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State v. Pendergraft

Court of Appeals of North Carolina

December 31, 2014

STATE OF NORTH CAROLINA
v.
SHAWN ADRIAN PENDERGRAFT

Heard in the Court of Appeals 11 August 2014.

Editorial Note:

This Decision is not final until expiration of the twenty-one day rehearing period. [North Carolina Rules of Appellate Procedure 32(b)]

Appeal by defendant from judgments entered 19 July 2013 by Judge Paul G. Gessner in Wake County Superior Court.

Wake County. No. 11 CRS 218528.

AFFIRMED.

Attorney General Roy Cooper, by Special Deputy Attorney General Phillip K. Woods, for the State.

W. Michael Spivey for Defendant.

ERVIN, Judge. Judge McCULLOUGH concurs. Judge DILLON concurs in part and dissents in part in separate opinion.

OPINION

ERVIN, Judge.

Defendant Shawn A. Pendergraft appeals from a judgment entered based upon his conviction for obtaining property by false pretenses and from his conviction of felonious breaking or entering in a case in which the trial court arrested judgment. On appeal, Defendant argues that the trial court lacked jurisdiction to enter judgment against him based upon his conviction for obtaining property by false pretenses, that the trial court erroneously denied his motions to dismiss the felonious breaking or entering and obtaining property by false pretenses charges for insufficiency of the evidence, and that the trial court erroneously refused to instruct the jury that the State was required to prove beyond a reasonable doubt that Defendant did not attempt to obtain ownership of the property in question by adverse possession, erroneously instructed the jury that ignorance of the law and a mistake of law did not preclude a finding of guilt, and erroneously instructed the jury in such a manner as to place the burden of proof on the intent issue upon Defendant rather than upon the State. After careful consideration of Defendant's challenges to the trial court's judgments in light of the record and the applicable law, we conclude that the trial court's judgments should remain undisturbed.

I. Factual Background

A. Substantive Facts

On or about 27 January 2011, DLJ Mortgage Capital, Inc., acquired title to a tract of property located at 1208 Graedon Drive in Raleigh through foreclosure. On 5 July 2011, Defendant filed a deed purporting to convey the same tract of property from ONCE International Land Trust to ONCE International Land Trust. In addition, Defendant filed a " Common Law Lien" that purported to place a $1,200,000 lien upon the property and asserted that the lien could not be removed unless the party seeking to do so came into court with " clean hands" and proved ownership of the property. Finally, Defendant filed a " Notice" asserting that the property was the " private property of ONCE International Land Trust." Defendant signed each of these documents in the capacity as Trustee for ONCE.

In early July 2011, Lee St. Peter, a real estate broker who served as DLJ's property manager and as listing agent for the Graedon Drive property, was informed by another real estate agent that someone was occupying another house that Mr. St. Peter had listed for sale in a different part of Raleigh. When he checked the real estate records maintained by the Wake County Register of Deeds for information concerning the house about which he had received the tip, Mr. St. Peter discovered the documents that Defendant had filed with respect to the Graedon Drive property.

Upon making this discovery, Mr. St. Peter went to the Graedon Drive property and found that the house was unoccupied and in good condition. On 10 July 2011, Mr. St. Peter wrote a note to Mike Sanders of Select Portfolio Servicing, an asset management company that managed the Graedon Drive property for DLJ, for the purpose of informing Mr. Sanders that he believed that someone was pretending to own the Graedon Drive property for the purpose of selling or leasing it without having the authority to do so.

On 7 August 2011, Defendant moved into the house located on the Graedon Drive property. At the time that he entered the house, Defendant removed the doorknob and the Realtor's lockbox.[1] On the following day, Mr. St. Peter stopped by the property to confirm that a recent roof repair had been done correctly and that no leaks were occurring. Upon arriving at the property, Mr. St. Peter observed that a U-Haul van was parked in the driveway and observed, after walking up to the front of the house, that the Realtor's lockbox had been removed and that the front door knob had been changed.

