IN THE COURT OF APPEALS OF NORTH CAROLINA. No. COA Filed: 5 April Appeal by Defendant from judgments entered 3 February 2015 by Judge

Transcription

1 An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. IN THE COURT OF APPEALS OF NORTH CAROLINA No. COA Filed: 5 April 2016 Wayne County, Nos. 13 CRS 51471, 51549, STATE OF NORTH CAROLINA v. RHONDA MICHELLE FRADY Appeal by Defendant from judgments entered 3 February 2015 by Judge Arnold O. Jones II in Wayne County Superior Court. Heard in the Court of Appeals 28 January Attorney General Roy Cooper, by Special Attorney General Harriet F. Worley, for the State. William D. Spence for Defendant. STEPHENS, Judge. In this criminal appeal, we consider arguments by Defendant Rhonda Michelle Frady ( Frady ) that the trial court erred in denying her motions to sever certain of numerous charges against her for trial and to dismiss another charge for insufficiency of the evidence, as well as her contentions regarding incomplete jury instructions and a fatally flawed indictment as to one of the charges. After careful review, we conclude that the indictment charging Frady with obtaining property by false pretenses was

2 fatally flawed, and, accordingly, we vacate that conviction. As for her other arguments, we conclude that Frady received a trial free from prejudicial error. Factual and Procedural Background The evidence at trial tended to show the following: In April 2012, Chandra Chase worked as a parent educator for the Wayne County Cooperative Extension ( WCCE ) Center, facilitating positive interactions between children and their parents during home visits. Angela Frady, one of Chase s co-workers at WCCE, asked Chase to add her adult daughter, Defendant Frady, to Chase s caseload. Chase agreed to help Frady, who moved into a home next door to Chase that summer. Beginning in about February 2013, Chase noticed items missing from her home, including her ipad and her son s ipad, but attributed the disappearances to her recent efforts at organizing the house. Late that month, Chase received a delivery of about $2,000 in inventory of Mary Kay beauty products at her home. The products were in several large packages, and Frady helped Chase and Chase s son carry them inside. Once inside Chase s home, Frady asked about some Mary Kay Bella perfume that Chase had received in the delivery, commenting on how nice it smelled. On 1 March 2013, one of Chase s friends arrived at her home to pick up some Mary Kay items she had ordered from Chase. The friend s order of Bella perfume was missing and Chase noticed that some containers of a Mary Kay men s fragrance were also missing. Chase remarked to her friend that other items had been missing - 2 -

3 recently, and Chase s son decided to check his own possessions. He discovered $120 missing from his room, and Chase s friend s husband discovered that Chase s door lock appeared to have been tampered with. Chase filed a police report regarding the missing items, including the ipads, at least $120 in cash, and a television she realized was no longer in a closet where it had been stored. Chase told the responding officer that she suspected Frady. On the morning of 4 March 2013, a detective with the Wayne County Sheriff s Department called Chase to report that Frady had pawned some of her stolen items at a pawnshop in Goldsboro. Chase attempted to text her supervisor about this development They found my [stolen] stuff but mistakenly sent the text to Frady, who happened to have the same first name as Chase s supervisor. Chase immediately realized her error and worried about Frady s reaction. Chase and Frady had an appointment scheduled later that day at which Chase was supposed to deliver diapers to Frady. Wanting to avoid any kind of confrontation, Chase called Frady and canceled the meeting, but made no reference to the text. Later that afternoon, the local fire department notified Chase that her home was on fire. The fire destroyed most of the trailer and Chase s belongings. Later in March 2013, Chase discovered that someone had applied for and received a Capital One credit card in Chase s name, using the address of Frady s mother. Chase had not applied for any credit card during 2012 or At trial, - 3 -

