Appeal by defendant from judgments entered 27 September 2001
by Judge W. Douglas Albright in Superior Court, Halifax County.
Heard in the Court of Appeals 9 January 2003.
Attorney General Roy Cooper, by Assistant Attorney General
Leonard G. Green, for the State.
Edward J. Harper, II; Hall & O'Donnell, L.L.P., by John B.
O'Donnell, Jr., for defendant-appellant.
McGEE, Judge.
Connie Clark Morris (defendant) was indicted on fourteen
counts of larceny by employee. The evidence presented at trial
tended to show the following. Defendant was an office clerk in the
Littleton, North Carolina branch office of AAA Gas and Appliance
Company, Inc. (employer) from December 1995 to November 1998.
Defendant was responsible for receiving payments made to the
employer, balancing and reconciling payment summaries, and
depositing funds with the bank. The employer maintained a three-
part system for recording and depositing payments received from
customers. First, a daily payment summary listed all customer
payments received in cash, check, and money order each day.
Second, a bank deposit slip listed each check and money order and
the total cash received on that day. Third, a $150.00 base amountretained in the cash drawer was verified. On fourteen different
days between 10 November 1997 and 27 March 1998, there were
discrepancies between the payment summaries and the bank deposit
slips totaling $4,145.19. On each of these respective days,
defendant was the sole employee responsible for preparing the
payment summaries and bank deposit slips, verifying the $150.00
that was retained in the cash drawer, and depositing the money in
the employer's bank account.
Hal Finch (Finch), employer's general manager, testified to
the manipulations of the records. He stated that on 27 March 1998,
the daily payment summary showed cash receipts of $570.86 and
checks of $1,466.27 and the total stated on the daily payment
summary was $2,037.13. The payment summary did not list a check
for $118.59 received from Cary McPherson. The bank deposit slip
listed this check, but only showed cash receipts of $452.27. The
amount listed on the bank deposit slip and the amount deposited in
the bank totaled $2,037.13. The difference between the amount of
cash actually received by employer and the amount deposited in
employer's bank account was $118.59, the same amount as the check
that was unlisted in the daily payment summary. Finch's testimony
and business records entered into evidence demonstrated the same
pattern of manipulation of the employer's records for each day
defendant is charged with committing larceny by an employee.
A jury found defendant guilty on all counts. Defendant
appeals.
I.
Defendant first argues the indictments charging a violation of
N.C. Gen. Stat. § 14-74 failed to allege an offense in conformity
with the statute and thereby failed to adequately inform defendant
of the actions constituting the charges against her. Defendant
contends this violated her rights under the Sixth Amendment of the
United States Constitution and article 1, section 23, of the North
Carolina Constitution.
A criminal 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.
N.C. Gen. Stat. § 15A-924(a)(5) (2001).
An indictment is constitutionally sufficient
if it identifies the offense with enough
certainty 1) to enable the accused to prepare
his defense, 2) to protect him from being
twice put in jeopardy for the same offense,
and 3) to enable the court to know what
judgment to announce in the event of
conviction.
State v. Moses, ___ N.C. App. ___, ___, 572 S.E.2d 223, 226 (2002).
"[A]n indictment charging a violation of G.S. 14-74 must allege
that the property was received and held by the defendant in trust,
or for the use of the owner, and that being so held, it was
feloniously converted or made away with by the servant or agent."
State v. Brown, 56 N.C. App. 228, 229, 287 S.E.2d 421, 423 (1982).
In the case before us, the indictments alleged that defendant
did "go away with, embezzle, and convert to her own use [a certainamount of money] IN U.S. CURRENCY which had been delivered to be
kept for employer's use, with the intent to steal and to defraud
her employer." The indictments sufficiently allege a delivery in
trust because the indictments state that the money was delivered to
defendant for the use of her employer. It is not necessary for the
indictments to allege who delivered the money to defendant.
Brown
at 230, 287 S.E.2d at 423. Additionally, the indictments provided
defendant sufficient notice of the charges against her to protect
defendant from double jeopardy, to enable her to prepare her
defense, and to inform the court of the charges. This assignment
of error is without merit.
II.
Defendant next argues the trial court erred in denying
defendant's motion to dismiss all charges because the State
presented insufficient evidence to support the offense charged in
each of the indictments.
"In ruling on a motion to dismiss, the trial
court need only determine whether there is
substantial evidence of each essential element
of the crime and that the defendant is the
perpetrator." Evidence is considered
substantial when "a reasonable mind might
accept [it] as adequate to support a
conclusion." The motion to dismiss should be
denied if there is substantial evidence
supporting a finding that the offense charged
was committed.
State v. Craycraft, 152 N.C. App. 211, 213, 567 S.E.2d 206, 208
(2002) (citations omitted).
A defendant must be convicted, if at all, of
the particular offense charged in the
indictment. The State's proof must conform to
the specific allegations contained in theindictment. If the evidence fails to do so,
it is insufficient to convict the defendant of
the crime as charged.
State v. Wall, 96 N.C. App. 45, 49, 384 S.E.2d 581, 583 (1989)
(citations omitted). "The evidence offered by the State must be
taken to be true and any contradictions and discrepancies therein
must be resolved in its favor."
