State v. Anthony

328 S.E.2d 598, 74 N.C. App. 590, 1985 N.C. App. LEXIS 3548

• Court: Court of Appeals of North Carolina
• Decided: May 7, 1985
• Docket: No. 843SC710
• Status: Published

Opinion

WEBB, Judge.

The defendant argues under her first assignment of error that the four indictments on which she was tried are defective. She says this is so because each of the indictments fails to allege that the defendant’s representations deceived School Plans, Inc. or that the merchandise was obtained as a direct result of the misrepresentation of the identity of the defendant. The indictments allege the property was obtained “by means of a false pretense which was calculated to deceive and did deceive” and “[t]he false pretense consisted of the following: the defendant received and accepted delivery ... by representing herself as ‘Mrs. A. Johnson.’ ” We hold that these allegations sufficiently allege that the defendant’s misrepresentations deceived School Plans, Inc. and the property was obtained as a result of the misrepresentation.

The defendant next assigns error to the Court’s failure to grant her motion to dismiss at the close of all the evidence. She bases this contention on what she says is the failure of proof that the victim relied on the false representation of her name to part with the property. She argues that a man representing himself as Mr. Johnson ordered the candy and told Mr. Hill that Mrs. Johnson would sign the receipt for it. Mr. Hill would have left the candy with whomever the person the putative Mr. Johnson told him would receive it. The defendant argues that for this reason Mr. Hill did not deliver the candy to the defendant in reliance on her misrepresentation of her name.

We believe the jury could find from the evidence that Mr. Hill would want to know the correct name of a person to whom he sold candy on credit. This is so because he would need the correct name to find the person in the event there was difficulty in collecting the account. For this reason the jury could find he relied on the name given him in delivering the candy. He would not have delivered it had he known the defendant had given him a fictitious name. The jury could find that this was a false representation on which Mr. Hill relied in delivering the candy. See State v. Freeman, 308 N.C. 502, 302 S.E. 2d 779 (1983) and State v. Tesenair, 35 N.C. App. 531, 241 S.E. 2d 877 (1978).

The defendant next argues that the testimony of Captain Warren should have been excluded because of a violation of the defendant’s constitutional rights as defined in Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 2d 694, 86 S.Ct. 1602 (1966). Prior to reading her constitutional rights to the defendant, Captain Warren recorded her personal history, including her name, age, and address. The defendant’s name is an important part of the evidence against her and the defendant argues Captain Warren’s testimony as to it should have been excluded. Pursuant to State v. Sellers, 58 N.C. App. 43, 293 S.E. 2d 226, cert. denied, 306 N.C. 749, 295 S.E. 2d 485 (1982) we overrule this assignment of error.

The defendant’s last assignment of error is to the Court’s charging on acting in concert. The defendant contends there was not sufficient evidence to support this charge. Captain Warren testified that the defendant told him that a man named Franklin Frisby had ordered candy from Mr. Hill under the name of Barry Johnson. She told him Mr. Frisby had instructed her to receive the candy at 422 Holiday City using the name A. Johnson, which she did. This is evidence from which the jury could conclude the defendant was acting in concert with Franklin Frisby to obtain property by a false pretense.

No error.

Judges Phillips and Martin concur.