State v. Holanek

242 N.C.App. 633

776 S.E.2d 225

STATE of North Carolina.

v.Stephanie Jean HOLANEK.

No. COA14–951.

Court of Appeals of North Carolina.

Aug. 18, 2015.

Roy Cooper, Attorney General, by Hugh A. Harris, Assistant Attorney General, for the State.

Staples S. Hughes, Appellate Defender, by Jason Christopher Yoder, Assistant Appellate Defender, for defendant-appellant.

DAVIS, Judge.

Stephanie Jean Holanek ("Defendant") appeals from her convictions for three counts of obtaining property by false pretenses. On appeal, Defendant contends that the trial court erred in (1) denying her motion to dismiss the charges of obtaining property by false pretenses based on the insufficiency of the evidence; (2) its instructions to the jury concerning the elements of obtaining property by false pretenses; (3) admitting testimony that Defendant did not appear for an examination under oath in connection with the claims she filed with her insurance company; (4) failing to give a jury instruction pursuant to N.C. Gen.Stat. § 14–100(b) where the State introduced evidence of Defendant's breach of contract; and (5) entering judgment on her convictions because the indictments for each of the obtaining property by false pretenses charges were fatally defective. After careful review, we vacate in part and find no error in part.

Factual Background

The State's evidence at trial tended to establish the following facts: On 26 September 2009, Defendant's septic tank at her home in Wilmington, North Carolina backed up, causing the three toilets in her home to overflow and resulting in water damage to the first and second floors. Defendant filed a claim with her insurance company, State Farm Fire and Casualty Company ("State Farm"). A claims adjuster with State Farm, Jarred Norris ("Norris"), visited Defendant's house to document the damage. State Farm issued a check for $4,494.69 to Defendant in November 2009 to pay for the expenses of moving the contents of the first floor of her house into a storage unit. State Farm arranged for one of its contractors, Service Master, to perform the job.

On 18 October 2009, Defendant faxed State Farm an invoice in the amount of $4,760.00 from an entity called M & M Movers that purported to be for the costs associated with moving the contents of the second floor of her house into storage. The invoice listed M & M Movers' business address as 817 West Rowan Avenue in Fayetteville, North Carolina.¹ Her fax coversheet stated that she had paid M & M Movers the amount listed on the invoice as well as an additional $474.00 for storage fees. State Farm issued a check to Defendant in the total amount of $5,234.00 to cover each of those expenses on 28 October 2009.

On 12 October 2009, Defendant checked four pets into Meadowsweet Pet Boarding and Grooming ("Meadowsweet") because the temporary rental home where she was living while her home was being repaired did not allow pets. Defendant initially made an electronic reservation for the pets to remain at Meadowsweet for only ten days (from 12 October to 22 October 2009), but the checkout date on the form was then changed to reflect the fact that the pets would remain at Meadowsweet through 12 November 2009.

Another claims adjuster, Chris Rowley ("Rowley"), informed Defendant that State Farm would cover pet boarding under her additional living expense coverage if she provided an estimate of the cost. Nevertheless, prior to her submission of such an estimate, State Farm issued a check to Defendant on 19 October 2009 for $2,040.00 in pet boarding expenses.

Three days later, on 22 October 2009, Defendant submitted to State Farm a document that had been generated by Meadowsweet entitled "STATEMENT of CURRENT CHARGES—NOT a RECEIPT" listing the amount of $2,040.00, which reflected Meadowsweet's estimate of the pet boarding costs that would apply to the boarding of her two dogs and two cats from 12 October to 12 November 2009. On the document, Defendant wrote a handwritten note stating as follows:

Please Reimburse for Pet Boarding

$2,040.00 (30 days)

$4,080.00 (60 days)

Thanks,

Stephanie Holanek

State Farm proceeded to issue monthly payments to her in the amount of $2,040.00 for pet boarding expenses for approximately six months. Defendant periodically called State Farm during this time period to make sure that State Farm was continuing to issue checks for the pet boarding services.

