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State v. Everrette

Court of Appeals of North Carolina

November 7, 2017

STATE OF NORTH CAROLINA
v.
THOMAS EVERRETTE, JR.

          Heard in the Court of Appeals 9 August 2017.

         Appeal 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 defendant-appellant.

          ELMORE, JUDGE.

         Defendant 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.

         I. Background

         In June 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 employment information.

         On 31 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.

         Sometime 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.

         Roberson 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.

         Detective 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.

         On 30 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."

         At 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.

         Defendant 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.

         On 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 the ...


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