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					No. COA09-1334                                        12TH DISTRICT

                    NORTH CAROLINA COURT OF APPEALS

            ***************************************

STATE OF NORTH CAROLINA          )
                                 )    From Cumberland County
    v.                           )
                                 )
                                 )
DALIA T. HARRISON                )

      ****************************************************
                   DEFENDANT-APPELLANT'S BRIEF
      ****************************************************
                       INDEX

TABLE OF CASES AND AUTHORITIES ................ iii
QUESTIONS PRESENTED ............................. 1
STATEMENT OF THE CASE ........................... 2
STATEMENT OF GROUNDS FOR APPELLATE REVIEW ....... 3
STATEMENT OF THE FACTS .......................... 3
ARGUMENT:

I.    A CLASS H FELONY SENTENCE FOR OBTAINING
      PROPERTY BY FALSE PRETENSES AMOUNTS TO CRUEL
      OR UNUSUAL PUNISHMENT WHERE THE GENERAL
      ASSEMBLY HAS CREATED A GREATER OFFENSE OF
      OBTAINING ADVANCES UNDER PROMISE TO WORK
      THAT IS PUNISHED AS A CLASS 2 MISDEMEANOR . 15

      1.   STANDARD OF REVIEW ................... 15

      2.   THE FELONY OF OBTAINING PROPERTY BY
           FALSE PRETENSES IS A LESSER INCLUDED
           OFFENSE OF THE MISDEMEANOR OF OBTAINING
           ADVANCES UPON PROMISE TO WORK ........ 15

      3.   TO ALLOW MS. HARRISON TO SUFFER A
           FELONY CONVICTION AND PUNISHMENT FOR A
           LESSER INCLUDED OFFENSE OF A GREATER
           OFFENSE THAT IS A MISDEMEANOR REQUIRING
           LESS SEVERE PUNISHMENT AMOUNTS TO CRUEL
           AND UNUSUAL PUNISHMENT ............... 19

II.   ANY AMBIGUITY EXISTING BETWEEN WHETHER N.C.
      GEN. STAT. § 14-100 OR § 14-104 SHOULD APPLY
      TO MS. HARRISON'S CONDUCT SHOULD BE RESOLVED
      IN MS. HARRISON'S FAVOR AND SHE SHOULD BE
      RESENTENCED FOR CLASS 2 MISDEMEANORS ...... 22

      1.   STANDARD OF REVIEW. .................. 22

      2.   ARGUMENT. ............................ 22

III. THE TRIAL COURT ERRED WHEN IT DENIED MS.
     HARRISON'S REQUEST TO INSTRUCT THE JURY THAT
     IT COULD NOT CONSIDER HER FAILURE TO COMPLY
     WITH HER CONTRACTUAL OBLIGATIONS AS EVIDENCE
     OF FRAUDULENT INTENT ...................... 23

      1.   STANDARD OF REVIEW. .................. 23

      2.   ARGUMENT. ............................ 23
                        -ii-


IV.   IF THIS COURT CONCLUDES THE OFFENSE OF
      OBTAINING ADVANCES UNDER PROMISE OF WORK IS
      NOT A GREATER OFFENSE BUT IS A LESSER
      OFFENSE OF OBTAINING PROPERTY BY FALSE
      PRETENSES, THEN THE TRIAL COURT COMMITTED
      PLAIN ERROR IN FAILING TO INSTRUCT THE JURY
      ON THE LESSER OFFENSE ..................... 26

      1.   STANDARD OF REVIEW. .................. 26

      2.   ARGUMENT ............................. 27

CONCLUSION ..................................... 28
CERTIFICATE OF SERVICE ......................... 29
                                      -iii-
                          TABLE OF CASES AND AUTHORITIES

Cannon v. Gladden, 203 Or. 629, 281 P.2d 233 (1955)............20
Dembowski v. Indiana, 251 Ind. 250, 240 N.E.2d 815 (1968)..20, 21
Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001 (1983)........19, 21
State v. Brown, 300 N.C. 41, 265 S.E.2d 191 (1980).............27
State v. Collins, 334 N.C. 54, 431 S.E.2d 188 (1993).......16, 27
State v. Compton, 90 N.C. App. 101, 367 S.E.2d 353 (1988)..24, 25
State v. Cradle, 281 N.C. 198, 188 S.E.2d 296 (1972)...........18
State v. Cronin, 299 N.C. 229, 262 S.E.2d 277 (1980)...........17
State v. Conner, 335 N.C. 618, 440 S.E.2d 826 (1994)...........27
State v. Frady, 673 S.E.2d 751, 2009 N.C. App. LEXIS 243 (N.C.
   Ct. App. 17 March 2009) .................................15, 22
State v. Griffin, 154 N.C. 611, 70 S.E. 292 (1911).............16
State v. Hicks, 241 N.C. 146, 84 S.E.2d 545 (1954).............27
State v. Higginbottom, 312 N.C. 760, 324 S.E.2d 824 (1985).....19
State v. Hinton, 361 N.C. 207, 639 S.E.2d 437 (2007)...15, 18, 23
State v. Johnson, 317 N.C. 417, 347 S.E.2d 7 (1986)............28
State v. Moore, 335 N.C. 567, 440 S.E.2d 797 (1994)............28
State v. Nicholson, 355 N.C. 1, 558 S.E.2d 109 (2002)......23, 25
State v. Octetree, 178 N.C. App. 228, 617 N.C. 356 (2005)......16
State v. Prevatte, 356 N.C. 178, 570 S.E.2d 440 (2002).........27
State v. Rogers, 275 N.C. 411, 168 S.E.2d 345 (1969).......15, 19
State v. Weaver, 306 N.C. 629, 295 S.E.2d 375 (1982)...........15
Weems v. United States, 217 U.S. 349, 30 S. Ct. 544 (1910).....20


