             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA14-951

                              Filed: 18 August 2015

New Hanover County, 11 CRS 59314

STATE OF NORTH CAROLINA

            v.

STEPHANIE JEAN HOLANEK


      Appeal by defendant from judgment entered 7 March 2014 by Judge Jay D.

Hockenbury in New Hanover County Superior Court. Heard in the Court of Appeals

3 February 2015.


      Roy Cooper, Attorney General, by Hugh A. Harris, Assistant Attorney General,
      for the State.

      Staples S. Hughes, Appellate Defender, by Jason Christopher Yoder, Assistant
      Appellate Defender, for defendant-appellant.


      DAVIS, Judge.


      Stephanie Jean Holanek (“Defendant”) appeals from her convictions for three

counts of obtaining property by false pretenses. On appeal, Defendant contends that

the trial court erred in (1) denying her motion to dismiss the charges of obtaining

property by false pretenses based on the insufficiency of the evidence; (2) its

instructions to the jury concerning the elements of obtaining property by false

pretenses; (3) admitting testimony that Defendant did not appear for an examination

under oath in connection with the claims she filed with her insurance company; (4)
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                                   Opinion of the Court



failing to give a jury instruction pursuant to N.C. Gen. Stat. § 14-100(b) where the

State introduced evidence of Defendant’s breach of contract; and (5) entering

judgment on her convictions because the indictments for each of the obtaining

property by false pretenses charges were fatally defective. After careful review, we

vacate in part and find no error in part.

                                Factual Background

       The State’s evidence at trial tended to establish the following facts: On 26

September 2009, Defendant’s septic tank at her home in Wilmington, North Carolina

backed up, causing the three toilets in her home to overflow and resulting in water

damage to the first and second floors. Defendant filed a claim with her insurance

company, State Farm Fire and Casualty Company (“State Farm”). A claims adjuster

with State Farm, Jarred Norris (“Norris”), visited Defendant’s house to document the

damage. State Farm issued a check for $4,494.69 to Defendant in November 2009 to

pay for the expenses of moving the contents of the first floor of her house into a storage

unit. State Farm arranged for one of its contractors, Service Master, to perform the

job.

       On 18 October 2009, Defendant faxed State Farm an invoice in the amount of

$4,760.00 from an entity called M&M Movers that purported to be for the costs

associated with moving the contents of the second floor of her house into storage. The

invoice listed M&M Movers’ business address as 817 West Rowan Avenue in



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Fayetteville, North Carolina.1 Her fax coversheet stated that she had paid M&M

Movers the amount listed on the invoice as well as an additional $474.00 for storage

fees. State Farm issued a check to Defendant in the total amount of $5,234.00 to

cover each of those expenses on 28 October 2009.

       On 12 October 2009, Defendant checked four pets into Meadowsweet Pet

Boarding and Grooming (“Meadowsweet”) because the temporary rental home where

she was living while her home was being repaired did not allow pets. Defendant

initially made an electronic reservation for the pets to remain at Meadowsweet for

only ten days (from 12 October to 22 October 2009), but the checkout date on the form

was then changed to reflect the fact that the pets would remain at Meadowsweet

through 12 November 2009.

       Another claims adjuster, Chris Rowley (“Rowley”), informed Defendant that

State Farm would cover pet boarding under her additional living expense coverage if

she provided an estimate of the cost. Nevertheless, prior to her submission of such

an estimate, State Farm issued a check to Defendant on 19 October 2009 for $2,040.00

in pet boarding expenses.

       Three days later, on 22 October 2009, Defendant submitted to State Farm a

document that had been generated by Meadowsweet entitled “STATEMENT of

CURRENT CHARGES — NOT a RECEIPT” listing the amount of $2,040.00, which


       1 It was later revealed that this was the home address of Mike Beasley, Defendant’s father-in-
law, and Mike Beasley, Jr., his son.

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reflected Meadowsweet’s estimate of the pet boarding costs that would apply to the

boarding of her two dogs and two cats from 12 October to 12 November 2009. On the

document, Defendant wrote a handwritten note stating as follows:

             Please Reimburse for Pet Boarding
                   $2,040.00 (30 days)
                   $4,080.00 (60 days)

                          Thanks,
                          Stephanie Holanek

      State Farm proceeded to issue monthly payments to her in the amount of

$2,040.00 for pet boarding expenses for approximately six months.          Defendant

periodically called State Farm during this time period to make sure that State Farm

was continuing to issue checks for the pet boarding services.

      On 25 February 2010, Rowley’s manager asked him to obtain confirmation that

the pets were still at Meadowsweet before State Farm would issue any further checks

for pet boarding expenses. On several occasions, Rowley asked Defendant to confirm

that her pets were still being boarded at Meadowsweet, and Defendant told him that

“she was too busy to get the information for [him] from the kennel . . . but she would

try and get it.” State Farm ceased providing payments in April 2010, and in May

2010, Defendant told Rowley that her pets were going to be evicted because of

outstanding amounts owed to Meadowsweet. Rowley then contacted Meadowsweet

and learned from an employee that the animals were no longer at Meadowsweet and




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had been checked out back on 22 October 2009.2 When Rowley confronted Defendant

with this information over the phone, Defendant told him that she had taken her pets

out of Meadowsweet and sent them with her brother to be boarded in a kennel in

Fayetteville. Rowley requested the contact information for the new kennel, but

Defendant never provided it to him.

       On 28 July 2010, Defendant faxed State Farm an invoice for moving services

from a business called PJ’s Moving Company, purportedly located at 6012 Oleander

Drive in Wilmington, North Carolina, in the amount of $10,430.00.                  Defendant

requested reimbursement for the moving expenses listed on the invoice, which

consisted of three days of moving furniture from the temporary storage unit back into

her home. A handwritten note at the top right corner of the invoice stated that the

bill had been paid in full.

