{ "id": 8520503, "name": "STATE OF NORTH CAROLINA v. TIMOTHY MICHAEL ALMOND; STATE OF NORTH CAROLINA v. MICHAEL A. ALMOND", "name_abbreviation": "State v. Almond", "decision_date": "1993-10-05", "docket_number": "No. 9223SC885", "first_page": "137", "last_page": "151", "citations": [ { "type": "official", "cite": "112 N.C. App. 137" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "239 S.E.2d 821", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "parenthetical": "failure to object to conversations at the bench between judge and jurors constitutes a waiver" } ], "opinion_index": 0 }, { "cite": "294 N.C. 189", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572308 ], "year": 1978, "pin_cites": [ { "parenthetical": "failure to object to conversations at the bench between judge and jurors constitutes a waiver" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0189-01" ] }, { "cite": "392 S.E.2d 362", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 792", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5309049 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0792-01" ] }, { "cite": "393 S.E.2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "parenthetical": "recognizing power of trial court to control extent and timing of disclosure of public defender's files" } ], "opinion_index": 0 }, { "cite": "327 N.C. 147", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2493733 ], "year": 1990, "pin_cites": [ { "parenthetical": "recognizing power of trial court to control extent and timing of disclosure of public defender's files" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0147-01" ] }, { "cite": "237 S.E.2d 748", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "34 N.C. App. 226", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548080 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/34/0226-01" ] }, { "cite": "283 S.E.2d 134", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 237", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565409, 8565362, 8565396, 8565432, 8565337 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0237-04", "/nc/301/0237-02", "/nc/301/0237-03", "/nc/301/0237-05", "/nc/301/0237-01" ] }, { "cite": "269 S.E.2d 291", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "48 N.C. App. 526", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551555 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/48/0526-01" ] }, { "cite": "346 S.E.2d. 142", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 337", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4777479, 4779848, 4775277, 4775760, 4775935 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0337-03", "/nc/317/0337-05", "/nc/317/0337-04", "/nc/317/0337-02", "/nc/317/0337-01" ] }, { "cite": "341 S.E.2d 760", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "764" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 236", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523057 ], "year": 1986, "pin_cites": [ { "page": "242" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0236-01" ] }, { "cite": "273 S.E.2d 442", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 96", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562692, 8562666, 8562768, 8562713, 8562747 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0096-02", "/nc/301/0096-01", "/nc/301/0096-05", "/nc/301/0096-03", "/nc/301/0096-04" ] }, { "cite": "268 S.E.2d 87", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "47 N.C. App. 376", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549733 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/47/0376-01" ] }, { "cite": "308 S.E.2d 258", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 528", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4767283 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0528-01" ] }, { "cite": "334 S.E.2d 71", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "76 N.C. App. 660", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527792 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/76/0660-01" ] }, { "cite": "412 S.E.2d 308", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1991, "pin_cites": [ { "parenthetical": "4-3 decision" }, { "page": "312", "parenthetical": "emphasis in original" }, { "page": "314" }, { "page": "314" }, { "page": "315-16" } ], "opinion_index": 0 }, { "cite": "330 N.C. 298", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2508946 ], "weight": 3, "year": 1991, "pin_cites": [ { "parenthetical": "4-3 decision" }, { "page": "302-303" }, { "page": "309" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0298-01" ] }, { "cite": "346 S.E.2d 488", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 545", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4774041 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0545-01" ] }, { "cite": "391 S.E.2d 177", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "179" } ], "opinion_index": 0 }, { "cite": "326 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306007 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0561-01" ] }, { "cite": "279 S.E.2d 353", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 396", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565993, 8565962, 8566068, 8566037, 8566111 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0396-02", "/nc/302/0396-01", "/nc/302/0396-04", "/nc/302/0396-03", "/nc/302/0396-05" ] }, { "cite": "273 S.E.2d 465", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "501" } ], "opinion_index": 0 }, { "cite": "50 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2675293 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/50/0001-01" ] }, { "cite": "354 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "85 N.C. App. 262", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169805 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/85/0262-01" ] }, { "cite": "431 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "193", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "334 N.C. 54", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529763 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0054-01" ] }, { "cite": "459 U.S. 1018", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6468801, 6468547, 6469476, 6468711, 6469608, 6469353, 6468967, 6468624, 6468240, 6468465, 6469044, 6468343, 6469144, 6469246 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/us/459/1018-07", "/us/459/1018-04", "/us/459/1018-13", "/us/459/1018-06", "/us/459/1018-14", "/us/459/1018-12", "/us/459/1018-08", "/us/459/1018-05", "/us/459/1018-01", "/us/459/1018-03", "/us/459/1018-09", "/us/459/1018-02", "/us/459/1018-10", "/us/459/1018-11" ] }, { "cite": "676 F.2d 995", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 562145 ], "opinion_index": 0, "case_paths": [ "/f2d/676/0995-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "378", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "307 S.E.2d 304", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "parenthetical": "failure to object at trial constitutes waiver on appeal" } ], "opinion_index": 0 }, { "cite": "309 N.C. 326", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4760257 ], "year": 1983, "pin_cites": [ { "parenthetical": "failure to object at trial constitutes waiver on appeal" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0326-01" ] }, { "cite": "412 S.E.2d 308", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "314" } ], "opinion_index": 1 }, { "cite": "330 N.C. 298", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2508946 ], "year": 1991, "pin_cites": [ { "page": "306-07" } ], "opinion_index": 1, "case_paths": [ "/nc/330/0298-01" ] }, { "cite": "346 S.E.2d 488", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "494", "parenthetical": "in trial for transporting marijuana, jury charge which allowed jury to convict defendant if it found defendant knowingly possessed or knowingly transported marijuana held error because possession and transportation are separate crimes with separate punishments" } ], "opinion_index": 1 }, { "cite": "317 N.C. 545", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4774041 ], "year": 1986, "pin_cites": [ { "page": "554", "parenthetical": "in trial for transporting marijuana, jury charge which allowed jury to convict defendant if it found defendant knowingly possessed or knowingly transported marijuana held error because possession and transportation are separate crimes with separate punishments" } ], "opinion_index": 1, "case_paths": [ "/nc/317/0545-01" ] }, { "cite": "391 S.E.2d 177", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "180" } ], "opinion_index": 1 }, { "cite": "326 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306007 ], "year": 1990, "opinion_index": 1, "case_paths": [ "/nc/326/0561-01" ] } ], "analysis": { "cardinality": 1188, "char_count": 33898, "ocr_confidence": 0.74, "pagerank": { "raw": 1.3192335825282566e-07, "percentile": 0.6261484742932889 }, "sha256": "1382ceaf875f53829f7f6599cf574547cd4bd98cc393bfd80a13673d519523be", "simhash": "1:83e8cc6a7829fc5a", "word_count": 5466 }, "last_updated": "2023-07-14T15:48:17.524906+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge EAGLES concurs.", "Judge GREENE dissents." ], "parties": [ "STATE OF NORTH CAROLINA v. TIMOTHY MICHAEL ALMOND STATE OF NORTH CAROLINA v. MICHAEL A. ALMOND" ], "opinions": [ { "text": "LEWIS, Judge.\nDefendant Michael Almond was indicted on three counts of obtaining property by false pretenses and three, counts of conspiracy to commit false pretenses. Defendant Timothy Almond was indicted on two counts of conspiracy to commit false pretenses. The jury returned guilty verdicts on all counts and defendants appealed.\nThe evidence presented below tended to show that Michael Almond worked as the purchasing agent for Carolina Mirror Corporation (\u201cCMC\u201d). Throughout the time period relevant to this appeal, CMC was in the business of manufacturing mirrors and as part of its manufacturing process, CMC purchased various items and services from Minton Electric and Carolina Glue Chip (\u201cCGC\u201d). The businesses of CMC and CGC were closely linked with CGC providing most of the glass used in the production of CMC\u2019s mirrors. Conversely, CMC was CGC\u2019s main customer. Thus, due to his position as purchasing agent, Michael Almond maintained a very close relationship with CGC. In fact Michael Almond co-founded CGC with Jerry Minton but remained a silent partner.\nAt trial, the State presented evidence that Michael Almond was directly involved in a kickback scheme with Jerry Minton, in which Minton Electric charged prices 40% over cost to CMC instead of the customary 20% charged to other customers. Cash, loans and tangible personal property were given to Michael Almond in exchange for his role in the kickback scheme. The State also contended that Michael Almond caused CMC to purchase glue from Sutton Supply when in fact no glue was ever delivered to CMC. Employees at CMC testified that glue was never used in any of its processes and there was no reason to purchase such. The glue, in fact, though paid for by CMC was actually delivered to CGC.