in the Court of Appeals 17 May 2017.
by Michael Ayodeji Falana from judgment entered 14 January
2016 by Judge Donald W. Stephens in Wake County Superior
Court. No. 14 CRS 207484
Attorney General Joshua H. Stein, by Assistant Attorney
General M. Denise Stanford, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender Jillian C. Katz, for the Defendant.
Ayodeji Falana ("Defendant") appeals from the
judgment below in which a jury found him guilty of felony
conversion. Defendant argues that the trial court erred by
denying his Motion to Dismiss because: (1) the State failed
to establish an essential element of felony conversion; and
(2) the State's evidence at trial fatally varied from the
indictment. Defendant argues further that the trial
court's jury instructions were in error because: (1) the
trial judge instructed the jury on felony conversion based on
the evidence presented at trial, which fatally varied from
the indictment; (2) the trial court answered a question from
the jury in violation of N.C. G.S. § 15A-1234(c) (2015);
and (3) the trial court's supplemental instruction in
response to a question from the jury was legally erroneous
and resulted in a coerced verdict. We agree with Defendant
that the trial court erred by denying Defendant's Motion
to Dismiss, and vacate the judgment.
2011, Defendant opened a business, Micdina Motors, that buys
cars at live and online auctions. To carry out his business,
Defendant subscribed to various online auction sites,
including Copart. Copart is a marketing company that
liquidates total loss vehicles through online auctions. Only
members that have provided proof of licensing and paid
associated fees can access and participate in Copart's
2012, Defendant permitted Mr. Olamide Olamosu
("Olamosu") to use his auction accounts for Olamosu
to conduct his own business in exchange for a portion of
Olamosu's sales. Defendant also permitted Olamosu to
register as a licensed sales representative with Micdina
Motors at the North Carolina Department of Motor Vehicles.
Although Olamosu's transactions went through
Defendant's online accounts and he had access to one of
Micdina Motors' email accounts, Defendant testified that
Olamosu generally did not discuss his customers with
Defendant in detail.
or June 2013, Olamosu assisted Mr. Ezuma Igwe
("Igwe") in the acquisition of a 2012 Honda Pilot
("Pilot"), which he found using Defendant's
account on the Copart auction site. The purchase price was
$15, 200. When Olamosu and Igwe picked up the Pilot, it did
not run. In addition, Igwe was unable to get title to the car
as it was subject to a lien. Falsely identifying himself as
Defendant, Olamosu arranged a refund with Copart for Igwe.
Defendant disputed whether he knew the details of this
purchase and subsequent need for a refund.
November 2013, Defendant and Olamosu began to have financial
disputes over various transactions, which led Defendant to
believe Olamosu owed him over $10, 000. Olamosu told
Defendant that he would pay Defendant what he owed before he
left the country in January 2014.
January 2014, Olamosu coordinated the refund with Copart,
which was to be sent to Olamosu's home address. Defendant
testified that Olamosu told him about the check at this time,
suggesting Defendant call Copart to ensure it sent the check.
On 10 January 2014, Defendant called Copart, and requested
that Copart send the check to his address instead. When the
check arrived, Defendant deposited it in his personal bank
account. Defendant denied knowing the check was Igwe's
refund. He claimed he never met Igwe, and believed the check
would constitute money Defendant owed him.
State charged Defendant with felony conversion in violation
of N.C. G.S. § 14-168.1 (2015). The indictment read in
that on or about January 23, 2014, in Wake County the
defendant named above unlawfully, willfully, and feloniously
did being entrusted with property, 2012 Honda Pilot,
owned by Ezuma Igwe, as a person with power of
attorney to sell or transfer the property, fraudulently
convert the proceeds of the property to ...