Opinion
No. COA14–632.
04-21-2015
STATE of North Carolina v. William Anthony BARNES.
Attorney General Roy Cooper, by Assistant Attorney General David D. Lennon, for the State. Economos Law Firm, PLLC, by Larry C. Economos, for defendant-appellant.
Attorney General Roy Cooper, by Assistant Attorney General David D. Lennon, for the State.
Economos Law Firm, PLLC, by Larry C. Economos, for defendant-appellant.
CALABRIA, Judge.
William Anthony Barnes (“defendant”) appeals from a judgment entered upon jury verdicts finding him guilty of forging a title application and obtaining property by false pretenses. We find no error.
In 2008, Antonio Denard McClendon (“McClendon”) purchased a 2003 BMW sedan (“the BMW”) from a North Carolina dealership. In 2009, McClendon went to Auto House in Charlotte, North Carolina with the BMW, which was subsequently purchased by Thomas Everett (“Everett”) in October 2010. Everett was unable to immediately obtain title to the BMW because the North Carolina Division of Motor Vehicles (“DMV”) closed Auto House for failure to follow proper procedures. Everett applied for a title with the North Carolina License Plate Agency (“LPA”) through the indemnity bond process.
Before Everett completed the indemnity bond process, he was arrested and incarcerated on unrelated charges. On 4 July 2012, when Everett's stepson, Brian Lamar Perry (“Perry”), drove the BMW, he was stopped and cited for driving without proper registration and without insurance. The BMW was towed to White's Wrecker Service (“White”) in Tarboro, North Carolina.
After towing the BMW, White failed to notify the DMV within ten days regarding possession of the vehicle. Without a notice of storage, White never obtained a mechanic's lien on the BMW and McClendon, the registered owner of the BMW, was never notified to reclaim the BMW. Despite the fact that the DMV never released the title to White for resale purpose, defendant, a law enforcement officer with the Princeville Police Department, purchased the BMW from White. Since White never obtained legal title to the BMW, it was unable to convey title to defendant.
Defendant pursued a number of avenues attempting to obtain title to the BMW. On numerous occasions, employees at the LPA informed defendant that he could not obtain title for the BMW without the proper documentation from the DMV. Employees at the Special Proceedings Division of the clerk's office also were unable to assist defendant without the proper documentation from the DMV granting them authority to hold a judicial hearing. As a final option, an LPA supervisor, Robin Cunningham (“Cunningham”), informed defendant that he could obtain title through the indemnity bond process, the method that Everett initiated prior to his arrest.
After failing to follow any recommendations to properly obtain a title, defendant asked Diana Draughn (“Draughn”), a notary public, to notarize a duplicate title application. Despite the fact that the signature line, which should have included the current title owner's signature, was blank, and that McClendon did not appear before Draughn, she notarized the application. Defendant returned to the LPA a few days later and submitted a title application for the BMW in his own name with McClendon's purported signature.
Prior to issuing defendant a North Carolina vehicle title, the DMV commenced an internal fraud investigation regarding the BMW. DMV Inspector Neil Ambrose (“Insp.Ambrose”) interviewed LPA employees as well as Draughn. After initially stating that McClendon appeared before her, Draughn admitted that she had notarized a blank form for defendant. Insp. Ambrose spent three days in the Greensboro and Winston–Salem areas trying to locate McClendon. Despite his exhaustive efforts, Insp. Ambrose never located McClendon.
Defendant was arrested and indicted for forging a title application by submitting an “application with the forged signature of Antonio D. McClendon, the lawful title owner and supposed transferor” of the BMW; obtaining property by false pretenses by obtaining a certificate of title for the BMW by knowingly submitting a title application to the DMV containing a forged signature notarized outside the presence of the supposed transferor; and conspiracy to forge a title application. Prior to trial, the State dismissed the conspiracy to forge a title application offense. At the close of the State's evidence, defendant made an unsuccessful motion to dismiss. Defendant presented no evidence, and renewed his motion to dismiss. The trial court again denied the motion.
On 8 October 2013, the jury returned verdicts finding defendant guilty of forging a title application and obtaining property by false pretenses. The trial court sentenced defendant to a minimum of 6 months and a maximum of 17 months in the custody of the North Carolina Division of Adult Correction. The trial court suspended defendant's sentence and placed him on supervised probation for 36 months. The trial court also ordered defendant to perform 18 hours of community service during the first 180 days of the period of probation, and to surrender his law enforcement certification to the Edgecombe County Clerk of Superior Court. Defendant appeals.
Defendant's sole argument on appeal is that the trial court erred by denying his motion to dismiss because the State failed to present direct evidence that the title application submitted to the LPA was in fact a forgery. Specifically, defendant contends that to prove a forgery, the State must produce direct evidence that the person who signed McClendon's name on the title application lacked the authority to sign the document. We disagree.
As an initial matter, “the rule for determining the sufficiency of the evidence is the same whether the evidence is completely circumstantial, completely direct, or both.” State v. Gant, 153 N.C.App. 136, 139–40, 568 S.E.2d 909, 911 (2002) (citation omitted). “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). “[T]he trial court must consider the evidence in the light most favorable to the State, drawing all reasonable inferences in the State's favor.” State v. Miller, 363 N.C. 96, 98, 678 S.E.2d 592, 594 (2009).
