in the Court of Appeals 20 April 2017.
by Defendant from judgment entered 9 June 2016 by Judge
Anderson D. Cromer in Forsyth County Nos. 15CRS056971,
15CRS057188 Superior Court.
Attorney General Joshua H. Stein, by Assistant Attorney
General Brent D. Kiziah, for the State.
P. Lattimore for the Defendant.
Michael Mostafavi ("Defendant") appeals from
judgment entered after he was convicted in a bench trial of
two counts of obtaining property by false pretenses. We
hereby vacate Defendant's convictions.
was also convicted of a single count of felony larceny.
However, Defendant did not properly preserve his challenge to
this conviction. In our discretion, we decline to invoke Rule
2 and do not address Defendant's challenge regarding his
conviction for felony larceny.
was charged with a number of crimes in connection with a
break-in of a house where certain items were later discovered
to have been stolen.
State's evidence tended to show as follows: A home shared
by two individuals was broken into while they were on
vacation. The house-sitter testified that she was indebted to
Defendant and allowed Defendant to break into the home and to
help himself to certain items belonging to the two victims.
Some of the missing items were found and recovered at a pawn
shop. These items were either sold or pawned by Defendant.
testified and presented evidence tending to show that the
house-sitter claimed she owned the stolen items and that he
bought the items from the house-sitter for a negotiated
trial court found Defendant guilty of one count of felony
larceny and two counts of obtaining property by false
pretenses from the pawn shop. The trial court sentenced
Defendant accordingly. Defendant appeals.
makes several arguments on appeal, which are addressed in
argues that there was a fatal variance between the indictment
and the evidence presented at trial on the larceny charge.
Specifically, he notes that the indictment identified one of
the homeowners as the owner of the stolen property. This is
indicated by the State's evidence, which showed that the
stolen property was owned by the other homeowner. See
State v. Greene, 289 N.C. 578, 584-85, 223 S.E.2d 365,
concedes that he failed to properly preserve this issue on
appeal. Defendant requests we invoke Rule 2 of the North
Carolina Rules of Appellate Procedure to review the merits of
Rule 2 authorizes this Court to "suspend or vary the
requirements or provisions of any of [the Rules of Appellate
Procedure]." N.C. R. App. P. 2. Although Appellate Rule
2 is available to prevent "manifest injustice, "
our Supreme Court has stated that this residual power to vary
the default provisions of the appellate procedure rules
should only be invoked on "'rare occasions' and
under 'exceptional circumstances.'" Dogwood
Dev. & Mgmt. Co. v. White Oak Transp. Co., 362 N.C.
191, 201, 657 S.E.2d 361, 367 (2008).
has failed to demonstrate the "exceptional
circumstances" necessary to for us to invoke Appellate
Rule 2. Id. In the exercise of our discretion, we
decline to invoke Appellate Rule 2 to reach the merits of
Defendant's argument regarding his felony larceny
conviction. Defendant's larceny conviction
Indictment - Obtaining Property By False Pretenses
contends the trial court erred by failing to dismiss the
charges for obtaining property by false pretenses. Defendant
contends that the language in the indictment describing the
property obtained as "UNITED STATES CURRENCY" was
not sufficient to sustain the indictment. We agree.
an indictment is alleged to be invalid on its face, thereby
depriving the trial court of its jurisdiction, a challenge to
that indictment may be made at any time, even if it was not
contested in the trial court." State v.
Wallace, 351 N.C. 481, 503, 528 S.E.2d 326, 341 (2000).
conclude that our Supreme Court's decision in State
v. Reese, 83 N.C. 637 (1880), which was reaffirmed by
that Court in 1941 in State v. Smith, 219 N.C. 400,
14 S.E.2d 36 (1941), and reaffirmed again in 2014 in
State v. Jones, 367 N.C. 299, 758 S.E.2d 345 (2014),
compels us to conclude that the indictment charging Defendant
with obtaining "UNITED STATES CURRENCY" by false
pretenses was fatally defective because it failed to describe
the United States Currency obtained with sufficient
specificity. These cases instruct that, where money is the
thing obtained by false pretenses, the money must be
described "at least by the amount, as, for
instance, so many dollars and cents." Smith,
219 N.C. at 401, 14 S.E.2d at 36-37 (emphasis added).
Current Supreme Court Jurisprudence Compels our Conclusion
that the Indictment is Fatally Defective
Supreme Court has repeatedly held that an indictment is
constitutionally sufficient if it "apprises the
defendant of the charge against him with enough certainty to
enable him to prepare his defense and to protect him from
subsequent prosecution for the same offense." State
v. Snyder, 343 N.C. 61, 65, 468 S.E.2d 221, 224 (1996)
Defendant was indicted for violating N.C. Gen. Stat. §
14-100, which provides that a person is guilty of obtaining
property by false pretenses where he obtains "any money,
goods, . . ., services . . ., or other thing of value"
by means of a false pretense. N.C. Gen. Stat. § 14-100
indictments charging under N.C. Gen. Stat. § 14-100, our
Supreme Court has held that "the thing obtained
[(i.e., the money, goods, services, etc.) by false pretenses]
must be described with reasonable certainty, and by
the name or term usually employed to describe it."
Jones, 367 N.C. at 307, 758 S.E.2d at 351 (emphasis
added) (internal quotation marks omitted).
1880, our Supreme Court held in State v. Reese that
an indictment describing the property obtained as
"money" was fatally defective, stating that
"the money obtained should have been described at
least by the amount - as, for instance, so many
dollars and cents." Reese, 83 N.C. at 639
1941, our Supreme Court reaffirmed its 1880 holding. See
Smith, 219 N.C. at 401, 14 S.E.2d at 36-37. In
Smith, the indictment described the money as
"goods and things of value." Id. The Court
held that this description was fatally defective. Relying on
its 1880 decision in Reese, the Court stated that
the money "should have been described [in the
indictment] at least by the amount, as, for instance, so
many dollars and cents." Id. at 401, 14
S.E.2d at 36-37 (emphasis added).
recently, in 2014, our Supreme Court reaffirmed both the 1880
Reese and the 1941 Smith decisions, stating
This Court has not had occasion to address this issue
recently, but consistently has held that simply describing
the property obtained as "money, " State v.
Reese, 83 N.C. 637, 640 (1880), or "goods and
things of value, " State v. Smith, 219 N.C.
400, 401, 14 S.E.2d 36, 36 (1941), is insufficient to allege
the crime of obtaining property by false pretenses.
Jones, 367 N.C. at 307, 758 S.E.2d at 351. Following
the reasoning in these older cases, our Supreme Court held
that an indictment alleging that the defendant obtained
"services" without some description as to the
type of services which were fraudulently obtained, was
fatally defective. Id. at 307-08, 758 S.E.2d at 351.
The Court so held even though, like in the present case, the
indictment was specific in identifying the name of
the victim, the ...