in the Court of Appeals 31 January 2017.
by Defendant from judgment entered 15 March 2016 by Judge
Alan Z. Thornburg in Yancey County Superior Court Yancey
County, No. 15CRS050081.
Attorney General Joshua H. Stein, by Assistant Attorney
General Ronald D. Williams, II, for the State.
Epstein Law Firm PLLC, by Drew Nelson, for the Defendant.
Jesse Buchanan ("Defendant") appeals from his
convictions on two counts of obtaining property by false
2015, Defendant filed a criminal complaint with the
sheriff's office against his girlfriend for check fraud,
alleging that his girlfriend had fraudulently signed and
cashed three checks drawn on his account without his
knowledge or permission. The checks were in the amounts of
$600, $200 and $100.
filing the charges, Defendant went to his bank and completed
a "Check Fraud/Forgery Affidavit, " listing all
three disputed checks. Following Defendant's completion
of the affidavit, the bank informed Defendant that it would
place a six-hundred dollar ($600) provisional credit in his
bank account based on the $600 check. The bank, though,
informed Defendant that it would not provide a provisional
credit for the $200 or $100 checks at that time. There is no
evidence that Defendant ever attempted to withdraw, spend, or
otherwise access the $600 provisional credit placed in his
account by the bank.
the course of a criminal investigation of Defendant's
girlfriend, officers discovered evidence that Defendant had
lied in his criminal complaint. Specifically, officers
discovered that Defendant had sent his girlfriend a series of
text messages authorizing her to use the checks, which he had
pre-signed, for the care of their daughter. These text
messages clearly showed that Defendant's girlfriend
obtained Defendant's permission to cash each check before
was subsequently indicted for two counts of obtaining
property by false pretenses. Specifically, one indictment
alleged that Defendant obtained $600 from his bank by means
of a false pretense when he signed the affidavit of forgery
of the checks "as stolen and forged when in fact he
authorized and signed the check to be used by [his
girlfriend]." The indictment further alleged that he
attempted to obtain $300 by false pretenses when he
signed the affidavit of forgery regarding the other two
was tried by a jury and convicted of obtaining property by
false pretenses for the $600 provisional credit placed in his
account and convicted of attempting to obtain property by
false pretenses for the $100 and $200 checks. Following the
jury's verdict, Defendant pleaded guilty to the charge of
attaining habitual felon status. Defendant was sentenced
accordingly and gave oral notice of appeal in open court.
appeal, Defendant argues that the trial court erred by
failing to dismiss the charges against Defendant based on
insufficiency of the evidence. Defendant further argues that
the trial court committed plain error when it failed to
instruct the jury that it could not convict Defendant of
obtaining property by false pretenses (for the $600 check)
and of attempting to obtain ...