State v. Mackey ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-715
No. COA22-348
Filed 20 December 2022
Cabarrus County, Nos. 20CRS50156-57
STATE OF NORTH CAROLINA
v.
NIKITA V. MACKEY
Appeal by defendant from judgment entered 4 June 2021 by Judge
William Anderson Long, Jr., in Cabarrus County Superior Court. Heard in the Court
of Appeals 19 October 2022.
Attorney General Joshua H. Stein, by Assistant Attorney General
Kayla D. Britt, for the State.
Shawn R. Evans for the defendant-appellant.
TYSON, Judge.
¶1 Nikita V. Mackey, a disbarred lawyer, (“Defendant”) appeals from the
judgment entered upon the jury’s verdict from his two felony convictions of uttering
a forged instrument and obtaining property by false pretenses. Our review discloses
no error.
I. Background
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¶2 Defendant married Yvette Stewart in September 2016. The couple separated
two years later and divorced in 2021. Defendant and Stewart always maintained
separate bank accounts, even while married. After the separation, Stewart moved to
Tennessee and took her vehicle with her.
¶3 Stewart’s vehicle needed repairs in March 2019. After Stewart had paid for
the repairs, she realized her vehicle was still under a third-party maintenance
warranty. She sought a reimbursement from the company issuing the warranty. The
company agreed to reimburse Stewart in the amount of $1,200.92.
¶4 Stewart waited for the check, but it never arrived. She contacted the warranty
company to inquire about her reimbursement. During that conversation, the
company informed Stewart the check had been issued to Stewart as payee, mailed to
Defendant’s address, and the check had been deposited into a bank. Stewart asked
for more information. The company sent her a copy of the cancelled check. Upon
examination, she noticed the check issued in her name had been signed. She
recognized her name, signed in Defendant’s handwriting, on the endorsement line.
¶5 Stewart sought a replacement check because she believed Defendant had
forged her signature. The company informed Stewart they could not issue another
check unless she notified law enforcement. Stewart reported the incident and
provided handwriting samples to the Charlotte-Mecklenburg Police Department.
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¶6 The officer in charge of investigating Stewart’s claim subpoenaed the bank for
all records related to the check. Bank records revealed Defendant had deposited the
check into his personal bank account on 18 June 2019. Video footage from the bank
also showed Defendant visiting the bank on the same day the check was deposited.
¶7 Defendant was charged with uttering a forged instrument, obtaining property
by false pretenses, and forgery of an instrument on 2 March 2020. At trial, the State
entered the bank records and video footage into evidence. On 4 June 2021, a jury
found Defendant guilty of obtaining property by false pretenses and of uttering a
forged instrument. The jury failed to reach a unanimous verdict regarding forgery of
an instrument after questioning the definition of the words “infer” and “forgery” as
used in the jury’s instructions. Defendant moved for a mistrial. The court granted
Defendant’s motion regarding the forgery charge.
¶8 The trial court consolidated the remaining two convictions into one judgment.
Defendant was sentenced as a level I offender and received an active sentence of 5 to
15 months, followed by 24 months of supervised probation. Defendant filed a timely
notice of appeal on 9 June 2021.
II. Issues
¶9 Defendant argues: (1) the indictments for uttering a forged instrument and
obtaining property by false pretenses are fatally defective; (2) a fatal variance exists
between the indictments for uttering and obtaining property by false pretenses and
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the evidence entered at trial; and, (3) he is entitled to a new trial because eighteen
bench conversations were omitted from the transcript despite the trial judge ordering
a complete recordation.
III. Fatal Defect
¶ 10 Defendant argues the indictments for uttering a forged instrument and
obtaining property by false pretenses contained a fatal defect.
A. Standard of Review
¶ 11 Trial courts do not possess jurisdiction over a criminal defendant without a
valid bill of indictment. State v. Snyder, 343 N.C. 61, 65, 468 S.E.2d 221, 224 (1996)
(citation omitted). “[W]hen a fatal defect is present in the indictment charging the
offense, a motion in arrest of judgment may be made at any time in any court having
jurisdiction over the matter, even if raised for the first time on appeal.” State v.
Phillips, 162 N.C. App. 719, 720, 592 S.E.2d 272, 273 (2004) (citation and internal
quotation marks omitted).
B. Analysis
¶ 12 An indictment “is fatally defective if it fails to state some essential and
necessary element of the offense of which the defendant is found guilty.” State v. Ellis,
368 N.C. 342, 344, 776 S.E.2d 675, 677 (2015) (citation and quotation marks omitted).
¶ 13 “The essential elements of the crime of uttering a forged check are (1) the offer
of a forged check to another, (2) with knowledge that the check is false, and (3) with
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the intent to defraud or injure another.” State v. Conley, 220 N.C. App. 50, 60, 724
S.E.2d 163, 170 (2012) (citation and internal quotation marks omitted).
