State v. Wilburn

290 S.E.2d 782 (1982)

STATE of North Carolina v. Eugene WILBURN.

No. 8114SC1024.

Court of Appeals of North Carolina.

May 4, 1982.

*783 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Robert G. Webb, Raleigh, for the State.

Loflin & Loflin by Thomas F. Loflin, III, and Shirley L. Fulton, Durham, for defendant-appellant.

CLARK, Judge.

On 9 March 1981, one day prior to the trial, defendant's attorney filed a motion *784 for continuance until 11 May 1981. He also filed a notice informing the court that he represented defendant for the limited purpose of moving for the continuance. The court denied the motion and ordered defendant to proceed to trial. Defendant has assigned error to the court's denial of this motion for continuance.

The record on appeal reveals that on 4 August 1980 defendant was indicted for attempting to obtain property by false pretenses. He was indicted on the conspiracy charge approximately three months later. He was formally arraigned on 25 September 1980. Defendant thereafter moved for a continuance of the trial from 1 December 1980 until 12 January 1981. The court granted his motion noting that defendant's attorney, Linwood Peoples, had suffered a stroke. Apparently defendant was granted a second continuance on 15 January 1981 to run until 9 February 1981. The trial court dismissed Peoples as defendant's attorney on 10 February 1981. On the same date defendant waived in writing his right to counsel. Judge Maurice Braswell granted defendant another continuance running from 9 February 1981 to 5 March 1981 and told defendant to obtain an attorney. When he appeared before Judge Braswell on 5 March 1981, defendant still was without legal representation. Judge Braswell then set the trial date for 10 March 1981. On 9 March 1981 defendant retained Sydenham B. Alexander, Jr., as his attorney. Mr. Alexander immediately filed the notice of limited representation and motion for continuance. In his motion he requested an extension of sixty days for the purpose of preparing for trial.

Defendant argues that the court's denial of this motion for continuance violated his constitutional right to the effective assistance of counsel. We disagree. This Court has emphasized that a signed waiver of right to have assigned counsel was "`good and sufficient until the proceeding finally terminated, unless the defendant himself makes known to the court that he desires to withdraw the waiver and have counsel assigned to him.'" State v. Smith, 27 N.C. App. 379, 380-81, 219 S.E.2d 277, 279 (1975), quoting State v. Watson, 21 N.C.App. 374, 379, 204 S.E.2d 537, 540 (1974). In Smith, supra, the defendant waived his right to counsel on 10 June 1974. On 22 July 1974, the date of his trial, defendant moved to withdraw the waiver and have counsel assigned. We noted:

If this tactic is employed successfully, defendants will be permitted to control the course of litigation and sidetrack the trial. At this stage of the proceeding, the burden is on the defendant not only to move for withdrawal of the waiver, but also to show good cause for the delay. Upon his failure to do so, the signed waiver of counsel remains valid and effective during trial.

Id. at 381, 219 S.E.2d at 279. In the case sub judice, there is no evidence that defendant ever moved to withdraw his waiver of assigned counsel. At the hearing on this motion, defendant informed the court that he wanted a lawyer to represent him. He never indicated, however, that he was indigent and desired appointment of counsel. It is obvious from the record that defendant was merely seeking a continuance in order for his recently retained counsel to prepare for trial. Defendant had been granted two continuances for the purpose of obtaining counsel after he signed the written waiver on 10 February 1981. The court gave defendant an adequate opportunity for this purpose, and he should not be permitted to delay litigation any longer. This assignment of error is overruled.