       Kent Dawdy (“Dawdy”), a claims representative in State Farm’s special

investigative unit, was assigned to investigate Defendant’s insurance claim on 15

September 2010. Dawdy contacted Defendant the following day and informed her

that State Farm was going to invoke a contractual policy provision allowing it to

require her to submit to an examination under oath for the purpose of resolving

questions about her claims. State Farm retained an attorney, J. Thomas Cox, Jr.



       2 A receipt from Meadowsweet introduced at trial dated 22 October 2009 showed that
Defendant’s pets had, in fact, been checked out of Meadowsweet on 22 October and that a bill of
$845.00 had been paid by check. The receipt did not state who provided the check.

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(“Cox”), to conduct the examination.      Cox mailed a letter to Defendant on 24

September 2010 requesting that she appear for the examination at a court reporter’s

office on 20 October 2010, and Cox’s paralegal gave her a reminder call on 19 October

2010.    Dawdy, Cox, and the court reporter appeared for the examination on 20

October and waited for Defendant for thirty minutes, but she did not appear. Cox

then sent Defendant a letter on 28 October 2010 giving her the opportunity to

schedule a new date for the examination, but she did not respond. Cox sent a third

letter on 16 November 2010 informing her that the examination had been

rescheduled for 30 November 2010, but, once again, she failed to appear for the

examination.

        In the course of his investigation, Dawdy attempted to locate PJ’s Moving

Company but could not find the address contained in the invoice — 6012 Oleander

Drive in Wilmington. He also attempted to find M&M Movers at 817 Rowan Avenue

in Fayetteville and instead found a house located at that address. Dawdy did not

observe moving equipment or trucks at the residence. In his trial testimony, he stated

that he did not recall whether he had searched the Internet or used a phone book in

an effort to locate either PJ’s Moving Company or M&M Movers. He explained that

he did not do a more extensive search because State Farm’s attorney planned to ask

Defendant to provide clarifying information about these entities at the examination.




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      On 9 December 2010, State Farm concluded that Defendant was not in

compliance with the conditions of her policy based on her failure to appear for the

scheduled examinations and denied her subsequent claims on that basis. Dawdy

contacted the North Carolina Department of Insurance (“DOI”) to report State Farm’s

suspicions that Defendant had committed insurance fraud. Mickey Biggs (“Biggs”),

a criminal investigator with DOI, received the case on 12 December 2010 and began

his investigation in May 2011. Biggs was unable to locate either M&M Movers or

PJ’s Moving Company through Internet searches, phone calls, or physical visits.

      On 17 January 2012, a grand jury indicted Defendant on four counts of

insurance fraud, three counts of obtaining property by false pretenses, and one count

of attempting to obtain property by false pretenses. The State voluntarily dismissed

one count of insurance fraud and the charge of attempting to obtain property by false

pretenses before trial.

      The matter came on for a jury trial beginning 4 March 2014 in New Hanover

County Superior Court before the Honorable Jay D. Hockenbury. Following the

State’s case-in-chief, Defendant offered evidence in her defense, calling her brother,

Paul Thompson, Jr. (“Thompson”), as a witness. Thompson testified that he had

moved to Wilmington in July 2010 to help Defendant because she had just opened a

consignment store and given birth to triplets. He further testified that (1) he was

operating PJ’s Moving Company out of the back of the consignment store at 6012



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Oleander Drive3; (2) he received referrals for his moving services from the

consignment store; and (3) along with two other movers, he had moved the contents

of the temporary storage unit back into Defendant’s house and reassembled the

furniture. Thompson also stated that he had prepared a handwritten invoice for the

applicable expenses and charges that was then typed up by Defendant.

       On 7 March 2014, the jury found Defendant guilty of all remaining charges —

three counts of insurance fraud and three counts of obtaining property by false

pretenses. The trial court arrested judgment on the three counts of insurance fraud,

consolidated the three counts of obtaining property by false pretenses into a single

judgment, and sentenced Defendant to a mitigated term of four to five months

imprisonment. Defendant gave notice of appeal in open court six days after the

conclusion of her trial.

                                           Analysis

I. Appellate Jurisdiction

       As an initial matter, we must address the issue of whether appellate

jurisdiction exists over Defendant’s appeal. Rule 4 of the North Carolina Rules of

Appellate Procedure provides that a defendant may appeal from an order or judgment

in a criminal action by (1) “giving oral notice of appeal at trial,” or (2) “filing notice of



       3  During his investigation, Biggs was able to find a consignment store next to a storefront
bearing the address 6010 Oleander Drive, but the consignment store’s address was not visibly marked
on the signage and the store was not open when he visited the location.

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appeal with the clerk of superior court and serving copies thereof upon all adverse

parties within fourteen days after entry of the judgment[.]” N.C.R. App. P. 4(a).

       In the present case, Defendant’s trial counsel gave oral notice of appeal on 13

March 2014, six days after the conclusion of Defendant’s trial, by appearing in open

court before the judge who had presided over Defendant’s criminal trial. However,

because oral notice of appeal must be given at trial, Defendant’s counsel’s oral notice

of appeal was legally ineffective. See State v. Oates, 366 N.C. 264, 268, 732 S.E.2d

571, 574 (2012) (“Rule 4 authorizes two modes of appeal for criminal cases. The Rule

permits oral notice of appeal, but only if given at the time of trial or . . . of the pretrial

hearing. Otherwise, notice of appeal must be in writing and filed with the clerk of

court.” (internal citation omitted)).

