Opinion
No. COA13–98.
2013-07-2
STATE of North Carolina v. Andrew Preston KITTRELL.
Attorney General Roy Cooper, by Assistant Attorney General Torrey D. Dixon, for the State. Roderick T. McIver for Defendant.
Appeal by Defendant from judgments entered 27 September 2012 by Judge A. Moses Massey in Stokes County Superior Court. Heard in the Court of Appeals 24 June 2013. Attorney General Roy Cooper, by Assistant Attorney General Torrey D. Dixon, for the State. Roderick T. McIver for Defendant.
STEPHENS, Judge.
Procedural History and Evidence
At trial, the State's evidence tended to show the following: On 28 June 2011, Stokes Tire employee Roger Dale Loggins processed a purchase order for ten heavy-duty truck tires priced at $302 each. The order identified the purchaser as “Lee Trucking from Rural Hall[.]” Andrew Preston Kittrell (“Defendant”) came to the store to pick up the tires and gave a debit card number for payment, saying that he did not have the card with him. Loggins noted that the order included installation of the tires, but Defendant “said that they had changed their mind, they weren't going to allow [Stokes] to put [the tires] on, that it would be cheaper for them to put [the tires] on [themselves].” When asked for identification, Defendant said, “Well, the card belongs to Lee Trucking and I represent Lee Trucking. You'll have to call and get the verification and the security code number from Lee Trucking.” Loggins called the telephone number provided by Defendant, but no one answered. Loggins described the rest of the exchange as follows:
Testimony in the transcript refers to the card as both a credit and debit card. When explicitly asked to identify the card, however, a Wells Fargo Fraud Division representative consistently referred to it as a “debit card.” For that reason, we will do the same.
[Defendant] said, “Just a minute.” He took out his cell[ ]phone, walked across the room away from me, he called somebody. And he said, “Now you can call the number back and they'll answer.” I called back over there. [A male] answered the phone, “Lee Trucking.” I had him verify the [debit] card number that [Defendant] had given me. I asked for the security code.... I ran it through on the [debit] card machine. I entered the approval number.
Loggins photocopied Defendant's driver's license, wrote down his license plate number, and helped him load the tires onto his truck. Defendant drove away with the tires. The total amount charged to the debit card was $3,284.25.
Loggins received a letter from the bank the next month stating that the debit card transaction would not be honored. Stokes Tire was never paid for the tires and never recovered the merchandise. Loggins reported the incident to the King Police Department. He called the number provided by Defendant on several occasions but got no answer. He was unable to locate a company called Lee Trucking in North Carolina.
Lee Griffin, a fraud investigator for Wells Fargo Bank, investigated a purchase transaction in the amount of $3,284.25 made at Stokes Tire with a Visa debit card issued by the bank to World Imports South, LLC, on 28 June 2011. Defendant was not one of the card's three authorized users, and no entity named “Lee Trucking” was associated with the card. On 13 July 2011, a claim was filed by the cardholder regarding transactions made on the account. The account was then closed.
Regarding his role in this matter, Defendant told police that “a foreign man named Habib Beragama” (“Beragama”) came into the barber shop where he worked and offered Defendant $200 to “go pick up some tires” for him. Defendant paid for the tires using a debit card number provided by Beragama, but did not have the actual card. Defendant delivered the tires to an apartment complex in Greensboro, North Carolina, where two men with a utility trailer “flagged him down[.]” The detective was unable to locate Beragama. The phone number Defendant provided to Loggins on 28 June 2011 had been disconnected. The detective also searched for Lee Trucking Company and concluded that the company did not exist “anywhere in North Carolina.”
A jury found Defendant guilty of felonious obtaining property by false pretenses and financial transaction card fraud. The trial court imposed consecutive prison sentences of 6 to 8 months, which the court then suspended, placing Defendant on supervised probation for 30 months. Defendant filed timely notice of appeal.
Discussion
I. Speculative or Hearsay Evidence
On appeal, Defendant first claims that the trial court erred under Rule of Evidence 602 by allowing Loggins to describe the debit card number used by Defendant as “fraudulent” without a showing of firsthand knowledge to support that testimony. Specifically, Defendant contests the court's admission of Loggins's final response in the following exchange:
Q Did you receive information that the transaction of June 28th would not be honored?
A Yes, sir.... It was in July when I received a letter from our bank stating that the transaction
THE COURT: Okay.
[DEFENSE COUNSEL]: Objection.
THE COURT: You can't state what was stated in a letter from some other entity. Please proceed.
Q Mr. Loggins, did you or Stokes County—Stokes Tire ever get paid?
