{
  "id": 6813951,
  "name": "STATE OF NORTH CAROLINA v. PAUL EVAN SEELIG, Defendant",
  "name_abbreviation": "State v. Seelig",
  "decision_date": "2013-03-19",
  "docket_number": "No. COA12-442",
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    "judges": [
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    "parties": [
      "STATE OF NORTH CAROLINA v. PAUL EVAN SEELIG, Defendant"
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    "opinions": [
      {
        "text": "GEER, Judge.\nDefendant Paul Evan Seelig appeals from 23 convictions of obtaining property by false pretenses. On appeal, defendant primarily argues that his rights under the Confrontation Clauses of the federal and state constitutions were violated when the trial court permitted a witness to testify by way of a live, two-way, closed-circuit internet broadcast from Nebraska. We hold that under the controlling test set out in Maryland v. Craig, 497 U.S. 836, 111 L. Ed. 2d 666, 110 S. Ct. 3157 (1990), the trial court did not err in allowing the live video testimony.\nFacts\nThe State\u2019s evidence tended to show the following facts. Defendant was the owner of Great Specialty Products, a company that sold, among other things, bagels, breads, and other baked edible goods (collectively \u201cbread products\u201d) that were advertised as homemade and gluten free. Gluten is a protein found in wheat, barley, and rye. Some people, including people diagnosed with celiac disease, are gluten intolerant because their bodies recognize gluten as a foreign substance and create antibodies that actually work to damage the body.\nWhen people -with gluten intolerance ingest gluten, their symptoms include abdominal bloating, indigestion, abdominal cramping and pain, diarrhea, vomiting, acidosis, and fatigue. For some, but not all, people with celiac disease, ingesting even a very small amount of gluten can cause these symptoms. People who are gluten intolerant are treated by working with nutritionists to maintain gluten-free diets; there is no medication to treat celiac disease.\nDefendant began selling his bread products \u2014 represented as gluten free \u2014 in August 2009. He operated out of a booth at the flea market located on the State Fairgrounds in Raleigh, North Carolina. Defendant next sold the bread products from a booth at the 2009 State Fair in Raleigh. During the fall of 2009 and early 2010, defendant also sold the bread products online from a \u201cGreat Specialty Products\u201d website. He delivered the products to customers\u2019 homes anywhere within a 40-minute drive from Morrisville, North Carolina.\nNone of the bread products advertised by defendant as gluten free were actually gluten free. Defendant bought all of the bread products either completely premade or in a partially-baked, frozen form that only needed to be baked briefly in the oven. Many, but not all, of the bread products sold on defendant\u2019s website as gluten free were manufactured by Tribecca Oven, a New Jersey bakery. Because gluten is integral to Tribecca Oven\u2019s manufacturing process, a witness from Tribecca Oven described the company as a \u201cgluten machine\u201d and testified that all of the bread products manufactured by Tribecca Oven contain gluten.\nAll of the bagels and some of the other products defendant represented as homemade and gluten free were purchased from Sam\u2019s, Costco, or BJ\u2019s. The remainder of the bread products were delivered by truck to defendant\u2019s home. None of the products received or purchased by defendant for resale bore labels indicating they were gluten free. The pre-made bread products were simply repackaged for sale by defendant. The products purchased in a frozen, partially-baked form were briefly baked in an oven and then packaged for sale by defendant. Laboratory testing on 12 of 13 samples of bread products sold by defendant and advertised as gluten free indicated that those samples contained gluten.\nDuring the fall of 2009 and early 2010, defendant or one of his employees sold bread products to at least 23 persons who would not have purchased the products if the products had not been advertised as gluten free. Many of those persons either had celiac disease or were purchasing the products for a person with celiac disease. At least one of those individuals filed a complaint with the North Carolina Department of Justice. The North Carolina Department of Agriculture and Consumer Services investigated defendant and filed a civil action against him seeking permanent injunctive relief. The Department of Agriculture obtained a temporary restraining order against defendant pending a hearing on a preliminary injunction. The record does not contain any further information regarding that civil action.\nOn 6 April 2010, defendant was indicted for nine counts of obtaining property by false pretenses. On 9 November 2010, defendant was indicted for an additional 19 counts of obtaining property by false pretenses. At trial, defendant testified that he never advertised or sold products as gluten free that he knew, in fact, contained gluten. Defendant claimed he purchased all of his gluten-free products from \u201cRise \u2018n Bakeries,\u201d an Amish bread products manufacturer located in Millsburg, Ohio. He purchased regular bread products from other companies. According to defendant, none of his bread products or bagels were bought at Costco, Sam\u2019s, or BJ\u2019s. Defendant testified he regularly performed tests on the products he sold as gluten free to ensure that they were, in fact, gluten free.\nDefendant further testified that as of 22 December 2009, defendant believed there may have been cross-contamination at some point during the production process of his bread products such that the end product was not actually gluten free. Defendant promptly notified his customers and began printing labels on the products warning that they may have been contaminated with gluten.\nDefendant also presented the testimony of one of his customers, Sharon Hargraves. Ms. Hargraves testified that she has celiac disease, she purchased bread products from defendant throughout the fall of 2009, and she showed no symptoms of having ingested gluten.