4 evidence was introduced connecting the credit card to Frady, including testimony from Chase and Jessica Moore, a friend of Frady s, as well as from a representative of Capital One. On 13 January 2014, Frady was indicted on three groups of charges: (1) felony breaking or entering, larceny pursuant to breaking and/or entering, and felony possession of stolen goods in file number 13 CRS with offense dates of February 2013; (2) breaking or entering and second-degree arson in file number 13 CRS with an offense date of 4 March 2013; and (3) identity theft, false statement to receive a credit card, financial transaction card fraud, and obtaining property by false pretenses in file number 13 CRS with offense dates of 21 February to 5 April On 1 May 2014, Frady filed a motion to sever the breaking and entering and arson charges in file number from the other charges against her, including those in file numbers 13 CRS and On 25 November and 17 December 2014, the State moved to join all of the charges for trial. The matters were called for trial at the 26 January 2015 Criminal Session of Wayne County Superior Court, the Honorable Arnold O. Jones II, Judge presiding. At the pretrial hearing, Frady pled guilty to possession of stolen goods in file number 13 CRS According to the trial transcript in the record on appeal, at the pretrial hearing, Frady pled guilty to charges of felony breaking and entering, larceny after breaking and entering, and felony possession of stolen goods in file 13 CRS and felony breaking and entering, larceny pursuant to breaking and entering, and felony possession of stolen goods in file number 13 CRS The record contains little other information about these charges, although the State s motions list the date of the offenses in those file numbers as 15 March In any event, they are not part of this appeal

5 Frady moved to dismiss the identity theft charge at the close of the State s evidence and at the close of all evidence. The trial court denied both motions. The jury returned guilty verdicts on all the remaining charges on 3 February The trial court arrested judgment on the possession of stolen goods conviction and sentenced Frady in the presumptive range to consecutive, active prison terms of 5-15 months each on the breaking and entering convictions; and consecutive terms of 5-15 months on the larceny after breaking and entering; months on the seconddegree arson conviction; months on the identify theft conviction; and 5-15 months on the consolidated convictions for obtaining property by false pretenses, making a false statement to receive a credit card, and financial transaction card fraud. Frady gave notice of appeal in open court. Discussion Frady brings forward four arguments on appeal: that the trial court: (1) erred in denying her motion to sever the breaking and entering and second-degree arson charges from the other charges and committed plain error in joining the charges in file numbers 13 CRS 51471, 51549, and for trial; (2) erred in denying her motion to dismiss the charge of identity theft; (3) erred in failing to instruct the jury on all of the elements of false statement to receive a card and credit card fraud; and (4) erred in entering judgment on her conviction of obtaining property by false pretenses where the indictment was fatally flawed. We find no error in the denial of - 5 -

6 Frady s motions and no prejudicial error in the court s jury instructions. We vacate the judgment entered upon her conviction for obtaining property by false pretenses and remand for resentencing. I. Motion to sever & motion to join all cases for trial Frady first argues that the trial court erred in denying her motion to sever the charges in file number from the charges in the other two file numbers and plainly erred in joining the charges in file numbers 51471, 51549, and for trial. We are not persuaded by her contentions regarding the denial of her motion to sever, and we dismiss her argument regarding joinder of all charges as not properly before this Court. As Frady acknowledges on appeal, although she moved the trial court to sever the breaking and entering and arson charges in file number from the charges in the two remaining file numbers, she did not move the court to try the charges in each file number separately. Recognizing that the issue of joinder was not preserved for appellate review, Frady alleges plain error. See N.C.R. App. P. 10(a)(4) ( In criminal cases, a question which was not preserved by objection noted at trial... may be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error. ). However, our Supreme Court has expressly held that plain error review does not apply to the issue [of] whether joinder of charges was appropriate. Consequently, [where a] defendant[] - 6 -