¶ 14 “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.” Id. (citation and
internal quotation marks omitted).
¶ 15 The indictment charging Defendant with uttering a forged check provided:
[T]he defendant named above unlawfully, willfully, and
feloniously did utter, publish, pass, and deliver as true to
SunTrust Bank a falsely made and forged check #072993
written by Caregard warranty service, made out to Yvette
Stewart for the amount of $1,200.92. The defendant acted
for [the] sake of gain and with the intent to injure and
defraud and with the knowledge that the instrument was
falsely made and forged.
¶ 16 The indictment charging Defendant with obtaining property by false pretenses
provided:
[T]he defendant named above unlawfully, willfully, and
feloniously did knowingly and designedly, with the intent
to cheat and defraud, obtain $1,200.92 US currency from
SunTrust Bank by means of a false pretense which was
calculated to deceive and did deceive. The false pretense
consisted of the following: the defendant passed a forged
check in order to obtain the funds.
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¶ 17 The indictments included the necessary elements for the crimes of uttering a
forged check and obtaining property by false pretenses. Conley, 220 N.C. App. at 60,
724 S.E.2d at 170. Defendant’s argument is without merit and overruled.
IV. Fatal Variance
¶ 18 Defendant argues the State’s evidence at trial fatally varied from the
indictment for the charge of obtaining property by false pretenses because “the
indictment erroneously alleged that the check itself was a forgery in direct
contradiction to all evidence presented.” According to Defendant, the “evidence
showed at best that [Defendant] presented a check which may have contained a
forged endorsement.”
¶ 19 Defendant also argues the State’s evidence presented at trial fatally varied
from the indictment charging him with uttering a forged check. Defendant asserts
the “uttering indictment drafted and obtained by the State is based on the first part
of N.C. Gen. Stat. § 14-120[,] which deals with forged and counterfeit instruments,”
yet the “evidence presented at trial was in reference to the second part of N.C. Gen.
Stat. § 14-120 regarding false, forged or counterfeited endorsements.”
A. Standard of Review
¶ 20 Rule 10(a)(1) of the North Carolina Rules of Appellate Procedure delineates
the procedures for preserving errors on appeal:
In order to preserve an issue for appellate review, a party
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must have presented to the trial court a timely request,
objection, or motion, stating the specific grounds for the
ruling the party desired the court to make if the specific
grounds were not apparent from the context. It is also
necessary for the complaining party to obtain a ruling upon
the party’s request, objection, or motion.
N.C. R. App. P. 10(a)(1) (emphasis supplied).
¶ 21 Rule 10(a)(1) thus requires a defendant to “preserve the right to appeal a fatal
variance.” State v. Mason, 222 N.C. App. 223, 226, 730 S.E.2d 795, 798 (2012) (first
citing State v. Pickens, 346 N.C. 628, 645, 488 S.E.2d 162, 172 (1997) (“Regarding the
alleged variance between the indictment and the evidence at trial, defendant based
his motions at trial solely on the ground of insufficient evidence and thus has failed
to preserve this argument for appellate review.”); then citing State v. Roman, 203
N.C. App. 730, 731-32, 692 S.E.2d 431, 433 (2010); and then citing N.C. R. App. P.
10(a)(1)).
¶ 22 Our state courts have recognized consistent application of the rules of appellate
procedure is paramount. See State v. Hart, 361 N.C. 309, 317, 644 S.E.2d 201, 206
(2007) (“Fundamental fairness and the predictable operation of the courts for which
our Rules of Appellate Procedure were designed depend upon the consistent exercise
of this authority.”); see also State v. Ricks, 378 N.C. 737, 741, 2021-NCSC-116, ¶ 6,
862 S.E.2d 835, 839 (2021) (explaining how suspending certain rules of appellate
procedure, such as requiring timely filing of a notice of appeal, “would render
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meaningless the rules governing the time and manner of noticing appeals”) (citation
omitted).
¶ 23 Our Supreme Court, nevertheless, has held a defendant’s motion to dismiss at
the close of the state’s evidence and renewed again at the close of all the evidence
“preserves all issues related to sufficiency of the State’s evidence” arguments for
appellate review. State v. Golder, 374 N.C. 238, 246, 839 S.E.2d 782, 788 (2020)
(emphasis supplied) (“Because our case law places an affirmative duty upon the trial
court to examine the sufficiency of the evidence against the accused for every element
of each crime charged, . . . under Rule 10(a)(3), a defendant’s motion to dismiss
preserves all issues related to sufficiency of the State’s evidence for appellate
review.”).
