STATE OF NORTH CAROLINA
v. Catawba County
No. 00 CRS 15037
THOMAS EDWARD DADISMAN
Attorney General Roy Cooper, by Assistant Attorney General Kay
Linn Miller Hobart, for the State.
Charns & Charns, L.L.P., by D. Tucker Charns, for defendant-
appellant.
CAMPBELL, Judge.
Defendant appeals his conviction, following a jury trial, for
one count of embezzlement. We find no error and affirm the
judgment of the trial court.
The State's evidence tended to show the following: In August
of 2000, defendant was employed as manager of a Petroleum World
store in Hickory. One of defendant's duties as manager was to make
a daily deposit of the store's previous day's receipts into its
bank account. Defendant was the only employee who had a key or
access to the store's safe.
On the morning of 3 August 2000, Petroleum World District
Manager Jan Ellis paid a visit to defendant's store. Defendant wassitting on the floor counting money. The safe was open. Ellis saw
defendant's cash report for 1 August 2000. When she asked to see
the deposit slip for receipts of August 1, defendant replied that
he had not yet taken the deposit to the bank. The store's receipts
for August 1 should have been deposited on August 2, and defendant
should have been preparing the cash report and deposit for August
2.
Defendant asked Ellis to come outside, where he threw his safe
key at her and announced he was quitting because Ellis did not
trust him. After defendant left, Ellis telephoned her manager,
Ellen Harris. When Harris arrived at the store, they counted the
money in the safe. After setting aside enough money to cover the
August 1 deposit, they prepared the cash report for August 2. The
store receipts for August 2 totaled $5,111.71. However, only
$656.18 remained in the safe, leaving a shortfall of $4,455.53.
Defendant had never informed Ellis of any missing money.
Over defendant's objection, the prosecution sought to
introduce evidence of defendant's prior embezzlement from a
Bojangles restaurant in Lenoir, which he managed in 1993. After a
voir dire hearing, the trial court ruled the evidence admissible
under N.C.R. Evid. 404(b), provided that no reference was made to
defendant's criminal conviction for this activity. John
Watlington, who was a Bojangle's district manager in 1993,
testified that defendant had post-dated deposit tickets in order to
delay or “float forward” the restaurant's daily bank deposits.
Watlington explained that by holding back deposits for one day,defendant was able to take money from the restaurant's receipts and
use the following day's receipts to hide the deficit. On payday,
defendant would cash his paycheck and repay the balance of the
money he had taken. When defendant failed to pay back $450.00,
however, Watlington discovered the scheme. Defendant ultimately
admitted to Watlington that he had been floating deposits forward.
On cross-examination, defense counsel asked Watlington if
defendant had repaid the $450.00 taken from Bojangle's. Watlington
responded, “The court in Caldwell County asked him to pay it back.
I do not know if he paid it back or not. I'm assuming that he
did.” Defense counsel objected and moved for a mistrial based on
Watlington's allusion to a court proceeding against defendant. The
trial court denied the motion, finding that the witness did “not
make any reference to criminal proceedings[.]” The court
instructed the jury to disregard Watlington's “reference to a
court” as “totally irrelevant to this proceeding.” In its charge
to the jury, the court also gave a limiting instruction that
Watlington's testimony could be used only to show defendant's
motive, intent, knowledge, plan, scheme or design, or the absence
of mistake.
The trial court denied defendant's motion to dismiss at the
conclusion of the evidence.
On appeal, defendant argues that the trial court erred in
admitting Watlington's testimony about his prior act of
embezzlement in 1993. He contends this evidence showed nothing but
a general propensity to commit embezzlement and was so remote intime that it was unduly prejudicial under N.C.R. Evid. 403.
Rule 404(b) provides as follows:
Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to
show that he acted in conformity therewith. It may,
however, be admissible for other purposes, such as proof
of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake, entrapment or
accident.
N.C.R. Evid. 404(b) (2001). We have previously characterized this
rule as a “rule of inclusion of relevant evidence of other crimes,
wrongs, or acts which is subject to but one exception, evidence
should be excluded if its only probative value is to show that the
defendant has the propensity or disposition to commit an offense of
the nature of the crime charged.” State v. Blackwell, 133 N.C.