This Court must also consider whether there is substantial evidence of each essential element of the offense charged and whether defendant is the perpetrator of the offense. State v. Cox, 367 N.C. 147, 150, 749 S.E.2d 271, 274 (2013) (citation omitted). Pursuant to N.C. Gen.Stat. § 20–71(a), the elements of the offense of altering or forging certificate of title are:
[a]ny person who, with fraudulent intent, shall alter any certificate of title, registration card issued by the Division, or any application for a certificate of title or registration card, or forge or counterfeit any certificate of title or registration card purported to have been issued by the Division ... or who, with fraudulent intent, shall alter, falsify or forge any assignment thereof, or who shall hold or use any such certificate, registration card, or application ... knowing the same to have been altered, forged or falsified[.]
N.C. Gen.Stat. § 20–71(a) (2013). “Three elements are necessary to constitute the offense of forgery: (1) There must be a false making or alteration of some instrument in writing; (2) there must be a fraudulent intent; and (3) the instrument must be apparently capable of effecting a fraud.” State v. Phillips, 256 N.C. 445, 447, 124 S.E.2d 146, 148 (1962). “[I]f the purported maker is a real person and actually exists, the State is required to show not only that the signature in question is not genuine, but was made by defendant without authority.” Id.at 448, 124 S.E.2d at 148.
Defendant relies on Phillipsto support his argument that the State failed to present sufficient evidence to support the element of forgery. In Phillips,the defendant was charged with forging the name “Frank Johnson” on a check. Id.at 447, 124 S.E.2d at 147. The defendant told the deputy sheriff that he had purchased a car from Frank Johnson. Id.However, the State made no effort to locate or call Frank Johnson as a witness to testify that he had not authorized the signature on the check. Id.at 449, 124 S.E.2d 146, 124 S.E.2d at 149. The State also did not present evidence from any officers or employees of the bank on which the check was drawn to testify that Frank Johnson was unknown and did not have an account with the bank. Id., 124 S.E.2d at 148. The jury returned a verdict finding the defendant guilty of forgery. Id.at 447, 124 S.E.2d at 147. On appeal, the Supreme Court of North Carolina reversed the defendant's judgment because the State presented no evidence showing that the signature on the check was unauthorized and false. Id.at 449, 124 S.E.2d 146, 124 S.E.2d at 149.
The State relies on State v. Seraphemfor the “presumption that one in possession of a forged instrument, who attempts to obtain money or goods with that instrument, has either forged or consented to the forging of the instrument.” 90 N.C.App. 368, 373, 368 S.E.2d 643, 646 (1988). In Seraphem,the defendant attempted to cash multiple checks at a bank that were on the account of a deceased person. Id.at 369–70, 368 S.E.2d 643, 368 S.E.2d at 64445. The defendant asserted that the State presented no direct evidence that she signed the checks or that the signatures on the checks were false. Id.at 372, 368 S.E.2d at 646. The SeraphemCourt disagreed. The State presented evidence from the vice president of the bank that defendant presented two false checks to tellers at two different bank branches to obtain money. Id.at 372–73, 368 S.E.2d 643, 368 S.E .2d at 646. “An instrument is demonstrated false when it is shown that a person who signed another's name did so without authority.” Id.at 372, 368 S.E.2d at 646. This Court held that the discrepancy provided sufficient evidence to allow the jury to infer that the checks were falsely made and that the defendant signed them without authority. Id.at 372–73, 368 S.E.2d at 646.
The instant case is similar to Seraphem,and defendant's reliance on Phillipsis misplaced. In contrast to Phillips,where the State failed to present evidence of any efforts to either locate the purported maker of the check or to present evidence from witnesses, in the instant case, the State presented evidence of substantial efforts to locate McClendon as well as evidence from witnesses regarding the title application. Insp. Ambrose dedicated three full days searching the Winston–Salem and Greensboro areas, used the resources available to him as a DMV inspector, tried to find McClendon's employers and the addresses listed, and left several messages for him. Although Insp. Ambrose's efforts to locate McClendon were unsuccessful, Insp. Ambrose testified at trial that according to DMV records, McClendon was not deceased, but had seven different listed addresses.
Just as the State presented evidence of a forgery in Seraphem, 90 N.C.App. at 372–73, 368 S.E.2d at 646, in the instant case, the circumstantial evidence from witnesses that defendant submitted a forged title application to obtain a vehicle title was sufficient to allow the jury to infer that the signature on the title application was unauthorized and false. In addition to Insp. Ambrose's testimony, Cunningham and several other LPA employees testified that they told defendant they could not issue a title because White had not completed the required DMV documentation. LPA employee Rosetta Jones (“Jones”) testified that she had escorted defendant to the clerk of court's office to discuss the possibility of holding a special proceeding in the matter, but the clerk of court indicated such a proceeding would likely take approximately six months. Jones indicated that there was nothing else she could do for defendant, and “jokingly” suggested to defendant that the best outcome would be for McClendon, the registered owner of the BMW, to “sign off on the title.” Defendant returned to the LPA a few days later and submitted a title application with McClendon's purported signature for the BMW to be titled in his own name.
Draughn testified that she had met with defendant and notarized the duplicate title application even though the signature line of the BMW's registered owner was blank. She said that defendant “just need[ed] me to notarize a title and he would get it filled out later.”
When viewed in the light most favorable to the State, there is substantial circumstantial evidence of each essential element to allow a jury to infer that defendant was the perpetrator who forged McClendon's signature on the title application without authorization. Subsequently, defendant presented the false title application to the LPA to obtain a certificate of title in his name for the BMW. Therefore, the trial court did not err by denying defendant's motion to dismiss and allowing the jury to decide the matter. Defendant received a fair trial, free from error.
No error.
Judges STEELMAN and McCULLOUGH concur.
Report per Rule 30(e).
Opinion
Appeal by defendant from judgment entered 8 October 2013 by Judge Walter H. Godwin, Jr. in Edgecombe County Superior Court. Heard in the Court of Appeals 22 October 2014.