253 N.C. App. 803
N.C. Ct. App.2017Background
- Defendant Seid Michael Mostafavi was tried in superior court and convicted (bench trial) of one count of felony larceny and two counts of obtaining property by false pretenses based on items pawned/sold at a pawn shop after a house was burglarized.
- A house-sitter testified she allowed Defendant to take items because she owed him money; victims said items were stolen; pawn-shop receipts listed Defendant and items were recovered there.
- Defendant testified he bought the items from the house-sitter and produced a bill of sale and other evidence suggesting he believed he had title.
- Indictments for the false-pretense counts described the thing obtained as "UNITED STATES CURRENCY" (no dollar amounts listed) and specified the alleged false pretense (pawing items as his own when they were stolen).
- On appeal, Defendant challenged (1) sufficiency/variance in the larceny indictment, (2) sufficiency/form of the indictments for obtaining property by false pretenses, and (3) the sufficiency of evidence and IAC issues (the court did not reach IAC for the false-pretense counts after vacating them).
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument | Held |
|---|---|---|---|
| 1) Were the false-pretense indictments sufficient when they described the thing obtained only as "UNITED STATES CURRENCY"? | The indictments were adequate to apprise Defendant of the charge; § 15-149 permits calling the thing "money" or similar. | "UNITED STATES CURRENCY" is too vague; money must be described with reasonable certainty — at least by amount (dollars and cents) per Reese/Smith/Jones. | Majority: vacated the two false-pretense convictions because Supreme Court precedent requires more specificity (at least the amount); § 15-149 does not eliminate that requirement. |
| 2) Was there a fatal variance in the larceny indictment (wrong owner named)? | N/A (prosecution) | Defendant argued the indictment named the wrong homeowner as owner of the stolen property. | Issue not preserved; Defendant asked Court of Appeals to invoke Appellate Rule 2 — Court declined to invoke Rule 2; larceny conviction affirmed. |
| 3) Does N.C. Gen. Stat. § 15-149 (allowing description of money simply as "money") override the Supreme Court cases requiring amount/description? | § 15-149 means describing as money or U.S. currency is sufficient; Ricks and other NC App decisions applied that view. | Supreme Court precedent (Reese, Smith, Jones) requires at least the amount; § 15-149 only relieves requirement to identify coin/particular bank/treasury notes, not the amount. | Majority: § 15-149 does not overrule the Supreme Court line; must add some further description of money itself (at least amount). |
| 4) Was the evidence sufficient to prove a false representation to the pawn shop? | Employee testimony and pawn records, plus conduct, showed Defendant represented he had authority to sell/pawn the goods. | Defendant argued the house-sitter sold the property and he believed he lawfully bought it. | Majority vacated on indictment defect and did not decide sufficiency; concurring/dissenting opinion would have found the evidence sufficient. |
Key Cases Cited
- State v. Reese, 83 N.C. 637 (1880) (holding an indictment that alleges only "money" is fatally defective; money should be described at least by amount)
- State v. Smith, 219 N.C. 400 (1941) (reaffirming Reese: describing obtained property as "goods and things of value" or merely "money" is insufficient)
- State v. Jones, 367 N.C. 299 (2014) (reaffirming that indictments under false-pretense statute must describe the thing obtained with reasonable certainty; describing only "services" or only the victim/date is insufficient)
- State v. Ricks, 781 S.E.2d 637 (N.C. Ct. App. 2016) (Court of Appeals decision holding an indictment describing property as "U.S. Currency" was sufficient; relied on § 15-149)
- State v. Ledwell, 171 N.C. App. 314 (2005) (Court of Appeals upheld indictment describing property as "United States currency" where additional specifics informed defendant of the charge)
- State v. Almond, 112 N.C. App. 137 (1993) (Court of Appeals upheld an indictment that alleged defendant obtained "United States money")