¶ 24 Post-Golder, our Supreme Court has not affirmatively held whether a general
motion to dismiss preserves a defendant’s fatal variance objection for appeal as a
“sufficiency of the State’s evidence” objection under Golder. Id.; State v. Smith, 375
N.C. 224, 228, 846 S.E.2d 492, 494 (2020) (explaining this Court in State v. Smith,
258 N.C. App. 698, 812 S.E.2d 205 (2018), “concluded [ ] defendant’s fatal variance
argument was not preserved because it was not expressly presented to the trial
court[,]” while also acknowledging this Court had reached its decision before our
Supreme Court issued Golder) (emphasis supplied) (citation omitted). The Supreme
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Court in Smith, “assum[ed] without deciding that defendant’s fatal variance
argument was preserved[.]” Id. at 231, 846 S.E.2d at 496.
¶ 25 Since Smith and Golder, criminal defendants before this Court assert “the
Supreme Court in Golder [had] ‘assumed without deciding’ that ‘issues concerning
fatal variance are preserved by a general motion to dismiss.’” See State v. Brantley-
Phillips, 278 N.C. App. 279, 286, 2021-NCCOA-307, ¶ 21, 862 S.E.2d 416, 422 (2021).
In Brantley-Phillips, this Court explained:
Although Golder did not address this specific question, our
Court has noted, in light of Golder: “any fatal variance
argument is, essentially, an argument regarding the
sufficiency of the State’s evidence.” State v. Gettleman, 275
N.C. App. 260, 271, 853 S.E.2d 447, 454 (2020) (citation
omitted). We further reasoned: “[o]ur Supreme Court
made [it] clear in Golder that ‘moving to dismiss at the
proper time . . . preserves all issues related to the
sufficiency of the evidence for appellate review.’” Id.(quoting Golder, 374 N.C. at 249, 839 S.E.2d at 790).
Specifically, in Gettleman we determined the defendant
failed to preserve an argument that the jury instructions
and indictment in that case created a fatal variance
precisely because the Defendant failed to move to dismiss
the charge in question. Id. Here, unlike in Gettleman,
Defendant did timely move to dismiss all charges, and
thus, under the rationale of Gettleman, it would appear
Defendant did preserve this argument. See id. Without so
deciding, and for purposes of review of this case, we employ
de novo review. See id.
Id. at 287, ¶ 22, 862 S.E.2d at 422 (emphasis supplied).
¶ 26 Here, Defendant did not mention the words “fatal,” “defective,” or “variance”
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in his motion to dismiss, to provide the trial court with notice of any purported error
at the close of the State’s evidence. Defendant moved to dismiss at the close of the
State’s evidence, and again at the close of all the evidence. In accordance with
Brantley-Phillips, we again presume “[w]ithout so deciding, and for purposes of
review of this case,” Defendant’s generic motion to dismiss for “sufficiency of the
evidence” preserved his fatal variance objections. Id. (emphasis supplied).
B. Analysis
A motion to dismiss for a variance is in order when the
prosecution fails to offer sufficient evidence the defendant
committed the offense charged. A variance between the
criminal offense charged and the offense established by the
evidence is in essence a failure of the State to establish the
offense charged.
In order to prevail on such a motion, the defendant must
show a fatal variance between the offense charged and the
proof as to the gist of the offense.
Pickens, 346 N.C. at 646, 488 S.E.2d at 172 (citations, quotation marks, and
alterations omitted).
¶ 27 “In order for a variance to warrant reversal, the variance must be material. A
variance is not material, and is therefore not fatal, if it does not involve an essential
element of the crime charged.” State v. Tarlton, 279 N.C. App. 249, 253, 2021-
NCCOA-458, ¶ 12, 864 S.E.2d 810, 813 (2021) (quoting State v. Norman, 149 N.C.
App. 588, 594, 562 S.E.2d 453, 457 (2002)).
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¶ 28 Here, the State offered substantial and sufficient evidence of each material
element of both charges. The State tendered evidence Stewart never received the
check issued to her as payee, and it was mailed to Defendant’s residence. Stewart
testified she recognized Defendant’s handwriting forging her name on the
endorsement line. The State also entered into evidence bank records indicating
Defendant had deposited the check into his sole personal account. Video footage
showed Defendant entering the bank on the same day the check was deposited into
his account.
¶ 29 Viewing the evidence in the light most favorable to the State and all inferences
thereon, the evidence presented at trial did not fatally vary from the essential
elements or “gist” of the indictments charging Defendant with uttering a forged check
and obtaining property by false pretenses. Conley, 220 N.C. App. at 60, 724 S.E.2d
at 170; Pickens, 346 N.C. at 645, 488 S.E.2d at 172; Tarlton, 279 N.C. App. at 253, ¶
12, 864 S.E.2d at 813. Defendant’s argument is without merit and is overruled.
