State v. Mostafavi

IN THE SUPREME COURT OF NORTH CAROLINA

No. 199A17

Filed 6 April 2018

STATE OF NORTH CAROLINA

v.
SEID MICHAEL MOSTAFAVI

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of

the Court of Appeals, ___ N.C. App. ___, 802 S.E.2d 508 (2017), affirming in part and

vacating in part judgments entered on 9 June 2016 by Judge Anderson D. Cromer in

Superior Court, Forsyth County. Heard in the Supreme Court on 9 January 2018.

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

Joseph P. Lattimore for defendant-appellee.

NEWBY, Justice.

In this case we decide whether an indictment charging defendant with

obtaining property by false pretenses is fatally flawed because it described the

property obtained as “United States Currency” and whether the State presented

sufficient evidence of defendant’s false representation of ownership to support his

conviction for those charges. An indictment for obtaining property by false pretenses

must describe the property obtained in sufficient detail to identify the transaction by

which defendant obtained money. The indictment here sufficiently identifies the

crime charged because it describes the property obtained as “United States Currency”
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Opinion of the Court

and names the items conveyed to obtain the money. As such, the indictment is

facially valid; it gives defendant reasonable notice of the charges against him and

enables him to prepare his defense. Furthermore, we conclude that the State

presented sufficient evidence of defendant’s false representation that he owned the

stolen property he conveyed. Therefore, we reverse the decision of the Court of

Appeals.

The State presented evidence at trial showing that in July 2015, a homeowner

hired a family friend to housesit for her while she was on vacation. On 10 July 2015,

the house sitter contacted police to report that during the time she was housesitting

someone had broken into the home. That same day, the house sitter and police

contacted the homeowner to tell her about the alleged break-in. The next day,

however, the house sitter confessed that she and defendant had stolen the items from

the home.

Earlier in the week, the house sitter stole certain items from the home and

conveyed them to a local pawnshop in exchange for cash to pay for drugs. She

confided in defendant, and defendant requested to go to the victim’s home. Defendant

visited the home, then later returned with the house sitter, pulled his car into the

garage, closed the door, and loaded various items into his vehicle before leaving the

premises. Defendant obtained, inter alia, an Acer laptop, a Vizio television, a

computer monitor, and jewelry, all belonging to the homeowner. Later, defendant

conveyed the stolen items to several local stores, including a pawnshop.

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Opinion of the Court

Defendant was charged by indictment with, inter alia, two counts of obtaining

property by false pretenses. The indictment at issue stated in relevant part:

I. The jurors for the State upon their oath present
that . . . the defendant . . . knowingly and designedly with
the intent to cheat and defraud obtain[ed] UNITED
STATES CURRENCY from CASH NOW PAWN by means
of a false pretense which was calculated to deceive and did
deceive. The false pretense consisted of the following: BY
PAWNING AN ACER LAPTOP, A VIZIO TELEVISION
AND A COMPUTER MONITOR AS HIS OWN
PROPERTY TO SELL, when in fact the property had been
stolen from [the homeowner] and the defendant was not
authorized to sell the property.

II. [T]he jurors for the State upon their oath present
that . . . the defendant . . . knowingly and designedly with
the intent to cheat and defraud obtain[ed] UNITED
STATES CURRENCY from CASH NOW PAWN by means
of a false pretense which was calculated to deceive and did
deceive. The false pretense consisted of the following: BY
PAWNING JEWELRY AS HIS OWN PROPERTY TO
SELL when in fact the property had been stolen from [the
homeowner] and the defendant was not authorized to sell
the property.

At trial the house sitter testified that at no point had she told defendant that

she owned the house or the items, or that she purported to sell them to defendant.

Defendant testified, however, that the house sitter claimed she owned the stolen

items and that he had purchased the items from the house sitter at an agreed upon

price.

The pawnshop employee who completed defendant’s transaction testified that,

consistent with every loan or sale transaction, he requested defendant’s

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Opinion of the Court

identification. The State introduced two pawn tickets, initialed by the employee but

unsigned by defendant, that described the specific items defendant conveyed and

included defendant’s name, address, driver’s license number, and date of birth. Both

tickets contained language indicating that, by conveying the items, “[y]ou are giving

a security interest in the below described goods.”

Defendant unsuccessfully moved to dismiss all charges but did not challenge

the indictment at issue as fatally defective. Ultimately, the trial court found

defendant guilty of, inter alia, two counts of obtaining property by false pretenses,

and defendant appealed.

A divided panel of the Court of Appeals vacated defendant’s convictions for two

counts of obtaining property by false pretenses. State v. Mostafavi, ___ N.C. App. ___,

___, 802 S.E.2d 508, 514 (2017). The Court of Appeals opined that, when an

indictment charges a defendant with obtaining money by false pretenses, the

indictment is fatally defective unless it also includes, at a minimum, the amount of

money obtained. Id. at ___, 802 S.E.2d at 511-12. The Court of Appeals further

reasoned that even “where the amount of money is not known to the pleader, our

Supreme Court instructs that describing the money by the name of the victim from

whom it was obtained, the date it was obtained, and the false pretense used to obtain

the money is still not sufficiently specific.” Id. at ___, 802 S.E.2d at 512. Thus, though

the indictment here included “United States Currency” and the specific property

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Opinion of the Court

defendant conveyed to the pawnshop, the Court of Appeals concluded that the

description still “f[ell] short of the specificity” required. Id. at ___, 802 S.E.2d at 511.