Defendant has also assigned error to the admission of evidence "of other alleged criminal offenses committed by him at other times and other places not charged in the indictments." Defendant contends that this evidence was irrelevant and deprived him of his constitutional right to due process of law. Over defendant's objection, the trial court allowed Donald Thomas to testify that he owned a convenience store in Shelby; that defendant approached him over a year before the trial about buying goods below cost and that he later entered into a deal with defendant and Caudle to buy 950 cases of cigarettes for $25,000. *785 Thomas emphasized that the cases normally sold for $135,000. Defendant and Caudle told Thomas to pick the cigarettes up at the Thomas and Howard warehouse in Butner. After Thomas arrived at the warehouse, he was told to drive to a nearby restaurant and wait before loading his truck. While Thomas was at the restaurant a man drove up and asked to count the $25,000. Thomas gave him the money and never received any of the cigarettes.

Claude Puckett testified that defendant came to his grocery store in Mount Airy in 1979. He asked if Puckett would be interested in buying items from the Thomas and Howard warehouse in Hickory which was closing. Puckett was later informed that he could purchase $27,000 worth of merchandise, which included cigarettes, from the warehouse for the price of $10,000. He later drove to the warehouse and talked to defendant and another man. Puckett gave the men $10,000 but never received any merchandise in return.

It is well established in North Carolina that in a prosecution for a particular crime, the State cannot offer evidence which tends to show that the accused committed another distinct, separate or independent offense. This rule, however, is subject to eight well known exceptions including the following:

6. Evidence of other crimes is admissible when it tends to establish a common plan or scheme embracing the commission of a series of crimes so related to each other that proof of one or more tends to prove the crime charged and to connect the accused with its commission. (Citations omitted.)

State v. McClain, 240 N.C. 171, 176, 81 S.E.2d 364, 367 (1954). In a more recent decision the North Carolina Supreme Court has emphasized that before testimony can be admitted under this exception, it must first be examined carefully to assure that it does more than merely show character or a disposition to commit the offense charged. State v. Barfield, 298 N.C. 306, 259 S.E.2d 510 (1979), cert. denied, 448 U.S. 907, 100 S. Ct. 3050, 65 L. Ed. 2d 1137, reh. denied, 448 U.S. 918, 101 S. Ct. 41, 65 L. Ed. 2d 1181 (1980).

A mere similarity in results is not a sufficient basis upon which to receive evidence of other offenses. Instead, there must be such a concurrence of common features that the assorted offenses are naturally explained as being caused by a general plan.

Id. at 329, 259 S.E.2d at 530. The testimony of Thomas and Puckett meets these requirements. These two men, like Andrews, were approached by defendant and asked if they were interested in buying such items as cigarettes below cost. They were instructed to pick the goods up at a Thomas and Howard warehouse. Once at the warehouse, they dealt with men, other than defendant, who appeared to be involved in defendant's plan to sell goods below cost. The only major difference between Thomas' and Puckett's dealings with defendant and Andrews' dealings with him is that Andrews never gave defendant any money. Because of this difference, the testimony of Puckett and Thomas was also admissible under the following exception to the general rule excluding evidence of the commission of other offenses by the accused:

2. Where a specific mental intent or state is an essential element of the crime charged, evidence may be offered of such acts or declarations of the accused as tend to establish the requisite mental intent or state, even though the evidence discloses the commission of another offense by the accused. (Citations omitted)

State v. McClain, supra, at 175, 81 S.E.2d at 366. One of the elements of obtaining property by false pretenses is the intent to deceive. State v. Cronin, 299 N.C. 229, 262 S.E.2d 277 (1980). Since defendant in the case sub judice raised the issue as to whether or not Andrews would have received the cigarettes if he had paid Price the $25,000 agreed upon, the testimony of Puckett and Thomas was admissible for the purpose of establishing the requisite intent to deceive Andrews. For the foregoing reasons, this assignment of error is overruled.

*786 Defendant assigns error to the failure of the court to dismiss the case against him for insufficiency of the evidence. He first contends that since the State failed to present evidence of the essential element, that Andrews was actually deceived by any alleged misrepresentation of the defendant, there was insufficient evidence for the jury to find him guilty of attempting to obtain property by false pretenses. Defendant is incorrect in his belief that this is an essential element of an attempt to obtain property by false pretenses.

