State v. Sinclair

263 S.E.2d 811, 45 N.C. App. 586, 1980 N.C. App. LEXIS 2691
CourtCourt of Appeals of North Carolina
DecidedMarch 18, 1980
Docket797SC809
StatusPublished
Cited by6 cases

This text of 263 S.E.2d 811 (State v. Sinclair) 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. Sinclair, 263 S.E.2d 811, 45 N.C. App. 586, 1980 N.C. App. LEXIS 2691 (N.C. Ct. App. 1980).

Opinions

HEDRICK, Judge.

Defendant assigns as error the denial of her motion for judgment as of nonsuit. Such a motion challenges the sufficiency of the State’s evidence for submission to the jury and requires the court to determine whether there is any competent evidence to sustain the allegations of the indictment. State v. Stewart, 292 N.C. 219, 232 S.E. 2d 443 (1977); State v. Murdock, 225 N.C. 224, 34 S.E. 2d 69 (1945). In making that determination, the court must consider the evidence “in the light most favorable to the State, all contradictions and discrepancies therein must be resolved in its favor and it must be given the benefit of every reasonable inference to be drawn from the evidence.” State v. Yellorday, 297 N.C. 574, 578, 256 S.E. 2d 205, 209 (1979) [quoting from State v. Cutler, 271 N.C. 379, 382, 156 S.E. 2d 679, 681 (1967)]. If there is substantial evidence that the offense charged in the bill of indictment, or a lesser offense included therein, has been committed, and that the defendant committed it, the case is properly for the jury. State v. Burke, 36 N.C. App. 577, 244 S.E. 2d 477 (1978).

[590]*590In the case before us, then, the State must produce at the outset substantial evidence of every essential element of the offense of forgery before it can survive the motion for nonsuit. Those elements are defined by the common law in this State and constitute three in number:

(1) There must be a false making or alteration of some instrument in writing; (2) there must be a fraudulent intent; and (3) the instrument must be apparently capable of effecting a fraud.

State v. Phillips, 256 N.C. 445, 447, 124 S.E. 2d 146, 148 (1962). See also State v. McAllister, 287 N.C. 178, 214 S.E. 2d 75 (1975). Moreover, if the purported maker of the instrument “is a real person and actually exists” — as in the case at bar —“the State is required to show not only that the signature in question is not genuine, but [that it] was made by defendant without authority.” State v. Phillips, supra at 448, 124 S.E. 2d at 148. [Our emphasis.] This is so because it is presumed that one signing another’s name to an instrument does so with authority. Id. See also 37 C.J.S., Forgery § 80 (1943). It follows that, if the State fails to produce evidence that the person signing the instrument did not have the authority to do so, then the State has failed to carry its burden, and the defendant’s motion for judgment as of nonsuit must be allowed.

While there is substantial evidence in the case before us that the defendant withdrew funds from two savings accounts at Peoples Bank and Trust during September and October of 1978; that she signed her grandmother’s name to the withdrawal slips; that the accounts were listed in the names of her grandmother and grandfather; and that her grandmother was not aware at the time that the defendant was withdrawing the funds, there remains the question of whether the defendant acted without authority. By signing the name of a real person, she is presumed to possess authority. Hence, the State must offer substantial substantive evidence that she, in fact, lacked permission. Disregarding for the moment the affidavits made by Mrs. Alston and given to bank officials wherein she stated that “she never signed or authorized any other person to sign her name or said check . . .”, the State has offered no evidence that defendant’s signing of the check was unauthorized. To the contrary, all the [591]*591evidence, even when the inconsistencies and discrepancies are resolved in the State’s favor, supports only the inference that defendant was authorized to sign the withdrawal slips as she did. Her grandmother, the State’s own witness, repeatedly insisted, on direct as well as crossrexamination, that she had given such authority to her granddaughter, the defendant.

Therefore, whether the defendant’s motion for judgment as of nonsuit should have been granted depends entirely on whether the affidavits given by Mrs. Alston were admissible as substantive evidence in the case. The writings clearly represent, at best, prior inconsistent statements of the witness. They are out-of-court declarations and, when offered to prove the truth of matters asserted therein, they constitute hearsay. C. McCormick, Handbook of the Law of Evidence § 251 (1972). Hearsay, unless it falls within one of the exceptions, is not admissible as substantive evidence. Id. None of the exceptions apply in this case, and the rule in this State respecting the use of a witness’s prior inconsistent statements is inescapable:

Inconsistent statements are not admissible as substantive evidence of the facts stated therein, nor do they have the effect of nullifying the testimony of the witness. They are simply for the consideration of the jury in determining the witness’s credibility.

1 Stansbury’s N.C. Evidence, Witnesses § 46 at 131 (Brandis rev. 1973). Accord, State v. Neville, 51 N.C. 424 (1859); State v. Brannon, 21 N.C. App. 464, 204 S.E. 2d 895 (1974), cert. denied, 423 U.S. 1086 (1976); State v. Terry, 13 N.C. App. 355, 185 S.E. 2d 426 (1971).

In State v. Brannon, supra, this Court held that a prior statement on which the State relied could not. be considered in passing on the defendant’s motion for nonsuit. The same is true of the case now before us. The inconsistent statements Mrs. Alston made in the affidavits were competent only for the purpose of impeaching her credibility. Thus, it is irrelevant whether the court actually allowed their admission as substantive evidence since, even assuming, arguendo, that the State could impeach its own witness in this instance, once the affidavits are removed from consideration as substantive evidence, the State is left with no evidence to rebut the presumption that defendant possessed [592]*592authority to sign the withdrawal slips in her grandmother’s name. If she had authority, she cannot be guilty of forgery, and obviously she cannot be guilty of “uttering” forged instruments. Her motion for judgment as of nonsuit should have been allowed.

Defendant also assigns as error the denial of her motion to withdraw her plea of no contest to eight counts of forgery and eight counts of uttering made before entry of judgment on the plea. She argues that “[a]t the very least [she] was entitled to an evidentiary hearing on her motion.”

Initially, we agree with defendant that she has the right to appeal the denial of her motion. G.S. § 15A-1444 in pertinent part provides:

(e) Except as provided in G.S. 15A-979, and except when a motion to withdraw a plea of guilty or no contest has been denied, the defendant is not entitled to appellate review as a matter of right when he has entered a plea of guilty or no contest to a criminal charge in the superior court, . . .

[Our emphasis.] This case falls within the exception. Moreover, we note that defendant made her motion to withdraw her plea before judgment was entered and sentence imposed. See State v. Dickens, 299 N.C. 76, 261 S.E. 2d 183 (1980).

Addressing, then, the merits of her argument, we do not agree that she was entitled “at least” to a hearing to determine if there was a factual basis for allowing the motion. Defendant misconstrues the statute which requires only that the judge determine that there is a factual basis for the plea before accepting it.

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Bluebook (online)
263 S.E.2d 811, 45 N.C. App. 586, 1980 N.C. App. LEXIS 2691, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sinclair-ncctapp-1980.