App. 31, 34, 514 S.E.2d 116, 119 (1999) (citing State v. Jeter, 326
N.C. 457, 459-60, 389 S.E.2d 805, 807 (1990)), cert. denied, 350
N.C. 595, 537 S.E.2d 483 (1999). In order to be admissible against
a defendant, Rule 404(b) evidence must be both sufficiently similar
to and not too remote in time from the charged offense. See State
v. Davis, 101 N.C. App. 12, 19, 398 S.E.2d 645, 649 (1990), disc.
rev. denied, 328 N.C. 574, 403 S.E.2d 516 (1991)). “The
similarities . . . need not be 'unique and bizarre,' but rather
must simply tend to support a reasonable inference that the same
person committed both the earlier and later acts.” Blackwell at
35, 514 S.E.2d at 119 (quoting State v. Sneeden, 108 N.C. App. 506,
509, 424 S.E.2d 449, 451 (1993), aff'd, 336 N.C. 482, 444 S.E.2d
218 (1994)). Moreover, our "prior cases have held that intervals
of seven and ten years are not necessarily too remote to precludethe admission of prior-bad acts." State v. Blackwell at 36, 514
S.E.2d at 120 (citing State v. Penland, 343 N.C. 634, 654, 472
S.E.2d 734, 745 (1996), cert. denied, 519 U.S. 1098, 136 L. Ed. 2d
725 (1997); State v. Shamsid-Deen, 324 N.C. 437, 379 S.E.2d 842
(1989)).
We find the evidence of defendant's prior embezzlement from
the Bojangle's restaurant in 1993 admissible under Rule 404(b) to
show his intent, motive, knowledge, or the absence of mistake.
Defendant's actions were sufficiently similar to reflect a
distinctive modus operandi. In both cases, defendant used his
position as manager of a retail establishment to delay or “float
forward” the deposits of the store's cash receipts in order to
conceal his misappropriation of funds. Moreover, the span of seven
years between the two acts did not render the challenged evidence
inadmissible. In State v. Stager, 329 N.C. 278, 307, 406 S.E.2d
876, 892 (1991), our Supreme Court upheld the use of evidence of
the shooting death of defendant's first husband ten years earlier
in defendant's trial for the murder of her second husband. The
court first determined that the circumstances of the deaths were
sufficiently similar to show defendant's intent. It then noted
that "remoteness in time is less significant when the prior conduct
is used to show intent, motive, knowledge, or lack of accident;
remoteness in time generally affects only the weight to be given
such evidence, not its admissibility." Id. at 307, 406 S.E.2d at
893. Indeed, “[i]t is reasonable to think that a criminal who has
adopted a particular modus operandi will continue to use itnotwithstanding a long lapse of time between crimes.” State v.
Riddick, 316 N.C. 127, 134, 340 S.E.2d 422, 427 (1986).
Defendant also asserts that the risk of undue prejudice
arising from the challenged evidence outweighed its probative value
and required its exclusion under N.C.R. Evid. 403. Rulings on the
admissibility of evidence under Rule 403 are left to the trial
court's discretion. See State v. Robertson, 115 N.C. App. 249,
255, 444 S.E.2d 643, 646 (1994). A trial court's decision on this
issue is controlling unless it “'is manifestly unsupported by
reason or is so arbitrary that it could not have been the result of
a reasoned decision.'” State v. McDonald, 130 N.C. App. 263, 267,
502 S.E.2d 409, 412-413 (1998) (citation omitted).
We find no abuse of discretion here. As mentioned above, the
evidence of defendant's actions as a manager for Bojangle's was
relevant to demonstrate his modus operandi and his “felonious
intent” to convert Petroleum World's cash receipts to his own use,
an essential element of the crime of embezzlement. State v.
Griffin, 239 N.C. 41, 45, 79 S.E.2d 230, 232 (1953). The trial
court cured any risk of unfair prejudice by forbidding any mention
of defendant's criminal conviction and by giving an appropriate
limiting instruction regarding the use of Rule 404(b) evidence.