       In recognition of the fact that her notice of appeal was defective, Defendant has

filed a petition for writ of certiorari asking this Court to consider her appeal.

Pursuant to Rule 21(a)(1) of the Appellate Rules, this Court may, in its discretion,

grant a petition for writ of certiorari and review an order or judgment entered by the

trial court “when the right to prosecute an appeal has been lost by failure to take

timely action.” N.C.R. App. P. 21(a)(1). Here, Defendant lost her right to appeal

through no fault of her own but rather due to her trial counsel’s failure to give proper

notice of appeal. We therefore dismiss the appeal, exercise our discretion to grant

Defendant’s petition for writ of certiorari, and proceed to address the merits of her



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arguments. See In re I.T.P-L, 194 N.C. App. 453, 460, 670 S.E.2d 282, 285 (2008)

(dismissing appeal based on defective notice of appeal but allowing petition for writ

of certiorari pursuant to Rule 21), disc. review denied, 363 N.C. 581, 681 S.E.2d 783

(2009).

II. Denial of Motions to Dismiss

      Defendant first argues that the trial court erred in denying her motions to

dismiss each of the three counts of obtaining property by false pretenses, asserting

that (1) there was insufficient evidence to support the two counts arising out of the

payments she received based on the moving company invoices; and (2) with regard to

the count stemming from the pet boarding expenses, there was a fatal variance

between the indictment and the evidence introduced at trial. We address each of

Defendant’s arguments in turn.

      A. Moving Company Invoices

      With regard to the counts stemming from the moving expenses, Defendant

contends that the State failed to prove either that (1) the invoices contained a false

representation; or (2) the movers were not paid by Defendant as she claimed. We

disagree.

      “Upon defendant’s 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 being the perpetrator of such



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offense.” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (citation omitted),

cert. denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000). Substantial evidence is evidence

that a reasonable mind might accept as adequate to support a conclusion. State v.

Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). In reviewing challenges to the

sufficiency of the evidence, we must view the evidence in the light most favorable to

the State, giving the State the benefit of all reasonable inferences. State v. Benson,

331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992).

      “Circumstantial evidence may withstand a motion to dismiss and support a

conviction even when the evidence does not rule out every hypothesis of innocence.”

State v. Stone, 323 N.C. 447, 452, 373 S.E.2d 430, 433 (1988). If the court decides

that a reasonable inference of the defendant’s guilt may be drawn from the

circumstances, then “it is for the jury to decide whether the facts, taken singly or in

combination, satisfy them beyond a reasonable doubt that the defendant is actually

guilty.” State v. Thomas, 296 N.C. 236, 244, 250 S.E.2d 204, 209 (1978) (citation and

emphasis omitted). The defendant’s evidence should be disregarded unless it is

favorable to the State or does not conflict with the State’s evidence.          State v.

Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 653 (1982). When ruling on a motion to

dismiss, the trial court should only be concerned with whether “the evidence is

sufficient to get the case to the jury; it should not be concerned with the weight of the

evidence.” Id. at 67, 296 S.E.2d at 652.



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      The elements of the offense of obtaining property by false pretenses are: “(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.” State v. Cronin, 299

N.C. 229, 242, 262 S.E.2d 277, 286 (1980). Defendant argues that the State failed to

prove that Defendant made a false representation because it “failed to prove that

[Defendant] did not pay the invoices as claimed.”

      In making this argument, Defendant relies primarily upon State v. Braswell,

___ N.C. App. ___, 738 S.E.2d 229 (2013). In Braswell, the defendant was charged

with obtaining property by false pretenses by means of an indictment alleging that

he obtained $112,500.00 from William Irvin Greene and Ola Beth Greene “by the

defendant guaranteeing a six percent return on all invested monies from William

Irvin Green [sic] and Ola Beth Green [sic], when in fact the defendant did not invest

the monies into legitimate financial institutions.” Id. at ___, 738 S.E.2d at 233. On

appeal, this Court held that the trial court had erred in denying the defendant’s

motion to dismiss because the state failed to present evidence demonstrating that the

defendant failed to invest the money he obtained from the Greenes in legitimate

financial institutions and thus did not establish that “the representation that

Defendant allegedly made to the Greenes was a false one.” Id. at ___, 738 S.E.2d at

234. We noted that the state did not present any evidence concerning the defendant’s



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financial records or offer any other “direct or circumstantial evidence tending to show

that, instead of investing the money he borrowed from the Greenes, Defendant

converted it to his own use.” Id. at ___, 738 S.E.2d at 234. Because the state did not

offer any evidence explaining what had happened to the money the defendant

obtained from the alleged victims, we concluded that the state (1) failed to prove that

the defendant never invested the money in legitimate financial institutions as he had

promised and, consequently, (2) did not establish the “key element of the offense . . .

that the representation be intentionally false and deceptive.” Id. at ___, 738 S.E.2d

at 233. Indeed, we observed that the evidence at trial suggested that the defendant

had actually invested the Greenes’ money but then lost the funds when “his

investment activities had gone catastrophically awry.” Id. at ___ n. 2, 738 S.E.2d at

234 n.2.

      Defendant contends that the same result should apply here because the State

neither introduced any of her financial records nor otherwise proved that she did not,

in fact, pay the invoices as she had represented. She further argues that the State

failed to establish that M&M Movers or PJ’s Moving Company did not exist and,

therefore, the evidence did not support the conclusion that Defendant made a false

representation to State Farm by submitting to it the invoices for the moving expenses

in order to obtain payment. We are not persuaded.