U.S. Const. Amend. XIII........................................19

N.C. Const. Art. I, Sec. 27....................................19

N.C.   Gen.   Stat.   §   7A-27 (2009)..................................3
N.C.   Gen.   Stat.   §   14-100 (2009)........................17, 21, 25
N.C.   Gen.   Stat.   §   14-104 (2009)................16, 17, 18, 19, 21
N.C.   Gen.   Stat.   §   15A-1340.17 (2009)...........................18

N.C.P.I.--Crim. 219.20.........................................17
No. COA09-1334                                        12TH DISTRICT

                    NORTH CAROLINA COURT OF APPEALS

              ***************************************

STATE OF NORTH CAROLINA          )
                                 )    From Cumberland County
      v.                         )
                                 )
                                 )
DALIA T. HARRISON                )

       ****************************************************
                    DEFENDANT-APPELLANT'S BRIEF
       ****************************************************

                          QUESTIONS PRESENTED

I.    WHETHER A CLASS H FELONY SENTENCE FOR OBTAINING PROPERTY BY
      FALSE PRETENSES AMOUNTS TO CRUEL OR UNUSUAL PUNISHMENT
      WHERE THE GENERAL ASSEMBLY HAS CREATED A GREATER OFFENSE OF
      OBTAINING ADVANCES UNDER PROMISE TO WORK THAT IS PUNISHED
      AS A CLASS 2 MISDEMEANOR.

II.   WHETHER ANY AMBIGUITY EXISTING BETWEEN WHETHER N.C. GEN.
      STAT. § 14-100 OR § 14-104 SHOULD APPLY TO MS. HARRISON'S
      CONDUCT SHOULD BE RESOLVED IN MS. HARRISON'S FAVOR AND SHE
      SHOULD BE RESENTENCED FOR CLASS 2 MISDEMEANORS.

III. WHETHER THE TRIAL COURT ERRED WHEN IT DENIED MS. HARRISON'S
     REQUEST TO INSTRUCT THE JURY THAT IT COULD NOT CONSIDER HER
     FAILURE TO COMPLY WITH HER CONTRACTUAL OBLIGATIONS AS
     EVIDENCE OF FRAUDULENT INTENT.

IV.   WHETHER THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO
      INSTRUCT THE JURY ON THE OFFENSE OF OBTAINING ADVANCES
      UNDER PROMISE OF WORK.
                                 -2-

                       STATEMENT OF THE CASE

    This case came on for trial before the Honorable James F.

Ammons, Jr., at the 23 March 2009 session of criminal Superior

Court of Cumberland County.    Ms. Harrison was tried by jury and

found guilty of fourteen counts of obtaining property by false

pretenses, one of which was a Class C felony due to the amount

of money involved.   She was acquitted of one count of obtaining

property by false pretenses.

    The trial court sentenced Ms. Harrison to an active

sentence of 100 to 129 months for the Class C obtaining property

by false pretenses of a value greater than $100,000, and to

thirteen consecutive, active 8 to 10 month sentences.    Ms.

Harrison gave oral notice of appeal on 27 March 2009.

    The trial court and this Court extended the time for the

Ms. Harrison to prepare and serve the proposed record on appeal.

The record on appeal was settled pursuant to Rule of Appellate

Practice and Procedure Rule 11 on 25 September 2009.    Ms.

Harrison filed the settled record on appeal with this Court on

13 October 2009.   This Court received the settled record on

appeal on 14 October 2009, docketed it on 27 October 2009, and

mailed a printed copy to the parties on 29 October 2009.      Ms.

Harrison filed and served this Brief on 30 November 2009.
                                  -3-


             STATEMENT OF GROUNDS FOR APPELLATE REVIEW

    Ms. Harrison appeals pursuant to N.C. Gen. Stat. § 7A-27(b)

from a final judgment entered against her in the Superior Court

of Cumberland County.



                        STATEMENT OF THE FACTS

    Several Fayetteville-area pastors and churches engaged Ms.

Dalia Harrison to perform a variety of services, including tax

audits, preparing by-laws, and applying for grants, tax ID

numbers, and non-profit status.    Between July 2005 and May 2006,

Ms. Harrison received payments of between $1,500 and $4,500 upon

her agreeing to perform the services.    Ms. Harrison also agreed

with Michael and Karen Wells, one of the pastors and his wife,

to provide investment advice for $40,000.    Ms. Harrison also

volunteered to help a friend, Mr. Chansey Kennedy, invest

$143,311.

    Although Ms. Harrison performed some of the work required

under her agreements with the pastors and churches, she failed

to complete everything as promised, and failed to start some of

the projects.   As a result, she was charged with twelve counts

of obtaining property by false pretenses.    Because Ms. Harrison

had not invested Michael and Karen Wells' money, she was charged

with an additional count of obtaining property by false

pretenses.   Because Ms. Harrison failed to invest Mr. Kennedy's
                                 -4-

money and instead withdrew the money for personal use, she was

charged with obtaining property by false pretenses where the

value was greater than $100,000, a Class C felony.

    1.      Michael and Karen Wells

    The pastor of Faith Mission Miracle Deliverance Word

Church, Michael Wells, first met Ms. Harrison around September

2004, when she came to his church and introduced herself to him

and his wife Karen.    (T. pp. 39-41, 43, 128).   Faith Mission had

a congregation of about fifty to sixty people at the time.       (T.

p. 42).   Ms. Harrison said she wrote applications for grants for

churches and could help Faith Mission obtain government grants.

(T. pp. 41, 44).

    By a written type-written letter with a handwritten

attachment, Ms. Harrison agreed to audit the church tax returns

for $4,500 on 7 June 2005.    (R. p. 7)   (State's Exhibit 10).

Both Mr. Wells and Ms. Wells referred to this letter as a

contract.    (T. pp. 105-06, 143).    Ms. Harrison also agreed to

help with amending Mr. Wells' prior year tax returns of 2002,

2003, and 2004, for a fee of $1,500 per year.     (R. p. 15-19

(indictments); T. pp. 49, 106, 138, 146, 148, 149, 151) (State's

Exhibit 10).    Ms. Harrison also agreed to keep the church's 2005

taxes audited and up-to-date.    (R. p. 23 (indictment); T. p.