\nAt trial, the State dismissed four counts of obtaining property by false pretenses, and the trial court dismissed an additional count of obtaining property by false pretenses on defendant\u2019s motion at the close of all the evidence. The jury found defendant guilty of 23 counts of obtaining property by false pretenses. Defendant then pled guilty to the aggravating factor that he took advantage of a position of trust or confidence to commit the offenses.\nThe trial court consolidated the convictions into 11 judgments. In each judgment, the court sentenced defendant to an aggravated-range term of 10 to 12 months imprisonment and further ordered that all of the sentences run consecutively. Defendant\u2019s written notice of appeal was not timely, but this Court granted defendant\u2019s petition for writ of certiorari.\nI\nDefendant first argues that the indictments underlying his 23 convictions for obtaining property by false pretenses were facially defective. \u201c[W]here an indictment is alleged to be invalid on its face, thereby depriving the trial court of its jurisdiction, a challenge to that indictment may be made at any time, even if it was not contested in the trial court.\u201d State v. Wallace, 351 N.C. 481, 503, 528 S.E.2d 326, 341 (2000). \u201cOn appeal, we review the sufficiency of an indictment de novo.\u201d State v. McKoy, 196 N.C. App. 650, 652, 675 S.E.2d 406, 409 (2009).\nEach of the indictments at issue alleged the following:\n[0]n or about [date(s) of offense], in Wake County the defendant named above unlawfully, willfully and feloniously did knowingly and designedly with the intent to cheat and defraud, obtain US Currency, having a value of [monetary value] from [name of the victim], by means of a false pretense which was calculated to deceive and did deceive.\nThe false pretense consisted of the following: The defendant sold bread products to the victim that were advertised and represented as Gluten Free when in fact the defendant knew at the time that the products contained Gluten. This act was done in violation of N.C.G.S. 14-100.\nObtaining property by false pretenses consists of four elements: \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. Cronin, 299 N.C. 229, 242, 262 S.E.2d 277, 286 (1980). \u201c[A]n indictment must allege every element of an offense . . . .\u201d State v. Kelso, 187 N.C. App. 718, 722, 654 S.E.2d 28, 31 (2007).\nDefendant contends that the indictments fail to sufficiently allege that he made a false representation because they do not allege either \u201cthat [defendant] himself \u2018advertised and represented\u2019 the bread products as gluten-free or that [defendant] was the agent of the entity that \u2018advertised and represented\u2019 the products as gluten-free.\u201d Defendant points to the indictments\u2019 use of the passive voice \u2014 \u201cdefendant sold bread products to the victim that were advertised and represented as Gluten Free\u201d \u2014 and argues that because this language does not explicitly allege that defendant made the misrepresentations, the indictments are fatally defective. We disagree.\nIn Cronin, the defendant challenged the sufficiency of his indictment for obtaining property by false pretenses because, in part, it failed to directly allege \u201cthat defendant did in fact deceive the [victim bank],\u201d a necessary element of the offense. 299 N.C. at 236, 262 S.E.2d at 282. The Court explained that the indictment at issue \u201calleged that defendant knowingly and falsely made false representations to the bank that he was offering as security for a loan a new mobile home having value of $10,850, when actually the offered security was a fire-damaged mobile home of the value of $2,500, and that defendant by means of such false pretense and with intent then and there to defraud the bank received from the bank the sum of $5,704.54.\u201d Id. at 238, 262 S.E.2d at 283. In concluding that the indictment was adequate, the Court explained: \u201cIf the false pretense caused the victim to give up his property, it logically follows that the property was given up because the victim was in fact deceived by the false pretense.\u201d Id. Thus, the Court upheld the indictment since the allegations were \u201csufficient to raise a reasonable inference that the bank made the loan because it was deceived by defendant\u2019s false representations.\u201d Id. (emphasis added).\nIn this case, the indictments allege that defendant \u201cdid . . . obtain US Currency, having a value of [monetary value] from [name of the victim], by means of a false pretense which was calculated to deceive and did deceive.\u201d (Emphasis added.) The indictments, therefore, allege that defendant, and not some other person or entity, employed a false pretense to obtain money from the alleged victims. The indictments then specifically describe the false pretense used by defendant as follows: \u201cThe defendant sold bread products to the victim that were advertised and represented as Gluten Free which in fact the defendant knew at the time that the products contained Gluten.\u201d (Emphasis added.)\nWe conclude that, as in Cronin, the allegations in the indictments were \u201csufficient to raise a reasonable inference\u201d that defendant, who was expressly alleged to have obtained value from the victim by means of a false pretense, was also the person who made the false representation that the products contained gluten. Id. Cf State v. Sturdivant, 304 N.C. 293, 310, 283 S.E.2d 719, 731 (1981) (rejecting defendant\u2019s facial challenge to indictment for kidnapping based on argument that indictment failed to indicate kidnapping was accomplished without victim\u2019s consent, in part, because indictment stated defendant \u201c \u2018unlawfully and wilfully did feloniously kidnap\u2019 \u201d and \u201c \u2018unlawfully restraint]' \u201d victim and \u201ccommon sense dictates that one cannot unlawfully kidnap or unlawfully restrain another with his consent\u201d).\nDefendant, however, points to State v. Whedbee, 152 N.C. 770, 67 S.E. 60 (1910). There, the Court reviewed the sufficiency of an indictment for obtaining property by false pretenses and stated that an indictment \u201cmust directly and distinctly aver every fact or circumstance that is essential, and it cannot be helped out by the evidence at the trial, or be aided by argument and inference.