{ "id": 8375067, "name": "STATE OF NORTH CAROLINA v. MAURICE TREMAINE McBRIDE", "name_abbreviation": "State v. McBride", "decision_date": "2007-12-04", "docket_number": "No. COA07-22", "first_page": "496", "last_page": "501", "citations": [ { "type": "official", "cite": "187 N.C. App. 496" } ], "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": "640 S.E.2d 757", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637759 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "759", "parenthetical": "quotations and citation omitted" }, { "page": "759", "parenthetical": "quotations and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/640/0757-01" ] }, { "cite": "640 S.E.2d 409", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637657 ], "year": 2007, "pin_cites": [ { "page": "413", "parenthetical": "quotations and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/640/0409-01" ] }, { "cite": "638 S.E.2d 546", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637387 ], "year": 2007, "pin_cites": [ { "page": "551", "parenthetical": "internal quotations, citations, and alterations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/638/0546-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-100", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "553 S.E.2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "897", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "354 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138504 ], "year": 2001, "pin_cites": [ { "page": "284", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0268-01" ] }, { "cite": "181 N.C. App. 579", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8375468 ], "year": 2007, "pin_cites": [ { "page": "580-81", "parenthetical": "quotations and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/181/0579-01" ] }, { "cite": "181 N.C. App. 502", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8374973 ], "year": 2007, "pin_cites": [ { "page": "507", "parenthetical": "quotations and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/181/0502-01" ] }, { "cite": "181 N.C. App. 41", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8371867 ], "year": 2007, "pin_cites": [ { "page": "47", "parenthetical": "internal quotations, citations, and alterations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/181/0041-01" ] }, { "cite": "471 S.E.2d 653", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "655", "parenthetical": "quotations and citations omitted" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 659", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11919450 ], "year": 1996, "pin_cites": [ { "page": "662-63", "parenthetical": "quotations and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0659-01" ] } ], "analysis": { "cardinality": 621, "char_count": 12538, "ocr_confidence": 0.755, "pagerank": { "raw": 5.6182224479076175e-08, "percentile": 0.3515606508333111 }, "sha256": "afd6f94d8388232840a9768474197059cd9dd860cb873d190b484d8f54ec56a1", "simhash": "1:ece89830770f7c6e", "word_count": 2028 }, "last_updated": "2023-07-14T22:19:56.575920+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEELMAN and STROUD concur." ], "parties": [ "STATE OF NORTH CAROLINA v. MAURICE TREMAINE McBRIDE" ], "opinions": [ { "text": "ELMORE, Judge.\nMaurice McBride (defendant) approached a friend of his, Antoinette Hines, in the summer of 2002. He offered Hines, who was experiencing financial difficulties, the opportunity to deposit a check for him. He explained that a friend of his owed him money, and that his friend had written him too many checks. He told Hines that if she would deposit a check for $9,475.25, she could give him the cash and keep $2,000.00 for her troubles. Hines agreed, and two weeks later she received a check in the mail. She deposited the check and consummated their agreement.\nHines discussed the transaction with her childhood friend, Jestina McArthur. McArthur was also experiencing money problems, and Hines told her that defendant might be able to help her. Indeed, defendant was happy to extend the same offer to McArthur that he had to Hines. The two struck a bargain, and McArthur deposited a check for $9,200.00, of which she kept $2,000.00.\nThe following Friday, McArthur received a number of messages on her answering machine from both defendant and the credit union at which she deposited the check. Defendant exhorted McArthur, \u201c[D]on\u2019t [tell] them where you got the check from,\u201d and \u201c[y]ou tell them that it came in the mail, you went to your ATM, you deposited it in there.\u201d The credit union, along with Hines, called to inform McArthur that the check she deposited was counterfeit, as was the one that Hines deposited. Defendant did not return subsequent phone calls.\nOn 4 November 2002, defendant was indicted on two counts of Obtaining Property by False Pretenses. A jury found him guilty of both counts on 3 May 2006, and the court entered judgment against him that day. Defendant now appeals.\nDefendant first argues that the trial court erred in denying his motion to dismiss based on his constitutional right to a speedy trial. We disagree.