149) (State's Exhibit 10).    Additionally, Ms. Harrison was to
                                    -5-

prepare an IRS Form 1023 and charged a fee of $1750 for those

services.    (T. p. 150) (State's Exhibit 10, page 2).

    Ms. Harrison prepared articles of incorporation for the

church.   (T. p. 139).   She gave Ms. Wells a basic format for the

church bylaws.    (T. p. 141).    Ms. Wells testified, however, that

Ms. Harrison never presented her with any tax audits or amended

tax returns.    (T. p. 154).     Although Ms. Wells testified Ms.

Harrison said she would return the money and do the work "pro

bono," nothing in the letter of agreement that Ms. Harrison sent

to Mr. and Ms. Wells indicated a possible return of money.

(State's Exhibit 10).    Instead, Ms. Harrison quoted her "fee."

    Mr. Wells' first wife had recently died as a result of a

hospital procedure, and Ms. Harrison agreed to help Mr. Wells

pursue some type of financial settlement related to his first

wife's death.    (T. p. 55).   Mr. Wells paid Ms. Harrison $3,000

for "consulting fees."    (R. p. 27 (indictment); T. pp. 55-56).

Ms. Harrison provided some paperwork which was faxed to Mr.

Well's attorney in Georgia who ultimately did not use the

paperwork.    (T. p. 105).

    On 26 February 2006, Ms. Harrison came to Faith Mission

during a service and presented the church with a letter saying

the church had been granted 501(c)(3) status as a non-profit

organization.    (T. pp. 57-62).     The 501(c)(3) status would have

allowed the church to file for certain federal grants.       (T. p.
                                  -6-

96).    Mr. Wells testified Ms. Harrison told him to go ahead and

buy a new Lincoln Navigator truck in anticipation of receiving

government grant money.     (T. p. 68).

       Mr. Wells' mother lived with him and he helped manage her

money.    (T. pp. 70-71).   At some point Ms. Harrison mentioned

the possibility of investing some money for Mr. Wells with

Fidelity with the possibility of a 12-13% return.      (T. pp. 71-

72).    Mr. Wells cashed out a certificate of deposit worth

$20,000 and withdrew $20,000 of his mother's money.     He then

opened a joint banking account with the $40,000 with Ms.

Harrison as a co-account holder.     (T. p. 73).   Mr. Wells

testified he ultimately found out Ms. Harrison had withdrawn all

but $40.13 of the money for her own use and had never invested

any of the money, despite her promises to do so.     (T. p. 73).

       Based on Ms. Harrison's alleged failure to perform or

complete the work as promised to the Wells, she was charged with

and convicted of nine counts of obtaining property by false

pretenses:    06 CRS 65712 for failing to perform a tax audit; 09

CRS 2014, 2015, and 2016, for failing to seeking to amend Mr.

Wells' tax returns for 2002, 2003, and 2004; 09 CRS 2017 for

failing to prepare and file an IRS form 1023 to receive

501(c)(3) status; 09 CRS 2018 for failing to review and maintain

Mr. Wells' 2005 tax paperwork; 09 CRS 2020 for failing to

provide consulting services regarding Mr. Wells' possible
                                  -7-

lawsuit related to his first wife's death; and 09 CRS 2021 for

failing to provide investment services of Mr. Wells' $40,000.

The jury acquitted Ms. Harrison of 09 CRS 2019 which alleged she

received $150 to process an IRS form 1023 but did not.

    2.      John Wesley

    John Wesley was the head pastor at Bible Center Holiness

Church.    (T. p. 292).   One of his associate ministers had heard

Ms. Harrison speak at a meeting about receiving grants and the

associate minister told Mr. Wesley about Ms. Harrison.      (T. p.

293).    Mr. Wesley met Ms. Harrison through church member Lorenzo

Watson and church accountant Sylvester Loving.     (T. p. 292).

Mr. Wesley testified Ms. Harrison told him she always got the

grants for which she applied.     (T. p. 294).   Mr. Wesley told Ms.

Harrison the church wanted a grant for $750,000 and Ms. Harrison

told him she could get it.     (T. p. 295).

    Mr. Wesley had associate minister Lorenzo Watson write a

check to Ms. Harrison for $1750 on 20 December 2005 in order to

retain her to apply for grants.     (T. p. 296).   Mr. Wesley

testified he signed a contract for Ms. Harrison's services.       (T.

p. 299).    Mr. Wesley testified Ms. Harrison did not do any work

for the money he paid her.     (T. p. 298).   Ms. Harrison was

charged with and convicted of obtaining property by false

pretenses in 06 CRS 67436 for failing to apply for grants as

required by her contract with Mr. Wesley.
                                    -8-

    3.     Robert Bronson

    Robert Bronson, pastor of St. Paul's Full Gospel Baptist

Church met Ms. Harrison through a friend at a funeral.          (T. pp.

337-39).   Ms. Harrison told Mr. Bronson she could get grant

money for his church.   (T. p. 340).      Mr. Bronson met with Ms.

Harrison an her house on 11 January 2006.        (T. p. 343).   Ms.

Harrison told him that his church needed a 501(c)(3) status and

she could get it.    (T. p. 343).     Mr. Bronson had his church

board members write a check to Ms. Harrison for $3,500 in

exchange for her agreement to do paperwork to get the 501(c)(3)

status, consult, and eventually try to get grants.        (T. pp. 344-

345, 361).    Ms. Harrison told him she had a high success rate

with getting grants and that he needed to set up a bank account

to receive the grant money.     (T. p. 346).     Ms. Harrison told Mr.

Bronson she could get his church $12,000,000 and encouraged Mr.

Bronson to find a car to buy with the forthcoming grant money.

(T. pp. 353-54).    Mr. Bronson met Ms. Harrison at a Wachovia

bank to open the account and Ms. Harrison gave Mr. Bronson $100

to open the account.    (T. p. 346).      Mr. Bronson opened the

account in his name only.     (T. p. 348).