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       The State presented evidence that during their respective investigations,

neither Dawdy nor Biggs were able to uncover any evidence that M&M Movers or

PJ’s Moving Company were operating as moving companies in North Carolina. Both

investigators testified that the companies (1) were not physically located at the

addresses listed on the invoices; (2) were unreachable at the telephone numbers

provided therein; and (3) could not be located through an Internet search. Moreover,

Defendant resisted State Farm’s attempts to afford her an opportunity to

demonstrate the legitimacy of these expenses by repeatedly failing to appear for

scheduled examinations under oath.4

       By offering substantial evidence that the moving companies did not exist, the

State was able to raise a question for the jury as to whether Defendant’s submission

of the invoices to State Farm claiming that payment had been made by her to these

companies constituted a false representation. Because the State offered evidence

sufficient to allow the jury to determine that these invoices were fraudulent, it was

not obligated to show what happened to the money Defendant obtained from State

Farm in order to prove her guilt.

       Conversely, in Braswell, evidence of what had transpired with the funds

obtained from the alleged victims was essential to proving the falsity of the



       4 While Defendant challenges the trial court’s admission of the evidence concerning her failure
to appear for the examination under oath, this evidence was properly admitted by the trial court as
discussed infra.

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defendant’s representation in that case. In Braswell, the false representation alleged

to have been made by the defendant was that he had promised to “invest the monies

into legitimate financial institutions.” Id. at ___, 738 S.E.2d at 233. In order to prove

that this representation was false and intended to defraud the alleged victims, the

state was required to show that the defendant did not actually invest the money at

issue. The state did not do so and, therefore, failed to establish that the defendant

made a false representation. Thus, Braswell is distinguishable from the present case,

and Defendant’s reliance on it is misplaced.

      We conclude that sufficient evidence existed to support a finding by the jury

that the two moving companies were fictitious and that by submitting the invoices,

Defendant falsely represented that the invoices were legitimate in an effort to

defraud State Farm and receive payment from it. Her submission of these invoices

ultimately resulted in her obtaining $15,190.00 from State Farm. Accordingly, the

trial court did not err in denying her motion to dismiss as to these two counts.

      B. Pet Boarding Expenses

      Defendant next argues that there was a fatal variance between the facts

alleged in the indictment and the evidence presented at trial for the count of obtaining

property by false pretenses concerning the Meadowsweet pet boarding charges. She

acknowledges that her trial counsel did not specifically argue fatal variance as the

basis for the motion to dismiss this count and thus failed to preserve this issue for



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appellate review. See State v. Redman, 224 N.C. App. 363, 367-68, 736 S.E.2d 545,

549 (2012) (“To preserve the issue of a fatal variance for review, a defendant must

state at trial that a fatal variance is the basis for the motion to dismiss.”). However,

she contends that her counsel’s failure to identify the fatal variance between the

indictment and the evidence at trial constitutes ineffective assistance of counsel

because the motion to dismiss would have been granted if her trial counsel had

expressly made a motion to dismiss on this specific ground. We agree.

      In order to establish ineffective assistance of counsel, “a defendant must show

that (1) counsel’s performance was deficient and (2) the deficient performance

prejudiced the defense.” State v. Phillips, 365 N.C. 103, 118, 711 S.E.2d 122, 135

(2011) (citation and quotation marks omitted), cert. denied, ___ U.S. ___, 182 L.Ed.2d

176 (2012).

              Deficient performance may be established by showing that
              counsel’s representation fell below an objective standard of
              reasonableness. Generally, to establish prejudice, a
              defendant must show that there is a reasonable probability
              that, but for counsel’s unprofessional errors, the result of
              the proceeding would have been different. A reasonable
              probability is a probability sufficient to undermine
              confidence in the outcome.

State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (internal citations and

quotation marks omitted), cert. denied, 549 U.S. 867, 166 L.Ed.2d 116 (2006).

      “It is well established that a defendant must be convicted, if at all, of the

particular offense charged in the indictment and that the State’s proof must conform


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to the specific allegations contained therein.” State v. Henry, ___ N.C. App. ___, ___,

765 S.E.2d 94, 102 (2014) (citation, quotation marks, and brackets omitted). “A

variance occurs where the allegations in an indictment . . . do not conform to the

evidence actually established at trial.” State v. Norman, 149 N.C. App. 588, 594, 562

S.E.2d 453, 457 (2002). In order for it to be material, and therefore require reversal,

the variance must involve an essential element of the crime charged. See State v.

Glynn, 178 N.C. App. 689, 696, 632 S.E.2d 551, 556 (“Only a material variance

warrants reversal, as it involves an essential element of the alleged crime.”), appeal

dismissed and disc. review denied, 360 N.C. 651, 637 S.E.2d 180-81 (2006).

       The purposes of an indictment are: “(1) to identify the crime with which

defendant is charged, (2) to protect defendant against being charged twice for the

same offense, (3) to provide defendant with a basis on which to prepare a defense,

and (4) to guide the court in sentencing.” State v. Wright, 200 N.C. App. 578, 585,

685 S.E.2d 109, 114 (2009) (citation and quotation marks omitted), appeal dismissed,

363 N.C. 812, 693 S.E.2d 142 (2010). “When a variance exists between allegations in

the indictment and evidence presented at trial, the defendant may be deprived of

adequate notice to prepare a defense.” Glynn, 178 N.C. App. at 696, 632 S.E.2d at

556.

       Here, the indictment for this count of obtaining property by false pretenses

alleged the following:



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             [T]he defendant named above unlawfully, willfully, and
             feloniously did knowingly and designedly with intent to
             cheat and defraud, obtain $11,395.00 in U.S. currency from
             State Farm Fire and Casualty Company by means of a false
             pretense which was calculated to deceive and did deceive.
             The false pretense consisted of the following: this property
             was obtained when the defendant submitted an invoice for
             services rendered by Meadowsweet Pet Boarding &
             Grooming, seeking reimbursement from State Farm Fire
             and Casualty Company under the terms of the defendant’s
             Home Owner Insurance Policy, when in fact the invoice
             submitted was a fraudulent invoice.