\nTim Almond, Michael Almond\u2019s son, was also indicted for his role in the kickback scheme as a co-conspirator. Many of the kickback payments delivered to Michael Almond were paid to a company called TMA Sales, whose sole purpose was to receive the illegal payments. Tim Almond\u2019s responsibility was to pick up the payments from Jerry Minton and deliver them to Michael Almond. For his part, Tim Almond received an auto loan and also an all expense paid trip to England.\nIn his defense, Michael Almond attempted to offer evidence to show that his supervisors were aware that CMC was paying to have glue shipped to CGC because CMC was actively involved in assisting CGC due to CMC\u2019s reliance on CGC\u2019s glass for the production of its mirrors. Further, Michael Almond contended that for any glue which CMC paid to have delivered to CGC, it received compensation in the form of services. Michael Almond also asserted that CMC was aware of his interest in CGC and that any payments he received from CGC were merely compensation for his time and energy.\nCounsel has submitted a single brief on behalf of both defendants combining several assignments of error peculiar to the individual defendants. The first two assignments of error, dealing with Tim Almond, are substantially related and we have chosen to address them together. The first assignment of error contends that the trial court denied Tim Almond his right to a unanimous verdict by submitting the two conspiracy indictments to the jury together. The second assignment of error alleges that the trial court erred in combining the two indictments together. We will address these issues in the order in which they arose during trial.\nThe first indictment charged Tim Almond with \u201cconspiring] with John Minton, Jerry Minton, doing business as Minton Electric, Michael A. Almond and others to commit the felony of obtaining property by false pretenses... .\u201d In contrast, the second indictment alleged that Tim Almond \u201cconspire[d] with Jerry Minton, doing business as Carolina Glue Chip, and Michael A. Almond and others to commit the felony of obtaining property by false pretenses. . . .\u201d However, at the conclusion of the State\u2019s evidence, the State decided, and the trial court consented, to combine the conspiracy indictments into a single count. Although not specifically denominated as such, we will treat the State\u2019s request as a motion to consolidate. It is Tim Almond\u2019s contention that the consolidation of the indictments was improper because nothing in the Criminal Procedure Act allows indictments to be consolidated. We disagree.\nBefore we may address the merits of this assignment of error, we must first determine whether the issue has been properly preserved for appeal. After reviewing the record it is clear that defendant, represented by competent counsel, failed to object to the consolidation of the indictments. Nothing else appearing this assignment of error would be improper because it is well established that an issue may not be raised for the first time on appeal. See State v. Oliver, 309 N.C. 326, 307 S.E.2d 304 (1983) (failure to object at trial constitutes waiver on appeal). However, since defendant\u2019s first two assignments of error overlap and since defendant has asserted a plain error exception in the first assignment of error, we have undertaken a review of the record to determine if plain error applies to this assignment of error.\nThe plain error exception was first adopted by our Supreme Court in State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983). In Odom, the Supreme Court quoted from the Fourth Circuit\u2019s opinion in United States v. McCaskill, 676 F.2d 995 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L.Ed. 2d (1982), and held that:\n[T]he plain error rule ... is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a \u201cfundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,\u201d or \u201cwhere [the error] is grave error which amounts to a denial of a fundamental right of the accused,\u201d or the error has \u201c \u2018resulted in a miscarriage of justice or in the denial to appellant of a fair trial\u2019 \u201d or where the error is such as to \u201cseriously affect the fairness, integrity or public reputation of judicial proceedings\u201d or where it can be fairly said \u201cthe instructional mistake had a probable impact on the jury\u2019s finding that the defendant was guilty.\u201d\nOdom at 660, 300 S.E.2d at 378 (citations omitted). Recently, the Supreme Court has reexamined the plain error exception in State v. Collins, 334 N.C. 54, 431 S.E.2d 188 (1993). Therein, the Supreme Court reemphasized the fact that plain error occurs only in \u201crare cases\u201d where the error is \u201cso fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.\u201d Id. at 62, 431 S.E.2d at 193 (citations omitted). We do not believe that this is ojie of those rare cases.