A No, sir.
Q And do you know why?
[DEFENSE COUNSEL]: Objection, Your Honor.
THE COURT: Objection overruled. If the witness knows why he may state—if he knows, he may state the reason.
A It was a fraudulent [debit] card being used.
[DEFENSE COUNSEL]: I would object for the record, Your Honor.
THE COURT: Objection overruled.
(Emphasis added). Defendant argues the emphasized testimony is impermissible either as speculative under Rule 602 or as inadmissible hearsay from the bank's letter.
“The purpose of Rule 602 is to prevent a witness from testifying to a fact of which he has no direct personal knowledge.” State v.. Cole, 147 N.C.App. 637, 645, 556 S.E.2d 666, 671 (2001), appeal dismissed and cert. denied,356 N.C. 169, 568 S.E.2d 619 (2002). Under Rule of Evidence 602, “a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter.” State v. Jones, 98 N.C.App. 342, 349, 391 S.E.2d 52, 57 (1990); N.C.R. Evid. 602. “The commentary to Rule 602 provides that personal knowledge need not be explicit but may be implied from the witness'[s] testimony.” Id. “ ‘Personal knowledge is not an absolute but may consist of what the witness thinks he knows from personal perception.’ “ State v. Wright, 151 N.C.App. 493, 495, 566 S.E.2d 151, 153 (2002) (quoting N.C.R. Evid. 602, official commentary). A witness's personal impressions need not be correct to be admissible. State v. Alexander, 337 N.C. 182, 191, 446 S.E .2d 83, 89 (1994). However, testimony that is “mere speculation” is inadmissible. State v. Elkins, 210 N.C.App. 110, 117, 707 S.E.2d 744, 750 (2011) (citation omitted).
The trial court instructed Loggins that he could not merely repeat what he was told in the bank's letter, but he could attest to matters within his personal knowledge. For the following reasons, we conclude that Loggins had sufficient firsthand knowledge to offer a “shorthand” assessment that the debit card used in the transaction was “fraudulent.” See State v. Baker, 65 N.C.App. 430, 444, 310 S.E.2d 101, 112 (1983) (“Referring to the truck as stolen was merely a shorthand statement of these facts within the witness's personal knowledge.”), cert. denied, 312 N.C. 85, 321 S.E.2d 900 (1984); State v. Chambers, 52 N.C.App. 713, 718, 280 S.E.2d 175, 178 (1981) (holding that witness's reference to “when the breaking and entering started” was admissible as “a convenient shorthand term to describe ... the time [the] defendant was found in the repair shop and was not meant to constitute an opinion on a question of law.”) (quotation marks omitted).
Loggins personally observed Defendant purport to purchase the tires on behalf of a company that Loggins subsequently learned did not exist. Defendant paid with a debit card he did not possess. When Loggins called the phone number provided by Defendant to obtain the card's security code, no one answered. Defendant then stepped out of earshot to place the call that resulted in Loggins obtaining the security code. Loggins also knew that Stokes Tire was subsequently denied payment on the transaction and that he was unable to contact anyone at the phone number provided by Defendant. This firsthand knowledge was sufficient for Loggins to “rationally infer” the reason for the bank's denial of payment to Stokes Tire—fraud. See, e.g., Wright, 151 N.C.App. at 496, 566 S.E.2d at 154 (“Accordingly, his personal knowledge was such that he could rationally infer that [the] defendant had shot the victim.”).
Alternatively, Defendant argues that the above testimony is inadmissible hearsay. In contrast to statements based on personal knowledge, “ ‘[h]earsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.C.R. Evid. 801(c). As a general matter, hearsay evidence is inadmissible. N.C .R. Evid. 802. “However, the admission of hearsay does not always require a new trial. The defendant must also show that there is a reasonable possibility that a different result would have been reached at trial if the testimony had not been admitted.” Jones, 98 N.C.App. at 348–49, 391 S.E.2d at 57 (citation omitted); accordN.C. Gen.Stat. § 15A–1443(a) (2011); see generally State v. Ferguson, 145 N.C.App. 302, 307, 549 S.E.2d 889, 893 (“Evidentiary errors are harmless unless a defendant proves that absent the error a different result would have been reached at trial.”), disc. review denied, 354 N.C. 223, 554 S.E .2d 650 (2001). “The trial court's determination as to whether an out-of-court statement constitutes hearsay is reviewed de novo on appeal.” State v. Castaneda, ––– N.C.App. –––, –––, 715 S.E.2d 290, 293,appeal dismissed and disc. review denied,365 N .C. 354, 718 S.E.2d 148 (2011).
