IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-715

No. COA22-348

Filed 1 November 2022

Cabarrus County, No. 20CRS50156-57

STATE OF NORTH CAROLINA

v.

NIKITA V. MACKEY

Appeal by defendant from judgment entered 4 June 2021 by Judge 

William Anderson Long, Jr., in Cabarrus County Superior Court. Heard in the Court 

of Appeals 19 October 2022.

Attorney General Joshua H. Stein, by Assistant Attorney General 

Kayla D. Britt, for the State.

Shawn R. Evans for the defendant-appellant.

TYSON, Judge.

¶ 1 Nikita V. Mackey (“Defendant”) appeals from the judgment entered upon the 

jury’s verdict from his two felony convictions of uttering a forged instrument and 

obtaining property by false pretenses. Our review discloses no error.

I. Background

¶ 2 Defendant married Yvette Stewart in September 2016. The couple separated 

two years later and divorced in 2021. Defendant and Stewart always maintained 
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separate bank accounts, even while married. After the separation, Stewart moved to 

Tennessee and took her vehicle with her. 

¶ 3 Stewart’s vehicle needed repairs in March 2019. After Stewart had paid for 

the repairs, she realized her vehicle was still under a third-party maintenance 

warranty. She sought a reimbursement from the company issuing the warranty. The 

company agreed to reimburse Stewart in the amount of $1,200.92. 

¶ 4 Stewart waited for the check, but it never arrived. She contacted the warranty 

company to inquire about her reimbursement. During that conversation, the 

company informed Stewart the check had been mailed to Defendant’s address and it 

had been deposited into a bank. Stewart asked for more information, and the 

company sent her a copy of the cancelled check. Upon examination, she noticed the 

check had been signed and recognized Defendant’s handwriting on the endorsement 

line.

¶ 5 Stewart sought a replacement check because she believed Defendant had 

forged her signature. The company informed Stewart they could not issue another 

check unless she notified law enforcement. Stewart reported the incident and 

provided handwriting samples to the Charlotte-Mecklenburg Police Department.

¶ 6 The officer in charge of investigating Stewart’s claim subpoenaed the bank for 

all records related to the check. Bank records revealed Defendant had deposited the 
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check into his personal bank account on 18 June 2019. Video footage from the bank 

also showed Defendant visiting the bank on the same day the check was deposited.

¶ 7 Defendant was charged with uttering a forged instrument, obtaining property 

by false pretenses, and forgery of an instrument on 2 March 2020. At trial, the State 

entered the bank records and video footage into evidence. On 4 June 2021, a jury 

found Defendant guilty of obtaining property by false pretenses and uttering a forged 

instrument. The jury was unable to reach a unanimous verdict regarding forgery of 

an instrument. Defendant moved for a mistrial. The court granted Defendant’s

motion on the forgery charge. 

¶ 8 The trial court consolidated the remaining two charges into one judgment. 

Defendant was sentenced as a level I offender and received an active sentence of 5 to 

15 months, followed by 24 months of supervised probation. Defendant filed a timely 

notice of appeal on 9 June 2021.

II. Issues

¶ 9 Defendant argues: (1) a fatal variance exists between the indictment and the 

evidence entered at trial; and, (2) he is entitled to a new trial because eighteen bench 

conversations were omitted from the transcript despite the trial judge ordering a 

complete recordation. 

III. Fatal Variance
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¶ 10 Trial courts do not possess jurisdiction over a criminal defendant without a 

valid bill of indictment. State v. Snyder, 343 N.C. 61, 65, 468 S.E.2d 221, 224 (1996)

(citation omitted). An indictment “is fatally defective if it fails to state some essential 

and necessary element of the offense of which the defendant is found guilty.” State v. 

Ellis, 368 N.C. 342, 344, 776 S.E.2d 675, 677 (2015) (citation and quotation marks 

omitted).

¶ 11 Rule 10(a)(1) of the North Carolina Rules of Appellate Procedure delineates 

the procedures for preserving errors on appeal:

In order to preserve an issue for appellate review, a party 

must have presented to the trial court a timely request, 

objection, or motion, stating the specific grounds for the 

ruling the party desired the court to make if the specific 

grounds were not apparent from the context. It is also 

necessary for the complaining party to obtain a ruling upon 

the party’s request, objection, or motion.

N.C. R. App. P. 10(a)(1) (emphasis supplied).

¶ 12 A defendant must bring a motion to quash a fatally defective indictment to 

preserve the issue on appeal. See State v. Waddell, 279 N.C. 442, 445, 183 S.E.2d 644, 

646 (1971) (explaining a motion to quash an indictment “on the ground of variance 

between the allegation in the indictment . . . and the evidence [ ] disclosed” at trial is 

appropriate “when the purpose is to challenge its sufficiency to charge a criminal 

offense,” but a “motion to dismiss is in order when the prosecution fails to offer 

sufficient evidence the defendant committed the offense charged”); State v. Pickens, 
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346 N.C. 628, 645, 488 S.E.2d 162, 172 (1997) (citing State v. Francis, 341 N.C. 156, 

160, 459 S.E.2d 269, 271 (1995)) (“Regarding the alleged variance between the 

indictment and the evidence at trial, defendant based his motions at trial solely on 

the ground of insufficient evidence and thus has failed to preserve this argument for 

appellate review.”).