7 fail[s] to preserve this issue for review, it is not properly before this Court. State v. Alston, 233 N.C. App. 152, 155, 756 S.E.2d 70, 73 (citation omitted), disc. review denied, 367 N.C. 519, 762 S.E.2d 444 (2014). Accordingly, Frady s arguments regarding error in the trial court s joinder of all the charges are dismissed. We turn next to Frady s contention that the trial court erred in denying her motion to sever the breaking and entering and arson charges in file number 13 CRS from the charges in the two remaining file numbers. Consolidation of offenses for trial is controlled by [section] 15A-926(a)[], which provides, in pertinent part, that offenses may be joined only when: The offenses, whether felonies or misdemeanors or both, are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan. And although a motion to consolidate charges for trial is addressed to the sound discretion of the trial court, the determination of whether a group of offenses are [sic] transactionally related so that they may be joined for trial is a question of law fully reviewable on appeal. So, for offenses to be joined, there must be a transactional connection common to all, and the trial court must determine that a defendant would not be prejudiced by hearing more than one charge at the same trial. State v. Williams, 74 N.C. App. 695, , 329 S.E.2d 705, 707 (citations, internal quotation marks, and some brackets omitted), disc. review denied, 314 N.C. 547, 335 S.E.2d 29 (1985). We consider the following factors to make th[e] determination [of a transactional relationship]: (1) the nature of the offenses charged; (2) any commonality of facts between the offenses; (3) the lapse of time between the offenses; - 7 -

8 and (4) the unique circumstances of each case. State v. Perry, 142 N.C. App. 177, 181, 541 S.E.2d 746, 749 (2001) (citation and internal quotation marks omitted). Frady contends that the only connection between the breaking and entering and arson group of charges and the other offenses was that Chase was the victim. Frady asserts that this connection was insufficient to show that the offenses were transactionally related, citing Williams and State v. Wilson, 57 N.C. App. 444, 291 S.E.2d 830, disc. review denied, 306 N.C. 563, 294 S.E.2d 375 (1982). We reject Frady s factual premise, find Williams and Wilson easily distinguishable, and conclude that the breaking and entering and arson group of charges was sufficiently transactionally related to the other offenses that joinder was proper. In Williams, the defendant faced thirteen counts of second-degree burglary, eleven counts of felonious larceny, two counts of conspiracy, and one count of attempted safecracking arising from a conspiracy to burglarize wealthy homes in Raleigh on two weekends, one in October 1982 and the other in January Williams, 74 N.C. App. at , 329 S.E.2d at 706. This Court rejected the State s assertion that joinder was proper because the offenses charged were all part of a common scheme or plan, noting that otherwise unrelated crimes of the same class of offense, or in the commission of which a defendant employs the same modus operandi, are not transactionally related. Id. at , 329 S.E.2d at

9 Similarly, in Wilson, the [d]efendant was charged in separate bills of indictment with obtaining money under false pretenses from two different sets of victims in incidents approximately three weeks apart. 57 N.C. App. at 445, 291 S.E.2d at 831. As in Williams, this Court concluded that joinder was erroneous, because, [w]hile the two offenses for which [the] defendant was tried have common characteristics, the [pertinent] statute... does not allow joinder on the basis that the offenses charged are of the same class of crime. The offenses for which [the] defendant was tried were separate and distinct, not part of a single scheme or plan. Id. at 449, 291 S.E.2d at 833 (citation and internal quotation marks omitted). Here, in contrast, the State argued that the joined offenses shared a strong and overlapping commonality of facts, such that Frady s alleged motive for breaking and entering Chase s trailer and then setting it on fire could not be understood in isolation from the other offenses: I mean if we had just an arson trial we would be seeking to put evidence forth that... Frady broke into a house and stole items and then learned about the fact that law enforcement may have known who it was and that would be her motive for committing the arson; so even if we were to you know, the Court were to sever, you d have a situation where we d have the exact same trial, because the State would be seeking to show a motive for the crime. As to [file number 13 CRS 2632], the ID theft, you know, the credit card, the false credit card counts, they should be joined as well, because if we had just a ID theft trial, well, we d want to show where... Frady got the information - 9 -

