Opinion
No. COA11–1145.
2012-05-1
STATE of North Carolina v. Dona Grace FELTON.
Attorney General Roy Cooper, by Assistant Attorney General Peggy S. Vincent, for the State. Richard Croutharmel, for defendant-appellant.
Appeal by defendant from judgments entered 31 March 2011 by Judge Craig Croom in Wayne County Superior Court. Heard in the Court of Appeals 23 January 2012. Attorney General Roy Cooper, by Assistant Attorney General Peggy S. Vincent, for the State. Richard Croutharmel, for defendant-appellant.
CALABRIA, Judge.
Dona Grace Felton (“defendant”) appeals from judgments entered upon jury verdicts finding her guilty of three counts of forgery of an instrument and three counts of uttering a forged instrument. We find no error.
I. Background
In September 2008, Janice Jeffries (“Jeffries”) was hospitalized and in a coma in the intensive care unit at Wayne Memorial Hospital. Since Jeffries was unable to communicate with anyone concerning her medical treatment, the hospital contacted Adult Protective Services who sent a social worker, Debbie Elliott (“Elliott”), to visit Jeffries. Elliott was unable to communicate with Jeffries initially. Elliott later learned that Jeffries had an automatic deposit of approximately $3,000 per month and therefore Jeffries's bank account should have a significant amount of money. Yet, in April 2009 when Elliott checked the balance in Jeffries's account, it contained only about $700. When Jeffries heard about the amount of money missing from her account, she asked the bank to freeze her account. Consequently, Elliott contacted Wayne County Sheriff's Office (“WCS”) and filed a report that money was missing from Jeffries's account.
WCS contacted Jeffries's bank and requested statements of her account. These statements reflected copies of checks bearing defendant's name and Thomas Rice's (“Rice”) name that were cashed during the time Jeffries was hospitalized. Investigator Michael J. Kabler (“Investigator Kabler”), of WCS, attempted to contact defendant and Rice about their involvement with the account. His attempts were unsuccessful because they did not return his calls.
On 28 May 2009, when defendant attempted to cash another check on Jeffries's account, the bank contacted WCS. Subsequently, Investigator Kabler and his supervisor arrived at the bank and spoke with defendant who agreed to give them a statement. Investigator Kabler interviewed defendant concerning the checks she cashed on Jeffries's account. Defendant wrote and signed a statement admitting she received checks from Rice on Jeffries's bank account, but claimed she cashed them because Rice told her that he had power of attorney (“POA”) over Jeffries's affairs. Defendant also said that Rice had shown her a copy of the POA. Investigator Kabler searched defendant's residence and found several bank statements from Jeffries's account and POA documents. None of the POAs were executed by Jeffries.
Defendant was charged with three counts of forgery and three counts of uttering a forged instrument. Defendant was tried in Wayne County Superior Court beginning 28 March 2011. The jury returned a verdict finding defendant guilty of all charges. The trial court sentenced defendant to two consecutive sentences of a minimum of 6 months and a maximum of 8 months in the North Carolina Department of Correction and imposed monetary obligations in the amount of $2,430.67. Both sentences were suspended, and the defendant was placed on supervised probation for 24 months. Defendant appeals.
II. Notice of Appeal
Requirements for appealing a judgment or order are listed pursuant to Rule 4 of the North Carolina Rules of Appellate Procedure:
[a]ny party entitled by law to appeal from a judgment or order of a superior or district court rendered in a criminal action may take appeal by
(1) giving oral notice of appeal at trial, or
(2) filing notice of appeal with the clerk of superior court ... within fourteen days after entry of the judgment or order[.]
N.C.R.App. P. 4(a) (2011). “A failure on the part of the appealing party to comply with Rule 4 deprives this Court of jurisdiction to consider his or her appeal....” State v. Hughes, ––– N.C.App. ––––, ––––, 707 S.E.2d 777, 778 (2011). However, in State v. Williams, where the transcript did not include defendant's oral notice of appeal, but the trial court made appellate entries and stated in the form that defendant had given notice of appeal and “the State, the trial court and [d]efendant's counsel all proceeded as if proper notice of appeal had been properly noted[,]” this Court found that there was sufficient evidence that defendant gave notice of appeal. ––– N.C.App. ––––, ––––, 714 S.E.2d 835, 837 (2011).