¶ 13 Defendant failed to file a motion to quash his indictment for any variance 

between the allegations in the indictment and the evidence disclosed at trial. 

Defendant did not mention the words “fatal,” “defective,” or “variance” in his motion 

to dismiss at the close of the state’s evidence. While the Defendant moved to dismiss 

for insufficiency of the evidence, a motion to dismiss for insufficiency does not preserve 

Defendant’s fatal variance argument for appeal. Waddell, 279 N.C. at 445, 183 S.E.2d 

at 646; Pickens, 346 N.C. at 645, 488 S.E.2d at 172 (citation omitted).

IV. Recordation

¶ 14 Criminal defendants have a statutory right to recordation of their trial in 

North Carolina. N.C. Gen. Stat. § 15A-1241 provides: 

(a) The trial judge must require that the reporter make a 

true, complete, and accurate record of all statements from 

the bench and all other proceedings except:

(1) Selection of the jury in noncapital cases;

(2) Opening statements and final arguments of 

counsel to the jury; and
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(3) Arguments of counsel on questions of law.

. . . 

(c) When a party makes an objection to unrecorded 

statements or other conduct in the presence of the jury, 

upon motion of either party the judge must reconstruct for 

the record, as accurately as possible, the matter to which 

objection was made.

N.C. Gen. Stat. § 15A-1241 (2021) (emphasis supplied).

¶ 15 Our Supreme Court in State v. Cummings contrasts the disparate treatment 

of statements made in open court before a jury and those made in private bench 

conferences under N.C. Gen. Stat. § 15A-1241. 332 N.C. 487, 498, 422 S.E.2d 692, 

698 (1992). The Court in Cummings concluded N.C. Gen. Stat. § 15A-1241 “appears 

to be designed to ensure that any statement by the trial judge, in open court and 

within earshot of jurors or others present in the courtroom, be available for appellate 

review.” Id. Statements made in private bench conferences, however, are only 

required to be transcribed if “either party requests that the subject matter of a private 

bench conference be put on the record for possible appellate review.” Id. If a party 

requests a bench conference to be transcribed per N.C. Gen. Stat. § 15A-1241, “the 

trial judge should comply by reconstructing, as accurately as possible, the matter 

discussed.” Id. (citing N.C. Gen. Stat. § 15A-1241(c)).

¶ 16 “This Court has repeatedly held that [N.C. Gen. Stat. §] 15A-1241 does not 

require recordation of ‘private bench conferences between trial judges and attorneys.’”
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State v. Blakeney, 352 N.C. 287, 307, 531 S.E.2d 799, 814 (2000) (quoting Cummings, 

332 N.C. at 497, 422 S.E.2d at 697); accord State v. Speller, 345 N.C. 600, 605, 481 

S.E.2d 284, 287 (1997). In Blakeney, the defendant argued the “unrecorded bench 

conferences violated his statutory right to recordation under [N.C. Gen. Stat.] § 15A1241 and deprived him of his constitutional right to due process by rendering 

appellate review impossible.” Id. at 306, 531 S.E.2d at 814. Our Supreme Court held 

the trial court did not err by failing to record the bench conferences because the 

“defendant never requested that the subject matter of a bench conference be 

reconstructed for the record.” Id. at 307, 531 S.E.2d at 814. 

¶ 17 Defendant asserts the trial court ordered a complete recordation. This 

assertion is unfounded. Defendant only requested a complete recordation of the voir 

dire of an expert witness. Here, the trial court did not err for the same reasons the 

trial court did not err in Blakeney. Defendant “never requested that the subject 

matter of a bench conference be reconstructed for the record.” Blakeney, 352 N.C. at 

307, 531 S.E.2d at 814. Defendant’s argument is overruled.

V. Conclusion

¶ 18 Defendant failed to preserve his fatal variance of indictment argument for 

appeal through a motion to quash. Defendant has also failed to show the trial court 

committed plain error by failing, in the absence of a request, to make a complete 

recordation of the eighteen bench conference conversations. Defendant never 
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requested the trial court reconstruct the bench conversations for the record, despite 

requesting a complete recordation of the voir dire at another point during the trial. 

¶ 19 Defendant received a fair trial, free from prejudicial errors he preserved and 

argued on appeal. We find no error in the jury’s verdicts or in the judgment entered 

thereon. It is so ordered.

NO ERROR.

Judges ZACHARY and HAMPSON concur.