An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-956
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 3 June 2014


STATE OF NORTH CAROLINA

      v.                                      Halifax County
                                              Nos. 12 CRS 051587, 001797
TONY LINWOOD MARTIN, JR.



      Appeal by Defendant from judgment entered 22 March 2013 by

Judge J. Carlton Cole in Halifax County Superior Court.                       Heard

in the Court of Appeals 23 January 2014.


      Attorney General Roy A. Cooper, III, by Deputy Director
      Attorney General Caroline Farmer, for the State.

      Irons & Irons, P.A., by Ben G. Irons II, for Defendant-
      appellant.


      DILLON, Judge.


      Tony Linwood Martin, Jr. (“Defendant”) appeals the 22 March

2013 judgment following a jury trial convicting him of obtaining

property    by   false    pretense     and    exploitation     of   an   elder    or

disabled adult.        Defendant argues the trial court erred in (1)

denying his motion to dismiss, (2) admitting testimony from the

victim     regarding     an   incident    a   week   before     trial,    and    (3)
                                          -2-
admitting opinion testimony from the victim’s daughter.                     We find

no error as to Defendant’s conviction for obtaining property by

false pretenses but find error in Defendant’s conviction for

exploitation     of     an   elder   or    disabled      adult.         Because    the

convictions     were    consolidated       for    sentencing,      we    vacate    the

judgment and remand for entry of judgment consistent with this

opinion.

                         I. Factual & Procedural History

    On     6   August    2012,   Defendant       was    indicted    for    obtaining

property by false pretenses and exploitation                      of an elder or

disabled adult.         Beginning 18 March 2013, a trial was held in

Halifax County Superior Court, the Honorable J. Carlton Cole

presiding.      The State’s evidence at trial tended to show the

following:      Faye Pierce (“Ms. Pierce”) was born in 1937 and

moved to Roanoke Rapids in 1957.                 She lived on Bolling Road in

Roanoke    Rapids     from   1957    until      her    husband    passed    away   in

January 2010.       After her husband passed away, she bought a house

at 103 Steeplechase Run, just across the street from the home of

her daughter, Wanda Cooke (“Ms. Cooke”).

    Ms. Pierce’s husband started a plumbing business (“Pierce’s

Plumbing”) in 1977 where Ms. Pierce                    worked beginning in the

1980s.     At the time of trial, Ms. Pierce still worked in that
                                       -3-
business, answering the telephones and making out a “work list”

for the employees.     Pierce’s Plumbing was located at the Bolling

Road    home.    Ms.   Pierce    did    not   handle    the   bookkeeping   or

financial responsibilities of the business.

       When Ms. Pierce bought the house at 103 Steeplechase Run,

she     hired   Defendant   to   assist       in    decorating   the   house.

Defendant took about a year to complete the work on Ms. Pierce’s

home.    Ms. Pierce paid Defendant each time he asked her to pay,

although Defendant did not provide invoices for his work or

receipts for items he purchased for her home.

       After finishing the work on Ms. Pierce’s house, Defendant

asked Ms. Pierce for a $40,000 loan.               Ms. Pierce loaned him the

money.    Ms. Cooke testified that she found out about the $40,000

loan and called Defendant, telling him to pay her mother back.

Defendant repaid the loan.

       From April 2011 to September 2011, Ms. Pierce made a series

of loans to Defendant totaling $60,000.                Defendant filled out

the check for each loan, as Ms. Pierce could not see well enough

to write them, and Ms. Pierce signed the checks.                  During the

time period Ms. Pierce loaned this money to Defendant, Defendant

paid back $2,000.
                                    -4-
    When Defendant took out loans from Ms. Pierce, he wrote her

checks from an account labeled “Martin Interiors” and said he

would tell her when to cash them as repayment for the loans.

Ms. Pierce believed she would be able to cash the checks at some

point, and she felt more comfortable loaning Defendant money

because she thought he was going to pay her back.                   However,

Defendant never informed Ms. Pierce that the checks were from an

account that had been closed.

