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State v. Carter

Court of Appeals of North Carolina

January 7, 2020

STATE OF NORTH CAROLINA,
v.
DIANNA MICHELLE CARTER, Defendant.

          Heard in the Court of Appeals 17 September 2019.

          Appeal by Defendant from judgments entered 1 February 2018 by Judge Joshua W. Willey, Jr., in Duplin County Nos. 15 CRS 52497, 17 CRS 111 Superior Court.

          Attorney General Joshua H. Stein, by Deputy General Counsel Blake W. Thomas and Duplin County Assistant District Attorney Michele-Ellen Morton, for the State-Appellee.

          Kimberly P. Hoppin for Defendant-Appellant.

          COLLINS, Judge.

         Defendant Dianna Michelle Carter appeals from judgments entered upon jury verdicts of guilty of financial card fraud, obtaining property by false pretenses, identity theft, and attaining habitual felon status. On appeal, Defendant argues that the trial court erred by denying her motion to dismiss the charges of identity theft for insufficient evidence and by instructing the jury on false or conflicting statements. We discern no error.

         I. Procedural History

         A jury found Defendant guilty in July 2017 of financial card fraud, obtaining property by false pretenses, identity theft, and attaining the status of habitual felon.[1]The trial court entered judgments upon the jury's verdicts on 1 February 2018, sentencing Defendant to consecutive prison terms of 133 to 172 months and 96 to 128 months. Defendant gave oral notice of appeal in court.

         II. Factual Background

         The State's evidence at trial tended to show: On 29 August 2015, Corporal Jerry Wood of the Wallace Police Department received a phone call from the regional manager of Aaron's Rental ("Aaron's"), reporting suspected fraud by Defendant. Aaron's had been charged back for four credit card transactions wherein Defendant provided payment to Aaron's by credit card over the phone, and payment to the credit card companies was subsequently refused by the credit card holders. Wood learned in telephone interviews with the regional manager and the sales manager that Defendant called Aaron's on 8 June 2015 and 7 July 2015 to make payments on her own account at Aaron's, and on her daughter's account. Each time, Defendant identified herself as Dianna Carter and gave the sales manager a credit card number, expiration date, and security code for payment. The sales manager recognized Defendant's voice during the phone calls because the sales manager had spoken on the phone with Defendant several times before. The regional manager was also familiar with Defendant, as he had met with Defendant in person and spoken with her several times by phone.

         Lieutenant James P. Blanton, Jr., took over as the lead investigator on the case. During his first interview with Defendant at the police station, Defendant told Blanton that "she didn't do it, that it was her ex-boyfriend and his girlfriend" who were responsible. When Defendant returned to the police station a few days later, she told Blanton that "she was the one that did it" and specifically admitted to the four transactions at Aaron's. Defendant explained that she had obtained credit card information through an online customer service job. Upon Blanton's request, Defendant returned to the station a couple of days later with a hand-written confession. In the signed statement, Defendant admitted that she had obtained other people's credit card information about a year earlier "through an at-home job." Although she intended when she obtained the information to use it right away, she did not do so until she later felt "backed into a corner" in June and July 2015, when she conducted the fraudulent transactions.

         Blanton's investigation revealed that Defendant used the credit card information of Kathryn L. Griffin for two of the transactions at Aaron's and that of Janice K. Mooney for the other two transactions.

         Blanton also learned that Defendant used Mooney's credit card information to make two purchases in person on 6 June 2015 at First Class Tanning in Wallace.[2]Defendant gave the credit card information, which Defendant had written on a piece of paper, verbally to the sales attendant and signed her own name on the receipts. First Class Tanning was charged back for both of these purchases when payment was refused by the credit card holder. The employees at First Class Tanning were familiar with Defendant because she had been a customer there for about five years.

         At trial, the State presented evidence including Defendant's hand-written confession, testimony of Aaron's and First Class Tanning employees involved in the transactions, receipts for payments made at Aaron's, chargeback documents for the four Aaron's transactions, credit card statements and receipts for Griffin, bank records and a fraud statement for Mooney, and testimony by the investigating officers. Defendant did not present any evidence.

         III. Discussion

         A. Motion to Dismiss for Insufficient Evidence

         Defendant contends that the trial court erred by denying her motion to dismiss the six charges of identity theft for insufficient evidence that Defendant "intended to represent that she was either Janice Mooney or Kathryn Griffin, or anyone other than herself, in any of these transactions."

         Preservation of Argument for Appellate Review

         As a preliminary matter, we address the State's contention that Defendant's argument is not properly before us because Defendant's motion at trial only challenged the two counts of identity theft related to Kathryn Griffin and presented a different argument than Defendant now raises on appeal.

         "In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context." N.C. R. App. P. 10(a)(1). A general motion to dismiss for insufficient evidence preserves a defendant's arguments on all elements of all charged offenses, even if the defendant proceeds to specifically argue about fewer than all of the elements or charges. State v. Pender, 243 N.C.App. 142, 153, 776 S.E.2d 352, 360 (2015). If, however, a defendant's motion to dismiss does not present a general challenge, and instead only challenges the sufficiency of the evidence of specific elements of specific ...


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