\nIn determining whether a defendant has been deprived of his right to a speedy trial, N.C. Const, art I, \u00a7 18; U.S Const, amend VI, our courts consider four interrelated factors together with such other circumstances as may be relevant. The factors are (1) the length of delay, (2) the reason for the delay, (3) the defendant\u2019s assertion of his right to a speedy trial, and (4) prejudice to the defendant resulting from the delay. No single factor is regarded as either a necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial. Instead the factors and other circumstances are to be balanced by the court with an awareness that it is dealing with a fundamental right of the accused which is specifically affirmed in the Constitution. The burden is, nonetheless, on the defendant to show that his constitutional rights have been violated and a defendant who has caused or acquiesced in the delay will not be allowed to use it as a vehicle in which to escape justice.\nState v. Chaplin, 122 N.C. App. 659, 662-63, 471 S.E.2d 653, 655 (1996) (quotations and citations omitted). Considering the four factors outlined by the Chaplin court, we hold that the trial court properly denied defendant\u2019s motion. Although a delay of three years and seven months from arrest to trial is exceptionally long, the other factors weigh heavily against defendant\u2019s cause. There appears to be no reason for the delay in the record. Defendant did not assert his right to a speedy trial until 2 May 2006, and defendant has demonstrated no prejudice whatsoever from the delay. Defendant was not incarcerated during the delay; indeed, he moved to Virginia during that time. Under these circumstances, we hold that defendant\u2019s right to a speedy trial was not impaired, and the trial court did not err in denying defendant\u2019s motion.\nDefendant also argues that the trial court\u2019s admission of evidence as to the status of a bank check and bank account was either error or plain error. We are not persuaded.\nThe trial court allowed Wayne Williams, the Senior Fraud Investigator with Coastal Federal Credit Union, to testify that the two checks involved in this case were counterfeit. Defendant\u2019s objection to the admission of this evidence was overruled. Throughout the trial, defendant objected only sporadically to the admission of this evidence, and defendant\u2019s trial counsel even referred to the checks as counterfeit during his cross-examinations.\nGenerally, a defendant must make a timely objection to proffered testimony in order to preserve the issue for appellate review, and when a defendant has failed to object this Court may only review the matter for plain error. Also, where evidence is admitted over objection, and the same evidence has been previously admitted or is later admitted without objection, the benefit of the objection is lost. Thus, as defendant has failed to preserve his appeal on the above testimony by either failing to object initially, or by failing to object when the same testimony was elicited later, this assignment of error may be reviewed only for plain error.\nState v. McDougald, 181 N.C. App. 41, 47, 638 S.E.2d 546, 551 (2007) (internal quotations, citations, and alterations omitted).\nUnder our plain error standard of review, \u201ca defendant has the burden of showing: (i) that a different result probably would have been reached but for the error; or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial.\u201d State v. Watkins, 181 N.C. App. 502, 507, 640 S.E.2d 409, 413 (2007) (quotations and citation omitted). Defendant has hot carried his burden. It is entirely unlikely that the evidence at issue had any serious effect on the trial\u2019s outcome. Nor did the admission of the evidence preclude defendant from receiving a full and fair trial. Accordingly, defendant\u2019s contention must fail.\nDefendant next claims that the trial court erred in denying his motion to dismiss based on insufficiency of the evidence. Because we hold that the evidence was sufficient to justify sending the case to the jury, we find defendant\u2019s argument to be without merit.\n\u201cIn ruling on a defendant\u2019s motion to dismiss, the trial court should consider if the state has presented substantial evidence on each element of the crime and substantial evidence that the defendant is the perpetrator.\u201d State v. Replogle, 181 N.C. App. 579, 580-81, 640 S.E.2d 757, 759 (2007) (quotations and citation omitted). Our Supreme Court has enumerated the elements of obtaining property by false pretenses: \u201c(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. Parker, 354 N.C. 268, 284, 553 S.E.2d 885, 897 (2001) (citation omitted). \u201cThe evidence should be viewed in the light most favorable to the state, with all conflicts resolved in the state\u2019s favor. ... If substantial evidence exists supporting defendant\u2019s guilt, the jury should be allowed to decide if the defendant is guilty beyond a reasonable doubt.\u201d Replogle at 580-81, 640 S.E.2d at 759 (quotations and citations omitted) (alteration in original).\nIn this case, the trial court received evidence that defendant told McArthur, \u201cI do this all the time. They\u2019re going to clear. The checks are good.\u201d Likewise, defendant told Hines that he had \u201cdone it several times.\u201d This evidence clearly indicates both that defendant made a false representation, and that it was his intent to do so. Moreover, his deception was effective; the bank released the money to McArthur and Hines, who in turn gave it to defendant. There was abundant evidence to justify sending this case to the jury. Defendant\u2019s arguments to the contrary are therefore without merit.