On 25 February 2010, Rowley's manager asked him to obtain confirmation that the pets were still at Meadowsweet before State Farm would issue any further checks for pet boarding expenses. On several occasions, Rowley asked Defendant to confirm that her pets were still being boarded at Meadowsweet, and Defendant told him that "she was too busy to get the information for [him] from the kennel ... but she would try and get it." State Farm ceased providing payments in April 2010, and in May 2010, Defendant told Rowley that her pets were going to be evicted because of outstanding amounts owed to Meadowsweet. Rowley then contacted Meadowsweet and learned from an employee that the animals were no longer at Meadowsweet and had been checked out back on 22 October 2009.² When Rowley confronted Defendant with this information over the phone, Defendant told him that she had taken her pets out of Meadowsweet and sent them with her brother to be boarded in a kennel in Fayetteville. Rowley requested the contact information for the new kennel, but Defendant never provided it to him.

On 28 July 2010, Defendant faxed State Farm an invoice for moving services from a business called PJ's Moving Company, purportedly located at 6012 Oleander Drive in Wilmington, North Carolina, in the amount of $10,430.00. Defendant requested reimbursement for the moving expenses listed on the invoice, which consisted of three days of moving furniture from the temporary storage unit back into her home. A handwritten note at the top right corner of the invoice stated that the bill had been paid in full.

Kent Dawdy ("Dawdy"), a claims representative in State Farm's special investigative unit, was assigned to investigate Defendant's insurance claim on 15 September 2010. Dawdy contacted Defendant the following day and informed her that State Farm was going to invoke a contractual policy provision allowing it to require her to submit to an examination under oath for the purpose of resolving questions about her claims. State Farm retained an attorney, J. Thomas Cox, Jr. ("Cox"), to conduct the examination. Cox mailed a letter to Defendant on 24 September 2010 requesting that she appear for the examination at a court reporter's office on 20 October 2010, and Cox's paralegal gave her a reminder call on 19 October 2010. Dawdy, Cox, and the court reporter appeared for the examination on 20 October and waited for Defendant for thirty minutes, but she did not appear. Cox then sent Defendant a letter on 28 October 2010 giving her the opportunity to schedule a new date for the examination, but she did not respond. Cox sent a third letter on 16 November 2010 informing her that the examination had been rescheduled for 30 November 2010, but, once again, she failed to appear for the examination.

In the course of his investigation, Dawdy attempted to locate PJ's Moving Company but could not find the address contained in the invoice—6012 Oleander Drive in Wilmington. He also attempted to find M & M Movers at 817 Rowan Avenue in Fayetteville and instead found a house located at that address. Dawdy did not observe moving equipment or trucks at the residence. In his trial testimony, he stated that he did not recall whether he had searched the Internet or used a phone book in an effort to locate either PJ's Moving Company or M & M Movers. He explained that he did not do a more extensive search because State Farm's attorney planned to ask Defendant to provide clarifying information about these entities at the examination.

On 9 December 2010, State Farm concluded that Defendant was not in compliance with the conditions of her policy based on her failure to appear for the scheduled examinations and denied her subsequent claims on that basis. Dawdy contacted the North Carolina Department of Insurance ("DOI") to report State Farm's suspicions that Defendant had committed insurance fraud. Mickey Biggs ("Biggs"), a criminal investigator with DOI, received the case on 12 December 2010 and began his investigation in May 2011. Biggs was unable to locate either M & M Movers or PJ's Moving Company through Internet searches, phone calls, or physical visits.

On 17 January 2012, a grand jury indicted Defendant on four counts of insurance fraud, three counts of obtaining property by false pretenses, and one count of attempting to obtain property by false pretenses. The State voluntarily dismissed one count of insurance fraud and the charge of attempting to obtain property by false pretenses before trial.

The matter came on for a jury trial beginning 4 March 2014 in New Hanover County Superior Court before the Honorable Jay D. Hockenbury. Following the State's case-in-chief, Defendant offered evidence in her defense, calling her brother, Paul Thompson, Jr. ("Thompson"), as a witness. Thompson testified that he had moved to Wilmington in July 2010 to help Defendant because she had just opened a consignment store and given birth to triplets. He further testified that (1) he was operating PJ's Moving Company out of the back of the consignment store at 6012 Oleander Drive³ ; (2) he received referrals for his moving services from the consignment store; and (3) along with two other movers, he had moved the contents of the temporary storage unit back into Defendant's house and reassembled the furniture. Thompson also stated that he had prepared a handwritten invoice for the applicable expenses and charges that was then typed up by Defendant.

On 7 March 2014, the jury found Defendant guilty of all remaining charges—three counts of insurance fraud and three counts of obtaining property by false pretenses. The...