IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-308

No. COA20-644

Filed 6 July 2021

Burke County, No. 18 CRS 341

STATE OF NORTH CAROLINA

v.

JOSHUA ARRON GIBSON, Defendant.

Appeal by Defendant from judgment entered on 18 February 2020 by Judge 

Steven Warren in Burke County Superior Court. Heard in the Court of Appeals 28 

April 2021.

Attorney General Joshua H. Stein, by Assistant Attorney General Elizabeth B. 

Jenkins, for the State.

Gilda C. Rodriguez for Defendant-Appellant. 

JACKSON, Judge.

¶ 1 Joshua Gibson (“Defendant”) argues that the trial court erred when it (1) 

denied Defendant’s motion to dismiss and (2) ordered payment of attorney’s fees 

without affording Defendant an opportunity to be heard. We disagree and find no 

error in the proceedings below. 

I. Facts and Procedural Background

¶ 2 On 3 May 2017, Kress Berry (“Mr. Berry”), a financial services representative,
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operated the drive through lanes of a State Employees’ Credit Union branch

(“SECU”). During Mr. Berry’s shift, a car pulled into the drive-through lane closest 

to him—placing the car and Mr. Berry approximately within 10 to 12 feet of each 

other. The individual sitting on the rear passenger side rolled his window down and 

submitted a check, driver’s license, and social security card through the SECU tube 

system.

¶ 3 Upon receiving the check and identification documents, Mr. Berry confirmed 

that the driver’s license, belonging to Defendant, matched the individual who was in 

the car. Mr. Berry, however, became suspicious of the check which he believed “didn’t 

feel quite right.” Mr. Berry also noticed that the writing on different parts of the 

check did not match, prompting Mr. Berry to contact Patricia Austin (“Mrs. Austin”), 

the person who had allegedly written the check. Mrs. Austin informed Mr. Berry that 

she did not write a check to Defendant and did not, in fact, know Defendant. Mrs. 

Austin did, however, write the check to the utility company for the Town of Long View 

and deposited it in her mailbox. Before the mailman could retrieve the utility 

payment, a vehicle drove up to Mrs. Austin’s mailbox and removed the check.

¶ 4 After speaking with Mrs. Austin, Mr. Berry raised his concerns to his 

supervisor. At that time, the car Defendant was in drove away. Following the 

incident, SECU employees contacted the sheriff’s department and provided officers 

with the original check, Defendant’s driver’s license, and his social security card that 
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had been deposited through the SECU tube system.

¶ 5 On 16 April 2018, a grand jury indicted Defendant for uttering a forged 

instrument. The case was later tried on 18 February 2020, before the Honorable 

Judge Steven Warren in Burke County Superior Court. During the trial, Detective 

Burton Wilbur (“Detective Wilbur”) of the Burke County Sheriff’s Office testified 

regarding the chain of custody of Defendant’s driver’s license and social security card, 

and the check presented to Mr. Berry. Mrs. Austin’s husband also testified, 

confirming that he did not write a check to Defendant.

¶ 6 At the close of the State’s evidence, Defendant moved to dismiss the charge of

uttering a forged instrument for the State’s failure to present sufficient evidence that 

Defendant was the perpetrator of the alleged offense. The court denied Defendant’s 

motion. At the close of all the evidence, Defendant renewed his motion; the court 

denied that motion as well.

¶ 7 The jury returned a guilty verdict, and on 18 February 2020 Judge Warren

entered a judgment sentencing Defendant to a term of five to 15 months, suspending

the sentence, and placing Defendant on supervised probation for 18 months.

¶ 8 On 20 February 2020, Defendant filed a written notice of appeal.

II. Analysis

¶ 9 Defendant contends that the trial court erred in (1) denying Defendant’s 

motion to dismiss for failure to present sufficient evidence that Defendant was the 
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perpetrator and (2) ordering attorney’s fees without affording Defendant the 

opportunity to be heard. We address each issue in turn. 

A. Motion to Dismiss

¶ 10 A defendant’s motion to dismiss should be denied if “there is substantial 

evidence (1) of each essential element of the offense charged, or of a lesser offense 

included therein, and (2) of [the] defendant[ ] being the perpetrator of such offense.” 

State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002) (citation omitted). 

Substantial evidence is defined as “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) (citations omitted). We review a trial court’s denial of 

a motion to dismiss de novo. State v. Sanders, 208 N.C. App. 142, 144, 701 S.E.2d 

380, 382 (2010).

¶ 11 “The essential elements of the crime of uttering a forged check are (1) the offer 

of a forged check to another, (2) with knowledge that the check is false, and (3) with 

the intent to defraud or injure another.” State v. Hill, 31 N.C. App. 248, 249, 229 

S.E.2d 810 (1976). Here, Defendant does not challenge whether the offense was 

committed. Instead, Defendant challenges the identity requirement necessary to 

overcome a motion to dismiss—arguing that the trial court erred in denying 

Defendant’s motion to dismiss because the State failed to present sufficient evidence 

that Defendant was the perpetrator.
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¶ 12 “In reviewing challenges to the sufficiency of evidence, we must view the 

evidence in the light most favorable to the State, giving the State the benefit of all 

reasonable inferences.” Scott, 356 N.C. at 596, 573 S.E.2d at 869 (citation omitted). 