\nFinally, defendant claims that the indictment against him was fatally defective. Defendant avers that the indictment, which charges that defendant committed two counts of obtaining property by false pretenses, actually alleges that he also committed the crime \u00f3f solicitation to commit a felony. Defendant bases this assertion on the following language of the indictment: \u201c[T]he defendant solicited [McArthur and Hines] into depositing a counterfeit Cores State Bank check . . . .\u201d However, a plain reading of the term \u201csolicit\u201d does not necessarily imply the allegation of a separate criminal act. Black\u2019s Law Dictionary defines \u201csolicitation\u201d as \u201c1. The act or an instance of requesting or seeking to obtain something; a request or petition Black\u2019s Law Dictionary, 1427 (8th ed. 2004). In this situation, there was no confusion as to what offenses the State accused the defendant. Defendant\u2019s assertion is therefore without merit.\nLikewise, defendant\u2019s additional contention regarding his indictment, that the indictment failed to specify the alleged victim, is similarly without merit. The statute proscribing the offense of obtaining property by false pretenses does not require that the State prove \u201can intent to defraud any particular person.\u201d N.C. Gen. Stat. \u00a7 14-100(a) (2005). The indictment was not defective.\nHaving conducted a,thorough review of the record and briefs, we conclude that defendant received a fair trial free from error.\nNo error.\nJudges STEELMAN and STROUD concur.\n. Defendant\u2019s counsel acknowledges that she has no authority for her assertion that it is \u201cinherently unfair to hold [the lack of a reason in the record] against the Defendant.\u201d.In the absence of a reason in the record, we cannot state that defendant has met his burden on.this issue.\n. Defendant groups his arguments together in his brief. Although the State urges this Court to consider defendant\u2019s contention regarding error on this point abandoned because defendant failed to argue under the section of his brief alleging error, we decline to do so. It is clear that in defendant\u2019s brief he combines his two assignments of error into one argument, arguing alternatively that this Court find error or plain error.\n. We note that Black\u2019s goes on to define the term in four additional ways, one of which is the criminal offense that defendant would have this Court find renders his indictment defective. However, we hold that, given that the indictment clearly accused defendant only of two counts of obtaining property by false pretenses, the first entry is the appropriate definition in this case.", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Patrick S. Wooten, for the State.", "Kathleen Arundell Widelski, for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MAURICE TREMAINE McBRIDE\nNo. COA07-22\n(Filed 4 December 2007)\n1. Constitutional Law\u2014 speedy trial \u2014 factors to be considered\nThe trial court did not err in a prosecution for obtaining property by false pretenses by denying defendant\u2019s motion to dismiss for violation of his right to a speedy trial. Although a delay of three years and seven months is exceptionally long, the other three factors to be considered weighed heavily against defendant.\n2. Appeal and Error\u2014 preservation of issues \u2014 failure to continue objection\nThe defendant in a false pretenses prosecution did not preserve for appellate review his objection to testimony that two checks were counterfeit where his objection was overruled, he objected only sporadically, and he referred to the checks as counterfeit during his cross-examination.\n3. Evidence\u2014 testimony that checks were counterfeit \u2014 no plain error\nThere was no plain error in a false pretenses prosecution from the admission of testimony that checks were counterfeit. It is entirely unlikely that the evidence at issue had any serious effect on the trial\u2019s outcome, nor did the admission of the evidence preclude defendant from receiving a full and fair trial.\n4. False Pretenses\u2014 counterfeit check scheme \u2014 evidence sufficient\nThe evidence of obtaining property by false pretenses pursuant to a counterfeit check scheme was sufficient where defendant\u2019s statements indicated an intentionally false representation which was effective.\n5. False Pretenses\u2014 counterfeit checks \u2014 sufficiency of indictment\nThere was no confusion of offenses in an indictment for obtaining property by false pretenses which alleged that defendant \u2019\u2019solicited\u201d the deposit of counterfeit checks. There was no defect in the failure to specify a victim; the offense of obtaining property by false pretenses does not require that the State prove an intent to defraud any particular person.\nAppeal by defendant from judgment entered 3 May 2006 by Judge A. Leon Stanback in Wake County Superior Court. Heard in the Court of Appeals 30 August 2007.\nAttorney General Roy Cooper, by Assistant Attorney General Patrick S. Wooten, for the State.\nKathleen Arundell Widelski, for defendant." }, "file_name": "0496-01", "first_page_order": 526, "last_page_order": 531 }