89 N.C. App. 511 | N.C. Ct. App. | 1988
Defendant first contends that the trial court erred in charging the jury. We agree.
The court charged the jury as follows:
Members of the jury, the defendant has been accused of attempting to obtain property by false pretenses. In order for you to find the defendant guilty of attempting to obtain property by false pretenses, the State must prove four things beyond a reasonable doubt:
First, that on or about the 28th day of April of 1986 the defendant presented one Eastern Airlines, Inc. flight coupon, number 100772641430360, issued on April the 6th, 1984, with the name of the passenger listed as Ms. K. McKenna, to a representative of Delta Airlines, Inc., and by making that representation — strike that, Madam Reporter — and by making that presentation the defendant made the representation that he was the person named on the flight coupon and that the coupon had not expired.
Second, that this representation was false.
Third, that the representation was calculated and intended to deceive.
And, fourth, that the defendant thereby attempted to obtain passage aboard Delta Airlines flight 267 from Delta Airlines, Inc.
So I charge you, members of the jury, that if you find from the evidence beyond a reasonable doubt that on or about the 28th day of April, 1986, that the defendant, Gilbert Roth, did present to a representative of Delta Airlines, Inc. one Eastern Airlines, Inc. flight coupon number 100772641430360, issued on April the 6th, 1984, with the name of the passenger listed as Ms. K. McKenna, and that this representation was false in that the defendant is not Ms.
*514 K. McKenna, and that said flight coupon had expired one year from the date of its issuance, and that this representation was calculated and intended to deceive, and that Gilbert M. Roth thereby attempted to obtain passage aboard Delta Airlines flight 267 from Delta Airlines, Inc., it would be your duty to return a verdict of guilty of attempting to obtain property by false pretenses. However, if you do not so find, or if you have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty. [Emphasis added.]
When a court charges correctly at one point and incorrectly at another, a new trial is necessary because the jury may have acted upon the incorrect part. State v. Harris, 289 N.C. 275, 221 S.E. 2d 343 (1976).
Although the first part of the charge concerning the elements of the crime was correct, the trial court then mistakenly characterized the McKenna name on the coupon as a “representation.” This characterization may have misled the jury in that the question before them was whether the tendering of the coupon bearing the McKenna name and the revalidation sticker was a representation that the coupon was valid. The charge was incorrect and defendant is entitled to a new trial.
Defendant also contends that the trial court erred in admitting the F.B.I. agent’s testimony concerning a search of defendant’s home and “schemes” defendant engaged in involving the airline industry.
G.S. 8C-1, Rule 404(b) states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake, entrapment or accident.
We hold that the agent’s testimony was properly admitted to show defendant’s intent to deceive. The testimony also indicated that defendant was very familiar with the purchase and use of flight coupons and constituted evidence of the absence of any mistake on defendant’s part in tendering the flight coupon. The
New trial.