\nWe note, at the outset that defendant was represented by counsel when the State moved to consolidate the indictments and defendant\u2019s counsel did not object. The reason for this is readily apparent. Prior to the consolidation of the indictments Tim Almond faced two possible convictions, each carrying a maximum of ten years imprisonment. After the consolidation, Tim Almond was at risk only for a single count of conspiracy carrying a maximum of ten years imprisonment. Thus, the consolidation of the indictments was not prejudicial to defendant, but rather beneficial to him. It is also easy to' understand why the State sought to consolidate the indictments against Tim Almond. Because of the overlap in the evidence, there was the potential for confusion among the jurors between the two conspiracies. However, once the indictments were consolidated, the State was left with one readily understood count of conspiracy capable of proof by multiple means.\nIn addition, we note that Tim Almond has failed to offer any authority in favor of this assignment of error. See Byrne v. Bordeaux, 85 N.C. App. 262, 354 S.E.2d 277 (1987). We do not believe that Tim Almond\u2019s bald assertion of the Criminal Procedure Act meets the requirements of N.C.R.App. P. 28(b)(5) because as stated in S.J. Groves & Sons & Co. v. State, 50 N.C. App. 1, 273 S.E.2d 465 (1980), disc. rev. denied, 302 N.C. 396, 279 S.E.2d 353 (1981), this Court will not \u201c \u2018fish out\u2019 an appellant\u2019s exception which is not properly presented.\u201d Id. at 69, 273 S.E.2d at 501. Taking all of these factors into consideration, we find no plain error. Defendant\u2019s second assignment of error is dismissed.\nWe now turn to Tim Almond\u2019s first assignment of error in which he contends that the trial court erred in submitting the consolidated indictments to the jury together in that this deprived him of his constitutional right to a unanimous verdict. However, before addressing the merits of this assignment of error, we must again determine whether the issue has been properly preserved. Rule 10(b)(2) of the North Carolina Rules of Appellate Procedure provides:\nA party may not assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection; ....\nIt is undisputed that defendant failed to object to the trial court\u2019s instructions to the jury submitting the consolidated indictments together to the jury as one count. However, Tim Almond asserts that this was plain error. Because the error was such that defendant was potentially deprived of his fundamental right to a unanimous verdict, we have decided to address the merits of this assignment of error.\nTim Almond argues that by consolidating the indictments the trial court denied him his right to a unanimous verdict because of the potential for disagreement between the jurors as to whom he conspired. We disagree and find the facts of this situation analogous to those in State v. Hartness, 326 N.C. 561, 391 S.E.2d 177 (1990). There, our Supreme Court upheld a conviction for indecent liberties even though the trial court had charged the jury in an ambiguous manner that allowed for disagreement among the jurors as to the immoral acts committed by the defendant. The Supreme Court stated that: \u201cEven if we assume that some jurors found that one type of sexual conduct occurred and others found that another transpired, the fact remains that the jury as a whole would unanimously find that there occurred sexual conduct within the ambit of \u2018any immoral, improper, or indecent liberties.\u2019 \u201d Id. at 565, 391 S.E.2d at 179. In reaching its decision the Supreme Court distinguished its previous decision in State v. Diaz, 317 N.C. 545, 346 S.E.2d 488 (1986). The Supreme Court concluded that the jury instructions in Diaz were improper because they allowed the jury to convict the defendant if they found that he either possessed or transported drugs. Such an instruction was erroneous because the drug trafficking statute enumerated specific activities, each of which was punishable separately. In contrast, the statute on indecent liberties, which was construed in Hartness, merely prohibited immoral, improper or indecent liberties but not any specific activities which were punishable separately.\nSince Diaz and Hartness, our Supreme Court has revisited the issue of unanimous jury verdicts in State v. Lyons, 330 N.C. 298, 412 S.E.2d 308 (1991) (4-3 decision). In Lyons, the Supreme Court remanded a secretive assault charge for a new trial because the trial court\u2019s disjunctive instructions allowed the jurors to disagree as to which victim defendant assaulted. In reaching its decision, the Court reviewed both Diaz and Hartness and stated:\nThe former line of cases (Diaz) establishes that a disjunctive instruction, which allows the jury to find a defendant guilty if he commits either of two underlying acts, either of which is in itself a separate offense, is fatally ambiguous because it is impossible to determine whether the jury unanimously found that the defendant committed one particular offense. The latter line (Hartness) establishes that if the trial court merely instructs the jury disjunctively as to various alternative acts which will establish an element of the offense, the requirement of unanimity is satisfied.\nLyons, 330 N.C. at 302-303, 412 S.E.2d at 312 (emphasis in original). Thus, the difference is whether the two underlying acts are separate offenses or whether they are merely alternative ways to establish a single offense. Applying this test, the Supreme Court held that the trial court erroneously \u201cpermitted] consideration in one issue of two possible crimes for which defendant could be separately convicted and punished.\u201d Id. at 306, 412 S.E.2d at 314. The dissent would have us believe that the present matter falls within the above quoted language, but a complete examination of Lyons shows that it does not.