IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-655
Filed: 7 August 2018
Person County, No. 13CRS051087-88
STATE OF NORTH CAROLINA
v.
ERIC FERRER, Defendant.
Appeal by defendant from judgment entered on or about 12 September 2016
by Judge W. Osmond Smith, III in Superior Court, Person County. Heard in the
Court of Appeals 21 March 2018.
Attorney General Joshua H. Stein, III, by Assistant Attorney General Tracy
Nayer, for the State.
Patterson Harkavy LLP, by Narendra K. Ghosh, for defendant-appellant.
STROUD, Judge.
Defendant appeals judgment convicting him of insurance fraud. Because the
State presented no evidence defendant made fraudulent representations in
support of an insurance claim to The Hartford Insurance Company as alleged by
the indictment, the trial court should have allowed defendant’s motion to dismiss
this charge. We therefore vacate his conviction for insurance fraud.
I. Background
STATE V. FERRER
Opinion of the Court
Sunday, 16 December 2012, was not a happy day at the Happy Days Diner; it
was set on fire that day. Happy Days Diner was operated by defendant and Ms. Iris
Diaz in a building leased by Fawzi Bekhet. Ms. Diaz was approximately $16,000 in
arrears on rent owed to Mr. Bekhet and was scheduled to go to court the next day on
Mr. Bekhet’s claim for summary ejectment. After the fire, Ms. Diaz filed an insurance
claim with The Hartford Insurance Company (“Hartford”). The building itself was
insured by Nationwide Insurance (“Nationwide”), and Mr. Bekhet filed a claim for
fire damage with Nationwide. Defendant gave a recorded statement to Nationwide
representative Ms. Bonnie Locklear regarding Mr. Bekhet’s claim.
Defendant was indicted for burning a commercial structure and for insurance
fraud based upon the insurance claim made upon the insurance with Hartford. After
a jury trial, defendant was found guilty of both charges. Defendant timely gave oral
notice of appeal.
II. Insurance Fraud
Defendant does not challenge his judgment for his conviction of burning a
commercial structure but only contends the trial court should have allowed his
motion to dismiss the charge of insurance fraud because the State presented no
evidence defendant “[m]ade a [f]raudulent [s]tatement to Hartford Insurance[.]”1
1Defendant’s second argument on appeal is that if his motion to dismiss the charge of insurance fraud
was not properly preserved then his attorney provided ineffective assistance of counsel and this Court
should still review his first argument under Rule 2 of the North Carolina Rules of Appellate Procedure.
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STATE V. FERRER
Opinion of the Court
To defendant’s argument there was no evidence he made any fraudulent
statement to Hartford, we say, “exactamundo.” The trial court should have granted
his motion to dismiss.
The standard of review for a motion to dismiss is
well known. A defendant’s motion to dismiss should be
denied if there is substantial evidence of: (1) each essential
element of the offense charged, and (2) of defendant’s being
the perpetrator of the charged offense. Substantial
evidence is relevant evidence that a reasonable mind might
accept as adequate to support a conclusion. The Court
must consider the evidence in the light most favorable to
the State and the State is entitled to every reasonable
inference to be drawn from that evidence.
State v. Johnson, 203 N.C. App. 718, 724, 693 S.E.2d 145, 148 (2010) (citations and
quotation marks omitted).
The elements for insurance fraud include that the
accused presented a statement in support of a claim for
payment under an insurance policy, that the statement
contained false or misleading information concerning a fact
or matter material to the claim, that the accused knew that
the statement contained false or misleading information,
and that the accused acted with the intent to defraud.
State v. Payne, 149 N.C. App. 421, 426–27, 561 S.E.2d 507, 511 (2002); see N.C. Gen.
Stat. § 58-2-161 (2011).
The indictment for insurance fraud alleged that defendant presented “a
written and oral statement as part of a claim for payment pursuant to an insurance
We and the State agree that defendant’s counsel adequately preserved the motion to dismiss on his
charge of insurance fraud, so we need not address defendant’s second argument.
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STATE V. FERRER
Opinion of the Court
policy” with “intent to defraud an insurer, The Hartford Insurance Company.”
(Original in all caps.)
It has long been the law of this state that a
defendant must be convicted, if convicted at all, of the
particular offense charged in the warrant or bill of
indictment. It is also settled that a fatal variance between
the indictment and proof is properly raised by a motion for
judgment as of nonsuit or a motion to dismiss, since there
is not sufficient evidence to support the charge laid in the
indictment.
State v. Faircloth, 297 N.C. 100, 107, 253 S.E.2d 890, 894 (1979) (citations omitted).
As noted above, defendant gave a statement to Nationwide regarding Mr.
Bekhet’s claim, not to Hartford, the insurer for Ms. Diaz’s claim. No statement from
defendant, written or oral, to Hartford was in evidence. The State directs us to
Exhibit 13, the audio recording of an interview of defendant by Ms. Locklear of
Nationwide. The State directs us to portions of the interview where: defendant
acknowledges the fire was determined to be arson; defendant states he had spoken
with a special investigator from Hartford; defendant denies being involved with
setting the fire; Ms. Locklear says she is “going to go over . . . just some financial
information cause we usually cover it. I’m sure the guy probably at Hartford did too
. . .” to which defendant responds, “Yeah[;]” and Ms. Locklear asks, “What are you
guys claiming with Hartford that you lost?” to which defendant responds, “I think
right now it’s just the food . . . .” The State then argues that based on these noted
portions of the interview it could be
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STATE V. FERRER
Opinion of the Court
reasonably deduced or inferred that the Hartford
Insurance Company’s special investigator asked defendant
whether he was responsible for setting fire to the Happy
Days Diner, and that defendant made the same false and
misleading statement to the Hartford Insurance Company
investigator that he made to Ms. Locklear when he denied
being involved with setting fire to the Happy Days Diner
in response to Ms. Locklear’s direct questions regarding the
same.
In other words, the State asks that we read the comment, “I’m sure the guy probably
at Hartford did too . . .” and the defendant’s response, “Yeah,” to mean that defendant
made specific fraudulent representations to Hartford. The State simply asks that we
infer too much from this vague comment and response. There is no doubt that
defendant made fraudulent representations to Nationwide, but defendant was not
charged for those representations. Since the Nationwide statement was the State’s
only evidence, the trial court erred in denying defendant’s motion to dismiss.
III. Conclusion
Because there was insufficient evidence of insurance fraud, the trial court
should have granted defendant’s motion to dismiss; thus, we vacate that judgment.
VACATED.
Judges DAVIS and ARROWOOD concur.
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