\u201d Id. at 774, 67 S.E. at 62 (internal quotation marks omitted). To the extent the Whedbee Court precluded reliance on inferences in reviewing indictments, that aspect of the opinion has been effectively overruled by Cronin. Under Cronin, the indictments in this case are facially valid.\nn\nDefendant next contends that the trial court\u2019s admission of Sean Kraft\u2019s testimony from another state via \u201clive closed-circuit web broadcast\u201d violated defendant\u2019s rights under the Confrontation Clauses contained in the Sixth Amendment to the Constitution of the United States and Article I, Section 23 of the Constitution of North Carolina. Mr. Kraft testified regarding the results of laboratory tests he performed on samples of defendant\u2019s bread products.\nDefendant concedes that he failed to object at trial to the admission of Mr. Kraft\u2019s testimony on the grounds that the testimony \u201cviolated the confrontation clause\u2019s face-to-face guarantee\u201d and argues plain error. For this Court to find plain error,\na defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice - that, after examination of the entire record, the error had a probable impact on the jury\u2019s finding that the defendant was guilty. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affect[s] the fairness, integrity or public reputation of judicial proceedings[.]\nState v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal citations and quotation marks omitted). \u201cWe review de novo whether the right to confrontation was violated.\u201d State v. Jackson, 216 N.C. App. 238, 241, 717 S.E.2d 35, 38 (2011), appeal dismissed and disc. review denied, _ N.C. _, 720 S.E.2d 681, cert. denied, _ U.S. _, 184 L. Ed. 2d 81, 133 S. Ct. 164 (2012).\nThe Confrontation Clause contained in the Sixth Amendment to the federal constitution, enforceable against the States through the Fourteenth Amendment, \u201cprotects the fundamental right of an accused \u2018to be confronted with the witnesses against him.\u2019 \u201d Id. (quoting U.S. Const, amend. VI). \u201cThe elements of confrontation include the witness\u2019s: physical presence; under-oath testimony; cross-examination; and exposure of his demeanor to the jury.\u201d Id. \u201cThe physical presence, or \u2018face-to-face,\u2019 requirement embodies the general Confrontation Clause protection of an accused\u2019s \u2018right [to] physically face those who testify against him.\u2019 \u201d Id. (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 51, 94 L. Ed. 2d 40, 53, 107 S. Ct. 989, 998 (1987)). \u201cBut, this general rule \u2018must occasionally give way to considerations of public policy and the necessities of the case.\u2019 \u201d Id. (quoting Mattox v. United States, 156 U.S. 237, 243, 39 L. Ed. 409, 411, 15 S. Ct. 337, 340, (1895)).\nIn this case, the State contends State v. Jeffries, 55 N.C. App. 269, 271-74, 285 S.E.2d 307, 309-11 (1982), is controlling. In Jeffries, during the sixth week of the trial, direct examination of the State\u2019s final witness was interrupted by an evening recess and, afterwards, the witness was admitted into the hospital for a coronary condition. Id. at 283, 285 S.E.2d at 316-17. The witness\u2019 treating physician told the trial court that the witness could not return for at least two weeks but that the witness could testify by way of videotape. Id. at 283-84, 285 S.E.2d at 317. The trial court allowed the videotaping of the testimony. Id. at 284, 285 S.E.2d at 317.\nOn appeal, the defendant challenged the admission of videotaped testimony based on his right to confrontation. Id. This Court held that videotaped testimony did not violate a defendant\u2019s right to confrontation if it was admitted under carefully controlled conditions:\nFirst, there must be exceptional circumstances necessitating the procedure. . . . [T]he witness must be unavailable to testify within a period of time after which the trial itself would be subject to mistrial. The videotaped session must be under the control and supervision of the trial judge, and the defendant and his attorney must be allowed to at-' tend. Effective cross-examination by defendant must be unimpeded, and all measures must be taken to eliminate possible prejudicial effects due to location or condition of the witness. Furthermore, the videotape shown to the jury must be clear, allowing the jurors to observe clearly the demeanor of the witness.\nId. at 287, 285 S.E.2d at 318. The Court ultimately concluded that all of these requirements were met and, therefore, the defendant had failed to show any violation of his right to confrontation when the witness testified via videotape. Id., 285 S.E.2d at 318-19.\nSubsequent to Jeffries, however, the United States Supreme Court decided Craig, which addressed the constitutionality of a Maryland statute that allowed for alleged child abuse victims to testify by way of live, one-way closed circuit television. 497 U.S. at 840-42, 111 L. Ed. 2d at 675-76, 110 S. Ct. at 3160-61. The Court held: \u201c[A] defendant\u2019s right to confront accusatoiy witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.\u201d Id. at 850, 111 L. Ed. 2d at 682, 110 S. Ct. at 3166.\nThe Court stressed that \u201c[t]he critical inquiry..., therefore, is whether use of [one-way closed circuit television] is necessary to further an important state interest.\u201d Id. at 852, 111 L. Ed. 2d at 682, 110 S. Ct. at 3167. The Court then held that \u201cif the State makes an adequate showing of necessity, the state interest in protecting child witnesses from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special procedure that permits a child witness in such cases to testify at trial against a defendant in the absence of face-to-face confrontation with the defendant.\u201d Id. at 855, 111 L. Ed. 2d at 685, 110 S. Ct. at 3169.\nWhether use of a procedure that fails to provide face-to-face confrontation is necessary to further the important state interest must be decided on a case-by-case basis. Id. To decide the \u201cnecessity\u201d question, the trial court must hold an evidentiary hearing and make case-specific findings as to the necessity of allowing the witness to testify outside of the defendant\u2019s physical presence in order to fulfill the important state interest. Id. at 855-56, 111 L. Ed. 2d at 685, 110 S. Ct. at 3169.