in the Court of Appeals 9 August 2017.
by defendant from judgments entered 16 August 2016 by Judge
Wayland J. Sermons, Jr. in Martin County Superior Court No.
13 CRS 51094-95.
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Keith Clayton, for the State.
Patterson Harkavy LLP, by Paul E. Smith, for
Thomas Everrette, Jr. appeals from judgments entered after a
jury convicted him of three counts of obtaining property by
false pretenses under N.C. Gen. Stat. § 14-100. This
case presents the issue of whether
obtaining-property-by-false-pretenses indictments charging a
defendant with obtaining an unspecified amount of
"credit" secured through the issuance of an
unidentified "loan" or "credit card, " is
a sufficiently particular description of what he allegedly
obtained, such that it conferred jurisdiction upon the trial
court to enter judgments against him. Because we conclude
this vague language fails to describe what was obtained with
sufficient particularity, as required to enable a defendant
adequately to prepare a defense, we hold the indictments
failed to vest the trial court with jurisdiction.
Accordingly, we vacate defendant's convictions and arrest
the resulting judgments.
2013, defendant joined Weyco Community Credit Union
("Weyco"). On 25 June, defendant applied for a
collateralized loan from Weyco. As part of the loan
application process, defendant completed a "verification
of employment" form indicating that Bail American
Surety, LLC ("Bail American") was his employer, and
listing its physical address and telephone number. On 27
June, defendant applied for a secured vehicle loan of $14,
399.00 to buy a Suzuki motorcycle ("Motorcycle
Loan"), as well as a credit card with a credit limit of
$2, 000.00 ("Credit Card"). These applications
listed Bail American as defendant's employer and were
approved by a Weyco loan officer that same day. On 3 July,
defendant applied for and obtained another secured vehicle
loan of $56, 976.00 to buy a Dodge truck ("Truck
Loan"). This application did not list defendant's
July, defendant submitted his first payment on the Motorcycle
Loan via a $281.95 check draft, which was later returned for
insufficient funds. On 2 August, defendant submitted his
first payment of $891.27 on the Truck Loan. On 30 August,
defendant made his second payment on the Motorcycle Loan. But
because defendant had defaulted on his first Motorcycle Loan
payment, and since the Motorcycle Loan and Truck Loan
(collectively, the "Vehicle Loans") were
cross-collateralized, defendant was in default on both loans.
after Weyco issued defendant the Vehicle Loans and Credit
Card, Bank Branch and Trust's ("BB&T")
fraud department alerted a Weyco representative that an
unusual transaction had gone through Weyco's BB&T
checking account. BB&T faxed Weyco a copy of the check
from that transaction, and defendant's name was
typewritten on the upper-left corner of the check.
BB&T's alert prompted a Weyco loan officer
supervisor, Gay Roberson, to investigate.
attempted to verify defendant's employment information by
calling the telephone number listed for Bail American on
defendant's Motorcycle Loan and Credit Card applications.
The number returned a different company. After Roberson's
internet search for the company name proved fruitless, she
discovered the physical address listed for Bail American
belonged to a different business. Roberson eventually
contacted law enforcement.
Sergeant Gene Bullock of the Williamston Police Department
searched the North Carolina Secretary of State's records
to locate the entity, Bail American, and was unsuccessful.
But Sergeant Bullock found records of an entity named
"Everette's Bail Bonding, Inc., " formed in
2000 and dissolved in 2005, as well as an entity named
"Thomas Everette, Jr., LLC, " formed in 2011 and
dissolved in 2014, at some point after Weyco had issued
defendant the Vehicle Loans and Credit Card. Defendant was
later arrested and charged.
March 2015, a grand jury of Martin County indicted defendant
for three counts of obtaining property by false pretenses
under N.C. Gen. Stat. § 14-100. The indictment for the
first count, arising from Weyco's issuance of the Credit
Card, charged that defendant "obtain[ed] credit, from
Weyco" and alleged that "this property was obtained
by means of giving false employment information on an
application for a credit card so as to qualify for said
credit care [sic] which was issued to him based upon the
false information." The indictments for the second and
third counts, arising from the Vehicle Loans, were identical
save for the offense dates, and charged that defendant
"obtain[ed] credit, from Weyco" and that "this
property was obtained by means of giving false information on
an application for a loan so as to qualify for said loan
which loan was made to defendant."
trial, Roberson testified that BB&T's potential fraud
alert prompted her to investigate defendant's employment.
Over defendant's objection, the State admitted into
evidence the fax from BB&T, a screenshot of the image of
the check containing defendant's name typewritten in its
upper-left corner. Handwritten under the check's image
was "BB&T Ck fraud." At the close of the
State's evidence, defendant unsuccessfully moved to
dismiss the charges. He argued the State failed to present
sufficient evidence he misrepresented his employment
information, in light of the evidence he elicited on
cross-examination indicating that the two entities he
previously owned, Everette's Bail Bonding, Inc. and
Thomas Everette, Jr., LLC, did business as Bail American.
represented himself pro se with standby counsel. He
called his brother, Mr. James Joyner, and asked him about
defendant's prior work history as a bail bondsman and his
efforts to make timely loan payments. Joyner testified that
defendant had worked as a bail bondsman for most of his life,
that defendant used "Bail American" or "Bail
American Bail Bondsman" on business cards and
advertisements, and that Joyner helped defendant make loan
payments when needed.
cross-examination, the State asked Joyner how long he knew
defendant to be a bail bondsman; Joyner replied:
"[B]asically, all his adult life." The State asked
whether defendant was a licensed bail bondsman; Joyner
replied: "[A]s far as I know." Then the State
asked, over defendant's objection, whether Joyner knew
defendant had previously been convicted for impersonating a
bail bondsman; Joyner replied: "Did I know that he was
impersonating a bail bondsman? No. I don't know about
that impersonating." The State inquired no further. At