“Moreover, circumstantial evidence may withstand a motion to dismiss and support 

a conviction even when the evidence does not rule out every hypothesis of innocence.”

State v. Kemmerlin, 356 N.C. 446, 473, 573 S.E.2d 870, 889 (2002) (internal marks 

and citations omitted). Indeed, “[t]he trial court[,] in considering such motions[,] is 

concerned only with the sufficiency of the evidence to carry the case to the jury and 

not with its weight.” State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980). To 

that end, “contradictions and discrepancies are for the jury to resolve and do not 

warrant dismissal.” Id. 

¶ 13 Defendant was charged with uttering a forged instrument. During trial, the 

State offered the following as evidence that Defendant committed the offense: (1)

Defendant’s driver’s license and social security card, which was furnished to Mr. 

Berry at the SECU drive-through; (2) testimony from Detective Wilbur, confirming 

the chain of custody to verify that the jury was presented with the same items that 

were furnished to Mr. Berry on 3 May 2017; and (3) testimony from Mr. Berry that 

he confirmed that the person in the drive-through lane matched Defendant’s driver’s 

license.

¶ 14 Taken in the light most favorable to the State and drawing all reasonable 
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inferences in favor of the State, the evidence showed that Defendant’s driver’s license 

and social security card were given to Mr. Berry along with a forged instrument, in 

the form of a check. Upon receiving the identifying documents, Mr. Berry utilized 

the driver’s license, which indisputably belongs to Defendant, to confirm that the 

person in the SECU drive-through matched the person who provided him with the 

license. During trial, Mr. Berry also confirmed that the individual in the rear seat of 

the car was clearly visible and within 10 to 12 feet of him when he compared the 

photograph on the license to the individual in the car—matching Defendant to his 

driver’s license. After confirming Defendant was in fact the individual he was dealing 

with, Mr. Berry took notice of the check’s texture, which he described as “real stiff,” 

as if “it had been damp or wet at some point.” Mr. Berry also noticed that the writing 

on the check did not match the signature.

¶ 15 These suspicions prompted Mr. Berry to contact the member who had 

“allegedly” written the check to Defendant. The member, Mrs. Austin, reviewed her 

checkbook and confirmed that the check had been written to a utility company. At 

trial, she testified that the check was taken from her mailbox the day preceding the

offense. After contacting his supervisor, Mr. Berry testified that the car drove away. 

Thereafter, the sheriff’s office was contacted and provided with the original check and 

Defendant’s driver’s license and social security card. Detective Wilbur confirmed the 

chain of custody of Defendant’s driver’s license and social security card to ensure that 
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the jury received the same documents that Mr. Berry received on 3 May 2017. 

¶ 16 Defendant contends that these facts are similar to State v. Bass, 303 N.C. 267, 

272, 278 S.E.2d 209, 212 (1981), in which our Supreme Court held that fingerprint 

evidence is insufficient when the State has failed to present substantial evidence of 

circumstances from which the jury could find that the fingerprints could only have 

been impressed at the time the crime was committed. This case, however, is 

distinguishable from Bass for several reasons. In fingerprint cases, the State has an 

added burden because a person’s fingerprints can remain on a surface for long periods 

of time. See, e.g., id. at 270, 278 S.E.2d at 212 (“An expert in the field of fingerprint 

analysis found eleven points of similarity between the latent print on the screen and 

the known inked impressions of defendant’s prints. The State’s witnesses testified 

that fingerprints can last for months or even years”). Thus, the State must be able 

to link the fingerprint evidence to the crime. Here, Defendant’s driver’s license was 

provided to Mr. Berry, who confirmed that the license matched the person who 

provided it to him, while committing the underlying offense. Thus, Defendant’s 

identification documents were not simply left in a place for any reason other than 

Defendant’s commission of the crime. Moreover, there is no indication that 

Defendant left his driver’s license or social security card on any other day or time

than when the underlying offense was committed as confirmed by Detective Wilbur’s 

testimony. 
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¶ 17 Thus, considering all evidence in the light most favorable to the State, we 

conclude that a reasonable jury could have found as fact that Defendant was the 

perpetrator. Perhaps the strongest evidence introduced against Defendant was 

Defendant’s driver’s license and social security cards—documents that are generally

(1) kept on one’s person and (2) used as key identification documents—which were 

presented to Mr. Berry, who confirmed that the driver’s license, containing a picture 

of Defendant, matched that of the individual in the car that sat approximately 10 to 

12 feet from Mr. Berry. Moreover, the court was without evidence refuting 

Defendant’s presence at SECU, including any evidence supporting Defendant’s claim 

that his license and social security card were stolen. 

¶ 18 Accordingly, we conclude that there was sufficient evidence to raise a jury 

question regarding Defendant being the perpetrator of the offense. 