After walking around the house to investigate, Mr. St. Peter returned to the front of the house, where he encountered Defendant on the sidewalk. When Mr. St. Peter asked Defendant what he was doing on the property, Defendant replied that he had " bought [the property] directly from the bank through an investment company" and that his ownership of the property was evidenced by some documents that he had in his hand. Mr. St. Peter declined to look at the papers that Defendant offered to show him and told Defendant that he was calling the Sheriff's Office.

After speaking with someone at the Sheriff's Office, Mr. St. Peter contacted Mr. Sanders for the purpose of informing him that someone was now occupying the property and inquiring of him as to whether anything had transpired that would have given Defendant the right to be on the property. In response, Mr. Sanders stated that Defendant should not be on the property.

Deputy Kevin Moore of the Wake County Sheriff's Office responded to Mr. St. Peter's call. Upon Deputy Moore's arrival, Mr. St. Peter informed Deputy Moore that no one was supposed to be in the house and that the locks had been changed. At that point, Deputy Moore checked the real estate database maintained by the Wake County Revenue Department for the purpose of ascertaining the identity of the individual or entity listed as the owner of the property and spoke with Mr. Sanders for the purpose of confirming that the property was supposed to be unoccupied. After engaging in these investigative activities, Deputy Moore approached Defendant, who handed a deed and other documents to Deputy Moore and explained to Deputy Moore that Defendant was named as the grantee on the deed and had the right to be there on the basis of the doctrine of adverse possession. At that point, Deputy Moore and Mr. St. Peter agreed to give Defendant 24 hours within which to vacate the property.

On the following day, Deputy Moore returned to the property. At that time, Defendant continued to occupy the house and refused to unlock the door. Although Deputy Moore left the property after failing to gain access to it, he returned with a locksmith and additional deputies. After gaining entry using an unlocked side door, Deputy Moore came into the house and placed Defendant under arrest.

B. Procedural History

On 9 August 2011, a warrant for arrest was issued charging Defendant with felonious breaking or entering, obtaining property worth more than $100,000 by false pretenses, and second degree trespass. On 11 October 2011, the Wake County grand jury returned a bill of indictment charging Defendant with felonious breaking or entering, obtaining property worth more than $100,000 by false pretenses, and second degree trespass. The charges against Defendant came on for trial before the trial court and a jury at the 15 July 2013 criminal session of the Wake County Superior Court. At the close of all of the evidence, the State voluntarily dismissed the second degree trespass charge. On 18 July 2013, the jury returned verdicts convicting Defendant of felonious breaking or entering and obtaining property worth more than $100,000 by false pretenses. The trial court arrested judgment with respect to Defendant's conviction for felonious breaking or entering and entered a judgment sentencing Defendant to a term of 44 to 62 months imprisonment based upon his conviction for obtaining property worth more than $100,000 by false pretenses. Defendant noted an appeal to this Court from the trial court's judgments.

II. Substantive Legal Analysis

A. Jurisdictional Claim

In his first challenge to the trial court's judgments, Defendant contends that the trial court lacked jurisdiction over the false pretenses charge because the indictment charging him with the commission of that offense was fatally defective. More specifically, Defendant contends that the indictment purporting to charge him with obtaining property worth more than $100,000 by false pretenses failed to allege either that Defendant had made a false representation or that there was a causal connection between any false representation that Defendant might have made and Defendant's ability to obtain the property in question. Defendant's contentions lack merit.

1. Standard of Review

Although Defendant never challenged the sufficiency of the false pretenses indictment before the trial court, an indictment may be challenged on facial invalidity grounds for the first time on appeal. State v. Call, 353 N.C. 400, 429, 545 S.E.2d 190, 208, cert. denied, 534 U.S. 1046, 122 S.Ct. 628, 151 L.Ed.2d 548 (2001). This Court reviews challenges to the sufficiency of an indictment using a de novo standard of review. State v. Marshall, 188 N.C.App. 744, 748, 656 S.E.2d 709, 712, disc. review denied, 362 N.C. 368, 661 S.E.2d 890 (2008). " Under a de novo review, the court considers the matter anew and freely substitutes ...


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