Opinion
No. COA02-1467
Filed 7 October 2003 This case not for publication
Appeal by defendant from judgments entered 9 April 2002 by Judge Dennis J. Winner in Haywood County Superior Court. Heard in the Court of Appeals 10 September 2003.
Attorney General Roy Cooper, by Special Deputy Attorney General Judith Robb Bullock, for the State.
James N. Freeman, Jr. for defendant-appellant.
Haywood County Nos. 00-CRS-3644, 3299, 5250, 3896.
Defendant was charged in Case No. 00-CRS-3299 with obtaining and attempting to obtain two 30-inch television sets from Stereo Innovations by means of a false pretense, and, in a separate bill of indictment, with having committed that offense while having attained status as an habitual felon. In Case No. 00-CRS-3644, he was charged with obtaining and attempting to obtain a washing machine, dryer and stove from Sears of Waynesville by means of a false pretense, and, in a separate bill of indictment with having committed that offense while having attained status as an habitual felon. In Case No. 00-CRS-3299, the jury found defendant guilty of attempting to obtain property by false pretense; in Case No. 00-CRS-3644, the jury found defendant guilty of obtaining property by false pretense. Defendant then stipulated to his guilt of having attained status as an habitual felon in each case. After determining defendant's prior record level, the trial court entered judgments sentencing defendant to concurrent active sentences within the presumptive range. Defendant appeals.
The evidence presented at trial showed that on 7 May 2000, a male identifying himself as Bob Timmons, a building contractor, called the Sears store in Waynesville and stated that he needed to order some appliances for a house he was building. The caller ordered a washer, dryer and stove, and gave a credit card number issued to Eileen Chernomas. The salesperson processed the credit card order over the phone, and the caller stated that he would send some workers by later in the day to pick up the appliances. Later that day, defendant went to the Sears store and told the salesperson that he was there to pick up some appliances for Mr. Timmons. He loaded the appliances onto his truck and drove away. Eileen Chernomas testified that she had neither made nor authorized the purchases.
On 19 May 2000, Stereo Innovations, an electronics store, received a telephone call from a male identifying himself as James F. Combest. The caller placed an order for two 30-inch Sony televisions and stated he would send two of his workers to pick up the televisions. The caller gave a credit card number issued to James Combest. In processing the card, employees of Stereo Innovations became suspicious and notified police. Later the same day, defendant went to the store and stated that he had come to pick up the televisions for Jim Combest. Police officers arrived at the store and questioned defendant, who identified himself as "Roger Jenkins" and said that he was there to pick up the televisions for his boss, a supervisor at Southern Concrete. Defendant was taken into custody. James F. Combest, the President of Southern Concrete, testified that he did not know defendant, defendant was not an employee of Southern Concrete, and that he had not authorized anyone to use his credit card account to purchase televisions.
Defendant brings forward three arguments in support of four of the five assignments of error contained in the record. He contends the trial court erred by (1) admitting into evidence State's exhibits 3 and 6, copies of credit card statements for Mr. Combest and Ms. Chernomas, respectively; (2) failing to dismiss the charges at the close of the State's evidence; and (3) erroneously determining his prior record level at sentencing. By his failure to make any argument in support of his remaining assignment of error, defendant is deemed to have abandoned it. N.C.R. App. P. 28(a). We hold that defendant received a fair trial, free from prejudicial error, but is entitled to a new sentencing hearing.
By his first and third assignments of error, defendant argues that credit card statements received by James Combest and Eileen Chernomas were inadmissible hearsay, were not properly authenticated by representatives of the issuing banks, and were, therefore, erroneously admitted into evidence. We cannot agree.
Hearsay 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. Gen. Stat. § 8C-1, Rule 801(c) (2001). At trial, the cardholders testified that the credit card statements were copies of the records they received by mail and contained charges at the stereo store and the appliance dealer, respectively, which they did not authorize. These statements do not constitute hearsay because they were not offered into evidence to prove the truth of matters asserted on the statements, but instead they were offered to establish receipt of the statements and the cardholders' discovery of the fraudulent charges. A statement is not hearsay if it is offered for any purpose other than proving the truth of the matter asserted therein. Spillman v. Forsyth Memorial Hospital, 30 N.C. App. 406, 410, 227 S.E.2d 292, 295 (1976) ( quoting 1 Stansbury's N.C. Evidence, Brandis Revision, § 141, p. 467). Thus, the introduction of the credit card statements into evidence did not constitute inadmissible hearsay.
