State v. Seelig

• Citation: 738 S.E.2d 427
• Decision Date: 19 March 2013
• Docket Number: No. COA12–442,COA12–442
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Paul Evan SEELIG, Defendant.

738 S.E.2d 427

STATE of North Carolina

v.Paul Evan SEELIG, Defendant.

No. COA12–442

Court of Appeals of North Carolina.

March 19, 2013.

Appeal by defendant from judgments entered 12 April 2011 by Judge Carl R. Fox in Wake County Superior Court. Heard in the Court of Appeals 15 November 2012.

Attorney General Roy Cooper, by Special Deputy Attorney General I. Faison Hicks and Special Deputy Attorney General Anne J. Brown, for the State.

Edward Eldred for defendant-appellant.

GEER, Judge.

Defendant Paul Evan Seelig appeals from 23 convictions of obtaining property by false pretenses. On appeal, defendant primarily argues that his rights under the Confrontation Clauses of the federal and state constitutions were violated when the trial court permitted a witness to testify by way of a live, two-way, closed-circuit internet broadcast from Nebraska. We hold that under the controlling test set out in Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), the trial court did not err in allowing the live video testimony.

Facts

The State's evidence tended to show the following facts. Defendant was the owner of Great Specialty Products, a company that sold, among other things, bagels, breads, and other baked edible goods (collectively “bread products”) that were advertised as homemade and gluten free. Gluten is a protein found in wheat, barley, and rye. Some people, including people diagnosed with celiac disease, are gluten intolerant because their bodies recognize gluten as a foreign substance and create antibodies that actually work to damage the body.

When people with gluten intolerance ingest gluten, their symptoms include abdominal bloating, indigestion, abdominal cramping and pain, diarrhea, vomiting, acidosis, and fatigue. For some, but not all, people with celiac disease, ingesting even a very small amount of gluten can cause these symptoms. People who are gluten intolerant are treated by working with nutritionists to maintain gluten-free diets; there is no medication to treat celiac disease.

Defendant began selling his bread products—represented as gluten free—in August 2009. He operated out of a booth at the flea market located on the State Fairgrounds in Raleigh, North Carolina. Defendant next sold the bread products from a booth at the 2009 State Fair in Raleigh. During the fall of 2009 and early 2010, defendant also sold the bread products online from a “Great Specialty Products” website. He delivered the products to customers' homes anywhere within a 40–minute drive from Morrisville, North Carolina.

None of the bread products advertised by defendant as gluten free were actually gluten free. Defendant bought all of the bread products either completely premade or in a partially-baked, frozen form that only needed to be baked briefly in the oven. Many, but not all, of the bread products sold on defendant's website as gluten free were manufactured by Tribecca Oven, a New Jersey bakery. Because gluten is integral to Tribecca Oven's manufacturing process, a witness from Tribecca Oven described the company as a “gluten machine” and testified that all of the bread products manufactured by Tribecca Oven contain gluten.

All of the bagels and some of the other products defendant represented as homemade and gluten free were purchased from Sam's, Costco, or BJ's. The remainder of the bread products were delivered by truck to defendant's home. None of the products received or purchased by defendant for resale bore labels indicating they were gluten free. The premade bread products were simply repackaged for sale by defendant. The products purchased in a frozen, partially-baked form were briefly baked in an oven and then packaged for sale by defendant. Laboratory testing on 12 of 13 samples of bread products sold by defendant and advertised as gluten free indicated that those samples contained gluten.

During the fall of 2009 and early 2010, defendant or one of his employees sold bread products to at least 23 persons who would not have purchased the products if the products had not been advertised as gluten free. Many of those persons either had celiac disease or were purchasing the products for a person with celiac disease. At least one of those individuals filed a complaint with the North Carolina Department of Justice. The North Carolina Department of Agriculture and Consumer Services investigated defendant and filed a civil action against him seeking permanent injunctive relief. The Department of Agriculture obtained a temporary restraining order against defendant pending a hearing on a preliminary injunction. The record does not contain any further information regarding that civil action.

