Heard in the Court of Appeals January 6, 2015
Orange County, Nos. 10 CRS 051930--31, 13 CRS 000068.
Attorney General Roy Cooper, by Special Deputy Attorney General David N. Kirkman, for the State.
Michele Goldman for defendant-appellant.
BRYANT, Judge. Judges STROUD and HUNTER, Jr., concur.
Appeal by defendant from judgment entered 1 November
2013 by Judge W. Douglas Parsons in Orange County Superior Court.
Where an indictment for the offense of obtaining property by false pretenses alleges the ultimate facts of the offense, including the acts of misrepresentation, the indictment is not facially defective. The trial court did not commit error, plain or otherwise, in the admission of evidence, including evidence admitted under Rule 404(b).
On 22 April 2013, defendant Gary Anderson Barker, Jr., was indicted on two counts of obtaining property by false pretenses and for being an habitual felon. The charges came on for trial during the 28 October session of Orange County Superior Court, the Honorable W. Douglas Parsons, Judge presiding. At trial, the evidence tended to show the following.
In May of 2010, defendant approached Nellie Harward at her home and told her that her roof needed repainting. Ms. Harward, who was eighty-five years old, was persuaded by defendant and paid him $2,200.00 to repaint the metal roof of her home with black paint. Defendant also told Ms. Harward he would repair a shed in her
backyard which housed her laundry equipment. Ms. Harward signed agreements with defendant for the work on her home and shed. Defendant worked on the roofing and siding of the shed, and rewired the shed. Ms. Harward paid defendant in two checks in the amount of $3,400.00 and $3,900.00, for a total of $7,300.00, for the shed repairs.
Ms. Harward stated that as soon as it began to rain, the roof of her newly repaired shed began to leak and continued to do so each time it rained, damaging her new clothes dryer. Ms. Harward also stated that the black paint defendant had used on her roof quickly began to flake and peel off, causing leaks in the ceiling of her home. When Ms. Harward asked defendant to repair the roofs on her home and shed to stop the leaks, defendant claimed his repairs did not cause the leaks. After defendant refused to repair the leaking house and shed roofs, Dennis LaRue, a neighbor of Ms. Harward's, fixed the roof of her home and replaced her backyard shed. LaRue noted the shoddy work and substandard materials used by defendant and testified regarding them at trial. Ms. Harward ultimately paid $8,000.00 to have her shed replaced in order to correct the " work" defendant performed on it.
Also, in May of 2010, Ms. Geraldine Hoenig was approached by defendant who claimed Ms. Hoenig's roof needed repair. After inspecting her roof, defendant told Ms. Hoenig she also needed to repair the roof decking on her home because the wood was rotten. Defendant told Ms. Hoenig that he could repair her roof for $6,800.00 and her chimney for $900.00. Ms. Hoenig borrowed $4,000.00 from the bank to pay defendant. Then, defendant demanded she pay him an additional $2,800.00 so he could special-order white shingles for her roof; Ms. Hoenig returned to her bank and borrowed these additional funds which she paid to defendant.
Defendant and his work crew began to work on Ms. Hoenig's roof, but after removing the shingles surrounding the roof's perimeter, defendant covered the exposed areas with roofing felt and did not return to complete the job. The roofing felt soon blew off of the roof, causing the roof to leak. When Ms. Hoenig called defendant, defendant claimed he could not finish her roof until the white shingles had arrived. Defendant then told Ms. Hoenig he would need another payment to complete the work, and when she told defendant she could only give him an additional $200.00, defendant accepted the money. Defendant never returned to finish the roofing repairs for Ms. Hoenig.
A subsequent investigation revealed no sign of rotten wood on Ms. Hoenig's roof; rather, the damage observed appeared to have been recently caused by a hammer. It was also determined that defendant had not placed an order for white shingles, despite telling Ms. Hoenig that he had. Ms. Hoenig's roof was later repaired by another roofing company at no cost to her.
The State presented additional testimony by Bill Grice, Zona Norwood, and Helen Stinson. Mr. Grice testified that defendant had contracted with his late father, eighty-six-year-old William F. Grice, to repair his father's roof in May 2010. Mr. Grice stated that he had observed his father arguing with defendant because defendant wanted additional monies paid before he would finish the roof repairs. Mr. Grice further stated that his father's roof had to be replaced about three years later due to leaks caused by defendant's poor workmanship.
Ms. Norwood testified that she was approached by defendant in May of 2010 about needing repairs to the flashing on the chimney of her home where she had resided for forty-four years. Defendant offered to repair the flashing for $40.00. After defendant went onto her roof to repair the chimney flashing, defendant told Ms. Norwood that her roof had significant damage all over it due to hail. Defendant urged Ms. Norwood to call her insurance company and that he would fix her roof for whatever price the insurance company would agree to. However, Ms. Norwood's insurance adjuster found no sign of hail damage to the roof. Another roofer whom Ms. Norwood called for a second opinion also found no evidence of hail damage, although he did notice that the repairs to the chimney flashing were not done properly. The second roofer also found what he determined to be evidence of intentional damage to Ms. Norwood's roof: a new nail
had been partially driven into the roof just below the chimney, and the placement of the nail was such that it would cause the roof to leak. The second roofer repaired the damage to Ms. Norwood's roof for $100.00.
Ms. Stinson testified that she was approached by defendant in September of 2009 about needing repairs to her roof. Ms. Stinson, who was seventy-eight years old, stated that after going onto her roof, defendant claimed that she needed her entire roof replaced. Ms. Stinson eventually paid defendant in three checks in the amount of $425.00, $1,600.00, and $2,000.00, totaling $4025.00, to have her roof repaired. However, after opening a large hole in her roof, defendant failed to fix the hole or finish repairing her roof. Defendant did not respond to Ms. Stinson's phone calls when she tried to reach him. Ms. Stinson had to pay another roofer $3,000.00 to repair the hole in her roof.
The State presented during the trial a video-recording of defendant's post-arrest interview. During the interview defendant, when questioned about the repairs he performed for Ms. Harward and Ms. Hoenig, defended his workmanship and denied any wrongdoing.
On 1 November, a jury convicted defendant on two counts of obtaining property by false pretenses. Defendant plead guilty to the habitual felon charge. The trial court sentenced defendant to 96 to 125 months in prison, and ordered defendant to make restitution to Ms. Harward in the amount ...