      Thus, the theory of the offense alleged in the indictment was that Defendant

submitted a fraudulent invoice for pet boarding services rendered by Meadowsweet

to State Farm, which caused State Farm to issue payment to her in the amount of

$11,395.00. The evidence at trial, however, tended to show that the document at

issue was an estimate — not “an invoice for services rendered” — for the cost of

boarding the four pets for one month, which was generated by Meadowsweet on 12

October 2009 (the day of the pets’ arrival at Meadowsweet).          Leanna Willard

(“Willard”), the owner of Meadowsweet, testified as follows:

             [Prosecutor]: I want to show you what’s previously been
             admitted as State’s Exhibit 16. Do you recognize this
             document?

             [Willard]: It is an estimate of charges for Stephanie
             Holanek’s four animals from October 12th, 2009 to
             November 12th, 2009.

             Q. At what facility?

             A. Meadowsweet Pet Boarding and Grooming.


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                Q. Your facility, correct?

                A. Yes.

                Q. And, again, let’s go through it again. An estimate, how
                do you know this is an estimate, not a receipt?

                A. Because it says “Statement of current charges,” not
                “Receipt” at the top. And at the bottom it has a total of
                $2,040.00 where a receipt would show the paid amount and
                it would show how it was paid: check, credit card, cash, et
                cetera.

                Q. Does this appear to be legitimate?

                A. Yes, it’s an estimate for a 30-day stay for the four
                animals, yes.5

        We note that because this document was generated on the same date the pets

were checked into Meadowsweet, it could not logically have been an invoice “for

services rendered by Meadowsweet” as alleged in the indictment. (Emphasis added.)

Indeed, the evidence at trial showed that Rowley, the State Farm claims adjuster,

was aware that the document was an estimate as Rowley testified that (1) Defendant

had provided this document to him after he requested information “on what it would

cost to board her pets during the time she was out of the home”; and (2) it was his

understanding that “this was an estimate . . . since her dogs hadn’t been boarded




        5  We observe that the prosecutor referred to this document as an “estimate” throughout the
trial, at one point directing the court reporter to strike his own question to Rowley as to whether State
Farm continued “to pay pet boarding based upon this invoice” and then rephrasing the question to ask
if State Farm continued to pay pet boarding “based upon this estimate.” (Emphasis added.)

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there for more than 30 days.” For similar reasons, Defendant’s handwritten note on

the document requesting reimbursement could not have been construed by State

Farm as a request for payment as to services that had actually been rendered given

that the document was faxed by Defendant only ten days after the 12 October 2009

date reflected on the document as the date the pets were first placed with

Meadowsweet.

      Furthermore, there was no evidence at trial suggesting that the written

estimate was anything other than a document created in good faith by Meadowsweet

that accurately itemized the costs to be incurred — prospectively — for the boarding

of Defendant’s pets from 12 October 2009 to 12 November 2009. Thus, in addition to

the fact that the document Defendant submitted from Meadowsweet was not an

invoice, it was also not fraudulent.

      Notably, this document was faxed to State Farm on 22 October 2009, three

days after State Farm issued a check to Defendant. Therefore, the issuance of this

payment by State Farm could not logically have been triggered by Plaintiff’s

submission of the document. See State v. Childers, 80 N.C. App. 236, 241, 341 S.E.2d

760, 763 (explaining that offense of obtaining property by false pretenses requires “a

causal connection between the alleged false representation and the obtaining of the

property or money”), disc. review denied, 317 N.C. 337, 346 S.E.2d 142 (1986).




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                                  Opinion of the Court



      In addition, the State’s evidence at trial tended to show that it was not the

written estimate that falsely led State Farm to believe that her pets remained at

Meadowsweet long after they had been removed from Meadowsweet’s care but rather

the oral misrepresentations made by Defendant during the time period between 22

October 2009 and April 2010. Thus, contrary to the allegations contained in the

indictment that Defendant obtained payments for pet boarding expenses from State

Farm through the false pretense of submitting a “fraudulent invoice,” the evidence

introduced at trial showed that (1) Defendant submitted a valid estimate of the

expenses that would have been incurred had her four pets stayed at Meadowsweet

for a full month; and (2) Defendant subsequently obtained payments from State Farm

through oral misrepresentations that were made by her over the next six months to

the effect that she was entitled to continue receiving such payments despite the fact

that she had removed her pets from Meadowsweet on 22 October 2009.

      Our Supreme Court has explained that with regard to the offense of obtaining

property by false pretenses, “[t]he state must prove, as an essential element of the

crime, that defendant made the misrepresentation as alleged” and that “[i]f the

state’s evidence fails to establish that defendant made this misrepresentation but

tends to show some other misrepresentation was made, then the state’s proof varies

fatally from the indictments.” State v. Linker, 309 N.C. 612, 615, 308 S.E.2d 309, 311

(1983) (emphasis added).



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                                  STATE V. HOLANEK

                                  Opinion of the Court



      Indeed, we find the present case analogous to Linker. In Linker, the defendant

was charged with two counts of obtaining property by false pretenses.            The

indictments alleged that the defendant, whose name was Barry L. Linker and who

was not an accountholder at Wachovia Bank, had committed the false pretense of

“represent[ing] himself as Barry W. Linker who did have a valid account and

attempted to cash a check for $120.00” in order to obtain property from Wachovia.