V. Recordation
¶ 30 Criminal defendants have a statutory right to recordation of their trial. N.C.
Gen. Stat. § 15A-1241 provides:
(a) The trial judge must require that the reporter make a
true, complete, and accurate record of all statements from
the bench and all other proceedings except:
(1) Selection of the jury in noncapital cases;
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(2) Opening statements and final arguments of
counsel to the jury; and
(3) Arguments of counsel on questions of law.
...
(c) When a party makes an objection to unrecorded
statements or other conduct in the presence of the jury,
upon motion of either party the judge must reconstruct for
the record, as accurately as possible, the matter to which
objection was made.
N.C. Gen. Stat. § 15A-1241 (2021) (emphasis supplied).
¶ 31 Our Supreme Court in State v. Cummings contrasts the disparate treatment
of statements made in open court before a jury and those made in private bench
conferences under N.C. Gen. Stat. § 15A-1241. 332 N.C. 487, 498, 422 S.E.2d 692,
698 (1992). The Court in Cummings concluded N.C. Gen. Stat. § 15A-1241 “appears
to be designed to ensure that any statement by the trial judge, in open court and
within earshot of jurors or others present in the courtroom, be available for appellate
review.” Id.
¶ 32 Statements made in private bench conferences, however, are only required to
be transcribed if “either party requests that the subject matter of a private bench
conference be put on the record for possible appellate review.” Id. If a party requests
a bench conference to be transcribed per N.C. Gen. Stat. § 15A-1241, “the trial judge
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should comply by reconstructing, as accurately as possible, the matter discussed.” Id.
(citing N.C. Gen. Stat. § 15A-1241(c)).
¶ 33 “This Court has repeatedly held that [N.C. Gen. Stat. §] 15A–1241 does not
require recordation of ‘private bench conferences between trial judges and attorneys.’”
State v. Blakeney, 352 N.C. 287, 307, 531 S.E.2d 799, 814 (2000) (first quoting
Cummings, 332 N.C. at 497, 422 S.E.2d at 697; then citing State v. Speller, 345 N.C.
600, 605, 481 S.E.2d 284, 287 (1997)). In Blakeney, the defendant argued the
“unrecorded bench conferences violated his statutory right to recordation under [N.C.
Gen. Stat.] § 15A[-]1241 and deprived him of his constitutional right to due process
by rendering appellate review impossible.” Id. at 306, 531 S.E.2d at 814. Our
Supreme Court held the trial court did not err by failing to record the bench
conferences because the “defendant never requested that the subject matter of a
bench conference be reconstructed for the record.” Id. at 307, 531 S.E.2d at 814.
¶ 34 Defendant asserts the trial court had ordered a complete recordation. This
assertion is unfounded. The transcript shows Defendant only requested a complete
recordation of the voir dire of an expert witness. Here, the trial court did not err for
the same reasons our Supreme Court held the trial court did not err in Blakeney:
Defendant “never requested that the subject matter of a bench conference be
reconstructed for the record.” Blakeney, 352 N.C. at 307, 531 S.E.2d at 814.
Defendant’s argument is without merit.
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VI. Conclusion
¶ 35 Defendant has failed to show a fatal defect existed in his indictments for
uttering a forged check and obtaining property by false pretenses. Each of the
indictments alleged the “essential and necessary elements of the offense[s].” Ellis,
368 N.C. at 344, 776 S.E.2d at 677.
¶ 36 Presuming without holding Defendant’s fatal variance argument was
preserved by his blanket motion to dismiss, Defendant failed to demonstrate a fatal
variance between his indictments and the evidence presented at trial. Brantley-
Phillips, 278 N.C. App. at 287, ¶ 22, 862 S.E.2d at 422. Any purported variance
between the indictment and the evidence at trial was “not material, and is therefore
not fatal, [as] it d[id] not involve an essential element of the crime charged.” Tarlton,
279 N.C. App. at 253, ¶ 12, 864 S.E.2d at 813.
¶ 37 Defendant has also failed to show the trial court committed plain error by
failing, in the absence of a request, to make a complete recordation of the eighteen
bench conference conversations. Defendant never requested the trial court to
reconstruct the bench conversations for the record, despite asking the trial court to
make a complete recordation of the voir dire of an expert witness at another point
during the trial.
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¶ 38 Defendant received a fair trial, free from prejudicial errors he preserved and
argued on appeal. We find no error in the jury’s verdicts or in the judgment entered
thereon. It is so ordered.
NO ERROR.
¶ 39 Judges ZACHARY and HAMPSON CONCUR