On the issue of hearsay, we conclude that Defendant was not prejudiced by Loggins's reference to “a fraudulent [debit] card being used.” By the end of the trial, the jury was well aware that Loggins believed his store had been defrauded. See generally State v. Davis, 29 N.C.App. 383, 385, 224 S.E.2d 218, 219 (1976) (“[W]here incompetent evidence is admitted over objection, but the same evidence is thereafter admitted without objection, the benefit of the objection is ordinarily lost.”). The police officer who fielded Loggins's complaint testified, without objection, that he responded to a call from Stokes Tire on 19 July 2011, in “[r]eference to a fraud.” Similarly, the detective assigned to the case affirmed that she investigated the “alleged fraud from Stokes Tire[.]” In addition, the defense cross-examined both officers regarding their lack of personal knowledge of the transaction, including “whether [Defendant] had authority to present that card” at Stokes Tire, and “whether the person who authorized the card, that [Defendant] talked—spoke to, had authority to authorize the card[.]” Defendant was equally free to cross-examine Loggins regarding the limits of his personal knowledge. Accordingly, Defendant's first argument is overruled.
II. Defendant's Motion to Dismiss
Defendant next claims the trial court erred in denying his motion to dismiss each of the charges against him— i.e., financial transaction card fraud and obtaining property by false pretenses—because the State presented insufficient evidence to support a conviction. We review the court's ruling under the following legal standard:
The trial court must determine only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense. Evidence is substantial if it is relevant and adequate to convince a reasonable mind to accept a conclusion. In considering a motion to dismiss, the trial court must analyze the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference from the evidence. The trial court must also resolve any contradictions in the evidence in the State's favor. The trial court does not weigh the evidence, consider evidence unfavorable to the State, or determine any witness[ ] credibility.
State v. Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001) (citations and quotation marks omitted), cert. denied, 535 U.S. 1114, 153 L.Ed.2d 162 (2002). Having carefully reviewed the evidence, we hold that Defendant's contention is without merit.
The crime of financial transaction card fraud is defined, in pertinent part, as follows:
(a) A person is guilty of financial transaction card fraud when, with intent to defraud ..., he
....
(2) Obtains money, goods, services, or anything else of value by:
a. Representing without the consent of the cardholder that he is the holder of a specified card; or
b. Presenting the financial transaction card without the authorization or permission of the cardholder[.]
N.C. Gen.Stat. § 14–113.13(a)(2) (2011). The offense is a Class I felony if the value obtained by the fraud exceeds $500. N.C. Gen.Stat. §§ 14–113.13(b), –113.17(b) (2011). Defendant asserts the State failed to show either (1) that he lacked authorization from the Visa cardholder to purchase the tires or (2) that he knew he lacked authorization and thus intended to defraud Stokes Tire.
The evidence shows that Defendant obtained merchandise valued at more than $3,000 from Stokes Tire by presenting a debit card number issued on an account to which he had no connection. Defendant was not an authorized user on the card and claimed affiliation with a company that did not exist—“Lee Trucking.” The cardholder filed a claim regarding the transaction and then cancelled the card. Stokes Tire was denied payment by the issuing bank. Defendant claimed he engaged in this transaction after a man he did not know came into his barbershop and offered him $200 to “go pick up some tires” for him. Inasmuch as “[i]ntent must normally be proved by circumstantial evidence,” State v. Barlowe, 337 N.C. 371, 379, 446 S.E.2d 352, 357 (1994), and given that the State is entitled to every reasonable inference, we hold that these facts are sufficient to constitute substantial evidence that Defendant knowingly and intentionally used the card without authorization or permission from the user.
The essential elements of obtaining property by false pretenses are “(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.” Parker, 354 N.C. at 284, 553 S.E.2d at 897 (citation and quotation marks omitted); seeN.C. Gen.Stat. § 14–100(a) (2011). Defendant challenges the evidence that he made a representation that was both calculated and intended to deceive Stokes Tire.
To sustain a charge of obtaining property by false pretenses, the misrepresentation at issue “need not come through spoken words, but instead may be by act or conduct.” Parker, 354 N.C. at 284, 553 S.E.2d at 897. Here, Defendant obtained ten truck tires by presenting himself as an agent or employee of a non-existent company and providing a debit card number on an account not belonging to the company and on which he was not an authorized user. This evidence supports a reasonable inference that Defendant intentionally made a false representation calculated to deceive and was successful in doing so. Defendant's motion to dismiss was properly denied.
NO ERROR. Judges McGEE and ELMORE concur.
Report per Rule 30(e).