             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA17-655

                               Filed: 7 August 2018

Person County, No. 13CRS051087-88

STATE OF NORTH CAROLINA

            v.

ERIC FERRER, Defendant.


      Appeal by defendant from judgment entered on or about 12 September 2016

by Judge W. Osmond Smith, III in Superior Court, Person County. Heard in the

Court of Appeals 21 March 2018.


      Attorney General Joshua H. Stein, III, by Assistant Attorney General Tracy
      Nayer, for the State.

      Patterson Harkavy LLP, by Narendra K. Ghosh, for defendant-appellant.


      STROUD, Judge.


      Defendant appeals judgment convicting him of insurance fraud. Because the

   State presented no evidence defendant made fraudulent representations in

   support of an insurance claim to The Hartford Insurance Company as alleged by

   the indictment, the trial court should have allowed defendant’s motion to dismiss

   this charge. We therefore vacate his conviction for insurance fraud.

                                    I.    Background
                                         STATE V. FERRER

                                         Opinion of the Court



       Sunday, 16 December 2012, was not a happy day at the Happy Days Diner; it

was set on fire that day. Happy Days Diner was operated by defendant and Ms. Iris

Diaz in a building leased by Fawzi Bekhet. Ms. Diaz was approximately $16,000 in

arrears on rent owed to Mr. Bekhet and was scheduled to go to court the next day on

Mr. Bekhet’s claim for summary ejectment. After the fire, Ms. Diaz filed an insurance

claim with The Hartford Insurance Company (“Hartford”). The building itself was

insured by Nationwide Insurance (“Nationwide”), and Mr. Bekhet filed a claim for

fire damage with Nationwide. Defendant gave a recorded statement to Nationwide

representative Ms. Bonnie Locklear regarding Mr. Bekhet’s claim.

       Defendant was indicted for burning a commercial structure and for insurance

fraud based upon the insurance claim made upon the insurance with Hartford. After

a jury trial, defendant was found guilty of both charges. Defendant timely gave oral

notice of appeal.

                                         II.     Insurance Fraud

       Defendant does not challenge his judgment for his conviction of burning a

commercial structure but only contends the trial court should have allowed his

motion to dismiss the charge of insurance fraud because the State presented no

evidence defendant “[m]ade a [f]raudulent [s]tatement to Hartford Insurance[.]”1


1Defendant’s second argument on appeal is that if his motion to dismiss the charge of insurance fraud
was not properly preserved then his attorney provided ineffective assistance of counsel and this Court
should still review his first argument under Rule 2 of the North Carolina Rules of Appellate Procedure.



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                                       STATE V. FERRER

                                      Opinion of the Court



       To defendant’s argument there was no evidence he made any fraudulent

statement to Hartford, we say, “exactamundo.” The trial court should have granted

his motion to dismiss.

                    The standard of review for a motion to dismiss is
              well known. A defendant’s motion to dismiss should be
              denied if there is substantial evidence of: (1) each essential
              element of the offense charged, and (2) of defendant’s being
              the perpetrator of the charged offense. Substantial
              evidence is relevant evidence that a reasonable mind might
              accept as adequate to support a conclusion. The Court
              must consider the evidence in the light most favorable to
              the State and the State is entitled to every reasonable
              inference to be drawn from that evidence.

State v. Johnson, 203 N.C. App. 718, 724, 693 S.E.2d 145, 148 (2010) (citations and

quotation marks omitted).

                    The elements for insurance fraud include that the
              accused presented a statement in support of a claim for
              payment under an insurance policy, that the statement
              contained false or misleading information concerning a fact
              or matter material to the claim, that the accused knew that
              the statement contained false or misleading information,
              and that the accused acted with the intent to defraud.

State v. Payne, 149 N.C. App. 421, 426–27, 561 S.E.2d 507, 511 (2002); see N.C. Gen.

Stat. § 58-2-161 (2011).

       The indictment for insurance fraud alleged that defendant presented “a

written and oral statement as part of a claim for payment pursuant to an insurance



We and the State agree that defendant’s counsel adequately preserved the motion to dismiss on his
charge of insurance fraud, so we need not address defendant’s second argument.

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                                   STATE V. FERRER

                                   Opinion of the Court



policy” with “intent to defraud an insurer, The Hartford Insurance Company.”

(Original in all caps.)

                     It has long been the law of this state that a
              defendant must be convicted, if convicted at all, of the
              particular offense charged in the warrant or bill of
              indictment. It is also settled that a fatal variance between
              the indictment and proof is properly raised by a motion for
              judgment as of nonsuit or a motion to dismiss, since there
              is not sufficient evidence to support the charge laid in the
              indictment.

State v. Faircloth, 297 N.C. 100, 107, 253 S.E.2d 890, 894 (1979) (citations omitted).

       As noted above, defendant gave a statement to Nationwide regarding Mr.

Bekhet’s claim, not to Hartford, the insurer for Ms. Diaz’s claim. No statement from

defendant, written or oral, to Hartford was in evidence.      The State directs us to

Exhibit 13, the audio recording of an interview of defendant by Ms. Locklear of

Nationwide. The State directs us to portions of the interview where: defendant

acknowledges the fire was determined to be arson; defendant states he had spoken

with a special investigator from Hartford; defendant denies being involved with

setting the fire; Ms. Locklear says she is “going to go over . . . just some financial

information cause we usually cover it. I’m sure the guy probably at Hartford did too

. . .” to which defendant responds, “Yeah[;]” and Ms. Locklear asks, “What are you

guys claiming with Hartford that you lost?” to which defendant responds, “I think

right now it’s just the food . . . .” The State then argues that based on these noted

portions of the interview it could be


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                                  STATE V. FERRER

                                  Opinion of the Court



             reasonably deduced or inferred that the Hartford
             Insurance Company’s special investigator asked defendant
             whether he was responsible for setting fire to the Happy
             Days Diner, and that defendant made the same false and
             misleading statement to the Hartford Insurance Company
             investigator that he made to Ms. Locklear when he denied
             being involved with setting fire to the Happy Days Diner
             in response to Ms. Locklear’s direct questions regarding the
             same.

In other words, the State asks that we read the comment, “I’m sure the guy probably

at Hartford did too . . .” and the defendant’s response, “Yeah,” to mean that defendant

made specific fraudulent representations to Hartford. The State simply asks that we

infer too much from this vague comment and response. There is no doubt that

defendant made fraudulent representations to Nationwide, but defendant was not

charged for those representations. Since the Nationwide statement was the State’s

only evidence, the trial court erred in denying defendant’s motion to dismiss.

                                  III.   Conclusion

      Because there was insufficient evidence of insurance fraud, the trial court

should have granted defendant’s motion to dismiss; thus, we vacate that judgment.

      VACATED.

      Judges DAVIS and ARROWOOD concur.




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