Id. at 613, 308 S.E.2d at 310 (emphasis added). The evidence at trial, however,

showed that the defendant presented the bank tellers with a valid driver’s license

identifying himself as Barry L. Linker and when questioned about the differing

middle initial between his driver’s license and the information on the account stated

that the initial on the account was incorrect. Id. at 614, 308 S.E.2d at 310.

      The Supreme Court determined that the trial court erred in denying the

defendant’s motion to dismiss based on a fatal variance because the evidence at trial

did not support the misrepresentation alleged in the indictment. Id. at 616, 308

S.E.2d at 311. While the Supreme Court acknowledged that the evidence presented

at trial would have supported a charge of obtaining property by false pretenses based

on the defendant misrepresenting the fact that he had a Wachovia account when he

did not actually possess one, that misrepresentation was not the misrepresentation

alleged in the indictment. Id. at 615 n. 2, 308 S.E.2d at 311 n. 2.

                   The    indictments  explicate the    alleged
             misrepresentation in clear and unequivocal terms:


                                         - 22 -
                                   STATE V. HOLANEK

                                   Opinion of the Court



               Defendant “represented himself as Barry W. Linker.” The
               record clearly reflects that the state failed to prove that
               defendant represented himself as Barry W. Linker.
               Without exception, each of the state’s witnesses testified
               that defendant never represented himself as Barry W.
               Linker. Instead, he gave each bank employee his driver’s
               license which established that he was, in fact, Barry L.
               Linker.     Simply put, defendant never made the
               misrepresentation charged in both indictments.

Id. at 615, 308 S.E.2d at 311. The Supreme Court concluded that because the

defendant “positively identified himself [as Barry L. Linker] with his driver’s license

to each bank official. . . . the state’s proof varied fatally from the allegations in the

indictment.” Id. at 616, 308 S.E.2d at 311.

      The same reasoning applies here. Unlike the evidence supporting the counts

relating to the moving company charges, the evidence did not support a finding that

the document Defendant submitted to State Farm with regard to pet boarding

services at Meadowsweet was a “fraudulent invoice” as alleged in the indictment.

While Defendant’s repeated oral misrepresentations that allowed Defendant to

improperly obtain payments from State Farm over the next six months — consisting

of her false assurances that her pets remained boarded at Meadowsweet beyond 22

October 2009 — could have given rise to the offense of obtaining property by false

pretenses if contained within the indictment, the indictment as to this count did not

allege them.




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                                         STATE V. HOLANEK

                                         Opinion of the Court



        In short, the document at issue was not a “fraudulent invoice” purporting to be

from an entity that was actually fictitious (as was the case regarding the moving

expenses) but rather a genuine estimate prepared by a legitimate business. It could

not have been construed as an invoice for services previously rendered because it was

generated the first day Defendant placed her pets with Meadowsweet. The initial

payment of $2,040.00 was issued by State Farm before it ever received the written

estimate. The remaining payments comprising the $11,395.00 figure listed in the

indictment were induced by Defendant’s false oral representations over the next six

months that her pets continued to be boarded at Meadowsweet. Accordingly, there

was a fatal variance between the allegations of the indictment and the evidence

presented at trial to establish this count of obtaining property by false pretenses. For

this reason, we must vacate Defendant’s conviction on this count. See State v. Gayton-

Barbosa, 197 N.C. App. 129, 136-37, 676 S.E.2d 586, 591 (2009) (vacating defendant’s

larceny conviction due to fatal variance between indictment and evidence presented

at trial).6

III. Admissibility of Evidence Concerning Defendant’s Failure to Attend
     Scheduled Examinations


        6 Defendant also asserts that the trial court either (1) deprived her of her constitutional right
to a unanimous verdict; or, alternatively, (2) committed plain error, by instructing the jury that it
could find her guilty of obtaining property by false pretenses if it found that Defendant had made
either written or oral misrepresentations to State Farm concerning the pet boarding expenses at
Meadowsweet. However, we need not address these contentions nor the remaining arguments in her
brief as applied to the pet boarding count because we are vacating her conviction on this count due to
the fatal variance discussed above.


                                                 - 24 -
                                  STATE V. HOLANEK

                                      Opinion of the Court




      Defendant next contends that the trial court erred in admitting testimony that

she did not appear for two scheduled examinations under oath as required by her

insurance policy and failed to respond to State Farm’s request to reschedule the

examination. Defendant acknowledges that she failed to object to the introduction of

this evidence and that, consequently, this Court’s review of the admission of this

evidence is limited to plain error.

      In order to establish plain error, Defendant bears the burden of showing that

a fundamental error occurred at trial. State v. Lawrence, 365 N.C. 506, 518, 723

S.E.2d 326, 334 (2012). “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’s finding that the defendant was guilty.” Id. (citation and

quotation marks omitted).

      Defendant makes three arguments challenging the admissibility of this

evidence.   First, she asserts that this evidence was irrelevant and, therefore,

inadmissible under Rules 401 and 402 of the North Carolina Rules of Evidence.

Second, she contends that the evidence violated N.C. Gen. Stat. § 14-100(b). Third,

she argues that the evidence should have been excluded pursuant to Rule 403 of the

North Carolina Rules of Evidence. We address each of these issues in turn.

      A. Relevance




                                             - 25 -
                                 STATE V. HOLANEK

                                  Opinion of the Court



      Rule 401 defines relevant evidence as “evidence having any tendency to make

the existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.” N.C.R. Evid.

401. Irrelevant evidence, conversely, is evidence “having no tendency to prove a fact

at issue in the case.” State v. Hart, 105 N.C. App. 542, 548, 414 S.E.2d 364, 368,

appeal dismissed and disc. review denied, 332 N.C. 348, 421 S.E.2d 157 (1992). Rule

402 provides that relevant evidence is generally admissible at trial while irrelevant

evidence is not admissible. N.C.R. Evid. 402.