See State v. Hipps, 348 N.C. 377, 406, 501 S.E.2d 625, 642 (1998).
Defendant's assignment of error is overruled.
Defendant also asserts that the trial court should have
granted a mistrial based on Watlington's mention of defendant's
prior criminal conviction. Because he did not testify, defendantclaims both that the evidence of his prior conviction was
inadmissible under N.C.R. Evid. 609, and that its introduction
violated his constitutional right to due process. We note that
defendant raised no due process claim in the trial court and has
cited no authority to support his due process argument in his
appellate brief. Accordingly, this issue is not properly before
us. See N.C.R. App. P. 10(b)(1), 28(b)(6); State v. Brown, 148
N.C. App. 683, 684, 560 S.E.2d 170, 172 (2002) (citation omitted).
In any event, no reference was made to defendant's prior criminal
prosecution. Therefore, defendant's invocation of Rule 609 and the
right to due process is inapposite.
A trial court's denial of a motion for a mistrial is reviewed
only for abuse of discretion. State v. Mills, 39 N.C. App. 47, 249
S.E.2d 446 (1978), disc. review denied, 296 N.C. 588, 254 S.E.2d 33
(1979). An abuse of discretion will be found “'only upon a showing
that its ruling was so arbitrary that it could not have been the
result of a reasoned decision.'” State v. Hogan, 321 N.C. 719,
722, 365 S.E.2d 289, 290 (1988) (citation omitted). “'Where a
trial court sustains an objection to incompetent evidence and
instructs the jury to disregard it, the refusal to grant a mistrial
based on the introduction of the evidence will ordinarily not
constitute an abuse of discretion.'” Id. at 722-23, 365 S.E.2d
290-91 (quoting State v. Barts, 316 N.C. 666, 682, 343 S.E.2d 828,
839 (1986)).
In Hogan, the Supreme Court found no abuse of discretion in
the trial court's denial of the defendant's motion for a mistrialafter a State's witness referred to a criminal charge pending
against the defendant in Maryland. Id. The trial court sustained
defendant's objection to the testimony and instructed the jury to
ignore it, a response held sufficient by the North Carolina Supreme
Court. Id.
Having carefully reviewed the relevant portion of the trial
transcript, we conclude that the trial court's refusal to declare
a mistrial was a valid exercise of its discretion. Watlington
testified only that a court had ordered defendant to repay money to
Bojangle's. He made no mention of a criminal action against
defendant or to his conviction for any criminal offense. We note
that an order to repay stolen money could just as readily have
resulted from a private civil suit as from a criminal action.
As in Hogan, the trial court's response to Watlington's
testimony was sufficient to eliminate any risk of unfair prejudice
to defendant. At defendant's objection to Watlington's response on
cross-examination, the court gave a timely curative instruction
directing the jury to disregard any “reference to a court” as
“totally irrelevant to this proceeding.” No further response was
required.
In his final argument, defendant contends that the trial court
erred in denying his motion to dismiss based on the State's failure
to prove that he was more than sixteen years of age at the time of
the alleged offense. See N.C. Gen. Stat. § 14-90 (2001) (excluding
from the definition of embezzlement acts committed by “persons
under the age of 16 years”). We find no merit to this claim. TheState's proffer was sufficient to allow the jury to infer that
defendant was more than sixteen years of age on 3 August 2000, as
required to support his conviction for embezzlement under G.S. §
14-90. The State adduced evidence that defendant was employed as
a restaurant manager in 1993. In addition, “[i]t is well
established that a jury may 'base its determination of a
defendant's age on its own observation of him even when the
defendant does not testify.'” See State v. Banks, 322 N.C. 753,
761, 370 S.E.2d 398, 404 (1988) (quoting State v. Gray, 292 N.C.
270, 286, 233 S.E.2d 905, 915 (1977)).
The record on appeal contains additional assignments of error
not addressed by defendant in his brief to this Court. Pursuant to
our rules, we deem them abandoned. See N.C.R. App. P. 28(b)(6).
No error.
Judges WYNN and McGEE concur.
Report per Rule 30(e).
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