\nThe Craig Court then reviewed the statutory procedure at issue to determine whether it assured the reliability of the testimony. The Court pointed out that although the child witness was unable to see the defendant, the existence of the \u201cother elements of confrontation \u2014 oath, cross-examination, and observation of the witness\u2019 demeanor \u2014 adequately ensures that the testimony is both reliable and subject to rigorous adversarial testing in a manner functionally equivalent to that accorded live, in-person testimony.\u201d Id. at 851, 111 L. Ed. 2d at 682, 110 S. Ct. at 3166. Ultimately, the Court determined:\nBecause there is no dispute that the child witnesses in this case testified under oath, were subject to full cross-examination, and were able to be observed by the judge, jury, and defendant as they testified, we conclude that, to the extent that a proper finding of necessity has been made, the admission of such testimony would be consonant with the Confrontation Clause.\nId. at 857, 111 L. Ed. 2d at 686, 110 S. Ct. at 3170.\nBecause Jeffries pre-dates Craig, we hold that Craig replaced the test set out by this Court in Jeffries and is the controlling test to determine the admissibility of witness testimony absent face-to-face confrontation at trial. As this Court has previously held in Jackson, 216 N.C. App. at 244, 717 S.E.2d at 40, the Supreme Court\u2019s decision in Crawford v. Washington, 541 U.S. 36, 60, 158 L. Ed. 2d 177, 198, 124 S. Ct. 1354, 1369 (2004), did not address the face-to-face aspect of confrontation and did not overrule Craig.\nCourts in other jurisdictions have, subsequent to Crawford, continued to apply the Craig test in determining whether a defendant\u2019s confrontation right was violated by a witness\u2019 live, two-way video testimony at trial. See, e.g., United States v. Yates, 438 F.3d 1307, 1313 (11th Cir. 2006) (holding in conspiracy and fraud case that tlCraig supplies the proper test for admissibility of two-way video conference testimony\u201d); People v. Wrotten, 14 N.Y.3d 33, 40, 923 N.E.2d 1099, 1103 (2009) (relying on Craig to hold \u201cpublic policy of justly resolving criminal cases while at the same time protecting the well-being of a witness can require live two-way video testimony in the rare case where a key witness cannot physically travel to court in New York and where, as here, defendant\u2019s confrontation rights have been minimally impaired\u201d); Bush v. State, 193 P.3d 203, 215-16 (Wyo. 2008) (applying Craig test to determine that two-way video conferencing testimony of witness was necessary to meet important public interest because witness was located in another state and too ill to travel); State v. Johnson, 195 Ohio App. 3d 59, 74-76, 958 N.E.2d 977, 989-91 (2011) (applying Craig test to determine admissibility of testimony via two-way, closed-circuit television when necessary because of defendant\u2019s family\u2019s intimidation of witnesses), appeal not allowed, 131 Ohio St. 3d 1437, 960 N.E.2d 987 (2012).\nHere, the first question is whether allowing Mr. Kraft to testify through a two-way, closed circuit web broadcast was necessary to further an important state interest. Other jurisdictions have found important state interests outside the child abuse victim context specifically addressed in Craig, including the interest in protecting a witness\u2019 health while also expeditiously and justly resolving a criminal proceeding. See, e.g., Horn v. Quarterman, 508 F.3d 306, 319-20 (5th Cir. 2007) (finding requisite state interest for use of two-way closed circuit television when necessary to \u201cprotect^ the witness . . . from physical danger or suffering\u201d because of witness\u2019 illness and inability to travel); Harrell v. State, 709 So. 2d 1364, 1369-70 (Fla. 1998) (recognizing important state interest in \u201cexpeditiously and justly resolv[ing] criminal matters that are pending in the state court system\u201d when witness \u201cwas in poor health and could not make the trip to this country\u201d); Wrotten, 14 N.Y.3d at 40, 923 N.E.2d at 1103 (holding that \u201cthe public policy of justly resolving criminal cases while at the same time protecting the well-being of a witness can require live two-way video testimony in the rafe case where a key witness cannot physically travel to court in New York and where, as here, defendant\u2019s confrontation rights have been minimally impaired\u201d); Bush, 193 P.3d at 215-16 (holding important state interest was \u201cpreventing further harm to [the witness\u2019] already serious medical condition\u201d given that recess to allow witness to recover would not be appropriate because recovery would take \u201ca long time\u201d). See also Johnson, 195 Ohio App. 3d at 75, 958 N.E.2d at 989-90 (holding that \u201ctrial court\u2019s use of the two-way video procedure was necessary to further the public policy of justly resolving the criminal case, while at the same time protecting the well-being of the state\u2019s witnesses\u201d who had been intimidated by defendant\u2019s family).\nThis case, like those in other jurisdictions, implicates the State\u2019s interest in justly and efficiently resolving a criminal matter when a witness cannot travel because of his health. The trial court, as required by Craig, conducted a hearing and found that Mr. Kraft had a history of panic attacks, had suffered a severe panic attack on the day he was scheduled to fly from Nebraska to North Carolina for trial, was hospitalized as a result, and was unable to travel to North Carolina because of his medical condition.\nDefendant challenges the trial court\u2019s finding that Mr. Kraft\u2019s medical condition was caused by a fear of travelling, rather than a general fear of testifying in court. Mr. Kraft\u2019s voir dire testimony, however, supported the trial court\u2019s finding that his inability to travel was due to a medical condition and was not simply a general fear of testifying. We may not, therefore, revisit that finding. It was up to the trial court \u2014 and not this Court \u2014 to determine the credibility of Mr. Kraft\u2019s claim that he could not travel due to his health. Consequently, the trial court\u2019s findings were sufficient to establish that allowing Mr. Kraft to testify by way of live two-way video was necessary to meet an important state interest.