{ "id": 8956607, "name": "STATE OF NORTH CAROLINA v. DAVID VERNON SIMPSON", "name_abbreviation": "State v. Simpson", "decision_date": "2003-08-05", "docket_number": "No. COA02-1195", "first_page": "435", "last_page": "440", "citations": [ { "type": "official", "cite": "159 N.C. App. 435" } ], "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": "563 S.E.2d 288", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "290" } ], "opinion_index": 0 }, { "cite": "150 N.C. App. 545", "category": "reporters:state", "reporter": "N.C. App.", "year": 2002, "pin_cites": [ { "page": "547" } ], "opinion_index": 0 }, { "cite": "262 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "286", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "299 N.C. 229", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574230 ], "year": 1980, "pin_cites": [ { "page": "242", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0229-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-100", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "410 S.E.2d 83", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "85" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 507", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522582 ], "year": 1991, "pin_cites": [ { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0507-01" ] }, { "cite": "515 S.E.2d 80", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "82", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "133 N.C. App. 326", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11219396 ], "year": 1999, "pin_cites": [ { "page": "328", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/133/0326-01" ] }, { "cite": "413 S.E.2d 590", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "592" } ], "opinion_index": 0 }, { "cite": "105 N.C. App. 370", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523228 ], "year": 1992, "pin_cites": [ { "page": "373-74" } ], "opinion_index": 0, "case_paths": [ "/nc-app/105/0370-01" ] }, { "cite": "485 S.E.2d 88", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "91" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 312", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11710305 ], "year": 1997, "pin_cites": [ { "page": "317" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0312-01" ] }, { "cite": "313 S.E.2d 556", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "559", "parenthetical": "holding that \"change of date . . . was not an amendment proscribed by N.C. Gen. Stat. \u00a7 15A-923(e) since it did not substantially alter the charge .... Time was not of the essence .... [And] [defendant's right to be indicted by the grand jury was not violated" } ], "opinion_index": 0 }, { "cite": "310 N.C. 596", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2396898 ], "year": 1984, "pin_cites": [ { "page": "600", "parenthetical": "holding that \"change of date . . . was not an amendment proscribed by N.C. Gen. Stat. \u00a7 15A-923(e) since it did not substantially alter the charge .... Time was not of the essence .... [And] [defendant's right to be indicted by the grand jury was not violated" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0596-01" ] }, { "cite": "555 S.E.2d 609", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "611", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 715", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11363671 ], "year": 2001, "pin_cites": [ { "page": "718", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0715-01" ] }, { "cite": "277 S.E.2d 394", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "277 S.E.2d 390", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "393" } ], "opinion_index": 0 }, { "cite": "303 N.C. 112", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571552 ], "year": 1981, "pin_cites": [ { "page": "116" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0112-01" ] }, { "cite": "565 S.E.2d 609", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "626" }, { "page": "626", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "355 N.C. 501", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219972 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "529" }, { "page": "529" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0501-01" ] } ], "analysis": { "cardinality": 591, "char_count": 12295, "ocr_confidence": 0.756, "pagerank": { "raw": 7.825788180412449e-08, "percentile": 0.4580294063476288 }, "sha256": "173430e82ccc2d4922dc1f777853d612c8d26c61313c42315c105e859360a504", "simhash": "1:b92da5ef566035eb", "word_count": 2037 }, "last_updated": "2023-07-14T16:27:55.515420+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge CALABRIA concurs.", "Judge HUDSON dissents." ], "parties": [ "STATE OF NORTH CAROLINA v. DAVID VERNON SIMPSON" ], "opinions": [ { "text": "WYNN, Judge.\nFrom his two felony convictions of obtaining property by false pretenses, defendant, David Vernon Simpson, argues on appeal that the trial court erroneously (1) granted the State\u2019s joinder motion, (2) granted the State\u2019s motion to amend the indictment, and (3) denied his motion to dismiss for insufficient evidence. We find no error.\nThe underlying evidence tends to show that on 26 November 2001, Robert Hoyt, a manager for the photo lab at a Wal-Mart Store, noticed three cameras missing from the Wal-Mart display. Later that day, Tim Ward, the owner and operator of Hendersonville Jewelry and Pawn, purchased two cameras from defendant. About a week later, Mr. Ward purchased a third camera from defendant. Mr. Ward, who testified that he tends to \u201cwork closely with the Sheriff\u2019s Department,\u201d was suspicious that the cameras were stolen because he noticed a security device attached to one camera. He contacted Detective Cole at the Sheriff\u2019s Department who confirmed that the cameras were stolen and owned by Wal-Mart.