It is not necessary, in order to establish an intent, that the prosecutor should have been deceived, or should have relied on the false pretenses and have parted with his property; indeed, if property is actually obtained in consequence of the prosecutor's reliance on the false pretenses, the offense is complete and an indictment for an attempt will not lie. (Citations omitted)

35 C.J.S. False Pretenses § 36 at 861 (1960); State v. Cronin, supra.

Defendant also erroneously argues that there was insufficient evidence to convict him of the offense of conspiracy to obtain property by false pretenses. Defendant was indicted for feloniously conspiring with Steven Wesley Price, Kenneth Larry Caudle, William Logan and Quillie Smith, Jr., to commit the crime of obtaining property by false pretenses. A criminal conspiracy, which is the agreement between at least two persons to commit an unlawful act, may be proven by circumstantial evidence. State v. Butler, 269 N.C. 733, 153 S.E.2d 477 (1967). In the case before us there was clearly sufficient evidence to show that defendant had entered into an agreement with Quillie Smith to commit the offense of obtaining property by false pretenses. The actions of these two men support such a conclusion. This assignment of error is therefore overruled.

Defendant further assigns error to the judgment against him for the reasons that neither indictment was sufficient to charge a criminal offense; that the State presented insufficient evidence of each alleged crime and that the court erroneously required defendant to pay restitution to a victim not involved in the charges against defendant. We find merit to his last reason. In the judgment and commitment against defendant, Judge Bailey sentenced him to a maximum of seven years and a minimum of five years. He then agreed to suspend the term of imprisonment upon the following condition:

Commitment shall not issue at this time if the defendant by 4:00 p. m. on April 27, 1981 has paid into the office of the Clerk of Superior Court of Durham County the sum of $25,000.00 for the use and benefit of Don Thomas, 300 N. Washington Street, Shelby, N.C., and has paid the cost of court, and the sentence is suspended for five years and the defendant is placed on probation for five years under the usual terms and conditions of probation. In the event said restitution and cost are not paid in full by 4:00 p. m. on April 27, 1981, commitment shall issue forthwith.

It appears from the record that defendant failed to meet this condition and began serving his sentence on 27 April 1981. This portion of Judge Bailey's order is invalid. G.S. 15A-1343, in effect on the date defendant was sentenced, provided in pertinent part:

(d) Restitution as a Condition of Probation.As a condition of probation, a defendant may be required to make restitution or reparation to an aggrieved party or parties who shall be named by the court for the damage or loss caused by the defendant arising out of the offense or offenses for which the defendant has been convicted. (Emphasis added)

In the case sub judice defendant was convicted of attempting and conspiring to obtain property by false pretenses from Johnny Andrews. There is no evidence in the record that defendant was ever convicted of obtaining property by false pretenses from Don Thomas. This Court has recently emphasized:

*787 Provisions in probationary judgments requiring restitution are constitutionally permissible. State v. Caudle, 276 N.C. 550, 173 S.E.2d 778 (1970); State v. Green, 29 N.C.App. 574, 225 S.E.2d 170, disc. rev. denied, 290 N.C. 665 [228 S.E.2d 455] (1976). However, the provision must be related to the criminal act for which defendant was convicted, else the provision may run afoul of the constitutional provision prohibiting imprisonment for debt. N.C.Const. art. I, § 28 (1970).

State v. Bass, 53 N.C.App. 40, 42, 280 S.E.2d 7, 9 (1981). The judgment is therefore vacated and the case remanded for resentencing.

Defendant's remaining assignments of error involve allegations of prejudicial error in comments made and instructions given to the jury by the trial judge. We have carefully reviewed each of these assignments of error and find no evidence of prejudicial error entitling defendant to a new trial.

No error in the trial. Judgment and commitment vacated and case remanded for resentencing.

ARNOLD and WEBB, JJ., concur.