in the Court of Appeals 24 January 2017.
by defendant from judgment entered 15 December 2015 by Judge
Gregory R. Hayes in Cleveland County Superior Court Nos. 14
Attorney General Joshua H. Stein, by Assistant Attorney
General Kimberly S. Murrell, for the State.
Kimberly P. Hoppin for defendant-appellant.
defendant intended to deceive the buyer but fell short of the
completed offense of obtaining property by false pretenses as
the undercover officer was not deceived at the time of the
sale, the trial court did not err in denying defendant's
motion to dismiss the charge of attempting to obtain
property by false pretenses.
March 2014, Detective Micah Sturgis with the Cleveland County
Sheriff's Office attended a meeting with members from
multiple nearby police departments and sheriffs' offices.
At the meeting, officers with the Gaffney Police Department
reported that several items of Michael Kors inventory,
including "purses, pocketbooks, [and] backpacks, "
were being stolen from the Michael Kors Outlet store in
later, Detective Sturgis was on his personal Facebook page
when he noticed a posting for Michael Kors backpacks for sale
on a website called "One Man's Junk, " which he
described as an online "flea market." The
backpacks, with accompanying photographs, were captioned
"Michael Kors Backpacks Startin' at 45, " and
were listed for sale on the site by an individual named R.D.
Phillips. This name caught Detective Sturgis's eye
because he was familiar with an individual named Arthiando
Phillips, the defendant. Because of the reported larcenies of
multiple Michael Kors items from the Gaffney store, Detective
Sturgis decided to investigate further.
fake name and address, Detective Sturgis created a fake
Facebook account and started a conversation with R.D.
Phillips, who was later determined to be defendant, in order
to discuss the purchase of the Michael Kors backpacks.
Detective Sturgis asked, "[c]an you send me pics of the
bags you've got or can you get up with me tomorrow
morning sometime?" Defendant replied that he could
"get anything from shades to shoes, the MK watches and
all." Detective Sturgis requested to meet defendant in
Shelby at 11:00 a.m. the next morning, 25 March 2014, and
defendant agreed to the meeting and provided his phone
Sturgis then contacted Sergeant Fitch, a supervisor with the
Cleveland County Sheriff's Office, and the two decided to
set up an undercover purchase from defendant for one of the
Michael Kors bags in order to determine whether it was (1)
one of the stolen Michael Kors bags from the outlet in
Gaffney, or (2) counterfeit merchandise. Detective Sturgis
enlisted Sergeant Fitch's help to set up the undercover
purchase because Sergeant Fitch was more familiar and
experienced with undercover buy operations of illegal
March 2014, Detective Sturgis called defendant and told him
his "business partner Tim" (Sergeant Fitch) would
be meeting him. Sergeant Fitch then called defendant to set
up the time, date, and location of the meeting for the
undercover purchase, and recorded the call. Sergeant Fitch
took $50.00 from the sheriff's office special funds
account and met defendant at the Walmart on Highway 74 in
Shelby. Defendant brought two Michael Kors bags to the
meeting, and Sergeant Fitch ultimately purchased one of the
bags for $35.00. Defendant never indicated whether the bags
were authentic or counterfeit, but according to Detective
Sturgis, defendant "used the words 'Michael
Kors' and showed a tag on the pocketbook or the book bag
as a Michael Kors tag" in his Facebook post. Afterwards,
Sergeant Fitch delivered the bag to Detective Sturgis and
later testified that he "knew something was not right,
to sell a $400 pocketbook for $45."
Detective Sturgis contacted counterfeit expert Wayne Grooms,
[b]ased off of looking at the pocketbook, there were some
things about the pocketbook that made me believe the
pocketbook was a counterfeit pocketbook instead of a true
Michael Kors pocketbook. I had worked with Wayne Grooms and
the U.S. Customs in a couple of other investigations where we
had gotten some counterfeit goods, and there's some
telltale signs that I had picked up from other investigations
to be able to determine that this one was probably a
counterfeit pocketbook at that point. So I wanted
Investigator Grooms to take a look at it to verify what I
April 2014, Investigator Grooms spoke with Detective Sturgis
regarding the authenticity of the Michael Kors bag, which he
determined to be not authentic, based on his experience as a
Charlotte-Mecklenburg police officer who had been involved in
over 10, 000 trademark investigations and been sworn as an
expert on counterfeit merchandise in both federal and state
courts. The same day, Detective Sturgis met with other
officers and planned to meet defendant in the Walmart parking
lot for the purchase of additional counterfeit goods.