The dissent argued that the indictment was facially valid because it included

all essential elements of the crime, gave defendant sufficient notice of the charged

crimes, and protected defendant against double jeopardy. Id. at ___, 802 S.E.2d at

515-17 (Tyson, J., concurring in part and dissenting in part) (citing State v. Ricks,

244 N.C. App. 742, 754, 781 S.E.2d 637, 645 (2016) (upholding as valid a false

pretenses indictment charging defendant with obtaining a quantity of United States

Currency)). After concluding the indictment was facially valid, the dissent further

determined the evidence was sufficient to support the charges for obtaining property

by false pretenses. Id. at ___, 802 S.E.2d at 517-18. The State filed notice of appeal

based on the dissenting opinion.

Here defendant contends, as held by the Court of Appeals, that the indictment

is fatally defective because it fails to allege the amount of money obtained by

conveying the items, as required by existing precedent. We disagree.

As this Court has consistently recognized, “a valid bill of indictment is essential

to the jurisdiction of the trial court to try an accused for a felony.” State v. Sturdivant,

304 N.C. 293, 308, 283 S.E.2d 719, 729 (1981) (citations omitted). In seeking “to

simplify criminal proceedings,” State v. Freeman, 314 N.C. 432, 436, 333 S.E.2d 743,

746 (1985), the Criminal Procedure Act of 1975 requires that an indictment contain

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“[a] plain and concise factual statement in each count which, without allegations of

an evidentiary nature, asserts facts supporting every element of a criminal offense

and the defendant’s commission thereof with sufficient precision clearly to apprise

the defendant . . . of the conduct which is the subject of the accusation,”

N.C.G.S. § 15A-924(a)(5) (2017). In moving away from the “technical rules of

pleading,” this statutory framework recognizes the purpose of indictments as

“identify[ing] clearly the crime being charged, thereby putting the accused on

reasonable notice to defend against it and prepare for trial, and to protect the accused

from being jeopardized by the State more than once for the same crime.” Sturdivant,

304 N.C. at 311, 283 S.E.2d at 731 (citation omitted). Thus, an indictment must

allege “all the essential elements of the offense endeavored to be charged,” State v.

Hunt, 357 N.C. 257, 267, 582 S.E.2d 593, 600 (quoting State v. Greer, 238 N.C. 325,

327, 77 S.E.2d 917, 919 (1953)), cert. denied, 539 U.S. 985, 124 S. Ct. 44, 156 L. Ed.

2d 702 (2003), but “an indictment couched in the language of the statute is generally

sufficient to charge the statutory offense,” State v. Palmer, 293 N.C. 633, 638, 239

S.E.2d 406, 410 (1977).

A person commits the crime of obtaining property by false pretenses if he or

she (1) “knowingly and designedly by means of any kind of false pretense”; (2)

“obtain[s] or attempt[s] to obtain from any person . . . any money, goods, property,

services, chose in action, or other thing of value”; (3) “with intent to cheat or defraud

any person of such money, goods, property, services, chose in action or other thing of

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value.” N.C.G.S. § 14-100(a) (2017). In an indictment for the larceny of money,

including indictments alleging obtaining property by false pretenses, “it is sufficient

to describe such money, or treasury note, or bank note, simply as money, without

specifying any particular coin, or treasury note, or bank note.” Id. § 15-149 (2017).

Here the indictment charged defendant with two counts of obtaining property

by false pretenses and mirrors the language of the controlling statute, N.C.G.S. § 14-

100(a), by stating that defendant, through false pretenses, knowingly and designedly

obtained “United States Currency from Cash Now Pawn” by conveying specifically

referenced personal property, which he represented as his own. The indictment

describes the personal property used to obtain money, referencing an Acer laptop, a

Vizio television, a computer monitor, and jewelry, the inclusion of which is sufficient

to identify the specific transactions at issue. Moreover, it is clear from the transcript

that defendant was not confused at trial regarding the property conveyed. Had

defendant “need[ed] more information to mount his preferred defense,” he could have

requested a bill of particulars under N.C.G.S. § 15A-925. State v. Spivey, 368 N.C.