\nTurning to Craig\u2019s second requirement \u2014 that the reliability of the testimony be assured \u2014 the trial court, in this case, found that the deputy clerk of court had administered the oath to Mr. Kraft via the two-way video feed and that the court had impressed upon Mr. Kraft that Mr. Kraft\u2019s failure to give truthful answers \u201ccould subject him to prosecution for the felony of perjury, a Class F felony, with a maximum possible punishment of 50 months imprisonment.\u201d The trial court also made the following findings regarding the process employed:\nThat the videotaped [sic] session will be under the control of the trial judge and the Defendant and his attorney are present and will be present during the presentation of his testimony.\nThat effective cross-examination by the Defendant will be unimpeded in this case and that all measures have been taken to eliminate any possible prejudice due to the location and conditions of the witness, and that the presentation of the witness\u2019s testimony will be clear and presented live to the jmy in this case as the witness testifies and offers evidence in this case.\nIt appears from the record that Mr. Kraft\u2019s examination was carried out as specified in the court\u2019s finding. Defendant conducted a brief cross-examination of Mr. Kraft, and defendant and the jury could view Mr. Kraft while Mr. Kraft testified.\nThus, like the witnesses in Craig, Mr. Kraft \u201ctestified under oath, w[as] subject to full cross-examination, and w[as] able to be observed by the judge, jury, and defendant as [he] testified.\u201d Craig, 497 U.S. at 857, 111 L. Ed. 2d at 686, 110 S. Ct. at 3170. Accordingly, the Craig test was satisfied here, and the trial court did not err in admitting Mr. Kraft\u2019s testimony.\nDefendant further contends that admission of Mr. Kraft\u2019s testimony was structural error and error per se. \u201cStructural error is a rare form of constitutional error resulting from structural defects in the constitution of the trial mechanism which are so serious that a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence.\u201d State v. Garcia, 358 N.C. 382, 409, 597 S.E.2d 724, 744 (2004) (internal quotation marks omitted). \u201c[A] defendant\u2019s remedy for structural error is not dependent upon harmless error analysis; rather, such errors are reversible per se.\u201d Id. \u201cNorth Carolina courts also apply a form of structural error known as error per se[,]\u201d and \u201c[l]ike structural error, error per se is automatically deemed prejudicial and thus reversible without a showing of prejudice.\u201d Lawrence, 365 N.C. at 514, 723 S.E.2d at 331, 332.\nBecause we hold that the admission of Mr. Kraft\u2019s testimony was not error, we need not reach the arguments that admission of the testimony was such serious error that it constituted structural error or error per se not requiring a showing of prejudice. Likewise, without error, defendant cannot establish the prejudice necessary to support his claim that he received ineffective assistance of counsel when his trial counsel failed to object to admission of Mr. Kraft\u2019s testimony based on the face-to-face aspect of defendant\u2019s right to confrontation. See State v. Pratt, 161 N.C. App. 161, 165, 587 S.E.2d 437, 440 (2003) (\u201cA successful ineffective assistance of counsel claim based on a failure to request a jury instruction requires the defendant to prove that without the requested jury instruction there was plain error in the charge.\u201d).\nIII\nDefendant next argues that the trial court erred in denying his motions to dismiss. \u201cThis Court reviews the trial court\u2019s denial of a motion to dismiss de novo.\" State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). \u201c \u2018Upon defendant\u2019s motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant\u2019s being the perpetrator of such offense. If so, the motion is properly denied.\u2019 \u201d State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000) (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)).\n\u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). \u201cIn making its determination, the trial court must consider all evidence admitted ... in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.\u201d State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994).\nFirst, defendant contends that the State failed to present substantial evidence that the bread products he sold to 13 of the alleged victims contained gluten because the State did not produce evidence that those bread products were subjected to chemical tests showing they contained gluten. Defendant asserts that the only evidence produced by the State that the bread products purchased by those 13 individuals contained gluten was unreliable lay testimony that after eating the bread products, people with gluten intolerances suffered symptoms that they had suffered on prior occasions upon eating gluten.\nDefendant has overlooked the testimony of defendant\u2019s former employee, Ms. Mills, who testified to the following. She worked for defendant from April 2008 to December 2009, including when defendant sold bread products at the flea market, at the 2009 State Fair, and through his website. According to Ms. Mills, other than certain products delivered by truck, all the bread products sold by defendant were purchased from Costco, BJ\u2019s, or Sam\u2019s. All of the bagels sold by defendant were \u201ccommon brand\u201d bagels purchased from Costco, Sam\u2019s, or BJ\u2019s. Ms. Mills testified that none of the bread products purchased by defendant and ultimately resold bore labels stating that the products were gluten free.\nIn addition, a representative of Tribecca Oven testified that many, although not all, of the bread products sold on defendant\u2019s website as gluten free were manufactured by Tribecca Oven. Tribecca Oven sells its products in a partially-baked, frozen form. The representative confirmed that all bread products manufactured by Tribecca Oven contain gluten.