    Mr. Bronson testified his church never received its

501(c)(3) status.    (T. p.   357).    Mr. Bronson testified his

contract with Ms. Harrison was not a "formal" contract.         (T. p.

361).    Based on Ms. Harrison's failure to obtain the 501(c)(3)
                                  -9-

status or to attempt to obtain grants as she had agreed with Mr.

Bronson, she was charged with and convicted of obtaining

property by false pretenses in 06 CRS 65713.

    4.     Wilbert Blandon

    Wilbert Blandon, Jr., the pastor at Antioch Bible

Fellowship Ministries, met Ms. Harrison in December 2005.         (T.

p. 553).   Mr. Blandon ran a non-profit called Life Focus that

was a life skills education program.       (T. p. 553).    Mr. Blandon

testified Ms. Harrison asked him if he wanted one or two million

dollars for the program from grant money.       (T. p. 553).    Mr.

Blandon testified Ms. Harrison said she could get $60,000 for a

pastor's salary and $30,000 for pastor's housing from grant

money.   (T. p. 559).

    Mr. Blandon wrote Ms. Harrison a check for $1,750 on 19

January 2006 for Ms. Harrison to try to obtain a grant for the

pastor's salary and housing.     (T. pp. 560, 571).       Mr. Blandon

paid Ms. Harrison $225 for her to produce articles of

incorporation, which she did.    (T. pp. 563-64).     However, Mr.

Blandon said he paid Ms. Harrison $1,725 on 2 February 2006 to

obtain 501(c)(3) status for the church but that she never

obtained it.   (T. pp. 563, 571).

    Mr. Blandon testified he had a written contract with Ms.

Harrison for her services which he believed ran from 2 February

to 2 December 2006.     (T. pp. 580-81).    Based on Ms. Harrison's
                                 -10-

failure to perform under her contract with Mr. Blandon, Ms.

Harrison was charged with and convicted of two counts of

obtaining property by false pretenses in 06 CRS 65715 and

09 CRS 2020.

    5.     George and Yongae Imes

    Ms. Yongae Imes testified she was the wife of deceased

pastor George Imes of Bonnie Dunne Church.      (T. p. 277).   Mr.

Imes met Ms. Harrison in 2005.      (T. p. 278).   Ms. Imes said Ms.

Harrison told Mr. Imes she could get a grant of $750,000.         (T.

pp. 278-79).   Mr. Imes entered a contract with Ms. Harrison for

her services in December 2005.    (T. p. 288; R. p. 13

(indictment)).

    Ms. Imes met Ms. Harrison around January 2006 when Ms.

Harrison came to the church asking for paperwork.      (T. pp. 278,

289).    Ms. Imes told Ms. Harrison she wanted a house and a

Mercedes, and Ms. Harrison said she could get them.      (T. p.

281).    Ms. Harrison said she would need $1,700 to pay "grant

companies."    (T. p. 282).   On 26 May 2006, Ms. Imes wrote a

check to Ms. Harrison for her services.      (T. p. 286).   Ms. Imes

testified she never saw any money come in from Ms. Harrison.

(T. p. 284).    Ms. Imes testified she and her husband later could

not find Ms. Harrison.    (T. p. 285).

    Based on Ms. Harrison's alleged failure to write grants for

the Imes' church in accordance with her contract, Ms. Harrison
                                      -11-

was charged with and convicted of obtaining property by false

pretenses in 06 CRS 65710.

       6.     Chansey Kennedy

       Mr. Chansey Kennedy was a member of Michael and Karen

Wells' church.       (T. p. 616-17).    In 2005, Mr. Kennedy bought a

life insurance policy for himself and his wife.            (T. pp. 621-

23).    They had three children together.          (T. pp. 612-13).      In

June 2005, Ms. Kennedy died in a car accident that resulted from

her falling asleep while driving.            (T. pp. 625, 628).   Mr.

Kennedy asked Ms. Wells to handle the life insurance benefits on

the policy he had purchased through Mr. Wells.            (T. p. 632).

Ms. Wells introduced Mr. Kennedy to Ms. Harrison.            (T. p. 633).

Ms. Harrison advised Mr. Kennedy about certain benefits he could

secure for his children based on Ms. Kennedy's death.             (T. p.

634).       Ms. Harrison and Ms. Wells discussed with Mr. Kennedy how

he should invest and budget the life insurance proceeds of

$146,536.51.       (T. pp. 636-38).

       Ms. Harrison arranged for Mr. Kennedy to open a joint bank

account with her to invest and manage the life insurance

proceeds.       (T. pp. 638-39).    Wachovia Bank contacted Mr. Kennedy

to confirm his intent to open a joint account, and he confirmed

his intent.       (T. p. 640-42).   Mr. Kennedy received an ATM card

for the account.      (T. pp. 642, 678).       At one point Mr. Kennedy

made a purchase and was able to see that his bank account
                                 -12-

balance was around $10,000.   (T. p. 645).     Sometimes the balance

would be large or small.   (T. p. 646).     Mr. Kennedy said Ms.

Harrison told him not to worry about the balance, that she was

moving money around.   (T. p. 646).     On 23 November 2005, Ms.

Harrison moved $100,000 out of the account, which Mr. Kennedy

testified he never authorized.    (T. p. 650).    He also testified

he never authorized Ms. Harrison to move any of the money to any

other bank accounts.

    Mr. Kennedy did authorize some movement of money from the

account and also received some things of value from Ms.

Harrison.   For example, Mr. Kennedy did authorize payment for

his cable bill, a ring, and a television.      (T. pp. 652, 680).

Mr. Kennedy also had Ms. Harrison pay for an attorney and for

tuition.    Ms. Harrison also bought a van for Mr. Kennedy at some

point, probably before he ever received the insurance proceeds.

