State v. Simpson

583 S.E.2d 714, 159 N.C. App. 435, 2003 N.C. App. LEXIS 1531
CourtCourt of Appeals of North Carolina
DecidedAugust 5, 2003
DocketCOA02-1195
StatusPublished
Cited by4 cases

This text of 583 S.E.2d 714 (State v. Simpson) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Simpson, 583 S.E.2d 714, 159 N.C. App. 435, 2003 N.C. App. LEXIS 1531 (N.C. Ct. App. 2003).

Opinions

WYNN, Judge.

From his two felony convictions of obtaining property by false pretenses, defendant, David Vernon Simpson, argues on appeal that the trial court erroneously (1) granted the State’s joinder motion, (2) granted the State’s motion to amend the indictment, and (3) denied his motion to dismiss for insufficient evidence. We find no error.

The underlying evidence tends to show that on 26 November 2001, Robert Hoyt, a manager for the photo lab at a Wal-Mart Store, noticed three cameras missing from the Wal-Mart display. Later that day, Tim Ward, the owner and operator of Hendersonville Jewelry and Pawn, purchased two cameras from defendant. About a week later, Mr. Ward purchased a third camera from defendant. Mr. Ward, who testified that he tends to “work closely with the Sheriff’s Department,” was suspicious that the cameras were stolen because he noticed a security device attached to one camera. He contacted Detective Cole at the Sheriff’s Department who confirmed that the cameras were stolen and owned by Wal-Mart.

At trial, Mr. Hoyt identified by serial number the cameras sold to Mr. Ward as the same cameras stolen from Wal-Mart in November 2001. Furthermore, Mr. Ward identified defendant as the individual who represented that he owned the cameras and sold them to the pawn shop in November and December 2001. On 20 May 2002, the jury found defendant guilty of one count of misdemeanor possession of stolen goods and two counts of obtaining property by false pretenses. Defendant appeals.

By his first assignment of error, defendant contends the trial court erred in granting the State’s motion to join his two offenses [437]*437under N.C. Gen. Stat. § 15A-926(a) (2002) which provides: “Two or more offenses may be joined... for trial when the offenses are based on the same act or transaction, or on a series of acts or transactions connected together or constituting parts of a single scheme or plan.” In considering a motion to join under § 15A-926(a), our Supreme Court in State v. Williams, 355 N.C. 501, 529, 565 S.E.2d 609, 626 (2002) explained that,

the trial judge must first determine if the statutory requirement of a transactional connection is met. Whether such a connection exists ... is a fully reviewable question of law. . . . The transactional connection required by [Section] 15A-926(a) may be satisfied by considering various factors. Two factors frequently used in establishing the transactional connection are a common modus operandi and the time lapse between offenses.

Williams, 355 N.C. at 529, 565 S.E.2d at 626 (citations omitted). Thus, for instance, in the earlier case of State v. Bracey, 303 N.C. 112, 116, 277 S.E.2d 390, 393 (1981), our Supreme Court held that the trial court properly consolidated three separate charges of common-law robbery because,

The evidence in the three cases shows a similar modus operandi and similar circumstance in victims, location, time and motive. All the offenses occurred within ten days on the same street in Wilmington. All occurred in the late afternoon. . . . The assaults were of a similar nature. Each was without weapons, involved an element of surprise and involved choking, beating and kicking the victim. In each case, the robbers escaped on foot. The evidence was sufficient to justify joinder based on a series of acts or transactions connected together or constituting parts of a single scheme or plan.

Id. at 118, 277 S.E.2d 394.

Likewise, in the present case, we hold that the trial court properly allowed joinder of the subject offenses because a transactional connection was evidenced by a common modus operandi, the short time lapse between the criminal activity, and similar circumstances in victim, location, and motive. Indeed, in each case the cameras were taken from Wal-Mart and sold by defendant within 10 days to Henderson Jewelry and Pawn. Accordingly, we uphold the trial court’s decision to allow joinder of the offenses.

[438]*438By his second assignment of error, defendant contends the trial court erred in granting the State’s motion to amend the indictment to change the date of the charged offense. Under N.C. Gen. Stat. § 15A-923(e), “a bill of indictment may not be amended in a manner which substantially alters the charge set forth.” State v. Parker, 146 N.C. App. 715, 718, 555 S.E.2d 609, 611 (2001) (citation omitted). For the reasons stated in State v. Price, we hold that amending the date of the charged offense, in the instant case, was not error. See State v. Price, 310 N.C. 596, 600, 313 S.E.2d 556, 559 (1984) (holding that “change of date . . . was not an amendment proscribed by N.C. Gen. Stat. § 15A-923(e) since it did not substantially alter the charge .... Time was not of the essence .... [And] [defendant's right to be indicted by the grand jury was not violated).

By his final assignment of error, defendant contends the trial court erred by denying his motion to dismiss because of insufficient evidence of an essential element. Defendant argued:

I think one of the elements is that [defendant], in fact, does deceive the party listed as the victim. The victim in this [case] is not Wal-Mart, it’s the Henderson Jewelry and Pawn. [However,] by the testimony of [Mr. Ward,] the pawn shop owner was [not] deceived whatsoever. [Mr. Ward] took the cameras . . . suspected [they were stolen] . . . called the Sheriff’s Department . . . [and] didn’t place [the cameras out] for sale. [Mr. Ward] knew there was a problem or certainly suspected there was [a problem]. The element of [actual] deception, I submit to the Court, is [not] present.

“In ruling on a motion to dismiss for insufficient evidence, the trial court must consider the evidence in the light most favorable to the State, which is entitled to every reasonable inference which can be drawn from that evidence.” State v. Dick, 126 N.C. App. 312, 317, 485 S.E.2d 88, 91 (1997). “[T]he question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged . . . and (2) of defendant’s being the perpetrator of such offense.” State v. Brayboy, 105 N.C. App. 370, 373-74, 413 S.E.2d 590, 592 (1992). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Williams, 133 N.C. App. 326, 328, 515 S.E.2d 80, 82 (1999) (citation omitted). Furthermore, in reviewing a trial court’s denial of a motion to dismiss, “all contradictions and discrepancies are resolved in the State’s favor.” State v. Forbes, 104 N.C. App. 507, 510, 410 S.E.2d 83, 85 (1991).

[439]*439Under N.C. Gen. Stat. § 14-100:

(a) If any person shall knowingly and designedly by means of any kind of false pretense whatsoever . .. obtain or attempt to obtain from any person within this State any money . . .

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Related

State v. Phillips
797 S.E.2d 704 (Court of Appeals of North Carolina, 2017)
State v. Hallum
783 S.E.2d 294 (Court of Appeals of North Carolina, 2016)
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661 S.E.2d 899 (Court of Appeals of North Carolina, 2008)
State v. Simpson
583 S.E.2d 714 (Court of Appeals of North Carolina, 2003)

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Bluebook (online)
583 S.E.2d 714, 159 N.C. App. 435, 2003 N.C. App. LEXIS 1531, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-simpson-ncctapp-2003.