In the instant case, the transcript does not include a notice of appeal. However, defendant contends that her attorney gave notice of appeal orally at trial and submits an affidavit from her attorney, Justin L. Minshew, indicating that he gave notice of appeal in open court on 31 March 2011 before Judge Craig Croom (“Judge Croom”), a superior court judge, 10–15 minutes after sentencing. In addition, the record includes appellate entries filed the same day as the judgments, 31 March 2011, signed by Judge Croom, that indicate defendant gave notice of appeal. As the Court in Williams held, we “do not believe, on these facts, that the trial court's finding that [d] efendant gave notice of appeal is sufficiently contradicted by the record.” Id. Therefore, we address the merits of defendant's appeal.
III. Exclusion of Evidence
Defendant argues the trial court erred by excluding a document defendant sought to introduce which she alleges would have negated the mens rea elements of the alleged offenses. Specifically, defendant contends the trial court erred when it excluded an unsigned POA between Jeffries and Rice because the trial court determined that it did not comply with the best evidence rule. We disagree.
Initially, we note that defendant claims her constitutional right to present a defense was denied when the court excluded the POA. However, defendant did not raise this issue at trial and therefore it will not be addressed on appeal. See State v. Moore, 185 N.C.App. 257, 265, 648 S.E.2d 288, 294 (2007) (internal quotations, brackets and citation omitted) (It has been “well-established that constitutional issues not raised and passed upon at trial will not be considered for the first time on appeal.”). However, defendant did properly preserve the issue of whether the document could be admitted into evidence under the best evidence rule. “A trial court's determination as to whether a document has been sufficiently authenticated is reviewed de novo on appeal as a question of law .” State v. Crawley, ––– N.C.App. ––––, ––––, 719 S.E.2d 632, 637 (2011), review denied,––– N.C. ––––, 722 S.E.2d 607 (2012).
For a document to be admitted into evidence, it must be authenticated. N.C. Gen.Stat. § 8C–1, Rule 901(a) (2011). This requirement is satisfied if the party seeking to admit the item provides evidence that the item in question is what she claims, for example when a witness with knowledge asserts that the item “is what it is claimed to be.” N.C. Gen.Stat. § 8C–1, Rule 901(a)-(b) (2011). The best evidence rule states “[t]o prove the content of a writing ... the original writing ... is required, except as otherwise provided in these rules or by statute.” N.C. Gen.Stat. § 8C–1, Rule 1002 (2011). A proponent may present a duplicate of an item unless “a genuine question is raised as to the authenticity of the original.” N.C. Gen.Stat. § 8C–1, Rule 1003 (2011).
In Kroh v. Kroh, the defendant sought to admit copies of veterinary reports that she said supported “her claims of bestiality against her husband.” Kroh v. Kroh, 152 N.C.App. 347, 353, 567 S.E.2d 760, 764 (2002). The opposing party questioned the authenticity of the reports. Id. Consequently, the Court held that since the defendant was admitting the reports in order to prove their contents and how she interpreted them, regardless of whether the reports were true or false, she was “required to produce the original reports ... and properly authenticate them....” Id. at 354, 567 S.E.2d at 765.
In the instant case, defendant sought to introduce a document indicating that Rice had POA for Jeffries. Defendant indicated she was offering the document to prove the effect of the document on her, not to prove it was a valid POA. Specifically, defendant claimed the document caused her to believe Rice had the authority to use Jeffries's money. Defendant claims that her testimony, based on personal knowledge that the document was the POA that she had seen, satisfied the authentication requirement pursuant to Rule 901. SeeN.C. Gen.Stat. § 8C–1, Rule 901(b) (2011). However, because the defendant sought to admit a duplicate copy of the POA rather than the original, the State objected on the grounds of the best evidence rule.
Just as the plaintiff in Kroh questioned the authenticity of the reports, the State in the instant case questioned the authenticity of the POA. No corroborating evidence existed as to the original document's existence. In addition, defendant received the copy of the POA in an anonymous envelope with no return address, thus the origins of the document were suspicious. Defendant's stated purpose, to admit the contents of the document only to prove how she interpreted it, does not negate the best evidence rule. Since defendant failed to provide and introduce an original copy of the POA, the trial court properly excluded the document under N.C. Gen.Stat. § 8C–1, Rule 1003. We hold that the trial court's decision to exclude defendant's copy of the POA was proper.