\nIn Lyons, Justice Whichard went on to stress the importance of examining the gravamen of the offense which the legislature intended to prevent. In Lyons, it was held that the \u201cgravamen of the offense of maliciously assaulting in a secret manner is the assaulting of a particular individual in that manner.\u201d Id. at 307, 412 S.E.2d at 314. The gravamen of the offense in Hartness was not the conduct of the defendant, but- his intent or purpose. Id. In the present matter, we find the gravamen of the offense of conspiracy to obtain property by false pretenses is not the conduct of Tim Almond, but his intent or purpose in attempting to obtain property by false pretenses, further showing the appropriateness of the Hartness line of cases to this situation.\nLastly, Justice Whichard examined the wording of N.C.G.S. \u00a7 14-31 to show that Diaz was appropriate. This section provides:\nIf any person shall in a secret manner maliciously commit an assault and battery with any deadly weapon upon another by waylaying or otherwise, with intent to kill such other person, notwithstanding the person so assaulted may have been conscious of the presence of his adversary, he shall be punished as a Class F felon.\nN.C.G.S. \u00a7 14-31 (1986). The Supreme Court relied on the phrases \u201csuch other person\u201d and \u201cthe person so assaulted\u201d as \u201cclearly indicative of legislative intent that to find a defendant guilty of this offense, the jury must find unanimously that he committed the assault on a particular individual.\u201d Lyons, 330 N.C. at 309, 412 S.E.2d at 315-16. No such similar language appears in the statute concerning obtaining property by false pretenses. Instead N.C.G.S. \u00a7 14-100 makes punishable any act by which a person obtains or attempts to obtain \u201cmoney, goods, property, services, chose in action, or other thing of value with intent to cheat or defraud any person of such money, goods, property, services, chose in action or other thing of value.\u201d (Emphasis added)-. Unlike the offense in Lyons, N.C.G.S. \u00a7 14-100 uses the term \u201cany person\u201d- instead of limiting the offense to a particular individual. This is further evidence that a unanimous verdict was required only as to the offense of conspiracy to obtain property by false pretenses and not to the persons with whom Tim Almond conspired.\nThus, after thoroughly reviewing the relevant case law we find this case more analogous to Hartness. Nowhere does the statute enumerate any specific activities which are separately punishable. Even though it is possible that the jurors could have disagreed as to whether or not Tim Almond conspired with John Minton, the jurors were at least unanimous that Tim Almond conspired with Michael Almond and Jerry Minton to obtain money by false pretenses since these individuals were mentioned in both indictments. It. does not matter that different companies were named in the indictments because conspiracy requires an agreement between two or more individuals to do an illegal act. See State v. Massey, 76 N.C. App. 660, 334 S.E.2d 71 (1985). It stands to reason that Tim Almond could not conspire with the companies named in the indictments but only with the individuals which represented those companies. This is exactly what the jury found in its verdict. Accordingly, we find this argument to be without merit.\nThe third argument contends that the trial court erred in refusing to grant defendants\u2019 motion to dismiss at the close of all the evidence. We must determine whether or not there was substantial evidence of each element of the offense charged and of defendant being the perpetrator. State v. Bates, 309 N.C. 528, 308 S.E.2d 258 (1983). In making this determination, the evidence is considered in the light most favorable to the State, with the State receiving the benefit of every reasonable inference that can be drawn from the evidence. State v. Cooley, 47 N.C. App. 376, 268 S.E.2d 87, disc. rev. denied, 301 N.C. 96, 273 S.E.2d 442 (1980).\nThe . elements of obtaining property by false pretenses have been defined as \u201c(1) a false representation of a subsisting fact or future fulfillment or event, (2) which is calculated and intended to deceive, (3) which does in fact deceive, and (4) by which one person obtains or attempts to obtain value from another.\u201d State v. Childers, 80 N.C. App. 236, 242, 341 S.E.2d 760, 764, disc. rev. denied, 317 N.C. 337, 346 S.E.2d. 142 (1986). Defendants assert that the trial court\u2019s refusal to grant their motion was error because, the State failed to produce any evidence on the issue of misrepresentation. We disagree. In essence, defendants argue that since Michael Almond did not affirmatively say anything to his supervisors regarding the payment of invoices and the prices which he obtained, then he did not make any misrepresentations. This argument completely ignores Michael Almond\u2019s position as purchasing agent and his authority. In their brief, defendants state that Michael Almond was authorized to approve the payment of all expenses on behalf of CMC. Given this admission, we cannot see how the submission of invoices for goods not received would not amount to a misrepresentation. Further, representatives for CMC testified that as purchasing agent, Michael Almond was responsible for obtaining the best price possible. Thus, every time Michael Almond approved or authorized an invoice to be paid he was making an implicit representation that he had obtained the best possible price and not one that was 20% above normal.