Defendant further argues that the credit card statements were not properly authenticated pursuant to Rule 901 of the North Carolina Rules of Evidence. "A written statement is not admissible as evidence without proper identification or authentication." State v. Solomon, 340 N.C. 212, 217, 456 S.E.2d 778, 782 (1995). A statement is properly authenticated if the proponent offers"evidence sufficient to support a finding that the matter in question is what its proponent claims." N.C. Gen. Stat. § 8C-1, Rule 901(a) (2001). In this case, both cardholders testified that they received the statements in the mail, and that they recognized the statements as their own. Credit cardholders may reasonably be deemed "[w]itness[es] with [k]nowledge" regarding the identification of their credit card statements. See N.C. Gen. Stat. § 8C-1, Rule 901(b)(1) (2001) (testimony by a witness with knowledge stating that a matter "is what it is claimed to be" is sufficient to properly authenticate a document). Thus, the testimony was sufficient to adequately authenticate the credit card statements pursuant to Rule 901 of the North Carolina Rules of Evidence. See State v. Locklear, 136 N.C. App. 716, 720-21, 525 S.E.2d 813, 816 (2000) (testimony by a witness with knowledge that a document is a "fair and accurate copy" of a purported agreement constitutes adequate authentication). The defendant's first and third assignments of error are overruled.
By his fourth assignment of error, defendant argues that the trial court should have granted his motion to dismiss because the evidence presented against him at trial was insufficient as a matter of law to convict him. To survive a defendant's motion to dismiss for insufficient evidence, the State must offer substantial evidence of every element of the crime. State v. Bethea, 156 N.C. App. 167, 170-71, 575 S.E.2d 831, 834 (2003). Relevant evidence, viewed in a light most favorable to the State, that a "reasonable mind could accept as adequate to support a conclusion" is considered substantial. Id. (quoting State v. Lee, 348 N.C. 474, 488, 501 S.E.2d 334, 343 (1998)). The elements of obtaining property by false pretenses are: "(1) a false representation of a past or 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 the defendant obtains or attempts to obtain anything of value from another person." State v. Compton, 90 N.C. App. 101, 103, 367 S.E.2d 353, 354 (1988).
Viewed in a light most favorable to the State, the evidence in each of the present cases showed that defendant falsely represented himself as someone authorized to pick up merchandise when, in fact, he had not been authorized to do so, and the merchandise had been ordered through the unauthorized use of another person's credit card. The jury could reasonably determine from this evidence that the defendant made false representations as to his authority in order to deceive the persons to whom the statements were made so that he could gain possession of the merchandise. Thus, there was sufficient evidence to support the jury's verdict. This assignment of error is overruled.
By his final assignment of error, defendant contends he is entitled to a new sentencing hearing due to error in the determination of his prior record level. We agree.
The State submitted a prior record level worksheet, which was accepted by the trial court, showing that defendant had been convicted of armed robbery and possession of a violent weapon in South Carolina. The worksheet assigned six points, as a Class D felony, for these convictions. Defendant argues that the State failed to offer evidence to show that these out-of-state convictions in South Carolina were substantially similar to corresponding Class D North Carolina felony offenses pursuant to G.S. § 15A-1340.14(e), and thus he should have been assessed only two points for a Class I felony.
When a defendant assigns error to the trial court's sentence, the "standard of review is `whether [the] sentence is supported by evidence introduced at the trial and sentencing hearing.'" State v. Deese, 127 N.C. App. 536, 540, 491 S.E.2d 682, 685 (1997) (quoting N.C. Gen. Stat. § 15A-1444(a1)). N.C. Gen. Stat. § 15A-1340.14 (e) (2001) provides:
a conviction occurring in a jurisdiction other than North Carolina is classified as a Class I felony if the jurisdiction in which the offense occurred classifies the offense as a felony. . . . If the State proves by the preponderance of the evidence that an offense classified as either a misdemeanor or a felony in the other jurisdiction is substantially similar to an offense in North Carolina that is classified as a Class I felony or higher, the conviction is treated as that class of felony for assigning prior record level points.
