              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-697

                                  Filed: 6 June 2017

Yancey County, No. 15CRS050081

STATE OF NORTH CAROLINA

             v.

WILLIAM JESSE BUCHANAN, Defendant.


      Appeal by Defendant from judgment entered 15 March 2016 by Judge Alan Z.

Thornburg in Yancey County Superior Court. Heard in the Court of Appeals 31

January 2017.


      Attorney General Joshua H. Stein, by Assistant Attorney General Ronald D.
      Williams, II, for the State.

      The Epstein Law Firm PLLC, by Drew Nelson, for the Defendant.


      DILLON, Judge.


      William Jesse Buchanan (“Defendant”) appeals from his convictions on two

counts of obtaining property by false pretenses.

                                    I. Background

      In 2015, Defendant filed a criminal complaint with the sheriff’s office against

his girlfriend for check fraud, alleging that his girlfriend had fraudulently signed and

cashed three checks drawn on his account without his knowledge or permission. The

checks were in the amounts of $600, $200 and $100.
                                STATE V. BUCHANAN

                                  Opinion of the Court



      After filing the charges, Defendant went to his bank and completed a “Check

Fraud/Forgery Affidavit,” listing all three disputed checks. Following Defendant’s

completion of the affidavit, the bank informed Defendant that it would place a six-

hundred dollar ($600) provisional credit in his bank account based on the $600 check.

The bank, though, informed Defendant that it would not provide a provisional credit

for the $200 or $100 checks at that time. There is no evidence that Defendant ever

attempted to withdraw, spend, or otherwise access the $600 provisional credit placed

in his account by the bank.

      During the course of a criminal investigation of Defendant’s girlfriend, officers

discovered evidence that Defendant had lied in his criminal complaint. Specifically,

officers discovered that Defendant had sent his girlfriend a series of text messages

authorizing her to use the checks, which he had pre-signed, for the care of their

daughter. These text messages clearly showed that Defendant’s girlfriend obtained

Defendant’s permission to cash each check before doing so.

      Defendant was subsequently indicted for two counts of obtaining property by

false pretenses. Specifically, one indictment alleged that Defendant obtained $600

from his bank by means of a false pretense when he signed the affidavit of forgery of

the checks “as stolen and forged when in fact he authorized and signed the check to

be used by [his girlfriend].” The indictment further alleged that he attempted to




                                         -2-
                                    STATE V. BUCHANAN

                                     Opinion of the Court



obtain $300 by false pretenses when he signed the affidavit of forgery regarding the

other two checks.

       Defendant was tried by a jury and convicted of obtaining property by false

pretenses for the $600 provisional credit placed in his account and convicted of

attempting to obtain property by false pretenses for the $100 and $200 checks.

Following the jury’s verdict, Defendant pleaded guilty to the charge of attaining

habitual felon status. Defendant was sentenced accordingly and gave oral notice of

appeal in open court.

                                        II. Analysis

       On appeal, Defendant argues that the trial court erred by failing to dismiss the

charges against Defendant based on insufficiency of the evidence. Defendant further

argues that the trial court committed plain error when it failed to instruct the jury

that it could not convict Defendant of obtaining property by false pretenses (for the

$600 check) and of attempting to obtain property by false pretenses (for the $200 and

$100 checks) based on the “single taking rule.”

       We find no error in Defendant’s convictions.1

                              A. Sufficiency of the Evidence

       On appeal, we consider the trial court’s denial of a motion to dismiss for

insufficient evidence de novo. State v. Privette, 218 N.C. App. 459, 471, 721 S.E.2d


       1  Defendant does not challenge the judgment convicting him of attaining the status of a
habitual felon.

                                             -3-
                                 STATE V. BUCHANAN

                                  Opinion of the Court



299, 308-09 (2012). To withstand a motion to dismiss for insufficient evidence, “the

State must present substantial evidence of (1) each essential element of the charged

offense and (2) [that defendant was] the perpetrator of such offense.” Id. at 470-71,

721 S.E.2d at 308.

      An essential element of the crime of obtaining property by false pretenses is

that the defendant “obtains or attempts to obtain value from another.” State v.