IV. Motion to Dismiss
Defendant alleges that the trial court erred by denying her motion to dismiss because the State produced insufficient evidence to support charges of forgery and uttering. Specifically, defendant contends that the State failed to present evidence that the checks were forged, that she knew they were forged or that she had the requisite intent to defraud Jeffries. We disagree.
The standard of review for a “trial court's denial of a motion to dismiss” is de novo. State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007). A trial court properly denies a motion to dismiss if “substantial evidence” exists for “each essential element of the crime and that the defendant is the perpetrator.” State v. Golphin, 352 N.C. 364, 458, 533 S.E.2d 168, 229 (2000). All of the evidence should be “viewed in the light most favorable to the State....” State v. King, 178 N.C.App. 122, 131, 630 S.E.2d 719, 724 (2006) (citations omitted). “Circumstantial evidence, if sufficient to draw a reasonable inference of the defendant's guilt, should be submitted to the jury for determination of actual guilt.” State v. Wade, 181 N.C.App. 295, 299, 639 S .E.2d 82, 86 (2007).
The elements of forgery are (1) “a false making or alteration of some instrument in writing;” (2) “fraudulent intent; and (3) the instrument must be apparently capable of effecting a fraud.” King, 178 N.C.App. at 128, 630 S.E.2d at 723 (citation omitted). When someone possesses a forged document with plans “to obtain money or advances upon it,” a presumption is raised that the person either forged it or agreed to its being forged absent any evidence to the contrary. State v. Welch, 266 N.C. 291, 295, 145 S.E.2d 902, 905 (1966) (citation omitted). Our Courts have found that “as a rule the false writing must purport to be the writing of a party other than the one who makes it and it must indicate an attempted deception of similarity.” State v. Brown, ––– N.C.App. ––––, ––––, 720 S.E.2d 414, 416 (2011) writ denied, review denied, ––– N.C. ––––, 721 S.E.2d 227 (2012) (citation omitted).
In State v. Prince, the defendant alleged his forgery charges should have been dismissed because there was “no eyewitness testimony that [he] wrote the checks and no expert testimony that it was his handwriting on the checks.” State v. Prince, 49 N.C.App. 145, 148, 270 S.E.2d 521, 523 (1980). The Court found circumstantial evidence that the checks had been forged and that the defendant cashed the checks and this was sufficient evidence for the jury to find the defendant forged the checks. Id.
A forgery conviction also requires proof that the defendant had “fraudulent intent.” King, 178 N.C.App. at 128, 630 S.E.2d at 723 (citation omitted). When determining whether the element of intent exists, “the jury may consider the acts and conduct of defendant and the general circumstances existing at the time of the alleged commission of the offense charged.” State v. Greene, 12 N.C.App. 687, 689, 184 S.E.2d 523, 525 (1971) (citation omitted). When a trial court submits the theory of acting in concert there must be “a common purpose to commit a crime.” State v. Holadia, 149 N.C.App. 248, 258, 561 S.E.2d 514, 521 (2002). However,
the defendant need not do any particular act constituting some part of the crime. All that is necessary is that the defendant be present at the scene of the crime and that he act[ ] together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime.
State v. Lundy, 135 N.C.App. 13, 18, 519 S.E.2d 73, 78 (1999) (internal quotations and citations omitted).
Defendant alleges the State failed to prove the first two elements of forgery. Since the trial court instructed the jury on acting in concert, the State was required to provide substantial evidence that either defendant committed forgery or that she acted with Rice with a common purpose to commit forgery. See Holadia, 149 N.C.App. at 258, 561 S.E.2d at 521.
The State presented evidence that defendant used three checks from Jeffries's account. The first check was cashed on or about 23 March 2009, in the sum of $800.00. A few days later, one of Jeffries's checks was used to pay defendant's Time Finance bill, for $319.17. On 6 April 2009, a check of $443.00 was used to pay registration fees to the Department of Motor Vehicles (“DMV”) for vehicles registered to defendant.