    Ms. Pierce made another series of loans to Defendant from

October 2011 to February 2012 totaling $93,000.              Defendant paid

Ms. Pierce $1,000 on 20 January 2012 and another $1,000 on 1

February 2012, both by check.        These two checks were drawn on a

different    bank   than   the   “Martin    Interiors”    checks,   and    Ms.

Pierce was able to cash them.            Ms. Pierce loaned Defendant an

additional $8,000 on 1 March 2012.

    Ms. Pierce put the “Martin Interiors” checks Defendant gave

to her in a drawer in her bedroom.           Sometime around March 2012,

there was a break-in at the Bolling Road location, and Ms. Cooke

came to the home to help clean up.           Ms. Cooke found the “Martin

Interiors” checks written to her mother and called the police.

    Ms. Cooke testified that she had become a cosigner on her

mother’s    personal   accounts   when     her   father   died   because   her
                                         -5-
mother was “not really a very financial-minded person.               She has

never really had to deal with any kind of numbers or anything.

My dad always took care of everything.”

       Ms. Cooke testified to her opinion that Ms. Pierce is not

able    to   safeguard      her    resources,       particularly    financial

resources.    Ms. Cooke went on to say that Ms. Pierce does not

know how to balance a bank statement, does not know how to use a

calculator, and “is not strong with numbers.”

       Ms. Cooke’s husband, Charles Ray Cooke (“Mr. Cooke”), also

testified at trial.         Mr. Cooke testified that after he became

aware of the initial $40,000 loan to Defendant by Ms. Pierce, he

told Defendant not to ask for another loan from Ms. Pierce.                Mr.

Cooke testified that, in his opinion, Ms. Pierce was “not able

to deal with the type of finances that she has to deal with on a

weekly basis.”

       Gerardo Maradiaga (“Dr. Maradiaga”), an internal medicine

physician at Halifax Medical Specialists, testified that he had

been    treating    Ms.   Pierce   for    ten   years.   He   testified   that

during that time, Ms. Pierce had anxiety and depression.                   Dr.

Maradiaga    said    that   Ms.    Pierce’s     visual   problems   triggered

stress for her, as did the money she inherited after her husband

died.
                                              -6-
       After    Dr.    Maradiaga’s          testimony,    the   State      recalled     Ms.

Pierce to testify about an incident that happened the Friday

before trial.          Ms. Pierce was at the bank that Friday and saw

Defendant,      who    was        taking    pictures    of    her   with     his   camera.

Defendant      followed       her     out    to   her   car   and    continued       taking

pictures of her, even after she pulled out of the parking lot.

Ms. Pierce testified that she felt intimidated and frightened.

       James    Thomas        Bolton        testified    that   he     had    worked     at

Pierce’s Plumbing with Ms. Pierce and her late husband for 27

years.    He testified that Ms. Pierce “can’t count money right.

She’ll ask me questions, like on a plumbing bill she’ll look

right on the paper and see how much it is, but she’ll ask me how

much   has     she    got    to     pay.”      He   testified       that   Ms.     Pierce’s

difficulty with money was getting worse.

       Defendant made a motion to dismiss at the close of the

State’s evidence, which the trial court denied.

       Defendant testified on his own behalf.                       He testified that

he wrote the “Martin Interiors” checks from his closed account

as “IOUs” and that he told Ms. Pierce the account was closed.

The checks he gave her, however, had less value than the amount

he borrowed.          He gave her those checks in August and September

of   2011.      Each        one    was     postdated,    with   dates      ranging     from
                                       -7-
September 2011 to February 2012.               Defendant said they agreed

that he would start paying in the new year, which is why he made

the two $1,000 payments in early 2012.                 He testified that he

intended to repay Ms. Pierce the entire amount owed.                 Defendant

testified that on the Friday before trial, he took photos of Ms.