(T. pp. 672-73).   Regardless, Mr. Kennedy testified Ms. Harrison

took more than $100,000 without his authorization.      (T. p. 684).

    Based on Ms. Harrison's failure to invest the money for

Chansey Kennedy and her conversion of the money to her own

personal use, Ms. Harrison was charged with and convicted of

obtaining property by false pretenses of an amount over

$100,000, a Class C felony.
                                  -13-


    7.     Other witnesses for the State

    Larry Wright, pastor of Hildaland Outreach Ministry,

testified he had met Ms. Harrison in 2005 at a church yard sale.

(T. pp. 229, 234, 237-38).      Ms. Harrison had approached him and

asked whether he was aware of millions of dollars that churches

could get from grants.    (T. pp. 238, 240).   Ms. Harrison told

Mr. Wright she had a doctor's degree and a 100% success rate.

(T. p. 238).    Mr. Wright entered two contracts with Ms. Harrison

to pursue grants for the church and for pastors salaries.     (T.

pp. 240, 254).    Mr. Wright paid Ms. Harrison $1,750 and $3,500

for her services.    (T. p. 254).   He testified he never saw any

paperwork that Ms. Harrison generated as part of her

responsibilities under the contract.     (T. p. 256).   Ms. Harrison

did pay Mr. Wright's personal taxes when they were past due.

(T. p. 258).    Mr. Wright did not pursue criminal charges against

Ms. Harrison.    (T. p. 259).

    Ronald Harrison, Senior Fraud Investigator for Wachovia

Bank, testified about Ms. Harrison's personal bank accounts and

those involving Chansey Kennedy and Michael Wells.      (T. p. 370).

Ronald Harrison testified several of the accounts were joint

accounts between Ms. Harrison and her husband, Glen Harrison,

and several accounts belonged to a Richard Piersaul.     (T. p.

376).    Ronald Harrison provided records showing numerous
                                -14-

transactions between the accounts, including transfers from

Chansey Kennedy's life insurance proceeds account and Michael

Wells' investment account into Ms. Harrison's personal accounts.

(T. pp. 387-418).

    Chad Smith, a detective with the Fayetteville Police

Department's cyber crimes unit, testified he examined Ms.

Harrison's computer to locate relevant documents and e-mails.

(T. pp. 596-99).    He found a deleted document on the computer

which turned out to be the same document Ms. Harrison had

presented to Michael Wells' church as a letter from the IRS

granting the church 501(c)(3) status.    (T. pp. 599-600).

Detective Smith also found e-mails regarding trips to Las Vegas,

Atlantic City, and Florida.    (T. pp. 604-07).   He found another

e-mail sent by Ms. Harrison about money she had sent to an

inmate in the South Carolina Department of corrections named

Richard Piersaul.    (T. p. 604).

    Another Fayetteville Police Department detective, Stephanie

Thompson, testified about evidence found in Ms. Harrison's home

after execution of a search warrant.    (T. pp. 692-93).   Based on

documents and items found, she determined Ms. Harrison bought a

Mercedes four days after the proceeds from Chansey Kennedy's

life insurance policy had been deposited.    (T. pp. 687-88).

Detective Thompson found documents related to an account opened

by Ms. Harrison in the name of Richard Piersaul.    (T. pp. 690-
                                     -15-

91).       She also found lottery, bingo, and gambling tickets.         (T.

p. 721).

                                   ARGUMENT

I.     A CLASS H FELONY SENTENCE FOR OBTAINING PROPERTY BY FALSE
       PRETENSES AMOUNTS TO CRUEL OR UNUSUAL PUNISHMENT WHERE THE
       GENERAL ASSEMBLY HAS CREATED A GREATER OFFENSE OF OBTAINING
       ADVANCES UNDER PROMISE TO WORK THAT IS PUNISHED AS A CLASS
       2 MISDEMEANOR.

       Assignment of Error No. 311
       (R. pp. 34-43, 44; T. pp. 748-49, 798-807)

       1.     Standard of Review

       What constitutes cruel or unusual punishment is a question

of law.      State v. Rogers, 275 N.C. 411, 421, 168 S.E.2d 345, 350

(1969).      This Court reviews questions of law de novo.         State v.

Frady, 673 S.E.2d 751, 752, 2009 N.C. App. LEXIS 243, **3 (N.C.

Ct. App. 17 March 2009).

       2.     The felony of obtaining property by false pretenses is
              a lesser included offense of the misdemeanor of
              obtaining advances upon promise to work.

       For an offense to be a lesser included offense of a greater

offense, "all of the essential elements of the lesser crime must

also be essential elements included in the greater crime."

State v. Hinton, 361 N.C. 207, 210, 639 S.E.2d 437, 439 (2007).

All the elements of the lesser offense must be covered by the

greater offense.       State v. Weaver, 306 N.C. 629, 635, 295 S.E.2d




       1
        Assignment of Error 31 was filed contemporaneously with this Brief in
a separate Motion to Amend Record on Appeal.
                               -16-

375, 379 (1982), overruled in part on other grounds by State v.

Collins, 334 N.C. 54, 61, 431 S.E.2d 188, 193 (1993).

    North Carolina General Statute section 14-104, "obtaining

advances under promise to work and pay for same" states:

         If any person, with intent to cheat or defraud
    another, shall obtain any advances in money, provisions,
    goods, wares or merchandise of any description from any
    other person or corporation upon and by color of any
    promise or agreement that the person making the same will
    begin any work or labor of any description for such person
    or corporation from whom the advances are obtained, and the
    person making the promise or agreement shall willfully
    fail, without a lawful excuse, to commence or complete such
    work according to contract, he shall be guilty of a Class 2
    misdemeanor.

N.C. Gen. Stat. § 14-104.

    "The State must prove defendant did not intend to begin

work at the time he received the advances (of money or

provisions, etc.) 'but used the promise [to work] as an artifice

or fraud for the sole purpose of obtaining the advancements . .

. .' "   State v. Octetree, 178 N.C. App. 228, 230, 617 N.C. 356,

358 (2005) (quoting State v. Griffin, 154 N.C. 611, 613, 70 S.E.