The State argues that defendant did not properly preserve this error for appellate review because he failed to object to the prosecution's calculation of defendant's prior record level at the sentencing hearing. See State v. Mack, 87 N.C. App. 24, 33, 359 S.E.2d 485, 491 (1987) (stating that "competency of the prosecutor's statements as an acceptable method of proof" is waived if defendant does not object at the sentencing hearing); N.C.R. App. P. 10(b)(1). However, the assignment of error in this case is not evidentiary. The assignment of error is whether the prosecution met its burden of proof at the sentencing hearing. Error based on insufficient evidence as a matter of law does not require an objection at the sentencing hearing in order to be preserved for appellate review. See N.C. Gen. Stat. §§ 15A-1446(d)(5), (18) (2001); Mack, 87 N.C. App. at 33, 359 S.E.2d at 491.
In this case, the prosecutor presented no evidence to show that defendant's out-of-state convictions in South Carolina were substantially similar to corresponding Class D North Carolina felony offenses. After the defendant stipulated to his habitual felon status, the State offered a prior record level worksheet that showed the defendant having "nineteen prior points," including six points for the South Carolina convictions, and the following exchange occurred:
THE COURT: Have you been over this?
[DEFENSE COUNSEL]: Yes, Your Honor.
THE COURT: Is it correct?
[DEFENSE COUNSEL]: As far as we know, yes, sir.
The State argues that defendant's stipulation to the accuracy of the prior record level worksheet necessarily includes defendant's stipulation to the fact that the out-of-state offenses were substantially similar to corresponding North Carolina felony offenses. Our General Statutes provide that proof of prior convictions may be proven, among other things, by stipulation of the parties. N.C. Gen. Stat. § 15A-1340.14(f) (2001). This statute is fairly construed to allow stipulation by a defendant to the substantial similarity element in G.S. § 1340.14(e). See State v. Hanton, 140 N.C. App. 679, 690, 540 S.E.2d 376, 383 (2000). In Hanton, this Court found no evidence of stipulation for the substantial similarity element where the defendant told the court that he did not disagree with any of the convictions on the prior record level worksheet submitted by the prosecution. Id. The Hanton court remanded for resentencing because while the defense counsel's
statement might reasonably be construed as an admission by defendant that he had been convicted of the other charges appearing on the prosecutor's work sheet, it is not clear that defendant was stipulating that the out-of-state convictions were substantially similar to felony charges under North Carolina law which are classified as Class I felonies or higher.
Id. Likewise, the trial court in this case sentenced defendant after defense counsel conceded that she had seen the prior record level worksheet and that to her knowledge it was correct. As in Hanton, while counsel's statement may constitute a stipulation that defendant was convicted of each of the offenses shown on the worksheet, it does not suffice as a stipulation that the South Carolina convictions were substantially similar to corresponding North Carolina felony offenses. State v. Eubanks, 151 N.C. App. 499, 506, 565 S.E.2d 738, 743 (2002), cited by the State, is not applicable. In Eubanks, this Court held that a defendant's statement that he has no objections to a prior level worksheet submitted by the prosecution was sufficient "as a stipulation by defendant that he had been convicted on the charges listed on the worksheet." Id. The issue in this case is not whether defendant was stipulating to being convicted of the offenses on the worksheet, but whether the out-of-state offenses used to calculate prior record level met the substantial similarity element of G.S. § 1340.14(e). Because there is insufficient evidence to support the addition of six points to the defendant's prior record level by reason of the South Carolina convictions, we must remand these cases for a new sentencing hearing to properly determine defendant's prior record level.
No error in trial, remanded for resentencing.
Judges BRYANT and GEER concur.
Report per Rule 30(e).