\nIn addition, the State presented evidence that laboratory technicians employed by the University of Nebraska\u2019s Food Allergy Research and Resource Program (\u201cFARRP\u201d), including Mr. Kraft, performed laboratory tests on 13 samples of food products sold by defendant as gluten free, and that all but one of those samples contained a gluten content of greater than 5,000 parts per million. One of the State\u2019s experts testified that while the Food and Drug Administration has not provided a definition for \u201cgluten free\u201d in the United States, European countries have specified that products are \u201cgluten free\u201d when they have a gluten content of less than 20 parts per million.\nThe laboratory tests were performed on samples of one or more bread products submitted by seven of defendant\u2019s alleged victims. With respect to the sole sample that did not test positive for gluten, the State\u2019s experts further testified that if the sample had fermented prior to testing, it was possible that the test would not detect high levels of gluten even though they were present.\nFinally, the victims who did not submit samples for testing provided lay testimony regarding symptoms they or a person for whom they bought defendant\u2019s bread products experienced after eating the products. The victims testified that they or the person for whom they bought the products had celiac disease, a wheat allergy, or were gluten intolerant; they attempted to maintain a gluten-free diet; and, upon eating defendant\u2019s products, they experienced symptoms consistent with eating gluten, including one or more of the following symptoms: nausea, vomiting, diarrhea, stomach pain, fatigue, insomnia, thyroid problems, bloating, cramping, headaches, tiredness, digestion problems, depression, and skin rash.\nThe State\u2019s evidence that all of defendant\u2019s products were purchased either completely premade or in a partially-baked, frozen form, that none of the products bore labels stating they were gluten free, and that many of the products were manufactured by Tribecca Oven and, therefore, contained gluten, was evidence tending to show that none of defendant\u2019s products were gluten free. We hold that this evidence, combined with the laboratory test results from samples submitted by other victims and the lay testimony of victims describing the symptoms they or others suffered after eating defendant\u2019s products, constituted substantial evidence that the products defendant sold to each of the victims who did not submit samples for laboratory testing contained gluten.\nDefendant also contends that his motion to dismiss the charge that he obtained property by false pretenses from Tara Muller was erroneously denied because the State\u2019s evidence showed that Ms. Muller gave defendant a check for her purchase of bread products but that defendant returned the check to Ms. Muller without cashing it. Defendant argues that he, therefore, ultimately obtained no value from Ms. Muller. Defendant\u2019s argument fails to recognize that, under N.C. Gen. Stat. \u00a7 14-100(a) (2011), obtaining property by false pretenses can be proven by evidence that the defendant \u201cobtain[ed] or attemptfed] to obtain from any person within this State any . . . thing of value.\u201d (Emphasis added.) See also Cronin, 299 N.C. at 242, 262 S.E.2d at 286 (holding element of obtaining property by false pretenses is making a false representation \u201cby which one person obtains or attempts to obtain value from another\u201d). The State\u2019s evidence tending to show defendant obtained the check, but ultimately returned the check upon a complaint by Ms. Muller that she became ill after eating the bread products, was sufficient to show defendant attempted to obtain value from Ms. Muller by false pretenses.\nTo the extent that defendant argues in his brief that the State\u2019s evidence fatally varied from the allegations in the indictment because the indictment alleged that defendant obtained \u201cUS Currency\u201d from Ms. Muller rather than a check, that argument was not made below and has, therefore, not been preserved for appellate review. See State v. Pickens, 346 N.C. 628, 645, 488 S.E.2d 162, 172 (1997) (\u201cRegarding the alleged variance between the indictment and the evidence at trial, defendant based his motions at trial solely on the ground of insufficient evidence and thus has failed to preserve this argument for appellate review.\u201d).\nFinally, defendant additionally argues that his motion to dismiss the charge that he obtained property by false pretenses from Amee Wojdyla was erroneously denied because the indictment specifically alleged that defendant obtained value from Ms. Wojdyla, but the State\u2019s evidence showed only that defendant obtained value from Ms. Wojdyla\u2019s husband. \u201c[T]he evidence in a criminal case must correspond to the material allegations of the indictment, and where the evidence tends to show the commission of an offense not charged in the indictment, there is a fatal variance between the allegations and the proof requiring dismissal.\u201d State v. Williams, 303 N.C. 507, 510, 279 S.E.2d 592, 594 (1981).\n\u201c[A]n indictment \u2018must allege lucidly and accurately all the essential elements of the offense endeavored to be charged.\u2019 \u201d State v. Hunt, 357 N.C. 257, 267, 582 S.E.2d 593, 600 (2003) (quoting State v. Greer, 238 N.C. 325, 327, 77 S.E.2d 917, 919 (1953)). In order to be fatal, a variance must relate to \u201can essential element of the offense.\u201d Pickens, 346 N.C. at 646, 488 S.E.2d at 172. Alternately, \u201c[w]hen an averment in an indictment is not necessary in charging the offense, it will be \u2018deemed to be surplus-age.\u2019 \u201d Id. (quoting State v. Stallings, 267 N.C. 405, 407, 148 S.E.2d 252, 253 (1966)).\nAn indictment for obtaining property by false pretenses need not allege the name of any particular victim because N.C. Gen. Stat. \u00a7 14-100(a) \u201cdoes not require that the State prove \u2018an intent to defraud any particular person.