\nAt trial, Mr. Hoyt identified by serial number the cameras sold to Mr. Ward as the same cameras stolen from Wal-Mart in November 2001. Furthermore, Mr. Ward identified defendant as the individual who represented that he owned the cameras and sold them to the pawn shop in November and December 2001. On 20 May 2002, the jury found defendant guilty of one count of misdemeanor possession of stolen goods and two counts of obtaining property by false pretenses. Defendant appeals.\nBy his first assignment of error, defendant contends the trial court erred in granting the State\u2019s motion to join his two offenses under N.C. Gen. Stat. \u00a7 15A-926(a) (2002) which provides: \u201cTwo or more offenses may be joined... for trial when the offenses are based on the same act or transaction, or on a series of acts or transactions connected together or constituting parts of a single scheme or plan.\u201d In considering a motion to join under \u00a7 15A-926(a), our Supreme Court in State v. Williams, 355 N.C. 501, 529, 565 S.E.2d 609, 626 (2002) explained that,\nthe trial judge must first determine if the statutory requirement of a transactional connection is met. Whether such a connection exists ... is a fully reviewable question of law. . . . The transactional connection required by [Section] 15A-926(a) may be satisfied by considering various factors. Two factors frequently used in establishing the transactional connection are a common modus operandi and the time lapse between offenses.\nWilliams, 355 N.C. at 529, 565 S.E.2d at 626 (citations omitted). Thus, for instance, in the earlier case of State v. Bracey, 303 N.C. 112, 116, 277 S.E.2d 390, 393 (1981), our Supreme Court held that the trial court properly consolidated three separate charges of common-law robbery because,\nThe evidence in the three cases shows a similar modus operandi and similar circumstance in victims, location, time and motive. All the offenses occurred within ten days on the same street in Wilmington. All occurred in the late afternoon. . . . The assaults were of a similar nature. Each was without weapons, involved an element of surprise and involved choking, beating and kicking the victim. In each case, the robbers escaped on foot. The evidence was sufficient to justify joinder based on a series of acts or transactions connected together or constituting parts of a single scheme or plan.\nId. at 118, 277 S.E.2d 394.\nLikewise, in the present case, we hold that the trial court properly allowed joinder of the subject offenses because a transactional connection was evidenced by a common modus operandi, the short time lapse between the criminal activity, and similar circumstances in victim, location, and motive. Indeed, in each case the cameras were taken from Wal-Mart and sold by defendant within 10 days to Henderson Jewelry and Pawn. Accordingly, we uphold the trial court\u2019s decision to allow joinder of the offenses.\nBy his second assignment of error, defendant contends the trial court erred in granting the State\u2019s motion to amend the indictment to change the date of the charged offense. Under N.C. Gen. Stat. \u00a7 15A-923(e), \u201ca bill of indictment may not be amended in a manner which substantially alters the charge set forth.\u201d State v. Parker, 146 N.C. App. 715, 718, 555 S.E.2d 609, 611 (2001) (citation omitted). For the reasons stated in State v. Price, we hold that amending the date of the charged offense, in the instant case, was not error. See State v. Price, 310 N.C. 596, 600, 313 S.E.2d 556, 559 (1984) (holding that \u201cchange of date . . . was not an amendment proscribed by N.C. Gen. Stat. \u00a7 15A-923(e) since it did not substantially alter the charge .... Time was not of the essence .... [And] [defendant's right to be indicted by the grand jury was not violated).\nBy his final assignment of error, defendant contends the trial court erred by denying his motion to dismiss because of insufficient evidence of an essential element. Defendant argued:\nI think one of the elements is that [defendant], in fact, does deceive the party listed as the victim. The victim in this [case] is not Wal-Mart, it\u2019s the Henderson Jewelry and Pawn. [However,] by the testimony of [Mr. Ward,] the pawn shop owner was [not] deceived whatsoever. [Mr. Ward] took the cameras . . . suspected [they were stolen] . . . called the Sheriff\u2019s Department . . . [and] didn\u2019t place [the cameras out] for sale. [Mr. Ward] knew there was a problem or certainly suspected there was [a problem]. The element of [actual] deception, I submit to the Court, is [not] present.\n\u201cIn ruling on a motion to dismiss for insufficient evidence, the trial court must consider the evidence in the light most favorable to the State, which is entitled to every reasonable inference which can be drawn from that evidence.\u201d State v. Dick, 126 N.C. App. 312, 317, 485 S.E.2d 88, 91 (1997). \u201c[T]he question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged . . . and (2) of defendant\u2019s being the perpetrator of such offense.\u201d State v. Brayboy, 105 N.C. App. 370, 373-74, 413 S.E.2d 590, 592 (1992). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Williams, 133 N.C. App. 326, 328, 515 S.E.2d 80, 82 (1999) (citation omitted). Furthermore, in reviewing a trial court\u2019s denial of a motion to dismiss, \u201call contradictions and discrepancies are resolved in the State\u2019s favor.\u201d State v. Forbes, 104 N.C. App. 507, 510, 410 S.E.2d 83, 85 (1991).\nUnder N.C. Gen. Stat. \u00a7 14-100:\n(a) If any person shall knowingly and designedly by means of any kind of false pretense whatsoever . .. obtain or attempt to obtain from any person within this State any money . . . with intent to cheat or defraud any person of such money... such person shall be guilty of a felony ....