      We do not agree with Defendant’s assertion here that the evidence concerning

her failure to appear for an examination under oath pursuant to the terms of her

insurance policy with State Farm was not relevant. In order to establish the offense

of obtaining property by false pretenses, the State was required to prove that

Defendant’s acts were done “knowingly and designedly . . . with intent to cheat or

defraud.” State v. Hines, 54 N.C. App. 529, 532-33, 284 S.E.2d 164, 167 (1981)

(quotation marks omitted); see also N.C. Gen. Stat. § 14-100 (2011). As this Court

has previously observed, “a person’s intent is seldom provable by direct evidence, and

must usually be shown through circumstantial evidence.” State v. Walston, 140 N.C.

App. 327, 332, 536 S.E.2d 630, 633 (2000) (citation, quotation marks, and brackets

omitted). “In determining the presence or absence of the element of intent, the jury

may consider the acts and conduct of the defendant and general circumstances



                                         - 26 -
                                  STATE V. HOLANEK

                                   Opinion of the Court



existing at the time of the alleged commission of the offense charged[.]” Id. at 332,

536 S.E.2d at 634 (citation, quotation marks, and brackets omitted).

      In the present case, Dawdy testified that Defendant’s insurance claim was

referred to him as a potential fraud case because of “indicators [of fraud] with respect

to the unresolved pet boarding charges” and a supplemental claim for additional

personal property losses totaling $59,000.00. When he received the case, Dawdy

contacted Defendant, apprised her of his role with State Farm, and informed her that

State Farm had questions concerning her submitted claims and would be invoking “a

policy provision called an examination under oath,” which he explained as “an

opportunity for [the] policyholder to come in and under oath give testimony to us

about the questions we have” concerning the claim at issue.

      Dawdy further testified that the examination was initially scheduled for 20

October 2010 but that Defendant did not appear for the examination on that date.

Defendant was then sent a “second chance letter” requesting that she contact Cox,

State Farm’s attorney, within ten days to reschedule the examination. When she did

not respond, Cox sent another letter on 16 November 2010 informing her that the

examination had been rescheduled for 30 November 2010, but she did not show up

for the examination on that date.      Defendant’s failure to appear for any of the

scheduled examinations as well as the fact that she did not contact Dawdy or Cox to

reschedule the examination constituted circumstantial evidence tending to show that



                                          - 27 -
                                  STATE V. HOLANEK

                                   Opinion of the Court



her submission of requests for payments to which she was not entitled was done

“knowingly and designedly . . . with intent to cheat or defraud.” N.C. Gen. Stat. § 14-

100(a). Because Defendant was informed that the purpose of the examination under

oath was to enable State Farm to further investigate the legitimacy of her insurance

claims, her failure to respond and to attend or reschedule the examination raised a

reasonable inference as to her awareness that her claims were fraudulent.

Accordingly, because this evidence was relevant to an essential element of an offense

for which she was charged, its admission did not violate Rule 402.

      B. N.C. Gen. Stat. § 14-100(b)

      Defendant also contends that the trial court’s admission of this evidence

constituted plain error because it violated subsection (b) of N.C. Gen. Stat. § 14-100

(the statute codifying the crime of obtaining property by false pretenses), which states

that “[e]vidence of nonfulfillment of a contract obligation standing alone shall not

establish the essential element of intent to defraud.” N.C. Gen. Stat. § 14-100(b).

However, nothing in N.C. Gen. Stat. § 14-100(b) renders this type of evidence

inadmissible.   Rather, subsection (b) simply makes clear that such evidence —

without more — is insufficient to satisfy the intent to defraud element of this offense.

Thus, her argument that N.C. Gen. Stat. § 14-100(b) served as a bar to the

admissibility of this evidence lacks merit.

      C. Rule 403



                                          - 28 -
                                  STATE V. HOLANEK

                                   Opinion of the Court



      Finally, Defendant contends that even if the evidence of her failure to appear

for an examination under oath possessed some degree of relevance, it nevertheless

should have been excluded under Rule 403 because the probative value of the

evidence was substantially outweighed by the danger of unfair prejudice to her.

Pursuant to Rule 403, the trial court may, in its discretion, exclude relevant evidence

“if its probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations of undue delay,

waste of time, or needless presentation of cumulative evidence.” N.C.R. Evid. 403.

      However, as we explained in State v. Cunningham, 188 N.C. App. 832, 656

S.E.2d 697 (2008), “[t]he balancing test of Rule 403 is reviewed by this court for abuse

of discretion, and we do not apply plain error to issues which fall within the realm of

the trial court’s discretion.” Id. at 837, 656 S.E.2d at 700 (citation and quotation

marks omitted). Therefore, Defendant’s attempt to rely on Rule 403 as to this issue

is misplaced.

IV. Jury Instruction on Breach of Contract

      In a related argument, Defendant also contends that the trial court erred by

failing to instruct the jury that pursuant to N.C. Gen. Stat. § 14-100(b), “[e]vidence

of nonfulfillment of a contract obligation standing alone shall not establish the

essential element of intent to defraud.” Defendant did not request this instruction,

and therefore, we review the trial court’s failure to give this instruction solely for



                                          - 29 -
                                  STATE V. HOLANEK

                                   Opinion of the Court



plain error. See Lawrence, 365 N.C. at 517, 723 S.E.2d at 333 (explaining that alleged

instructional errors that are unpreserved only rise to the level of plain error where

“the instructional mistake had a probable impact on the jury’s finding that the

defendant was guilty” (citation and quotation marks omitted)).