Pierce at the bank because he wanted to prove that she is able

to conduct business by herself.                Defendant moved to dismiss

again at the close of all the evidence, and the trial court

again denied his motion to dismiss.

      On   22   March   2013,    the    jury   found   Defendant     guilty    of

obtaining property by false pretenses and guilty of exploitation

of an elder adult.       Defendant was sentenced to a minimum of 16

and a maximum of 20 months imprisonment.                Defendant gave oral

notice of appeal at trial.

                                      II. Analysis

      On appeal, Defendant argues that the trial court erred by

(1) denying his motions to dismiss, (2) admitting testimony from

Ms.   Pierce    concerning      the    incident   at   the   bank,    and     (3)

admitting opinion testimony from Ms. Cooke.

                          A. Motions to Dismiss
                                          -8-
      Defendant first argues that the trial court should have

granted his motions to dismiss because the State did not provide

sufficient evidence of the essential elements of the crimes.

      “This Court reviews the trial court’s denial of a motion to

dismiss de novo.”         State v. Smith, 186 N.C. App. 57, 62, 650

S.E.2d   29,    33   (2007).        “Under      a    de   novo     review,    the       court

considers      the   matter    anew       and       freely   substitutes        its      own

judgment for that of the lower tribunal.”                         State v. Williams,

362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (citation and

quotation      marks    omitted).          “‘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’s being the perpetrator of such offense. If so,

the motion is properly denied.’”                     State v. Fritsch, 351 N.C.

373, 378, 526 S.E.2d 451, 455 (quotation marks and citation

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

“Substantial evidence is such relevant evidence as 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)

(citation omitted).           “In making its determination, the trial

court must consider all evidence admitted, whether competent or
                                        -9-
incompetent, in the light most favorable to the State, giving

the    State    the    benefit    of    every        reasonable      inference      and

resolving any contradictions in its favor.”                      State v. Rose, 339

N.C. 172, 192, 451 S.E.2d 211, 223 (1994) (citation omitted),

cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995).

1. Obtaining Property by False Pretenses

      Defendant       argues   that    there    is    no   evidence    of    a     false

representation or an intent to deceive Ms. Pierce and that “the

State’s   evidence      only   proves    that    [Defendant]        accepted       loans

from the alleged victim and did not pay them back.”

      The elements 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.    Seelig,   ___     N.C.   App.     ___,    ___,       738    S.E.2d    427,    431

(quotation marks and citation omitted), disc. review denied, 366

N.C. 598, 743 S.E.2d 182 (2013).

      There is substantial evidence, however, that Defendant did

make false misrepresentations and that he intended to deceive

Ms. Pierce.     Taken in the light most favorable to the State, Ms.

Pierce signed checks to Defendant for more than $150,000 as
                                        -10-
“loans.”      Defendant wrote checks from his “Martin Interiors”

account to Ms. Pierce, saying that he would tell her when to

cash them as repayments for the loans.                 Ms. Pierce believed she

would be able to cash those checks at some point and felt more

comfortable continuing to loan Defendant money based on these

checks.      The account the checks were written on was closed,

however, and Defendant never told Ms. Pierce that the account

was closed.          “[W]hen a person obtains something of value by

means of misrepresentations with intent to deceive the victim,

the requisite intent to cheat or defraud exists.”                          State v.

Cronin,     299   N.C.       229,    242,    262    S.E.2d    277,   285    (1980).

Defendant misrepresented to Ms. Pierce that she would be able to

cash his checks at some point in the future when he knew the

account on which the checks were drawn was closed.

       Although      Defendant      presents    a   different   version      of    the

events, for purposes of a motion to dismiss we take the facts in

the light most favorable to the State.                State v. McCoy, 303 N.C.