10 from... Chase, the alleged victim, and in that trial we would be seeking to, again, put evidence forth about the breaking and entering, because we re alleging that s where the information was, was obtained by... Frady, so, again, you d have a situation where we d have evidence repeating itself again, the witnesses coming to court again. So these, these three sets of crimes should be tried together, because they build upon each other, they re very[,] very related intimately related to each other, and separating them apart would just lead to a great deal of repetition of evidence.... We agree that the factual commonalities and motive connection between the breaking and entering and arson crimes and the other offenses against Chase were strong, and thus, we conclude that the arson group of charges was transactionally related to the other offenses. Where such a connection exists, consideration then must be given as to whether the accused can receive a fair hearing on more than one charge at the same trial, i.e., whether consolidation hinders or deprives the accused of his ability to present his defense. State v. Montford, 137 N.C. App. 495, 498, 529 S.E.2d 247, 250 (citation and internal quotation marks omitted; italics added), cert. denied, 353 N.C. 275, 546 S.E.2d 386 (2000). This determination is addressed to the sound discretion of the trial judge and is not reviewable on appeal absent a manifest abuse of that discretion. Id. (citation omitted). Regarding prejudice, Frady contends that [b]y trying all nine cases together, the jury was given the impression that Ms. Frady was possessed of a criminal

11 disposition and nature. Further, if the jury was satisfied of her guilt on any one of the alleged crimes, it may have used that guilt to convict her of all or some of the other charges a possibility that could have been easily avoided by requiring separate trials. As noted supra, the State alleged that Frady s discovery that Chase reported the offenses in file number 13 CRS to law enforcement established the motive for the second breaking and entering and the arson charges in file number 13 CRS 51549, and the personal information Frady allegedly used to commit the fraud-related offenses in file number 13 CRS was obtained during one of the breaking and entering crimes. Thus, the same evidence would have been introduced [in all of the trials, even] had the trials been separated. See id. at 499, 529 S.E.2d at 251. Accordingly, we hold that the trial court did not abuse its discretion in denying Frady s motion to sever. II. Motion to dismiss the charge of identity theft Frady next argues that the trial court erred in denying her motion to dismiss the charge of identity theft because the evidence that she obtained, possessed, or used any of Chase s identifying information in order to obtain a credit card in Chase s name was insufficient to submit this charge to the jury. Specifically, Frady contends that no evidence was presented about what identifying information was allegedly used because (1) Chase testified only about the last four digits of her social security number

12 and (2) no one testified about who prepared or submitted the Capital One credit card application. We are wholly unpersuaded by Frady s argument. 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) (citation omitted). Upon [a] 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. State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (citation and internal quotation marks 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). In making its determination, the trial court must consider all evidence admitted, whether competent or 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). Circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence. If the evidence presented is circumstantial, the court must consider whether a reasonable inference of [the] defendant s guilt may be drawn from the circumstances. Once the court decides that a reasonable inference of [the] defendant s guilt may be drawn from the circumstances,

13 then it is for the jury to decide whether the facts, taken singly or in combination, satisfy [it] beyond a reasonable doubt that the defendant is actually guilty. Fritsch, 351 N.C. at 379, 526 S.E.2d at 455 (citations and internal quotation marks omitted). Our identity theft statute provides: A person who knowingly obtains, possesses, or uses identifying information of another person, living or dead, with the intent to fraudulently represent that the person is the other person for the purposes of making financial or credit transactions in the other person s name, to obtain anything of value, benefit, or advantage, or for the purpose of avoiding legal consequences is guilty of a felony.... N.C. Gen. Stat (a) (2015). One example of identifying information specifically enumerated in the statute is a person s social security number. N.C. Gen. Stat (b)(1). At trial, Chase testified that she had not applied for a credit card in 2012 or 2013, and that 109 Ava Street was the address of her co-worker Angela Frady, Frady s mother. Chase also testified about the last four digits of her social security number and noted that a tax form listing her social security number had been on her desk at the time of the theft of items from her home. John Riley, a fraud investigator for Capital One, testified that the bank received an online application for a credit card in the name of Chandra Chase, listing an address of 109 Ava Street, and containing Chase s birthdate and a social security number with the same last four digits that