Defendant was indicted for forgery and uttering and all three checks bore a signature purporting to be Jeffries's signature. Defendant indicated that she received the checks from Rice and that there was insufficient evidence to prove that Rice did not have authority to access Jeffries's account. However, the State presented substantial evidence that Rice did not have authority. At the time the checks were written in March and April 2009, Jeffries was hospitalized. When Jeffries learned of the small balance remaining in her account, she appeared upset, thus indicating she was unaware that anyone accessed her account. In addition, when she learned of the unauthorized activity, she asked the bank to freeze the account, indicating that no one had permission to access her account. When Inspector Kabler showed her the checks, she again appeared emotional. Furthermore, the bank confirmed there was no record that anyone possessed a POA for Jeffries's account and defendant did not produce a valid POA showing that Jeffries had appointed Rice as her POA.
The first check defendant cashed was payable to defendant's name and endorsed by defendant even though defendant admitted she did not personally know Jeffries. In addition, defendant completed the dollar amount on one of Jeffries's checks to pay for tags on a vehicle registered in defendant's name. Therefore, because defendant possessed forged checks with plans to obtain money from the checks, there is a presumption that she either personally forged the checks or agreed for Rice to forge them. See Welch, 266 N.C. at 295, 145 S.E.2d at 905. The State's evidence was sufficient circumstantial evidence from which a jury could determine whether defendant forged the checks or acted in concert with Rice to forge the checks. See Prince, 49 N.C.App. at 148, 270 S.E.2d at 523.
Additionally, the State presented evidence for the jury to infer the element of intent. Defendant intended that the signature on the checks was to be the same as Jeffries's signature because Jeffries's signature made the checks valid and effective. See State v. Guarascio, 205 N.C.App. 548, 556, 696 S.E.2d 704, 711 (2010) (citation omitted). Defendant cashed checks on an account without personally knowing the account holder. In addition, defendant's purposes in cashing the checks, specifically the Time Finance and DMV check, benefitted defendant and in no way benefitted Jeffries, the actual account holder. Therefore, defendant's conduct and purpose were sufficient evidence for the jury to find that defendant's intent was fraudulent.
The elements of uttering a forged check are: “(1) the offer of a forged check to another, (2) with knowledge that the check is false, and (3) with the intent to defraud or injure another.” Brown, ––– N.C.App. at ––––, 720 S.E.2d at 415 (citing State v. Hill, 31 N.C.App. 248, 249, 229 S.E.2d 810 (1976)). Uttering can be shown by the mere offering of a false instrument with fraudulent intent. State v. Seraphem, 90 N.C.App. 368, 373, 368 S.E.2d 643, 646 (1988).
As previously discussed, the State presented substantial evidence that defendant possessed the requisite intent to defraud and that the check was forged. When defendant cashed Jeffries's checks without authority to do so, she offered “a forged check to another,” thus satisfying the first element of the offense. Hill, 31 N.C.App. at 249, 229 S.E.2d at 810. The second element requires “knowledge that the check is false.” Id. Defendant provided evidence of this element through her own testimony. She testified that she “started suspecting things.” In addition, defendant admitted to Investigator Kabler that “it [didn't] seem right” that none of the checks were used to pay Jeffries's bills. Furthermore, although defendant knew Rice had a criminal record, she never asked anyone at the bank whether Rice had POA over Jeffries's account. The State presented substantial evidence that defendant uttered the forged checks.
Defendant also contends there was insufficient evidence that she acted in concert with Rice. However, there was substantial evidence of a relationship between the parties since she and Rice were formerly in a romantic relationship, considered getting married, and owned a home and a business together. In addition, she put Rice's vehicles in her name and kept them insured, licensed and registered. Defendant testified that Rice gave her checks from Jeffries's account with Jeffries's signature, that he paid defendant's bills with checks from Jeffries's account and that defendant believed he had a POA.
To review a motion to dismiss, we examine the evidence in the light most favorable to the State, therefore defendant's evidence supporting Rice's authority to sign the checks and her evidence indicating she did not actually use funds from Jeffries's account cannot be considered. See State v. Williams, 154 N.C.App. 176, 178, 571 S.E.2d 619, 620–21 (2002) (for a motion to dismiss “[t]he defendant's evidence is not to be considered unless it is favorable to the State.”). When viewing the evidence in the light most favorable to the State, we determine that substantial evidence existed for each element of the offenses for which defendant was charged; therefore, the trial court's denial of the motion to dismiss was proper.
V. Evidence in Jury Room
Defendant alleges the trial court erred when it permitted the jury to review exhibits in the jury room over defendant's objection. We agree that this was error, but find that the error was not prejudicial.