1, 23–24, 277 S.E.2d 515, 531 (1981) (“Defendant’s evidence may

be considered insofar as it merely explains or clarifies or is

not    inconsistent      with    the   [S]tate’s      evidence.”).         There   is

substantial evidence that Defendant made false representations

to    Ms.   Pierce    with    the   intent     to   deceive   her,   did    in    fact
                                         -11-
deceive     her,      and    obtained      funds     as    a     result       of     his

misrepresentations.

2.     Exploitation of an Elder Adult

       Defendant argues that the trial court erred in denying his

motions to dismiss the charge of exploitation of an elder adult,

in part, because there was not substantial evidence that Ms.

Pierce met the statutory definition of an “elder adult.”                        “Elder

adult” is defined in N.C. Gen. Stat. § 14-112.2.                             Under the

version    of   G.S.    14-112.2    that    is    relevant      to    this   case,    an

“elder adult” is defined as a person who is “60 years of age or

older    who    is    not   able   to   provide    for    the    social,      medical,

psychiatric,         psychological,       financial,       or        legal    services

necessary to safeguard the person’s rights and resources and to

maintain the person’s physical and mental well-being.”                             N.C.

Gen. Stat. § 14-112.2(a)(2) (2011) (emphasis added).

       Defendant contends that there is no dispute that the victim

“was     able    to     provide    for     her     medical,      psychiatric         and

psychological needs . . . . [but that] the only serious question

is whether she could provide for her ‘financial’ needs.”                             The

State does not dispute Defendant’s contention and only argues

that it met its burden of proving that the victim was an “elder

adult” by offering evidence that she could not provide for her
                                        -12-
“financial” services.         During the hearing, the attorney for the

State argued as follows:

            The State only has to prove that she is
            unable to safeguard her rights and resources
            with regard to any one of a number of
            things.   It could be legal.    It could be
            medical. In this case it is financial.

However, we believe that the language of G.S. 14-112.2 requires

that the State prove that the victim was not able to provide for

each and every one of the services enumerated in the statute--

i.e.,   social,    medical,     psychiatric,    psychological,    financial,

and legal--not just for one of them.            Though the use of the word

“or” in a list typically suggests an interpretation that the

list is to be read in the disjunctive, when the list is preceded

by the word “not,” the context may require that the list be read

in the conjunctive.      For example, if a father tells his daughter

that she is not to go to the movies or to the football game, he

has communicated to her that she is not allowed to do either

activity; that is, she may not go to the movies and she may not

go to the football game.          However, if the father had told his

daughter that she is not allowed to go to the movies and to the

football game, he has stated that she may do one or the other,

but   not   both   of   them.      In    the   discipline   of   logic,   this

interpretation is known as DeMorgan’s Law, which provides, in
                                    -13-
part, that the negation of a disjunction is the conjunction of

the negatives; that is, “not (A or B)” is the same as “not A and

not   B”.     Applying   DeMorgan’s       Law,    we   believe     a     reasonable

reading--and,     perhaps    the   better        reading--of     the      statutory

language requires the State to prove that the victim was not

able to provide for her social services and she was not able to

provide for her medical services and she was not able to provide

for her psychiatric services, etc.

      At best, the statutory language is ambiguous as to whether

the State’s burden is met by proving, as the State argues, that

the victim is unable to provide for her financial services only,

without     any   offering   any   evidence        concerning      the     victim’s

ability to provide for her other services.              However, even if the

statute is ambiguous, the State’s argument fails as it is well-

settled that “[i]n construing ambiguous criminal statutes, we

apply the rule of lenity, which requires us to strictly construe

the statute.”      State v. Hinton, 361 N.C. 207, 211, 639 S.E.2d

437, 440 (2007).