14 Chase testified were her own. Riley also noted that Frady s cell phone number was used in connection with the application and that a total of 14 calls from that phone number were made to Capital One about the credit card the bank issued and mailed to the 109 Ava Street address. Frady s friend Moore testified that, at some point after 4 March 2013, Frady told her that she had received a credit card at her mother s address, although Moore did not have any information about how Frady obtained the card. Moore explained that she, accompanied by Frady, used the credit card for several purchases and to obtain cash at several automatic teller machines. Moore also testified that Frady admitted stealing items from inside Chase s home, placing Frady in the location where Chase s tax form listing her social security number was in plain view on a desk. We conclude that, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor[,] see Rose, 339 N.C. at 192, 451 S.E.2d at 223 (citation omitted), although this evidence does not rule out every hypothesis of innocence.... a reasonable inference of [Frady s] guilt may be drawn from the circumstances. See Fritsch, 351 N.C. at 379, 526 S.E.2d at 455 (citation and internal quotation marks omitted). Accordingly, it was for the jury to decide whether the facts, taken singly or in combination, satisf[ied it] beyond a reasonable doubt that [Frady was] actually guilty[,] see id., and the trial court did not err in denying Frady s motion to dismiss the identify theft charge

15 III. Jury instructions on making a false statement to receive a credit card and financial transaction card fraud Frady also argues that the trial court erred in failing to instruct the jury on all of the elements of false statement to receive a card and credit card fraud. Frady acknowledges that she did not object to the instructions at trial. While we agree that the trial court did not instruct the jury on the offense of making a false statement to obtain a card, we hold that Frady cannot show she was prejudiced by this error. Further, we conclude that the court properly charged the jury regarding the offense of credit card fraud. Jury instructions not challenged at trial are normally reviewed for plain error. Nevertheless, a trial court s omission of elements of a crime in its recitation of jury instructions is treated as an unwaivable violation of the right to a unanimous jury found in Article I, Section 24 of the North Carolina Constitution, and, therefore, is reviewed under the harmless error test. State v. Smith, 225 N.C. App. 471, 474, 736 S.E.2d 847, 850 (2013) (citations and internal quotation marks omitted). Under the plain error standard, [a] defendant must show that the instructions were erroneous and that absent the erroneous instructions, a jury probably would have returned a different verdict. The error in the instructions must be so fundamental that it denied the defendant a fair trial and quite probably tilted the scales against him. It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court. In deciding whether a defect in the jury instruction constitutes plain error, the appellate court must examine the entire record and determine if the

16 instructional error had a probable impact on the jury s finding of guilt. Id. at 475, 736 S.E.2d at (citation and internal quotation marks omitted). Under harmless error review, [t]he State bears the burden of showing that the error was harmless beyond a reasonable doubt. An error is harmless beyond a reasonable doubt if it did not contribute to the defendant s conviction. State v. Wilson, 363 N.C. 478, 487, 681 S.E.2d 325, 331 (2009) (citation and internal quotation marks omitted). Credit card fraud, denominated in our General Statutes as [f]inancial transaction card fraud[,] occurs when, with intent to defraud the issuer, [or] a person or organization providing money, goods, services or anything else of value, or any other person, [the defendant]... [u]ses for the purpose of obtaining money, goods, services or anything else of value a financial transaction card obtained... as a result of a fraudulent application in violation of [section] (c).... N.C. Gen. Stat (a) (2015). Subsection (c), in turn, defines the offense of making a false statement to obtain a card and provides that [a] person is guilty of financial transaction card fraud when, upon application for a financial transaction card to an issuer, he knowingly makes or causes to be made a false statement or report relative to his name... for the purpose of influencing the issuer to issue a financial transaction card. N.C. Gen. Stat (c)