\u2019 \u201d State v. McBride, 187 N.C. App. 496, 501, 653 S.E.2d 218, 222 (2007) (quoting N.C. Gen. Stat. \u00a7 14400(a) (2005)). Indeed, N.C. Gen. Stat. \u00a7 14400(a) specifically provides:\n[I]t shall be sufficient in any indictment for obtaining or attempting to obtain any such money, goods, property, services, chose in action, or other thing of value by false pretenses to allege that the party accused did the act with intent to defraud, without alleging an intent to defraud any particular person, and without alleging any ownership of the money, goods, property, services, chose in action or other thing of value-, and upon the trial of any such indictment, it shall not be necessary to prove either an intent to defraud any particular person or that the person to whom the false pretense was made was the person defrauded, but it shall be sufficient to allege and prove that the party accused made the false pretense charged with an intent to defraud.\n(Emphasis added.)\nSince an indictment need allege only an intent to defraud and need not allege any person\u2019s ownership of the thing of value obtained by the false pretense, when the indictment includes the name of the victim, that allegation is surplusage and any variation between the allegations in the indictment and the evidence at trial as to the name of the victim is not fatal. See State v. Salisbury Ice & Fuel Co., 166 N.C. 366, 367, 81 S.E. 737, 737 (1914) (holding that no fatal variance occurred with respect to indictment charging defendant with obtaining property by false pretenses from different person than proved at trial because \u201c[t]he charge as to the persons intended to be cheated was... surplusage and immaterial\u201d).\nDefendant nonetheless cites State v. Loudner, 77 N.C. App. 453, 335 S.E.2d 78 (1985), in support of his argument. There, the defendant was convicted of engaging in a sex act with a person in his custody in violation of N.C. Gen. Stat. \u00a7 14-27.7. Id. at 453, 335 S.E.2d at 79. On appeal, the Court held that there was a fatal variance between the indictment and the evidence at trial because the indictment alleged that the \u201cdefendant engaged \u2018in a sexual act, to wit: performing oral sex\u2019 on the child involved\u201d and the bill of particulars identified only oral sex as the sexual act involved, but \u201cthe State\u2019s evidence showed only that the defendant placed his finger in her vagina, which by definition is a separate sex offense under the terms of G.S. 14-27.1(4).\u201d Id.\nThe essential elements of the offense at issue in Loudner were \u201cthat the defendant had (1) assumed the position of a parent in the home, (2) of a minor victim, and (3) engaged in a sexual act with the victim residing in the home.\u201d State v. Oakley, 167 N.C. App. 318, 322, 605 S.E.2d 215, 218 (2004). Thus, unlike the name of the victim in the present case, the performance of the sexual act was an essential element of the offense in Loudner. The State was, therefore, bound by the allegation in the indictment and the bill of particulars regarding the essential element even though it was not required to specifically identify the actual sex act in the indictment. Loudner, 77 N.C. App. at 454, 335 S.E.2d at 78.\nBecause (1) the General Assembly has expressly provided that an indictment for obtaining property by false pretenses need not allege and the State need not prove that the defendant intended to defraud any particular person and (2) the State\u2019s evidence was not inconsistent with a bill of particulars, Loudner does not control. There was no fatal variance, and the trial court properly denied the motion to dismiss.\nIV\nDefendant next contends that the State violated his right to be free from double jeopardy for the same offense because, prior to this criminal action, the North Carolina Department of Agriculture and Consumer Services filed a civil action against defendant seeking injunctive relief. We must first address whether this argument was preserved in the trial court.\nBelow, defendant, although represented by trial counsel, filed 10 pro se motions to dismiss, three of which included double jeopardy claims. Defendant\u2019s trial counsel, however, did not expressly raise the double jeopardy argument. It is well established that \u201c \u2018[h]aving elected for representation by appointed defense counsel, defendant cannot also file motions on his own behalf or attempt to represent himself. Defendant has no right to appear both by himself and by counsel.\u2019 \u201d State v. Williams, 363 N.C. 689, 700, 686 S.E.2d 493, 501 (2009) (quoting State v. Grooms, 353 N.C. 50, 61, 540 S.E.2d 713, 721 (2000)).\nThus, ordinarily, a defendant has no right to file motions pro se while represented by counsel. Nevertheless, this Court has held that a ruling on a pro se motion to dismiss on speedy trial grounds, filed when a defendant was represented by counsel, may be reviewed on appeal if (1) defense counsel argues the speedy trial issue to the trial court and (2) both the State and the trial court consent to addressing the issue. State v. Howell, 211 N.C. App. 613, 615, 711 S.E.2d 445, 447-48 (2011), disc. review denied, 366 N.C. 392, 732 S.E.2d 486 (2012).\nAssuming, without deciding, that Howell would also apply to a motion to dismiss based on double jeopardy, defense counsel in this case only referred generally to defendant\u2019s motions to dismiss. The record contains no indication that defense counsel ever specifically argued the double jeopardy issue to the trial court. Accordingly, the double jeopardy argument is not properly before this Court. See Williams, 363 N.C. at 700-01, 686 S.E.2d at 501 (holding trial court properly refused to rule on defendant\u2019s pro se motions filed while he was represented by counsel where counsel did not argue merits of motions to trial court and, instead, merely observed existence of pro se motions and stated \u201c \u2018[w]e need rulings on those\u2019 \u201d).\nDefendant asks this Court to invoke Rule 2 of the North Carolina Rules of Appellate Procedure to review this issue and cites State v. Williams, 201 N.C. App. 161, 689 S.E.2d 412 (2009), in support of his argument. There, this Court reviewed the defendant\u2019s double jeopardy argument despite the fact that he failed to properly raise the issue at trial. Id. at 172, 689 S.E.2d at 418. However, the record in Williams contained all the information needed to determine the double jeopardy issue. Id. at 167, 172, 689 S.E.2d at 415, 418.