. at 307, 758 S.E.2d at 351 (emphasis added) (internal quotation marks omitted).

In 1880, our Supreme Court held in State v. Reese that an indictment describing the property obtained as "money" was fatally defective, stating that "the money obtained should have been described at least by the amount —as, for instance, so many dollars and cents ." Reese, 83 N.C. at 639 (emphasis added).

In 1941, our Supreme Court reaffirmed its 1880 holding. See Smith , 219 N.C. at 401, 14 S.E.2d at 36-37. In Smith , the indictment described the money as "goods and things of value." Id. The Court held that this description was fatally defective. Relying on its 1880 decision in Reese , the Court stated that the money "should have been described [in the indictment] at least by the amount, as, for instance, so many dollars and cents ." Id. at 401, 14 S.E.2d at 36-37 (emphasis added).

More recently, in 2014, our Supreme Court reaffirmed both the 1880 Reese and the 1941 Smith decisions, stating as follows:

This Court has not had occasion to address this issue recently, but consistently has held that simply describing the property obtained as "money," State v. Reese , 83 N.C. 637, 640 (1880), or "goods and things of value," State v. Smith , 219 N.C. 400, 401, 14 S.E.2d 36, 36 (1941), is insufficient to allege the crime of obtaining property by false pretenses.

Jones , 367 N.C. at 307, 758 S.E.2d at 351. Following the reasoning in these older cases, our Supreme Court held that an indictment alleging that the defendant obtained "services" without some description as to the type of services which were fraudulently obtained, was fatally defective. Id. at 307-08, 758 S.E.2d at 351. The Court so held even though, like in the present case, the indictment was specific in identifying the name of the victim, the date of the offense, and the stolen credit card defendant used to obtain the services.²

"United States Currency" is synonymous with "money," though the former language does provide some further description of the money as some unspecified amount of "dollars and cents" issued by our federal government, rather than by a foreign government. See State v. Gibson , 169 N.C. 318, 320, 85 S.E. 7, 9 (1915) (defining "money" as "any lawful currency, whether coin or paper, issued by the Government as a medium of exchange"). However, this description—"UNITED STATES CURRENCY"—still falls short of the specificity which our Supreme Court has repeatedly indicated is minimally required in describing money in a false pretenses indictment, namely, that the description "at least [state] the amount" of "dollars and cents." Reese , 83 N.C. at 639 (emphasis added).

And where the amount of money is not known to the pleader, our Supreme Court instructs that describing the money by the name of the victim from whom it was obtained, the date it was obtained, and the false pretense used to obtain the money is still not sufficiently specific. For instance, the indictment found to be fatal in the 1880 Reese case alleged that "on 1 January 1876," the defendant defrauded "Henderson Pritchard and John A. Pritchard" out of "goods and money" by stating that he was the owner of "a large and valuable farm, with team and stock thereon, in the county of Northampton[.]" Reese , 83 N.C. at 638. The indictment found to be fatal in the 1941 Smith case alleged that the defendant defrauded "Freeman Grady" of "goods and things of value" by pretending that he owned "two certain mules ... free and clear of all encumbrances[.]" Smith , 219 N.C. at 401, 14 S.E.2d at 36. And in the 2014 Jones case, the indictment found to be fatal alleged the name of the victim as a certain auto service business, the date of the offense, and that the item used by the defendant to obtain "services" was "the credit card number belonging to Mary Berry." See Record on Appeal at 7, State v. Jones , No. COA12-282.

Our Court has on occasion sustained indictments which seemingly conflict with our Supreme Court's decisions. See State v. Ricks , ––– N.C.App. ––––, 781 S.E.2d 637 (2016) ; see also State v. Ledwell , 171 N.C.App. 314, 614 S.E.2d 562 (2005).³

In Ricks —the recent case from our Court relied upon by the...