\nOur Supreme Court, in interpreting this statute, has expressly held that \u201cthe crime of obtaining property by false pretenses . . . [is] defined as follows: (1) a false representation of a subsisting fact or a 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. Cronin, 299 N.C. 229, 242, 262 S.E.2d 277, 286 (1980) (citation omitted).\nDefendant contends the State failed to present any evidence that the victim, Mr. Ward, was actually deceived by defendant\u2019s false representations. As a basis for that contention, defendant asserts that Mr. Ward\u2019s suspicion that the cameras were stolen, coupled with the fact that the cameras were actually stolen, proves that the victim, Mr. Ward, was not, in fact, deceived. Defendant\u2019s argument, however, relies on a retrospective interpretation of the facts. At the time of the transaction, Mr. Ward did not know that the cameras were stolen. In fact, Mr. Ward testified that he \u201ccalled Detective Cole and told him that [he] had some cameras there that he needed to look at.\u201d Although Mr. Ward had a suspicion that the cameras were stolen, Mr. Ward\u2019s testimony, when viewed in the light most favorable to the State, reasonably permits a jury to make an inference that Mr. Ward called Detective Cole in order to confirm that the items were not stolen property. As this inference is reasonable, and adequate to support the conclusion that Mr. Ward was, in fact, deceived, this assignment of error is overruled. See State v. Edwards, 150 N.C. App. 545, 547, 563 S.E.2d 288, 290 (2002).\nNo Error.\nJudge CALABRIA concurs.\nJudge HUDSON dissents.\n. On appeal, however, defendant does not argue the State failed to present sufficient evidence that defendant (1) made a false representation which was (2) calculated and intended to deceive by which (3) defendant obtained value from Mr. Ward.", "type": "majority", "author": "WYNN, Judge." }, { "text": "HUDSON, Judge,\ndissenting.\nHaving thoroughly scrutinized the transcript of the defendant\u2019s trial, I find no evidence or testimony to support the element of these offenses that the alleged victim be actually deceived. The alleged victim was Tim Ward, the proprietor of the pawn shop in which the cameras were sold. He testified that when the defendant showed him the cameras, he was immediately suspicious that they were stolen, because one of them had a security device still attached. As soon as the defendant left the shop, Ward put the cameras \u201cin the back\u201d and called the Sheriff. He had given the defendant money for the cameras, for which he knew he would be reimbursed pursuant to his arrangement with the Sheriffs department, and he did not lose any money. He did not display the cameras for sale.\nWhen asked why he accepted the cameras in November, in light of his suspicions, Ward responded: \u2019\u2019Well, because I work closely with the Sheriff\u2019s Department and I wanted to, you know, if they were stolen, I wanted to give them back to the owners.\u201d Ward went on to testify, when asked if he knew who owned the cameras, that he \u201cpretty much knew,\u201d at the time of defendant\u2019s December visit to the shop, because he had talked with Mr. Cole and \u201cI knew that there was a problem with them.\u201d Mr. Ward did not testify that he was deceived, or that he even considered the possibility that the cameras were not stolen. Thus, even in the light most favorable to the State, I see no evidence from which a jury could infer that Mr. Ward was in fact deceived. Therefore, I respectfully dissent.", "type": "dissent", "author": "HUDSON, Judge," } ], "attorneys": [ "Attorney General Roy Cooper, by Associate Attorney General Kimberly Elizabeth Gunter, for the State.", "Mary March Exum, for the defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DAVID VERNON SIMPSON\nNo. COA02-1195\n(Filed 5 August 2003)\n1. Criminal Law\u2014 joinder \u2014 two offenses\nThe trial court did not err in an obtaining property by false pretenses case by granting the State\u2019s motion to join his two offenses under N.C.G.S. \u00a7 15A-926(a), because a transactional connection was evidenced by a common modus operandi, the short time lapse between the criminal activity, and similar circumstances in victim, location, and motive.\n2. Indictment and Information\u2014 motion to amend \u2014 date of charged offense\nThe trial court did not err in an obtaining property by false pretenses case by granting the State\u2019s motion to amend the indictment to change the date of the charged offense, because: (1) the change did not substantially alter the charge; and (2) time was not of the essence. N.C.G.S. \u00a7 15A-923(e).\n3. False Pretense\u2014 obtaining property by false pretenses\u2014 deception of victim \u2014 sufficiency of evidence\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charges of obtaining property by false pretenses under N.C.G.S. \u00a7 14-100 even though defendant contends the victim pawn shop owner was not actually deceived by defendant\u2019s false representations, because although the victim had a suspicion that the cameras were stolen, his testimony when viewed in the light most favorable to the State reasonably permits a jury to make an inference that he called a detective in order to confirm that the items were not stolen property and that the victim was in fact deceived.\nJudge Hudson dissenting.\nAppeal by from judgment entered 20 May 2002 by Judge Loto G. Caviness in Superior Court, Henderson County. Heard in the Court of Appeals 10 June 2003.\nAttorney General Roy Cooper, by Associate Attorney General Kimberly Elizabeth Gunter, for the State.\nMary March Exum, for the defendant-appellant." }, "file_name": "0435-01", "first_page_order": 465, "last_page_order": 470 }