292, 292-93 (1911)).

    The essential elements of the offense of obtaining advances

under promise to work are:   (1) that the defendant intended to

cheat or defraud; (2) that the defendant obtained advances of

money by promising or agreeing to begin work or labor for a

person or corporation; and (3) that the defendant failed without
                                 -17-

lawful excuse to commence or complete the work promised.    N.C.

Gen. Stat. § 14-104; N.C.P.I.--Crim. 219.20; (R. p. 44).

       The elements of obtaining 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. Cronin, 299

N.C. 229, 242, 262 S.E.2d 277, 286 (1980); N.C. Gen. Stat. § 14-

100.

       All the elements of obtaining property by false pretenses

are completely covered by the elements of obtaining advances

upon promise to work.    Both offenses require proof of a

fraudulent representation, made with an intent to deceive, that

results in the defendant obtaining something of value because of

the deceit.    Failure to perform work requires proof of the

additional elements that the false representation is a promise

(ie. a contract) and that the defendant failed to begin or

complete the work as promised.    There are no elements of the

offense of obtaining property by false pretenses that are not

present in the offense of failure to perform work.    Therefore

obtaining property by false pretenses is a lesser offense of

failure to perform work.

       Obtaining property by false pretenses is a Class H felony

with a maximum punishment of 30 months in prison depending on a
                                -18-

defendant's prior record level.    N.C. Gen. Stat. §§ 14-100 &

15A-1340.17.    Failure to perform work is a Class 2 misdemeanor

with a maximum punishment of 60 days in prison depending on a

defendant's prior record level.    N.C. Gen. Stat. §§ 14-104 &

15A-1340.17.

    Counsel has found no cases holding that a crime's

punishment is to be considered in determining whether a crime is

a "lesser" or "greater" offense.    It appears that such a

determination is based solely on a comparison of the offenses'

elements.   State v. Hinton, 361 N.C. 207, 210, 639 S.E.2d 437,

439 (2007).

    Counsel has likewise been unable to find any other statutes

where the General Assembly has classified and authorized

punishment for a lesser included offense more severely than the

greater offense.    For whatever reason, however, the General

Assembly has established that when a person fraudulently

promises to work and receives an advance, but fails to begin or

complete the work, the person has committed a misdemeanor and

not a felony.    The General Assembly is well within its

constitutional prerogative to define and prescribe punishments

for crimes.    State v. Cradle, 281 N.C. 198, 209, 188 S.E.2d 296,

303 (1972).

    Apparently the General Assembly has carved out an exception

to the general crime of obtaining property by false pretenses
                                -19-

and created a specific crime involving a promise to do work and

a failure to start or perform such work.    The General Assembly

has made clear that when a false representation is made in the

form of a promise to do future work, and the defendant never

starts or completes the work, then she is guilty of and should

be punished for a Class 2 misdemeanor, not a Class H felony.

N.C. Gen. Stat. § 14-104.

    3.   To allow Ms. Harrison to suffer a felony conviction
         and punishment for a lesser included offense of a
         greater offense that is a misdemeanor requiring less
         severe punishment amounts to cruel and unusual
         punishment.

    The Eighth Amendment to the United States Constitution

prohibits cruel and unusual punishment.    Section 27 of Article I

of the North Carolina Constitution prohibits cruel or unusual

punishment.   To be constitutional, a criminal punishment must be

proportionate to the offense.   State v. Higginbottom, 312 N.C.

760, 762-63, 324 S.E.2d 824, 837 (1985) (quoting Solem v. Helm,

463 U.S. 277, 290, 103 S. Ct. 3001, 3009 (1983)).    The North

Carolina Supreme Court has held that punishment that does not

exceed the limits of those established by statute cannot be

considered cruel or unusual unless "the punishment provisions of

the statute itself are unconstitutional."    State v. Rogers, 275

N.C. 411, 421, 168 S.E.2d 345, 350 (1969).

    The United States Supreme Court has held that sentencing a

defendant for a crime that carried a five year greater sentence
                                -20-

than a more serious offense violated the Eight Amendment's

prohibition against cruel and unusual punishment because the

punishment was disproportionate to the offense.       Weems v. United

States, 217 U.S. 349, 382, 30 S. Ct. 544, 555 (1910).

      Although counsel could find no cases from North Carolina

which provide guidance on this issue, a similar issue was

addressed by the Oregon Supreme Court in Cannon v. Gladden, 203

Or. 629, 281 P.2d 233 (1955).   In Cannon, the defendant was

charged with statutory rape, but ultimately convicted of the

lesser included offense of assault with intent to commit rape.

Id.   He was sentenced to the maximum punishment of life

imprisonment.   Id. at 631, 281 P.2d 233.   However, the maximum

sentence for the greater offense of which he had been charged

and tried, was only twenty years in prison.     Id.   The Oregon

Constitution prohibited cruel and unusual punishment and

required all penalties to be proportioned to the offense.       Id.

The Oregon Supreme Court held that the longer sentence for a

lesser included offense was disproportionate in violation of the

Oregon Constitution.   Id.

      Likewise, in Dembowski v. Indiana, the defendant challenged

the sentence he received for conviction of the crime of

"robbery" as unconstitutionally cruel and unusual under the

federal and Indiana constitutions.     Dembowski v. Indiana, 251

Ind. 250, 240 N.E.2d 815 (1968).     The maximum punishment for
                                -21-

robbery was five years greater than the maximum punishment for

armed robbery, even though "robbery" was a lesser offense of

armed robbery.    Id. at 252, 240 N.E.2d at 816.   The Indiana

Supreme Court held "that the legislature may not, consistent

with the commands of the State and Federal Constitutions,

provide a punishment for a lesser included offense which is

greater in years on the face of the statute than the greater

offense."   Id. at 253, 240 N.E.2d at 816.