\nIn this case, because the issue was not specifically raised below, we are lacking the information necessary to properly resolve the issue. The record before us does not include the pleadings from the civil injunctive relief action brought by the Department of Agriculture or any information regarding the final judgment reached in that action. As the record does not contain all the materials necessary to determine defendant\u2019s double jeopardy claim, we decline to invoke Rule 2 to reach the issue.\nV\nFinally, defendant argues' he received ineffective assistance of counsel during the plea bargaining process.\nIt is well established that ineffective assistance of counsel claims brought on direct review will be decided on the merits when the cold record reveals that no further investigation is required, i.e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing. Thus, when this Court reviews ineffective assistance of counsel claims on direct appeal and determines that they have been brought prematurely, we dismiss those claims without prejudice, allowing defendant to bring them pursuant to a subsequent motion for appropriate relief in the trial court.\nState v. Thompson, 359 N.C. 77, 122-23, 604 S.E.2d 850, 881 (2004) (internal citation and quotation marks omitted). Defendant concedes that \u201c[t]he record before this Court is inadequate to address this issue, and this issue is raised on direct appeal only for preservation issues.\u201d Accordingly, we dismiss the claim without prejudice to the defendant\u2019s filing a motion for appropriate relief in the trial court.\nNo error.\nJudges STEPHENS and McCULLOUGH concur.\n. We note, though, that the Jeffries test bears a strong similarity to the Craig analysis.",
        "type": "majority",
        "author": "GEER, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Special Deputy Attorney General I. Faison Hicks and Special Deputy Attorney General Anne J. Brown, for the State.",
      "Edward Eldredfor defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. PAUL EVAN SEELIG, Defendant\nNo. COA12-442\nFiled 19 March 2013\n1. Indictment and Information \u2014 obtaining property by false pretenses \u2014 allegations sufficient \u2014 indictment not facially defective\nIndictments underlying defendant\u2019s twenty-three convictions for obtaining property by false pretenses in a case involving the sale of allegedly gluten-free products were not facially defective. The allegations in the indictments were sufficient to raise a reasonable inference that defendant, who was expressly alleged to have obtained value from the victim by means of a false pretense, was also the person who made the false representation that the products contained no gluten.\n2. Constitutional Law \u2014 confrontation of witnesses \u2014 video testimony \u2014 important state interest \u2014 reliable testimony \u2014 no structural error\nThe trial court did not violate defendant\u2019s rights under the Confrontation Clauses of the federal and state constitutions in an obtaining property by false pretenses case by permitting a witness to testify by way of a live, two-way, closed-circuit internet broadcast from Nebraska. Under the controlling test set out in Maryland v. Craig, 497 U.S. 836 (1990), the trial court did not err in allowing the live video testimony as it was necessary to further an important state interest and the reliability of the testimony was assured. Further, the admission of the testimony was not structural error.\n3. Crimes, Other \u2014 obtaining property by false pretenses \u2014 sufficient evidence \u2014 no fatal variance\nThe trial court did not err in an obtaining property by false pretenses case by denying defendant\u2019s motion to dismiss the charges. The State presented substantial evidence that the products defendant sold to each of thirteen victims who did not submit samples for laboratory testing contained gluten. Further, the State presented substantial evidence defendant attempted to obtain value from a victim by false pretenses. Additionally, there was no fatal variance between the indictment and evidence presented at trial as the indictment need not have alleged, and the State need not have proven, that defendant intended to defraud any particular person, and the State\u2019s evidence was not inconsistent with a bill of particulars.\n4. Appeal and Error \u2014 preservation of issues \u2014 Constitutional Law \u2014 double jeopardy \u2014 Rule 2 not invoked\nDefendant\u2019s argument the State violated his right to be free from double jeopardy for obtaining property by false pretenses was not preserved at trial where the record contained no indication that defense counsel specifically argued the double jeopardy issue to the trial court. The Court of Appeals declined to invoke Rule 2 of the North Carolina Rules of Appellate Procedure to review the issue where the record on appeal did not contain all the materials necessary to determine defendant\u2019s double jeopardy claim.\n5. Appeal and Error \u2014 preservation of issues \u2014 inadequate record on appeal \u2014 constitutional law \u2014 effective assistance of counsel\nDefendant\u2019s argument that he did not receive effective assistance of counsel during the plea bargaining process in an obtaining property by false pretenses case was dismissed without prejudice to defendant\u2019s filing a motion for appropriate relief in the trial court. Defense counsel conceded that the record before the Court of Appeals was inadequate to address the issue, and the issue was raised on direct appeal for preservation purposes only.\nAppeal by defendant from judgments entered 12 April 2011 by Judge Carl R. Fox in Wake County Superior Court. Heard in the Court of Appeals 15 November 2012.\nAttorney General Roy Cooper, by Special Deputy Attorney General I. Faison Hicks and Special Deputy Attorney General Anne J. Brown, for the State.\nEdward Eldredfor defendant-appellant."
  },
  "file_name": "0147-01",
  "first_page_order": 157,
  "last_page_order": 176
}