B. Attorney’s Fees

¶ 19 Defendant also argues that the trial court erred in ordering payment of 

attorney’s fees without affording Defendant the opportunity to be heard. We 

disagree.

¶ 20 Generally, “[a] challenge to a trial court’s decision to impose a condition of 

probation is reviewed on appeal using an abuse of discretion standard of review.” 

State v. Allah, 231 N.C. App. 88, 98, 750 S.E.2d 903, 911 (2013). However, “[a]

number of conditions of probation are automatically included in each probationary 
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judgment unless the trial court specifically elects to exempt the defendant from the 

necessity for compliance with one or more of those conditions.” Id. at 97, 750 S.E.2d 

at 911. For example, N.C. Gen. Stat. § 15A-1343 provides that “as [a] regular 

condition[ ] of probation, a defendant must . . . [p]ay the State of North Carolina for 

the costs of appointed counsel, public defender, or appellate defender to represent 

him in the case(s) for which he was placed on probation.” N.C. Gen. Stat. § 15A1343(b)(10) (2019) (emphasis added). Thus, § 15A-1343(b)(10) mandates that a 

defendant released on probation pay for the costs of appointed counsel. 

¶ 21 There is, however, an exception to the mandate. Specifically, N.C. Gen. Stat. 

§ 15A-1343(e) provides that any person placed on probation is required to pay all costs 

for court appointed counsel, “[u]nless the court finds there are extenuating 

circumstances[.]” N.C. Gen. Stat. § 15A-1343(e) (2019). When attorney’s fees are 

required, the amount “shall be determined in accordance with rules adopted by the 

Office of Indigent Defense Services. The court shall determine the amount of those 

costs and fees to be repaid and the method of payment.” Id. 

¶ 22 Here, as a condition of probation, Defendant was ordered to pay $1,680 for the 

cost of attorney’s fees. This number was based on testimony from Defendant’s 

appointed counsel that he had spent 28 hours on the case. At the time of judgment, 

the rate paid to counsel assigned to represent an indigent defendant charged with a 
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Class I felony in Superior Court was $60 an hour.1 Thus, Defendant’s attorney’s fee 

costs, calculated in compliance with N.C. Gen. Stat. § 15A-1343(e), totaled $1,680. 

¶ 23 Defendant contends that the court should have afforded him an opportunity to 

be heard before ordering the payment of attorney’s fees. This argument, however, is 

misplaced. Indeed, this Court has only required notice and an opportunity to be heard 

when the court has imposed a civil judgment against an indigent defendant for 

attorney’s fees, pursuant to N.C. Gen. Stat. § 7A-455(b). See, e.g., State v. Jacobs, 172 

N.C. App. 220, 235, 616 S.E.2d 306, 316 (2005) (recognizing that “N.C. Gen. Stat. §

7A-455 (2003) provides that the trial court may enter a civil judgment against a 

convicted indigent defendant for the amount of fees incurred by the defendant’s courtappointed attorney”); State v. Friend, 257 N.C. App. 516, 523 809 S.E.2d 902, 907

(2018) (finding that the trial court erred by entering a civil judgment against the 

defendant, because he was not informed of his right to be heard before the court 

entered the judgment). 

¶ 24 Here, the trial court did not enter a civil judgment to recoup attorney’s fees 

pursuant to N.C. Gen. Stat. § 7A-455(b), but instead, imposed a condition that is

automatically included in each probationary judgment. See N.C. Gen. Stat. § 15A1 The hourly assigned counsel rate for Class E-I felony cases in the superior court, 

with a final disposition of or after 1 December 2018, is $60. Counsel Rates, Office of Indigent 

Defense Services, https://www.ncids.org/counsel-rates/.
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1343(b)(10) (2019) (“As a regular condition of probation, a defendant must . . . [p]ay 

the State of North Carolina for the costs of appointed counsel, public defender, or 

appellate defender to represent him in the cases for which he was placed on 

probation.”). Therefore, the court was not required to engage in the colloquy under

Jacobs and Friend, and the trial court’s decision must stand unless this Court finds 

that the trial court abused its discretion. Allah, 231 N.C. App. at 98, 750 S.E.2d at 

911. 

¶ 25 Accordingly, we find that the trial court did not abuse its discretion in ordering 

that Defendant pay the costs of attorney’s fees. Not only was the requirement a 

regular condition of probation, authorized by N.C. Gen. Stat. § 15A-1343(b)(10), but 

the court correctly calculated the fee based on rates provided by the Office of Indigent 

Defense Services, as mandated by N.C. Gen. Stat. § 15A-1343(e). 

III. Conclusion

¶ 26 For the reasons stated above, we hold that there was substantial evidence that 

Defendant was the perpetrator of the alleged offense. Thus, the trial court properly 

denied Defendant’s motion to dismiss the charge of uttering a forged instrument. We 

further hold that the trial court did not abuse its discretion in ordering the payment 

of attorney’s fees. Accordingly, Defendant has failed to demonstrate any error 

occurred during his trial. 
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NO ERROR.

Judges DIETZ and COLLINS concur.