Cronin, 299 N.C. 229, 242, 262 S.E.2d 277, 286 (1980); see also N.C. Gen. Stat. § 14-

100 (2015). N.C. Gen. Stat. § 14-100 defines the offense as complete if a defendant

either “obtains” or “attempts to obtain value from another” by way of a false

representation. N.C. Gen. Stat. § 14-100(a) (emphasis added).

      On appeal, Defendant argues that the State’s evidence was not sufficient to

support his conviction because the State failed to show that Defendant obtained

anything of “value.” Specifically, Defendant contends that the $600 provisional credit

placed in his bank account was not a “thing of value.” We disagree.

      Our Supreme Court has held that a loan is a “thing of value” for the purpose

of the offense. See Cronin, 299 N.C. at 242, 262 S.E.2d at 285 (stating that “the crime

of obtaining property by false pretense is committed when one obtains a loan of

money”).

      Based in part on the reasoning in Cronin, we hold that the provisional credit

placed in Defendant’s account was a “thing of value” sufficient to sustain his



                                         -4-
                                  STATE V. BUCHANAN

                                   Opinion of the Court



conviction. The provisional credit was the equivalent of money being placed in his

account, to which he had access, at least temporarily. Access to money for a period of

time, even if it eventually has to be paid back, is a “thing of value.” Id.

      Defendant argues that the State’s evidence was insufficient to show that he

intended to obtain the provisional credit placed in his account by the bank. We hold

that the evidence, viewed in the light most favorable to the State, was sufficient to

allow a jury to conclude that Defendant intended to obtain the credit to his account

when he executed the bank’s fraud affidavit. See State v. Patterson, 335 N.C. 437,

449-50, 439 S.E.2d 578, 585 (1994).

      On this point, Defendant argues that he only completed the bank’s affidavit of

forgery “because the police directed him to do so” as part of his criminal complaint

against his girlfriend and that he never withdrew or spent the provisional credit, and

that the bank eventually removed the provisional credit from Defendant’s account.

      It could be inferred from the evidence, viewed in the light most favorable to

Defendant, that Defendant did not intend to obtain the provisional credit. However,

viewed in the light most favorable to the State, the evidence demonstrated that

Defendant lied about his girlfriend’s “fraud,” in part, for the purpose of obtaining a

credit to his bank account. The affidavit that Defendant signed clearly stated that “a

provisional credit may . . . be issued for the transaction(s) in dispute[.]” Further,

there was evidence that Defendant told his girlfriend that he wanted his money



                                          -5-
                                 STATE V. BUCHANAN

                                   Opinion of the Court



returned. This evidence constitutes “relevant evidence which a reasonable mind

would accept as sufficient to support [the] conclusion” that Defendant lied to the bank

in order to obtain the provisional credit. Id. at 449, 439 S.E.2d at 585. Accordingly,

this argument is overruled.

                       B. Jury Instruction/Single Taking Rule

      Finally, Defendant alleges that the trial court’s instructions to the jury violated

the “single taking rule.” Essentially, Defendant contends that the State’s evidence

only supported a single conviction of obtaining property by false pretenses, and thus,

the trial court committed plain error when it failed to instruct the jury that it could

not convict Defendant of both obtaining property by false pretenses and attempting

to obtain property by false pretenses. Because the trial court did not do so, Defendant

contends that his ultimate convictions for both offenses violate the “single taking

rule.” We hold that the trial court did not commit plain error in its instructions.

      When viewed in the light most favorable to the State, the evidence showed that

(1) Defendant attempted to obtain $900 from his bank by making a false

representation in the affidavit and (2) Defendant was successful in obtaining the

temporary use of $600 of the $900 he had attempted to obtain.

      Our Supreme Court has explained in the context of larceny that when “a

perpetrator steals several items at the same time and place,” and as part of “one

continuous act or transaction,” only a single larceny offense is committed. State v.



                                          -6-
                                 STATE V. BUCHANAN

                                   Opinion of the Court



Adams, 331 N.C. 317, 333, 416 S.E.2d 380, 389 (1992); see also State v. Marr, 342

N.C. 607, 613, 467 S.E.2d 236, 239 (1996); State v. Jaynes, 342 N.C. 249, 275-76, 464

S.E.2d 448, 464 (1995). In so stating, the Supreme Court examined the larceny

statutes and discerned that the intent of the General Assembly was that a defendant

who steals several items in a single theft be guilty of a single count.