17 Here, in connection with the charges under section , the trial court instructed the jury: The Defendant has also been charged with identity theft. For you to find the Defendant guilty of this offense, the State must prove two things to you beyond a reasonable doubt. First, that the Defendant obtained or possessed or used personal identifying information of another person. Using a social security number would be personal identifying information. And, second, that the Defendant acted knowingly and with the intent to fraudulently represent that the Defendant was that other person for the purposes of making financial credit transactions in the other person s name. If you find from the evidence beyond a reasonable doubt that between the dates of February 21, 2013 and March 21, 2013 that the Defendant either obtained or possessed or used personal identifying information of another person and that the Defendant did so knowingly with the intent to fraudulently represent that the Defendant was that other person for the purpose of making financial credit transactions in that other person s name, it would be your duty to return a verdict of guilty. If you do not so find or have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty. The Defendant has also been charged with felonious credit card fraud. For you to find the Defendant guilty of this offense the State must prove four things to you beyond a reasonable doubt. First, that the Defendant intended to defraud. Second, that she used a credit card [that] was not hers. Third, that she knew the credit card should not have been used by her

18 And, fourth, that she used the credit card for the purposes of obtaining either money, credit or goods or something of value. If you find from the evidence that between the dates of March 27, 2013 and April 5th, 2013 the Defendant with the intent to defraud used a credit card which she knew was not hers for the purpose or should not have been hers for the purpose of obtaining either money, credit, services or something of value, then it would be your duty to return a verdict of guilty of credit card fraud. If you do not so find or have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty. The Defendant has also been charged with felonious credit card fraud I think I just did that one. Excuse me. I apologize. The trial court, apparently as a result of confusion due to the relationship between the elements of the offenses defined by subsections (a) and (c), did not explicitly instruct the jury regarding the offense of making a false statement to obtain a card. We conclude that the trial court s reference to Frady using a card that was not hers and that which she knew she should not be using was sufficient to charge all the elements of credit card fraud under section (a), and, thus, we overrule Frady s argument that the trial court erred in instructing the jury on this offense. However, we reject the State s contention that, because all of the elements of subsection (c) were mentioned in connection with the charges on credit card fraud and identity theft, the trial court properly instructed the jury on the offense of

19 making a false statement to obtain a card. The court did not even mention this offense to the jury much less instruct the jury on it, and the mere fact that the court, in instructing on various other offenses, happened to instruct in the aggregate on the elements that would constitute another crime does not mean that the court properly instructed the jury on the crime of making false statements to obtain a card. However, this determination does not end our inquiry. Having concluded that the jury instructions did not charge the elements of making false statements to obtain a card, we must consider whether that error was harmless beyond a reasonable doubt. See Wilson, 363 N.C. at 487, 681 S.E.2d at 331 (holding that error is harmless beyond a reasonable doubt if it did not contribute to the defendant s conviction ) (citation and internal quotation marks omitted). Here, we conclude that it was. The jury found Frady guilty of identity theft, the elements of which are that a defendant [(1)] knowingly [(2)] obtains, possesses, or uses [(3)] identifying information of another person... [(4)] with the intent to fraudulently represent that the person is the other person [(5)] for the purposes of making... credit transactions in the other person s name, [(6)] to obtain anything of value.... See N.C. Gen. Stat (a). Frady does not contend that the jury was not properly instructed regarding this offense, which required that the jury determine Frady fraudulently obtained a credit card in Chase s name. Conviction of this offense requires factual findings by the jury that encompass all of the facts that would prove the offense of making false statements to

20 obtain a card under subsection (c). Thus, having found Frady guilty of identity theft, had the jury been properly instructed on the offense of making false statements to obtain a credit card, it would have had to return a guilty verdict on that offense as well. Accordingly, the error in the trial court s jury instructions was harmless, and we overrule this argument. IV. Indictment charging obtaining property by false pretenses Finally, Frady argues that the trial court erred in entering judgment on her conviction of obtaining property by false pretenses where the indictment was fatally flawed because it did not specifically identify the item obtained by false pretenses. We agree. An attack on an indictment is waived when its validity is not challenged in the trial court. State v. Wallace, 351 N.C. 481, 503, 528 S.E.2d 326, 341 (citation omitted), cert. denied, 531 U.S. 1018, 148 L. Ed. 2d 498 (2000). However, where an indictment is alleged to be invalid on its face, thereby depriving the trial court of its jurisdiction, a challenge to that indictment may be made at any time, even if it was not contested in the trial court. Id. (citations omitted). An indictment must contain a plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of a criminal offense and the defendant s commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation

21 The purpose of this requirement is: (1) to provide such certainty in the statement of the accusation as will identify the offense with which the accused is sought to be charged; (2) to protect the accused from being twice put in jeopardy for the same offense; (3) to enable the accused to prepare for trial, and (4) to enable the court, on conviction or plea of nolo contendere or guilty to pronounce sentence according to the rights of the case. An indictment couched in the language of the statute is generally sufficient to charge the statutory offense. But if the statutory words fail to charge the essential elements of the offense in a plain, intelligible, and explicit manner, they must be supplemented by other allegations which so plainly, intelligibly and explicitly set forth every essential element of the offense as to leave no doubt in the mind of the accused and the court as to the offense intended to be charged. State v. Jones, 367 N.C. 299, , 758 S.E.2d 345, (2014) (citations, internal quotation marks, and brackets omitted). Pertinent to this appeal, the elements of obtaining property by false pretenses [are] (1) knowingly and designedly by means of any kind of false pretense (2) obtaining or attempting to obtain from any person... any money, goods, property, services, chose in action, or other thing of value; (3) with intent to cheat or defraud any person of such money, goods, property, services, chose in action or other thing of value. Additionally, it is the general rule that the thing obtained by the false pretense... must be described with reasonable certainty, and by the name or term usually employed to describe it. This Court... consistently has held that simply describing the property obtained as money is insufficient to allege the crime of obtaining property by false pretenses

22 Id. at 307, 758 S.E.2d at 351 (citations, internal quotation marks, and brackets omitted). In Jones, our Supreme Court found insufficient an indictment which described the things obtained as services when the things obtained were actually tires, rims, wiper blades, tire and rim installation, wheel alignment, and brake services.... Id. at 308, 758 S.E.2d at 351. The State, however, cites State v. Ledwell, in which the challenged indictments alleged the defendant represented to an employee of [Walmart] that he was entitled to a refund for a watch band, when in truth and in fact, the defendant knew that he had unlawfully taken the watch band and was not entitled to a refund. 171 N.C. App. 314, 318, 614 S.E.2d 562, 565 (2005) (internal quotation marks omitted). On appeal, the defendant contended that the indictments were invalid because they did not include a specific amount of currency which [the] defendant was alleged to have obtained. Id. at 317, 614 S.E.2d at 565. In rejecting that argument, this Court held that [t]he term United States currency [was] sufficient to describe the money and the inclusion of the watch band in the indictment provides [the] defendant with notice of the crime of which he is accused. Id. at 318, 614 S.E.2d at 565. We find this case distinguishable. Here, the evidence at trial was that Frady and Moore used the credit card obtained in Chase s name to buy dog food and other items at a Dollar General store, and food at fast food restaurants, as well as to make several cash withdrawals at

23 automatic teller machines. However, the indictment merely alleges that Frady used the credit card for multiple transactions totaling $ [to] fraudulently acquir[e] goods and currency.... Unlike the indictment in Ledwell, no specific information is included to give Frady notice of the crime of which [she] is accused. See id. We find the vague language in the indictment here analogous to that in Jones and hold that the indictment was facially invalid. Accordingly, the judgment entered upon Frady s conviction for obtaining property by false pretenses is vacated. Because that conviction, a Class H felony, was consolidated for sentencing with Frady s convictions for the misdemeanors of making a false statement to receive a card and financial card fraud, we remand to the trial court for resentencing. DISMISSED IN PART; NO ERROR IN PART; HARMLESS ERROR IN PART; VACATED IN PART AND REMANDED FOR RESENTENCING. Judges HUNTER, JR., and INMAN concur. Report per Rule 30(e)