      In Hines, we rejected a similar argument. The defendant in Hines had been

charged with two counts of obtaining property by false pretenses arising out of

allegations that he had obtained money from the victims by representing that he

would arrange the incorporation of a proposed business venture between them and

secure a site for the business at a local shopping mall. Hines, 54 N.C. App. at 531-

32, 284 S.E.2d at 166. Contrary to his representations, the defendant did not actually

take steps to incorporate the business nor did he use the money he obtained from

them as a rental deposit for a storefront. Id. at 532, 284 S.E.2d at 166. On appeal,

the defendant argued that the trial court erred by failing to expressly inform the jury

that, based on N.C. Gen. Stat. § 14-100(b), the element of intent to defraud could not,

without more, be established by the breach of a contractual obligation. Id. at 536,

284 S.E.2d at 169.      This Court disagreed, explaining that (1) the trial court

“instructed on all essential elements of obtaining property by false pretense” and “all

substantial features of the case”; and (2) “[t]he jury could not have been misled by the

instructions given to find defendant guilty solely on the ground that he did not fulfill




                                          - 30 -
                                 STATE V. HOLANEK

                                  Opinion of the Court



his contractual obligations.” Id. (citation and quotation marks omitted). The same

is true in the present case.

      Here, the trial court instructed the jury that it could only find Defendant guilty

of each of the two counts of obtaining property by false pretenses concerning the

moving company invoices if it found that (1) Defendant “made a representation by

presenting a written statement to State Farm Fire and Casualty Company for

services rendered” by (a) M&M Movers in the amount of $4,760.00, or (b) PJ’s Moving

Company in the amount of $10,430.00; (2) the representation was false; (3) the

representation was calculated and intended to deceive; (4) State Farm was in fact

deceived by it; and (5) Defendant obtained the property at issue from State Farm as

a result of making the representation.

      Thus, the jury was expressly informed that it was required to determine that

Defendant intended to defraud State Farm through her submission of documents

containing false representations in order to return a guilty verdict. Therefore, no

reasonable juror could have been left with the mistaken belief that she could be found

guilty based solely on her failure to comply with contractual obligations under her

insurance policy. For this reason, her argument on this issue is without merit.

V. Alleged Failure of Indictments to Adequately Apprise Defendant of
   Charges




                                         - 31 -
                                  STATE V. HOLANEK

                                     Opinion of the Court



      In her final argument, Defendant argues that the indictments were fatally

defective because they did not allege the “exact misrepresentation” she made with

sufficient precision. We disagree.

      The failure of a criminal pleading to charge the essential elements of the stated

offense is an error of law that is reviewed de novo. State v. Sturdivant, 304 N.C. 293,

308, 283 S.E.2d 719, 729 (1981).        As discussed above, a primary purpose of an

indictment “is to inform a party so that he may learn with reasonable certainty the

nature of the crime of which he is accused . . . .” State v. Brinson, 337 N.C. 764, 768,

448 S.E.2d 822, 824 (1994) (citation and quotation marks omitted). Thus, in order to

be valid, “[a]n indictment . . . charging a statutory offense must allege all of the

essential elements of the offense.” State v. Crabtree, 286 N.C. 541, 544, 212 S.E.2d

103, 105 (1975). Because the indictments concerning the moving company expenses

did not specifically allege how, or in what manner, the invoices Defendant submitted

were fraudulent, she argues that they were fatally defective.

      “The general rule in this State and elsewhere is that an indictment for a

statutory offense is sufficient, if the offense is charged in the words of the statute,

either literally or substantially, or in equivalent words.” State v. Harris, 219 N.C.

App. 590, 592-93, 724 S.E.2d 633, 636 (2012) (citation and quotation marks omitted).

Furthermore, in alleging the essential elements of the charge, an indictment “need

only allege the ultimate facts constituting each element of the criminal offense.” Id.



                                            - 32 -
                                  STATE V. HOLANEK

                                   Opinion of the Court



at 592, 724 S.E.2d at 636 (citation and quotation marks omitted). “Pursuant to N.C.

Gen. Stat. § 14-100, our Supreme Court has defined the offense of [obtaining property

by] false pretenses as (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.” Walston, 140 N.C. App. at 332, 536 S.E.2d at 633 (citation and quotation

marks omitted).

      We believe the indictments for the two counts relating to the moving expenses

were legally sufficient. Each alleges both the essential elements of the offense and

the ultimate facts constituting those elements by stating that Defendant obtained

U.S. currency from State Farm through a false representation she made by

submitting a fraudulent invoice which was intended to — and, in fact, did — deceive

State Farm. Therefore, it was clear from the indictments that the false invoices she

submitted purporting to be from PJ’s Moving Company and M&M Movers formed the

basis for these counts. Thus, Defendant’s argument on this issue is overruled.

                                     Conclusion

      For the reasons stated above, we vacate Defendant’s conviction on the count of

obtaining property by false pretenses arising from the pet boarding expenses. We

find no error as to Defendant’s remaining convictions. Because the count we are

vacating was consolidated for judgment with the two other counts of obtaining



                                          - 33 -
                                     STATE V. HOLANEK

                                      Opinion of the Court



property by false pretenses, we remand for resentencing so that the trial court may

enter a new judgment on the convictions being upheld. See State v. Williams, 150

N.C. App. 497, 506, 563 S.E.2d 616, 621 (2002) (remanding for resentencing after

vacating one offense in consolidated judgment because whether remaining offense

“warrants the sentence imposed in connection with the two consolidated crimes is a

matter for the trial court to reconsider”).7

       VACATED IN PART; NO ERROR IN PART.

       Judges ELMORE and TYSON concur.




       7  We note, however, that it appears from the record that Defendant has already served the
sentence of imprisonment imposed in the consolidated judgment.


                                             - 34 -