    The United States Supreme Court, though not having ruled on

this specific issue in any case counsel could find, has said

"Few would dispute that a lesser included offense should not be

punished more severely than the greater offense."     Solem v.

Helm, 463 U.S. 277, 293, 103 S. Ct. 3001, 3011 (citing Dembowski

v. Indiana, 251 Ind. 250, 240 N.E.2d 815 (1968) and Cannon v.

Gladden, 203 Or. 629, 281 P.2d 233 (1955)).

    Therefore, to the extent that N.C. Gen. Stat. § 14-100 and

§ 14-104 permit Ms. Harrison to be sentenced to a greater

punishment for a lesser offense, the statutes are

unconstitutional on their face and as applied to Ms. Harrison.

    WHEREFORE, Ms. Harrison respectfully asks this Court to set

aside the sentences in 06 CRS 65710, 06 CRS 65712-13, 06 CRS

65715, 06 CRS 67436, 09 CRS 2014, 09 CRS 2015-18 and 09 CRS

2020-22, and remand for resentencing in those cases as for Class

2 misdemeanors.
                                    -22-

II.   AN AMBIGUITY EXISTING BETWEEN WHETHER N.C. GEN. STAT. § 14-
      100 OR § 14-104 SHOULD APPLY TO MS. HARRISON'S CONDUCT
      SHOULD BE RESOLVED IN MS. HARRISON'S FAVOR AND SHE SHOULD
      BE RESENTENCED FOR CLASS 2 MISDEMEANORS.

      Assignment of Error Nos. 322
      (R. pp. 34-43, 44; T. pp. 748-49, 798-807)

      1.    Standard of Review

      Whether statutes are ambiguous should be considered a

question of law.       This Court reviews questions of law de novo.

State v. Frady, 673 S.E.2d 751, 752, 2009 N.C. App. LEXIS 243,

**3 (N.C. Ct. App. 17 March 2009).

      2.    Argument

      As argued above in Assignment of Error I, the offense of

obtaining property by false pretenses is a lesser included

offense of obtaining advances upon promise to work, but carries

a more serious punishment as a Class H felony rather than a

Class 2 misdemeanor.      Such a statutory arrangement whereby a

defendant could be punished more severely for the lesser

included offense when her conduct amounts to the greater offense

amounts to an ambiguity between the two statutes as to how a

defendant should be charged, tried, convicted, and ultimately

sentenced.

      Where an ambiguity exists in criminal statutes, the Rule of

Lenity requires strict construction of the statutes with a


      2
        Assignment of Error 32 was filed contemporaneously with this Brief in
a separate Motion to Amend Record on Appeal.
                               -23-

resolution of the ambiguity in the defendant's favor.    State v.

Hinton, 361 N.C. 207, 210, 639 S.E.2d 437, 439 (2007).   Applying

the Rule of Lenity, this Court should resolve the ambiguity in

Ms. Harrison's favor.   By doing so, Ms. Harrison should have had

judgment entered and been sentenced for Class 2 misdemeanors and

not Class H felonies.

    WHEREFORE, Ms. Harrison respectfully asks this Court to set

aside the sentences in 06 CRS 65710, 06 CRS 65712-13, 06 CRS

65715, 06 CRS 67436, 09 CRS 2014, 09 CRS 2015-18 and 09 CRS

2020-22, and remand for resentencing in those cases as for Class

2 misdemeanors.

III. THE TRIAL COURT ERRED WHEN IT DENIED MS. HARRISON'S REQUEST
     TO INSTRUCT THE JURY THAT IT COULD NOT CONSIDER HER FAILURE
     TO COMPLY WITH HER CONTRACTUAL OBLIGATIONS AS EVIDENCE OF
     FRAUDULENT INTENT.

    Assignments of Error No. 30
    (R. pp. 34-43; T. pp. 753, 798-807)

    1.   Standard of Review

    This Court reviews the denial of a request for a jury

instruction for an abuse of discretion.   State v. Nicholson, 355

N.C. 1, 66, 558 S.E.2d 109, 153 (2002).

    2.   Argument

    During the charge conference, Ms. Harrison requested the

trial court instruct the jury that the jury could not use Ms.

Harrison's failure to comply with her contractual obligations to

infer that she had fraudulent intent when she entered into the
                                   -24-

contracts.   (T. p. 753).    Specifically, Ms. Harrison asked the

trial court to instruct that "evidence of conduct that shows

merely the defendant was inept or that he failed to diligently

pursue the accomplishment of his promise is insufficient to

allow inference that the promise was made without the present

intention to comply with it."      (T. p. 753).     Ms. Harrison argued

such an instruction was proper and required by this Court's

holding in State v. Compton, 90 N.C. App. 101, 367 S.E.2d 353

(1988).

    In Compton, the defendant was convicted of obtaining

property by false pretenses.       Id.    He had contracted to sell

property to a buyer in exchange for cash and some valuable

personal property.    Id.   After taking possession of some of the

personal property, the defendant failed to convey the property

to the buyer.   Id.   The property was foreclosed upon and the

defendant was then unable to comply with his contractual

obligations, and also failed to return all of the personal

property to the buyer.      Id.

    On appeal the defendant argued the evidence was

insufficient to show he had the fraudulent intent not to comply

with the contract and convey the property.          Compton, 90 N.C.

App. at 104, 367 S.E.2d at 355.          The State argued the

defendant's failure to perform was circumstantial evidence of

his fraudulent intent.      Id.   This Court recognized the dangers
                               -25-

of a jury improperly inferring criminal intent merely from a

defendant's failure to carry out a promise.   Id. (citing N.C.

Gen. Stat. § 14-100(b)).   Specifically, this Court stated:

    Evidence of conduct which shows merely that the defendant
    was inept or that he failed to diligently pursue the
    accomplishment of his promise, is insufficient to allow an
    inference that the promise was made without the present
    intention to comply with it.

Compton, 90 N.C. App. at 104, 367 S.E.2d at 355.    This Court

went on to hold the evidence of the defendant's conviction for

obtaining property by false pretenses was insufficient.