739, 743, 782 S.E.2d 872, 874-75 (2016) (alteration in original) (quoting State v. Jones,

367 N.C. 299, 310, 758 S.E.2d 345, 353 (2014) (Martin, J., concurring in part and

dissenting in part)). The legislature enacted the aforementioned Criminal Procedure

Act of 1975, which, inter alia, sought to eliminate the technical pleading requirements

previously recognized for criminal pleadings. Freeman, 314 N.C. at 436, 333 S.E.2d

at 746. Thus, in light of the current pleading requirements set forth in the Criminal

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Procedure Act of 1975, the indictment did not need to include the amount of money

obtained because it adequately advised defendant of the conduct that is the subject

of the accusation.1

Nonetheless, defendant argues, and the Court of Appeals agreed, that this

Court’s precedent in State v. Jones, 367 N.C. 299, 758 S.E.2d 345 (2014), requires

that any indictment charging defendant with obtaining money by false pretenses

include the amount of money obtained. In Jones this Court held that a false pretenses

indictment merely stating that defendant obtained “services” at certain automobile

service centers was fatally defective in that the term “services,” without more, failed

to “describe with reasonable certainty the property obtained by false pretenses.” Id.

at 307-08, 758 S.E.2d at 351 (stating the distinct but analogous proposition “that

simply describing . . . property obtained as ‘money’ or ‘goods and things of value’ is

insufficient to allege the crime of obtaining property by false pretenses” (first quoting

State v. Reese, 83 N.C. 637, 640 (1880); and then quoting State v. Smith, 219 N.C.

400, 401, 14 S.E.2d 36, 36 (1941))); see also Smith, 219 N.C. at 401-02, 14 S.E.2d at

36-37 (concluding that the indictment was fatally defective because it failed to

reference any “money” obtained and because the State presented evidence at trial

that differed from that alleged in the indictment). Jones, therefore, is not only

1 Our view is consistent with N.C.G.S. § 14-100(a), which contemplates an attempt
crime. A person may be indicted for obtaining property by false pretenses under an attempt
theory even though no money or property is exchanged.

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factually distinguishable because it did not involve obtaining “money” through false

pretenses, but the cited language in Jones is dicta and not binding on our decision

here.

Moreover, the State presented substantial evidence at trial that defendant

falsely represented he owned the stolen property sufficient to withstand defendant’s

motion to dismiss the two counts of obtaining property by false pretenses. To survive

a motion to dismiss for insufficient evidence, the State must present “substantial

evidence [ ] of each essential element of the offense charged, or of a lesser offense

included therein, and [ ] of defendant’s being the perpetrator of such offense.” State

v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980) (citations omitted). The trial

court must consider the evidence “in the light most favorable to the State; the State

is entitled to every reasonable intendment and every reasonable inference to be

drawn therefrom; contradictions and discrepancies are for the jury to resolve and do

not warrant dismissal.” Id. at 99, 261 S.E.2d at 117 (citations omitted). When an

indictment alleges a defendant has obtained property by false pretenses, “[t]he [S]tate

must prove, as an essential element of the crime, that [the] defendant made [a]

misrepresentation as alleged [in the indictment].” State v. Linker, 309 N.C. 612, 615,

308 S.E.2d 309, 311 (1983) (citations omitted). “If the [S]tate’s evidence fails to

establish that defendant made this misrepresentation but tends to show some other

misrepresentation was made, then the [S]tate’s proof varies fatally from the

indictment[ ].” Id. at 615, 308 S.E.2d at 311 (footnote and citations omitted). “[T]he

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false pretense need not come through spoken words, but instead may be by act or

conduct.” State v. Parker, 354 N.C. 268, 284, 553 S.E.2d 885, 897 (2001) (citations

omitted), cert. denied, 535 U.S. 1114, 122 S. Ct. 2332, 153 L. Ed. 2d 162 (2002).

Here the State’s evidence at trial tended to prove all the elements alleged in

the indictment. The pawnshop employee who completed the transaction verified the

pawn tickets, which described the conveyed items and contained defendant’s name,

address, driver’s license number, and date of birth. The tickets included language

explicitly stating that defendant was “giving a security interest in the . . . described

goods.” Considered in the light most favorable to the State, here the State presented

sufficient evidence of defendant’s false representation that he owned the stolen

property he conveyed.2

We therefore conclude that, by tracking the language of N.C.G.S. § 14-100(a)

and clearly identifying “the conduct which is the subject of the accusation,”

N.C.G.S. § 15A-924(a)(5), the indictment is facially valid and fulfills the purpose of

the Criminal Procedure Act of 1975. The indictment gives defendant reasonable

notice of the charges against him, including the specific property he allegedly

conveyed to obtain the money referenced in the indictment, so that he may prepare

2 Because we conclude that the State presented sufficient evidence of defendant’s false
representation of ownership, we find it unnecessary to address whether defense counsel
provided ineffective assistance of counsel by failing to make such an argument before the
trial court. Therefore, remanding this case to the Court of Appeals to address defendant’s
ineffective assistance of counsel claim is unnecessary.

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his defense and protect himself against double jeopardy. Moreover, the State

presented sufficient evidence at trial regarding defendant’s false representation of

ownership to survive defendant’s motion to dismiss the two counts of obtaining

property by false pretenses. Accordingly, the indictment charging defendant with

obtaining property by false pretenses is facially valid, and the trial court properly

denied defendant’s motion to dismiss. The decision of the Court of Appeals vacating

defendant’s two convictions for obtaining property by false pretenses is reversed.

REVERSED.

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