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State v. Koke

Court of Appeals of North Carolina

February 19, 2019


          Heard in the Court of Appeals 17 January 2019.

          Appeal by defendant from judgments entered 9 February 2018 by Judge Joshua W. Willey Jr. in New Hanover County No. 15 CRS 58637 Superior Court.

          Attorney General Joshua H. Stein, by Assistant Attorney General Brent D. Kiziah, for the State.

          Edward Eldred for defendant-appellant.

          TYSON, JUDGE.

         Peter Dane Koke ("Defendant") appeals from judgments entered after a jury found him guilty of obtaining property by false pretenses and insurance fraud. We find no plain error.

         I. Background

         Defendant obtained a personal automobile insurance policy for a Jeep Patriot Sport vehicle from National General Insurance through AAC Insurance Agency on 1 August 2014. Twelve days later, Defendant bought a new black Dodge Ram pick-up truck ("Ram"), and traded in the Jeep. Sometime after purchasing the truck, Defendant removed the Jeep from coverage under his insurance policy and added coverage for the Ram. The insurance policy was renewed for the Ram on 1 February 2015 for a six-month term. The policy was cancelled on 19 May 2015 for nonpayment.

         While uninsured, the Ram was involved in an accident on 3 July 2015. Defendant was not driving the Ram at the time of the accident, but was following behind in another vehicle. The driver of the Ram was found to be at fault. The responding officer estimated the damage to the Ram to be $9, 000, and rated the damage to be a "4" on a scale from 1 to 7. The officer observed the front of the Ram to be "pushed in" and opined it was not "roadworthy."

         Defendant hired a self-employed mechanic, Archer Brawner, to repair the front end of the truck. Defendant procured replacement parts for the truck and agreed to pay Brawner $500 to make the repairs, which Defendant did not pay. At trial, Brawner was unsure of all the parts he had replaced. He consistently stated he had replaced the hood and the driver's side fender, but could not recall if he had replaced the grill or any other damaged parts. Brawner described the damage to the Ram as "cosmetic," but testified he did not know whether the truck was functional. Brawner did not provide Defendant with an invoice detailing the repairs, nor did he take any pictures or make notes about the extent of the damage.

         On 7 August 2015, Defendant applied for a commercial automobile insurance policy for coverage on the Ram. The application included various questions, including a question inquiring whether "the applicant or any listed driver [had] been convicted, plead guilty, nolo contendere, or no contest to any felony other than alcohol-related driving offenses during the last 10 years." A felony conviction would preclude issuance of a commercial insurance policy, per company regulations.

         The insurance agent presented Defendant with a pre-filled application, which answered the above question, and all other questions, as "no." Defendant reviewed and signed the application. Defendant had pled guilty to a felony offense of obtaining property by false pretenses on 1 April 2006.

         Defendant was issued a commercial automobile insurance policy, which valued the Ram at $22, 500. The policy provided for comprehensive insurance, which included coverage for theft.

         Five days after securing coverage, on 12 August 2015, Defendant reported the Ram had been stolen. National General Insurance sent Defendant an affidavit to complete, sign, and have notarized. Defendant filled in most of the requested information but left some spaces blank, including one inquiring about "major repairs since purchase."

         Defendant did not disclose the prior accident on 3 July 2015 to National General, but it was discovered by the company during the course of its investigation of the theft. Once confronted about the previous accident, Defendant disclosed the repairs completed by Brawner. Defendant did not provide any documentation concerning the repairs or the parts used.

         North Carolina Department of Insurance investigator Tyler Braswell was contacted by the Wilmington Police Department in September 2015, to assist with locating the Ram. After the investigation was completed, National General reviewed Defendant's claim, conducted a manager's "round table review," and concluded the company did not have evidence to refute the claim that the truck had been stolen.

         National General issued two checks to Defendant, each for $11, 000, on 2 October and 8 October 2015. National General attempted to stop payment on both checks after they had been mailed, as its underwriting department had determined Defendant's omission to disclose his prior felony conviction required the insurance policy to be rescinded. National General was able to stop payment on the check issued 8 October, but Defendant had already cashed the previous check.

         After a year with no sightings of the Ram, Braswell requested the help of the Wilmington Police Department to use sonar to search for the truck in the Cape Fear River on 16 September 2016. They specifically looked in the area near the bridge where Defendant was known to keep vehicles and where the repairs to the Ram had been made. The sonar indicated something under the water near the bridge that appeared to be a vehicle. This was confirmed when Braswell and the officer were assisted by surveyors who were also present on the river that day. Braswell testified that what he saw on the surveyors' imaging equipment "looked consistent with the make and model of a Dodge Ram."

         Braswell contacted the Wilmington Fire Department dive team for assistance. The dive team went out to the river on 21 September 2016. The divers confirmed it was a submerged truck and recovered a Dodge Ram emblem from the tailgate and a side mirror.

         The river provided extremely low visibility. The testifying firefighter indicated, based upon touch, the truck did not display a license plate. He also had felt there was damage on the front end of the truck, including "large gaps and missing areas." Braswell tried to find assistance to tow the truck out of the water, but was unsuccessful. In May 2017, Braswell discovered the Ram had already been towed out of the river at Defendant's request.

         James Haight, of Ace Wrecker Service, Inc., testified Defendant had employed him to remove a truck out of the river on 1 October 2016. Haight identified the truck as a "very dark blue" Dodge, covered with barnacles, and appeared to have "been down there awhile." No license plate or VIN number from the recovered vehicle was identified or noted. Haight towed the truck about half a block away from the boat ramp, and left it in a locked, fenced-in area. Haight took photographs of the truck he towed out of the river, but the copies included in the record on appeal are not discernable. Defendant's reportedly missing truck was never recovered by investigators.

         Braswell took out an arrest warrant for Defendant on 16 October 2015. Defendant was indicted on one count of obtaining property by ...

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