\nMichael Almond further argues that even if misrepresentations did occur then there was no causal relationship between the misrepresentations and his receipt of any moneys. In support of this argument Michael Almond cites State v. Davis, 48 N.C. App. 526, 269 S.E.2d 291, disc. rev. denied, 301 N.C. 237, 283 S.E.2d 134 (1980), wherein a town official falsified expenditure requests and obtained train tickets in return. In reversing the conviction, this Court held that the evidence was insufficient to show that the town official\u2019s misrepresentation had in any way induced the town to part with its money. In the case at hand we find sufficient evidence was produced to show that CMC would not have paid the inflated invoices but for Michael Almond\u2019s approval of such and it was CMC\u2019s payment of these inflated invoices which allowed Michael Almond to receive his kickback. We find no merit to defendants\u2019 argument.\nIn the fourth argument, Michael Almond asserts that indictments 90-CrS-6605 and 90-CrS-6600 are fatally defective and the trial court erred when it denied his motion to quash. Michael Almond contends that indictment 90-CrS-6605 is defective because it failed to allege the county in which the alleged activities took place as required by N.C.G.S. \u00a7 15A-924(a)(3). All of the indictments against Michael Almond were captioned as from Wilkes County. Further, all of the indictments against Michael Almond, save indictment 90-CrS-6605, contained the phrase \u201cin the county named above\u201d to incorporate by reference that the alleged activities had taken place in Wilkes County. Although, the name of the county was omitted from the body of the indictment, we find that sufficient information was contained in the indictment to confer jurisdiction upon the Wilkes County grand jury and to inform Michael Almond that the charges against him arose from activities in Wilkes County. Indictment 90-CrS-6605 alleged that Michael Almond obtained money from CMC by false pretenses. It is undisputed that CMC is located in Wilkes County and thus Michael Almond had full knowledge of the charges against him. Further, when all of the indictments are taken together, there is no question that the activities for which Michael Almond is charged took place within Wilkes County. We see no reason to quash indictment 90-CrS-6605 for the simple reason that an omission was made in typing the indictment.\nMichael Almond also contends the trial court erred when it denied his motion to dismiss indictment 90-CrS-6600 because it failed to allege that Michael Almond \u201cobtained or attempted to obtain anything of value.\u201d In support of this argument, Michael Almond cites State v. Hadlock, 34 N.C. App. 226, 237 S.E.2d 748 (1977), where this Court found an indictment insufficient when it failed to allege that the defendant obtained or attempted to obtain anything. The specific language of 90-CrS-6600 reads: \u201cdefendant named above, unlawfully, willfully and feloniously did knowingly and designedly with the intent to cheat and defraud obtain and attempt to obtain in United States money from Carolina Mirror Corporation. . . .\u201d There is absolutely nothing ambiguous about this charge. We find that the above language was more than sufficient to give Michael Almond notice of the charge against him.\nDefendants next argue that the trial court erred in quashing a portion of their subpoena duces tecum. During early 1992, defendants served subpoenas on several of the officers and former employees of CMC requesting all invoices and delivery checks which CMC had from any of its suppliers from 1982 through 1990. Gary Vannoy, appearing in his capacity as private prosecutor and attorney for CMC, moved to quash the subpoenas as unduly burdensome and irrelevant. A hearing was held on the State\u2019s motion approximately two weeks prior to the trial date. Upon hearing arguments from both sides, the trial court determined that the subpoenas were really discovery devices and granted a protective order pursuant to N.C.G.S. \u00a7 15A-908. Defendants assert that this was error in that it denied them the opportunity to explore possible motives for their prosecution by CMC officials, as well as preventing them from having access to information which would show that CMC had paid inflated prices to other companies. We disagree.\nIt is clear that defendants did not follow the proper discovery procedures provided for in Chapter 15A. Thus, given the late date at which defendants served their subpoenas, we believe that the trial court was correct in characterizing the subpoenas as discovery devices intended to circumvent the normal discovery process. Therefore, given that the trial court has broad discretion to control discov\u00e9ry so as to prevent undue embarrassment and annoyance, we find that the trial court did not err. See State v. Taylor, 327 N.C. 147, 393 S.E.2d 801 (1990) (recognizing power of trial court to control extent and timing of disclosure of public defender\u2019s files).