On 6 April 2010, defendant was indicted for nine counts of obtaining property by false pretenses. On 9 November 2010, defendant was indicted for an additional 19 counts of obtaining property by false pretenses. At trial, defendant testified that he never advertised or sold products as gluten free that he knew, in fact, contained gluten. Defendant claimed he purchased all of his gluten-free products from “Rise 'n Bakeries,” an Amish bread products manufacturer located in Millsburg, Ohio. He purchased regular bread products from other companies. According to defendant, none of his bread products or bagels were bought at Costco, Sam's, or BJ's. Defendant testified he regularly performed tests on the products he sold as gluten free to ensure that they were, in fact, gluten free.

Defendant further testified that as of 22 December 2009, defendant believed there may have been cross-contamination at some point during the production process of his bread products such that the end product was not actually gluten free. Defendant promptly notified his customers and began printing labels on the products warning that they may have been contaminated with gluten.

Defendant also presented the testimony of one of his customers, Sharon Hargraves. Ms. Hargraves testified that she has celiac disease, she purchased bread products from defendant throughout the fall of 2009, and she showed no symptoms of having ingested gluten.

At trial, the State dismissed four counts of obtaining property by false pretenses, and the trial court dismissed an additional count of obtaining property by false pretenses on defendant's motion at the close of all the evidence. The jury found defendant guilty of 23 counts of obtaining property by false pretenses. Defendant then pled guilty to the aggravating factor that he took advantage of a position of trust or confidence to commit the offenses.

The trial court consolidated the convictions into 11 judgments. In each judgment, the court sentenced defendant to an aggravated-range term of 10 to 12 months imprisonment and further ordered that all of the sentences run consecutively. Defendant's written notice of appeal was not timely, but this Court granted defendant's petition for writ of certiorari.

I

Defendant first argues that the indictments underlying his 23 convictions for obtaining property by false pretenses were facially defective. “[W]here 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). “On appeal, we review the sufficiency of an indictment de novo.” State v. McKoy, 196 N.C.App. 650, 652, 675 S.E.2d 406, 409 (2009).

Each of the indictments at issue alleged the following:

[O]n or about [date(s) of offense], in Wake County the defendant named above unlawfully, willfully and feloniously did knowingly and designedly with the intent to cheat and defraud, obtain U.S. Currency, having a value of [monetary value] from [name of the victim], by means of a false pretense which was calculated to deceive and did deceive.

The false pretense consisted of the following: The defendant sold bread products to the victim that were advertised and represented as Gluten Free when in fact the defendant knew at the time that the products contained Gluten. This act was done in violation of N.C.G.S. 14–100.

Obtaining property by false pretenses consists of four 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. Cronin, 299 N.C. 229, 242, 262 S.E.2d 277, 286 (1980). “[A]n indictment must allege every element of an offense ....” State v. Kelso, 187 N.C.App. 718, 722, 654 S.E.2d 28, 31 (2007).

Defendant contends that the indictments fail to sufficiently allege that he made a false representation because they do not allege either “that [defendant] himself ‘advertised and represented’ the bread products as gluten-free or that [defendant] was the agent of the entity that ‘advertised and represented’ the products as gluten-free.” Defendant points to the indictments' use of the passive voice—“defendant sold bread products to the victim that were advertised and represented as Gluten Free”—and argues that because this language does not explicitly allege that defendant made the misrepresentations, the indictments are fatally defective. We disagree.

In Cronin, the defendant challenged the sufficiency of his indictment for obtaining property by false pretenses because, in part, it failed to directly allege “that defendant did in fact deceive the [victim bank],” a necessaryelement of the offense. 299 N.C. at 236, 262 S.E.2d at 282. The Court explained that the indictment at issue “alleged that defendant knowingly and falsely made false representations to the bank that he was offering as security for a loan a new mobile home having value of $10,850, when actually the offered security was a fire-damaged mobile home of the value of $2,500, and that defendant by means of such false pretense and...