Our statutes provide circumstances in which a jury will be allowed to review exhibits in the jury room:
Upon request by the jury and with consent of all parties, the judge may in his discretion permit the jury to take to the jury room exhibits and writings which have been received in evidence. If the judge permits the jury to take to the jury room requested exhibits and writings, he may have the jury take additional material ... so as not to give undue prominence to the exhibits or writings taken to the jury room.
N.C. Gen.Stat. § 15A–1233(b) (2011). Our Courts have consistently held that the trial court erred when the jury was permitted to take evidence to the jury room to review without the consent of all parties. State v. Huffstetler, 312 N.C. 92, 114, 322 S.E.2d 110, 124 (1984).
However, the defendant must also prove that he was prejudiced by the error. Defendant must show “there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.” N.C. Gen.Stat. § 15A–1443(a) (2011). In Huffstetler, where the trial court allowed the jury to have photographs in the jury room, the Court held there was no prejudicial error because the photographs had already been admitted into evidence and shown to the jury. Huffstetler, 312 N.C. at 115, 322 S.E.2d at 124. In addition, the other evidence against the defendant, while circumstantial, was compelling. Id.
In the instant case, the jury requested the evidence package while deliberating. Over defendant's objection, the trial court provided the evidence package to the jury. Defendant suggested having the jury review all the business records. The trial court sent the requested material and all exhibits to the jury room. As in Huffstetler, the exhibits had already been introduced into evidence and the jurors had already seen the information they requested.
More importantly, there was compelling evidence that defendant forged and uttered the three checks. Defendant admitted to Investigator Kabler that she had used three of Jeffries's checks, one was cashed at the bank and two were used to pay defendant's bills. In addition, she testified that she did not know Jeffries personally and that Rice, not Jeffries, gave her the checks. Defendant also testified that she knew Jeffries was ill and did not benefit from the funds that were withdrawn from her account. There was no evidence that defendant was authorized to use Jeffries's account. The State presented evidence that Jeffries was upset when she learned about the activity on the account and as a result, she requested that the bank freeze her account. The evidence package provided to the jury showed the checks defendant wrote and information about Jeffries's account. Since testimony at trial confirmed that defendant used Jeffries's checks and was not authorized to use Jeffries's account, it is unlikely the evidence package swayed the jury.
Defendant contends that the evidence package was prejudicial because she was only charged with forging and uttering three checks and the package contained checks admitted into evidence beyond the three checks. Several of the additional checks were other checks of Jeffries used to pay defendant's bills. However, Investigator Kabler testified about these additional checks. The fact that the jury viewed the additional checks in the jury room did not prejudice defendant since Investigator Kabler had already testified about these other checks.
Defendant also claims that the summary of checks by Investigator Kabler could have shown a common plan or scheme by Rice and defendant and was therefore prejudicial. However, evidence of a common plan or scheme was already presented at trial. Defendant testified that Rice gave her the checks and that she used Jeffries's checks to pay defendant's bills. There was abundant evidence that Rice and defendant were connected and that Rice was defendant's connection and access to Jeffries's account. Therefore, Investigator Kabler's summary of the checks does not further prove a common plan or scheme but rather just illustrates the activity on Jeffries's account.
Additionally, the defendant asserts that the prosecutor's closing argument asking the jury to seek justice for Jeffries coupled with submission of the evidence package and exhibits prejudiced defendant. Initially, we note that the closing arguments were not recorded and therefore, there is no record of the prosecutor's closing argument. The only information we have is defendant's characterization of the prosecutor's argument. As stated, there was compelling evidence against defendant and the trial court's allowance of the evidence package in the jury room did not prejudice defendant, regardless of the prosecutor's closing argument. Defendant has failed to show a reasonable possibility that had the jurors not received the package they would have reached a different verdict.
VI. Conclusion
The trial court did not err in excluding defendant's evidence of a POA between Jeffries and Rice. In addition, the trial court properly denied defendant's motion to dismiss as the State presented substantial evidence of each element of the offenses charged. While the trial court did err in sending evidence to the jury room absent an agreement by both parties, defendant failed to show that the evidence sent to the jury room caused her to suffer any prejudice. We find no error.
No error. Chief Judge MARTIN and Judge McGEE concur.
Report per Rule 30(e).