      Assuming,     arguendo,      that      the       statutory         definition

unambiguously requires the State prove that the victim was not

able to provide for her financial services only, and not the

other services enumerated therein, the State’s argument still
                                             -14-
fails.      Specifically,        the    statutory    definition    also   requires

separately       that   to    meet     the    statutory    definition   of   “elder

adult” it must be shown that the victim is unable “to safeguard

[her]    rights and      resources and          to maintain her physical        and

mental well-being.”            N.C. Gen. Stat. § 14-112.2(a)(2) (2011)

(emphasis added).            We believe that this part of the statute is

to be read in the conjunctive since the word “and” is employed,

without being preceded by the word “not.”                   However, there is no

evidence that the victim was not able to perform at least some

of these tasks, such as caring for her physical well-being.                      In

fact, she testified that she lived by herself, she drove herself

places,    she    scheduled      her    own     doctor    appointments,   and   she

shopped for herself.

     We note that the statutory definition of “elder adult” was

amended, effective for offenses committed after 1 December 2013,

lessening the burden on the State.                  See 2013 N.C. Sess. Laws

337, § 1.    Under the new statutory language, the State only need

prove that the victim was 65 years of age or older, without any

showing regarding her capabilities to provide for her services

or perform certain tasks.                See id.         However, in the present

case, the events giving rise to Defendant’s conviction occurred

prior to 1 December 2013, the effective date of the amendment;
                                        -15-
and, therefore, the language in the amendment, which lessens the

State’s    burden,     does    not    apply.        Accordingly,    as    the    State

failed to offer substantial evidence of the elements                            of the

crime of exploitation of an elder adult, the trial court erred

in denying Defendant’s motions to dismiss as to this crime.

                B. Testimony From Ms. Pierce and Ms. Cooke

    Defendant next argues the trial court erred under Rules

404(b), 403, 401, and 402 of our Rules of Civil Procedure in

admitting testimony from Ms. Pierce regarding Defendant’s taking

photos of her at a bank days before the trial.                      Defendant also

argues    that   the   trial    court    erred      in   allowing   Ms.    Cooke    to

testify to her opinion that Ms. Pierce is unable to safeguard

her financial resources.              However, we need not address these

arguments because, even assuming arguendo that the testimony was

admitted in error, Defendant argues that they prejudiced him in

regard to his defense to the crime of exploitation of an elder

adult.     As    determined          above,    we   found   error   in    the    trial

court’s denial of Defendant’s motion to dismiss this charge and

this conviction will properly be vacated on remand.

                                     III. Conclusion

    For the foregoing reasons, we find no error in Defendant’s

conviction for obtaining property by false pretense but find
                                     -16-
that the trial court erred in denying Defendant’s motion to

dismiss the charge of exploitation of an elder adult.                    As the

trial    court    consolidated     the   convictions    for     sentencing,    we

vacate   the     trial   court’s   judgment,   and     remand    for   entry   of

judgment consistent with this opinion.

    NO ERROR in part; VACATED AND REMANDED in part.

    Judge STROUD concurring.

    Judge HUNTER, JR. concurring in part; dissenting in part in

    a separate opinion.

    Report per Rule 30(e).
                               NO. COA13-956

                      NORTH CAROLINA COURT OF APPEALS

                            Filed: 3 June 2014


STATE OF NORTH CAROLINA

       v.                                Halifax County
                                         Nos. 12 CRS 051587, 001797
TONY LINWOOD MARTIN, JR.



       HUNTER, JR., Robert     N.,   Judge,    concurring    in   part   and
       dissenting in part.


       I dissent from the majority’s narrow interpretation of the

definition of an “elder adult.”         I would hold that Ms. Pierce

meets the definition of an “elder adult” and would thus hold the

trial court committed no error as to Defendant’s conviction for

exploitation of an elder adult.

       An “elder adult” is defined as “[a] person 60 years of age

or older who is not able to provide for the social, medical,

psychiatric,       psychological,    financial,    or     legal   services

necessary to safeguard the person’s rights and resources and to

maintain the person’s physical and mental well-being.”                   N.C.