             [T]he purpose of G.S. 14-72 is to establish levels of
             punishment for larceny based on the value of the goods
             stolen, the nature of the goods stolen or the method by
             which stolen, not to create new offenses. Nothing in the
             statutory language suggests that to charge a person with a
             separate offense for each firearm stolen in a single criminal
             incident was intended.

Adams, 331 N.C. at 332, 416 S.E.2d at 388 (citation omitted).

      We have reviewed the language of N.C. Gen. Stat. § 14-100 and conclude that

the General Assembly did not intend to subject a defendant to multiple counts of

obtaining property by false pretenses where he obtains multiple items in a single

transaction. Rather, the statute provides for an increase in punishment if the value

of the property taken exceeds $100,000. See N.C. Gen. Stat. § 14-100 (providing that

the offense constitutes a Class C felony if the property value exceeds $100,000, but

otherwise constitutes a Class H felony). Although our Court has considered the

application of the “single taking rule” to the crime of obtaining property by false

pretenses, we have done so only in the context of indictments. State v. Rawlins, 166

N.C. App. 160, 601 S.E.2d 267 (2004). In Rawlins, our Court held that the single



                                          -7-
                                 STATE V. BUCHANAN

                                  Opinion of the Court



taking rule did not apply where the defendant used stolen credit cards on three

separate occasions within a 20 minute period, stating: “In this case, there were three

distinct transactions separated by several minutes in which different credit cards

were used. Thus, we conclude that the indictments were not duplicative.” Id. at 166,

601 S.E.2d at 272.

      Applying the reasoning in Rawlings and the Supreme Court opinions in the

larceny cases cited above, by way of example, if a defendant purchased three items

with one swipe of a stolen credit card, the act would constitute a single offense under

N.C. Gen. Stat. § 14-100. And if the value of each item was $50,000, the defendant

would be guilty of a Class C felony (as opposed to three Class H felonies) since the

total value of the items exceeded $100,000. However, if the defendant purchased each

item with a separate credit card swipe separated by some amount of time, the

defendant would be guilty of three Class H felonies, and not the single Class C felony

because his actions would not constitute a “single taking.”

      The wrinkle in the present case is that Defendant attempted to collect the

value of three checks in a single transaction, but was only successful in obtaining a

credit for one of the checks. However, the fact that Defendant was not successful in

obtaining all of the property he attempted to obtain in the single transaction does not

change the analysis. Indeed, if a defendant in the example above attempted to

purchase three items with a stolen credit card, but was informed by the clerk that the



                                         -8-
                                           STATE V. BUCHANAN

                                            Opinion of the Court



card limit only allowed for the purchase of two of the items, the defendant would only

be guilty of a single crime.

          Notwithstanding, we conclude that the trial court did not err in its jury

instructions. Rather, the error appears to be constitutional in nature, as a double

jeopardy issue. Therefore, because Defendant failed to make any objection at trial,

any argument is waived on appeal. See State v. Gobal, 186 N.C. App. 308, 320-21,

186 S.E.2d 279, 287 (2007), aff’d per curiam, 362 N.C. 342, 661 S.E.2d 732 (2008).2

In Gobal, the defendant argued that he should not have been sentenced for two

separate crimes where his two acts constituted one offense. Id. at 320, 186 S.E.2d at

287. We held that the defendant had failed to make the appropriate argument and

that the argument was waived:

                    Constitutional issues not raised and passed upon at trial
                    will not be considered for the first time on appeal, not even
                    for plain error. A double jeopardy argument need not use
                    those exact words to be preserved for appeal if the
                    substance of the argument was sufficiently presented and,
                    more importantly, addressed by the trial court in finalizing
                    its instructions to the jury.

Id. at 320-21, 186 S.E.2d at 287 (internal citations and marks omitted) (emphasis in

original). In the present case, Defendant failed to make such an argument before the

trial court and has therefore failed to preserve this issue on appeal.

          Accordingly, we find no error in Defendant’s convictions.


          2   Nor has Defendant argued on appeal that the trial court’s error violated his constitutional
rights.

                                                    -9-
                     STATE V. BUCHANAN

                       Opinion of the Court



NO ERROR.

Judges DAVIS and INMAN concur.




                              - 10 -