Compton, 90 N.C. App. at 105, 367 S.E.2d at 355.

    Here, Ms. Harrison asked the trial court to instruct the

jury based on this Court's holding in Compton.     (T. p. 753).

The trial court denied the request without explanation.     Id.

"The trial court must give a requested instruction that is

supported by both the law and the facts."     State v. Nicholson,

355 N.C. 1, 67, 558 S.E.2d 109, 153 (2002).   A requested

instruction pursuant to Compton would have been a correct

statement of the law under N.C. Gen. Stat. § 14-100(b) which

states:   " Evidence of nonfulfillment of a contract obligation

standing alone shall not establish the essential element of

intent to defraud."   Ms. Harrison's alleged offenses involved

oral and written contracts and the instruction was supported by

the facts.
                                -26-

      Without such an instruction the jury could have improperly

inferred from Ms. Harrison's failure to perform completely under

the contracts that she intended to defraud the alleged victims.

Whether there was other circumstantial evidence of criminal

intent should have been left up to the jury to decide.    But as

it stood without an instruction, the jury could easily have

inferred fraudulent intent based solely on Ms. Harrison's

failure to meet her contractual obligations.

      WHEREFORE, Ms. Harrison respectfully asks this Court to set

aside the judgments in 06 CRS 65710, 06 CRS 65712-13, 06 CRS

65715, 06 CRS 67436, 09 CRS 2014, 09 CRS 2015-18 and 09 CRS

2020-22.

IV.   IF THIS COURT CONCLUDES THE OFFENSE OF OBTAINING ADVANCES
      UNDER PROMISE OF WORK IS NOT A GREATER OFFENSE BUT IS A
      LESSER OFFENSE OF OBTAINING PROPERTY BY FALSE PRETENSES,
      THEN THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO
      INSTRUCT THE JURY ON THE LESSER OFFENSE.

      Assignment of Error No. 29
      (R. pp. 34-43, 44, 103; T. pp. 748-49, 798-807)

      1.   Standard of Review

      Because Ms. Harrison's attorney failed to request an

instruction on the offense of obtaining advances upon promise to

work, this Court reviews for plain error whether the trial court

should have given the instruction.     State v. Walker, 170 N.C.

App. 632, 636, 613 S.E.2d 330, 333 (2005).
                                 -27-

    2.    Argument

    The trial court must instruct the jury on a lesser included

offense when there is evidence from which the jury could find

that the defendant committed the lesser crime.     State v. Conner,

335 N.C. 618, 635, 440 S.E.2d 826, 835 (1994).    "The presence of

such evidence is the determinative factor."     State v. Hicks, 241

N.C. 146, 159, 84 S.E.2d 545, 547 (1954) (emphasis original).

If the evidence is conflicting as to the essential elements of

the greater and lesser offenses, the trial court must instruct

on the lesser offense.     State v. Brown, 300 N.C. 41, 50, 265

S.E.2d 191, 197 (1980), overruled on other grounds, State v.

Collins, 334, N.C. 54, 61-62, 431 S.E.2d 188, 193 (1993).

    If this Court rejects Ms. Harrison's arguments above and

holds that obtaining advances under promise to perform work is a

lesser offense and not a greater offense of obtaining property

by false pretenses, then the trial court committed plain error

when it failed to give an instruction on the lesser offense of

failure to perform work.    In reviewing under a plain error

standard, "reversal is justified when the claimed error is so

basic, prejudicial, and lacking in its elements that justice was

not done."   State v. Prevatte, 356 N.C. 178, 258, 570 S.E.2d

440, 484 (2002).

    The trial court's failure to instruct on failure to perform

work as a lesser offense to obtaining property by false

pretenses was plain error because Ms. Harrison suffered the
                               -28-

prejudice of the jury not being allowed to consider a lesser

charge upon which she could be convicted.   Just because the jury

found Ms. Harrison guilty of the felony offense does not make

the error harmless.   Cf. State v. Johnson, 317 N.C. 417, 437,

347 S.E.2d 7, 19 (1986), superseded by statute on other grounds,

State v. Moore, 335 N.C. 567, 440 S.E.2d 797 (1994).

    WHEREFORE, Ms. Harrison respectfully asks this Court to set

aside the judgments in 06 CRS 65710, 06 CRS 65712-13, 06 CRS

65715, 06 CRS 67436, 09 CRS 2014, 09 CRS 2015-18 and 09 CRS

2020-22.

                            CONCLUSION

    For all the foregoing reasons, Ms. Harrison respectfully

asks this Court to set aside the judgments and sentences as

argued above in 06 CRS 65710, 06 CRS 65712-13, 06 CRS 65715, 06

CRS 67436, 09 CRS 2014, 09 CRS 2015-18 and 09 CRS 2020-22.

    Respectfully submitted this the 30th day of November 2009.


                              _______________________________
                              Glenn Gerding
                              Attorney for Defendant-Appellant
                              109 Westbury Drive
                              Chapel Hill, NC 27516
                              (919) 338-0836
                              Attorney@GerdingLaw.com
                              -29-

               CERTIFICATE OF FILING AND SERVICE

     I hereby certify that the original Defendant-Appellant's
Brief has been filed by mail pursuant to Rule 26 to the Clerk of
the North Carolina Court of Appeals, Post Office Box 2779,
Raleigh, North Carolina 27602, by placing it in a depository for
that purpose.

     I further hereby certify that a copy of the above and
foregoing Defendant-Appellant's Brief has been duly served upon
LaShawn Piquant, Assistant Attorney General, North Carolina
Department of Justice, Post Office Box 629, Raleigh, North
Carolina 27602, by first-class mail, postage prepaid.

    This the 30th day of November 2009.


                              ________________________________
                              Glenn Gerding
                              Attorney for Defendant-Appellant
                              109 Westbury Drive
                              Chapel Hill, NC 27516
                              (919) 338-0836
                              Attorney@GerdingLaw.com

				
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