Gen.   Stat.   §    14-112.2(a)(2)   (2011)   (emphasis     added).      The

majority applies an analysis using DeMorgan’s Law, a rule of

inference relating to conjunctions, interpreting the statute to

mean that a person who is able to provide for even one of the
                                -2-
services listed in the definition would not be an “elder adult.”

I believe this is a misinterpretation of the statute.

    In construing the definition of “elder adult,” we turn to

our established methods for statutory construction.

            In matters of statutory construction, our
            primary task is to ensure that the purpose
            of the legislature, the legislative intent,
            is accomplished.     Legislative purpose is
            first ascertained from the plain words of
            the statute. Moreover, we are guided by the
            structure of the statute and certain canons
            of statutory construction.      Courts also
            ascertain legislative intent from the policy
            objectives behind a statute’s passage “and
            the consequences which would follow from a
            construction one way or another.”          “A
            construction which operates to defeat or
            impair the object of the statute must be
            avoided if that can reasonably be done
            without    violence   to   the    legislative
            language.”   An analysis utilizing the plain
            language of the statute and the canons of
            construction must be done in a manner which
            harmonizes with the underlying reason and
            purpose of the statute.

Elec. Supply Co. of Durham, Inc. v. Swain Elec. Co., Inc., 328

N.C. 651, 656, 403 S.E.2d 291, 294 (1991) (internal citations

omitted).    Although we look first to the “plain words of the

statute,” rules of logic are not included in the “plain words.”

To hold that rules of logic are part of a “plain language”

analysis without regard to legislative intent or purpose could

have severe unintended consequences, stripping statutes of their
                                   -3-
efficacy by blindly applying mathematical rules.                 Instead, I

would hold that rules of logic are only one part of statutory

construction and are not a part of a “plain words” analysis.

    Under our rules of statutory construction, we look to the

“consequences which would follow from a construction one way or

another.”   Id. (quotation marks and citation omitted).                  Under

the majority’s analysis, in order to prove exploitation of an

elder adult, the victim would have to be incapable of providing

for her social needs, incapable of providing for her medical

needs,   incapable   of   providing      for   her     psychiatric   needs,

incapable of providing for her psychological needs, incapable of

providing for her financial needs, and incapable of providing

for her legal needs.         Requiring a person to be incapable of

providing   for   services    in   all   six   areas     would   limit    the

definition to those who are completely unable to function for

themselves, a scarce population.          This limitation on victims

would “defeat or impair the object of the statute” prohibiting

exploitation of an elder adult, and such a construction “must be

avoided.”   Id. (quotation marks and citation omitted).

    It is reasonable to ascertain that the original statute

meant to include anyone in the definition of “elder adult” that

was unable to provide for services necessary to safeguard their
                                          -4-
resources in one of the six areas listed.                     This interpretation

is in line with the underlying purpose of the statute to protect

elder adults who are unable to protect themselves.                       Although the

majority    cites    the     rule   of    lenity      as   requiring         a   narrower

interpretation, that rule “does not require that words be given

their narrowest or most strained possible meaning.                            A criminal

statute     is    still     construed       utilizing       ‘common          sense’       and

legislative intent.”           State v. Beck, 359 N.C. 611, 614, 614

S.E.2d 274, 277 (2005) (internal citation omitted).

    Ms.     Pierce    was    more    than    70    years    old    at    the       time    of

Defendant’s actions.           There was substantial testimony that Ms.

Pierce could not handle her own financial resources from Ms.

Pierce    herself,    her    daughter       Ms.    Cooke,    her    son-in-law            Mr.

Cooke,     and    Pierce’s     Plumbing      employee       James       Bolton.            In

addition, Ms. Pierce’s physician testified to her anxiety and

depression,       explaining      that    the     money    she    inherited         was    a

trigger     for    stress    to     Ms.     Pierce.         The    record        provides

substantial evidence that Ms. Pierce was unable to safeguard her

financial    resources       and    meets    the    definition          of    an    “elder

adult.”     I would therefore find no error in the trial court’s

decisions.
-5-