\nDefendants have also assigned as error the fact that the trial court held ex parte communications with the prosecutor while defense counsel was outside the courtroom. In support of this argument, defendants cite State v. Smith, 326 N.C. 792, 392 S.E.2d 362 (1990), for the proposition that a defendant has the right to be present at every stage of his prosecution and such right cannot be waived. However, our review of the case law reveals that this right may be waived except in capital cases. See State v. Tate, 294 N.C. 189, 239 S.E.2d 821 (1978) (failure to object to conversations at the bench between judge and jurors constitutes a waiver). The record reveals that defendants have raised their objection to the bench conference with the prosecutor for the first time on appeal. Thus we deem the objection as waived and defendants\u2019 assignment of error is overruled.\nDefendants\u2019 last two assignments of error concern evidentiary rulings made by the trial court. Defendants assert that the trial court erred when it allowed employees of CMC to testify about the amount of business done by CMC because improper foundations were laid for the testimony and the testimony was hearsay. N.C.G.S. \u00a7 15A-1443(a) provides that a defendant is prejudiced by errors relating to rights other than under the Constitution when there is a reasonable possibility that had the error not been committed the jury would have reached a different result: The burden of proving this is on the defendant. After reviewing the record we find that the evidentiary issues to which defendants objected were only tangential and did not affect defendants\u2019 convictions. Accordingly we find no merit to defendants\u2019 last two assignments of error.\nWe find that defendants received a fair trial fr\u00e9e from prejudicial error.\nNo error.\nJudge EAGLES concurs.\nJudge GREENE dissents.", "type": "majority", "author": "LEWIS, Judge." }, { "text": "Judge GREENE\nconcurring in part and dissenting in part.\nI agree with the majority, for the reasons given, that there was no error in defendant Michael A. Almond\u2019s trial. I believe, however, defendant Timothy Almond is entitled to a new trial because of plain error committed in presenting only one conspiracy charge to the jury, but allowing the jury to convict on either of two conspiracy charges.\nThe defendant was indicted, in two separate indictments, on two counts of conspiracy. The first indictment, 90-CrS-6598, alleged that the defendant engaged in a conspiracy from November 1982 through November 1988, with \u201cJohn Minton, Jerry Minton, doing business as Minton Electric, Michael A. Almond and others\u201d to obtain money by false pretenses from Carolina Mirror Corporation and Carolina Mirror Company by invoicing Carolina Mirror inflated prices for goods sold to them by Minton Electric, the inflated profits then being split between the defendant and others. The second indictment, 90-CrS-6608, alleged that the defendant conspired with \u201cJerry Minton, doing business as Carolina Glue Chip, and Michael A. Almond and others\u201d between October 1985 and April 1986 to obtain money by false pretenses from Carolina Mirror Corporation by inflating invoices for glass from Carolina Glue Chip by $.10 per square foot to create money to kickback to the defendant and others.\nThe indictments allege two separate conspiracies, involving different time frames, different actors, different victims, and different methods of committing the crime. During the trial, the jury heard evidence concerning both conspiracies. The verdict form given to the jury read as follows:\nWe, the jury, unanimously find the defendant, Timothy Michael Almond,\n_ Guilty of Conspiracy to Obtain Property by False Pretenses or;\n_ Not Guilty\nIn its instructions to the jury, the trial court instructed on the general elements of conspiracy charging that the defendant should be found guilty if those elements were established by the evidence. This general instruction and the verdict form impermissibly permitted \u201cconsideration in one issue of two possible crimes for which defendant could be separately convicted and punished\u201d: (1) the conspiracy charged in the first indictment, and (2) the conspiracy charged in the second indictment. See State v. Lyons, 330 N.C. 298, 306-07, 412 S.E.2d 308, 314 (1991). Accordingly \u201cthe jury could have returned a verdict of guilty without all twelve jurors agreeing\u201d on which conspiracy the defendant was guilty. Id. Therefore the verdict is defective in that it violates defendant\u2019s constitutional right to be convicted by a unanimous jury. N.C. Const, art. I, \u00a7 24.\nContrary to the majority, I do not believe this case is controlled by State v. Hartness, 326 N.C. 561, 391 S.E.2d 177 (1990). Hartness was a case \u201cin which a single wrong [was] established by a finding of various alternative elements.\u201d Id. at 566, 391 S.E.2d at 180. Hartness therefore is not applicable to the present case because this defendant was charged with engaging in two separate conspiracies. See State v. Diaz, 317 N.C. 545, 554, 346 S.E.2d 488, 494 (1986) (in trial for transporting marijuana, jury charge which allowed jury to convict defendant if it found defendant knowingly possessed or knowingly transported marijuana held error because possession and transportation are separate crimes with separate punishments).", "type": "concurring-in-part-and-dissenting-in-part", "author": "Judge GREENE" } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Special Deputy Attorney General Lars F. Nance, for the State.", "Wilson, Palmer, Lackey and Starnes, P.A., by W.C. Palmer and Wesley E. Starnes, for defend\u00e1nts-appellants." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TIMOTHY MICHAEL ALMOND STATE OF NORTH CAROLINA v. MICHAEL A. ALMOND\nNo. 9223SC885\n(Filed 5 October 1993)\n1. Appeal and Error \u00a7 155 (NCI4th)\u2014 consolidation of two indictments \u2014issue not properly before court \u2014no plain error\nDefendant\u2019s contention that the consolidation of two indictments against him into one count was improper because nothing in the Criminal Procedure Act allowed indictments to be consolidated was not properly before the court on appeal where defendant failed to object to the consolidation, and consolidation did not amount to plain error in light of the fact that it reduced defendant\u2019s risk of conviction from two counts with possible imprisonment of twenty years to one count with possible imprisonment of ten years, and defendant failed to offer any authority in favor of this assignment of error.\nAm Jur 2d, Appeal and Error \u00a7 562 et seq.\n2. False Pretenses, Cheats, and Related Offenses \u00a7 5 (NCI4th) \u2014 obtaining property by false pretenses \u2014consolidation of indictments \u2014defendant not denied right to unanimous verdict\nThere was no merit to defendant\u2019s contention that, by consolidating two indictments for obtaining property by false pretenses into one count, the trial court denied defendant his right to a unanimous verdict because of the potential for disagreement between the jurors as to the person with whom defendant conspired, since the gravamen of the offense of conspiracy to obtain property by false pretenses is not the conduct of defendant, but his intent or purpose in attempting to obtain property by false pretenses; a unanimous verdict was required only as to the offense of conspiracy to obtain property by false pretenses and not to the persons with whom defendant conspired; and N.C.G.S. \u00a7 14-100, the statute under which defendant was convicted, does not enumerate any specific activities which are separately punishable.\nAm Jur 2d, False Pretenses \u00a7 60 et seq.\n3. False Pretenses, Cheats, and Related Offenses \u00a7 18 (NCI4th( \u2014 obtaining property by false pretenses \u2014 invoicing goods not received \u2014 inflated invoices \u2014 misrepresentations \u2014 connection between misrepresentations and defendant\u2019s kickbacks \u2014 sufficiency of evidence\nIn a prosecution of defendant for obtaining property by false pretenses, there was no merit to defendant\u2019s contention that there was insufficient evidence of misrepresentation or that, even if misrepresentations did occur, then there was no causal relationship between the misrepresentations and his receipt of any moneys, since defendant, as purchasing agent for his company, was authorized to approve payment of all expenses on behalf of the company; the submission of invoices for goods not received was therefore a misrepresentation; defendant as purchasing agent was responsible for obtaining the best price possible; every time he approved or authorized an invoice to be paid, he was making an implicit representation that he had obtained the best possible price and not one that was 20\u00b0/o above normal; defendant\u2019s company would not have paid the inflated invoices but for defendant\u2019s approval of such; and it was the company\u2019s payment of these inflated invoices which allowed defendant to receive his kickback.\nAm Jur 2d, False Pretenses \u00a7 70 et seq.\n4. Indictment, Information, and Criminal Pleadings \u00a7 30 (NCI4th) \u2014 failure to allege county where offense occurred \u2014 motion to quash denied \u2014no error\nThe trial court did not err in denying defendant\u2019s motion to quash an indictment because it failed to allege in the body thereof the county in which the alleged activities took place where this indictment and all other indictments against defendant were captioned as from Wilkes County; all other indictments contained the phrase \u201cin the county named above\u201d; this indictment charged defendant with obtaining money by false pretenses from a named corporation, and the corporation is located in Wilkes County; and sufficient information was thus contained in the indictment to confer jurisdiction on the Wilkes County grand jury and to inform defendant that the charges against him arose from activities in Wilkes County.\nAm Jur 2d, Indictments and Informations \u00a7\u00a7 122, 123.\n5. Evidence and Witnesses \u00a7 2452 (NCI4th)\u2014 subpoenas duces tecum \u2014 attempt to circumvent discovery \u2014 quashal proper\nThe trial court did not err in quashing a portion of defendants\u2019 subpoenas duces tecum where the trial court properly determined that the subpoenas were really discovery devices intended to circumvent the normal discovery process.\nAm Jur 2d, Witnesses \u00a7 22.\n6. Appeal and Error \u00a7 447 (NCI4th)\u2014 trial court\u2019s communications with prosecutor \u2014 issue raised for first time on appeal\nDefendants could not raise for the first time on appeal their objection to the trial court\u2019s ex parte communications with the prosecutor while defense counsel was outside the courtroom.\nAm Jur 2d, Appeal and Error \u00a7 702 et seq.\nJudge GREENE concurring in part and dissenting in part.\nAppeal by defendants from judgments and commitments entered 28 February 1992 by Judge Marcus Johnson in Wilkes County Superior Court. Heard in the Court of Appeals 16 June 1993.\nAttorney General Lacy H. Thornburg, by Special Deputy Attorney General Lars F. Nance, for the State.\nWilson, Palmer, Lackey and Starnes, P.A., by W.C. Palmer and Wesley E. Starnes, for defend\u00e1nts-appellants." }, "file_name": "0137-01", "first_page_order": 167, "last_page_order": 181 }