State v. Evans and State v.
Britton and State v. Hairston, 279 N.C. 447, 453, 183 S.E.2d 540,
544 (1971). "[A] variance between the indictment and the proof at
trial does not require reversal unless the defendant is prejudiced
as a result."
State v. Weaver, 123 N.C. App. 276, 291, 473 S.E.2d
362, 371 (1996).
Defendant argues the evidence failed to identify the employer
set forth in the indictments. In the indictments, the employer was
identified as "AAA Gas and Appliance Company, Inc." Finch
testified at trial that he was the general manager for "AAA Gas and
Appliance Company." While Finch and other witnesses subsequently
referred to the company as "AAA" and "AAA Gas" throughout their
testimony, the trial transcript demonstrates that these names were
simply shorthand methods for identifying the company during
testimony. Defendant also routinely referred to her employer as
"AAA Gas" throughout her own testimony. The evidence presented at
trial sufficiently identified defendant's employer as the employer
alleged in the indictment. Additionally, defendant has failed to
demonstrate that she was prejudiced by use of the shorthand
references during trial. This argument is overruled.
Defendant next argues the evidence failed to prove a trustrelationship existed between her and her employer. N.C.G.S. § 14-
74 requires that larceny by employee be committed in violation of
a trust relationship between the employee and the employer.
State
v. Bullin, 34 N.C. App. 589, 592, 239 S.E.2d 278, 280 (1977).
Finch testified that defendant was an office clerk for employer and
was solely responsible for depositing money received into
employer's bank account on the days defendant worked. The fact
that defendant's position was not considered managerial did not
prohibit a trust relationship as argued by defendant. Defendant
was entrusted with receiving payments for employer, preparing and
reconciling daily accounting records, and depositing the payments
into the bank for employer. The evidence is sufficient to permit
a reasonable mind to conclude that a trust relationship existed
between defendant and her employer. The evidence presented
conforms to the charges in the indictment. This argument is
overruled.
Defendant also argues the evidence failed to establish that
defendant possessed fraudulent intent. The fraudulent intent
required for embezzlement is defined as the intent to "'willfully
and corruptly use or misapply'" another's property for purposes
other than that for which it was held.
State v. McLean, 209 N.C.
38, 40, 182 S.E. 700, 701 (1935) (quoting
State v. Lancaster, 202
N.C. 204, 210, 162 S.E. 367, 371 (1932)). "Such intent may be
shown by direct evidence, or by evidence of facts and circumstances
from which it may reasonably be inferred."
McLean, 209 N.C. at 40,
182 S.E.2d at 702. "Intent is inferred from facts in evidence, andit is rarely shown by direct proof."
Lancaster, 202 N.C. at 210,
162 S.E.2d at 370.
Joy Fowler, branch manager for employer, testified that
defendant was solely responsible for depositing the money and
keeping accounting records on the days defendant worked. The
accounting records and deposit slips prepared by defendant were
entered into evidence and Finch testified to the discrepancies
between the monies received and deposited. The evidence
demonstrated that the discrepancies occurred on fourteen separate
days when defendant was working and managing the accounts. The
repeated discrepancies among the daily payment summaries and the
daily bank deposit slips while under defendant's control provided
sufficient evidence to allow a reasonable mind to conclude that
defendant intended to manipulate employer's records and convert
employer's property for her improper use. The evidence of intent
to defraud conforms to the charges in the indictments. This
argument is overruled.
The State's evidence conformed to the indictments and there
was no fatal variance between the indictments and the evidence
presented. This assignment of error is without merit.
III.
Finally, defendant argues the cumulative effect of the trial
court's denial of defendant's discovery-related requests grossly
prejudiced defendant and denied her rights under the United States
and North Carolina Constitutions. Defendant contends the trial
court should have permitted discovery of employer's financialrecords and its effect on expert testimony.
Statutes governing discovery in criminal cases must be
strictly construed.
State v. Alston, 80 N.C. App. 540, 542, 342
S.E.2d 573, 575,
cert. denied, 317 N.C. 707, 347 S.E.2d 441 (1986);
State v. Williams, 29 N.C. App. 319, 322, 224 S.E.2d 250, 252
(1976). N.C. Gen. Stat. § 15A-903(d) (2001) states that the State
must allow the defendant to inspect records "which are within the
possession, custody, or control of the State and which are material
to the preparation of his defense."
In
Alston, our Court held that the defendants were not
entitled to pre-trial discovery of business records that included
a bill of sale and a vehicle odometer statement.
Alston, 80 N.C.
App. at 542, 342 S.E.2d at 575. The defendants were not permitted
to examine these documents because they had no right to obtain
prior knowledge concerning who would testify against them at trial.
Id. The defendants were allowed to view the documents in
accordance with the statute once the trial began, because the
materials were intended to be used as evidence by the State and the
witness intending to testify appeared in court with the materials.
Id.
In the case before us, the State complied with required
discovery procedures and provided defendant with copies of the
accounting and banking records that it intended to offer into
evidence against defendant. Defendant was permitted to review this
evidence in preparing her defense against the charges. Defendant
requested copies of employer's bank statements and writtenbookkeeping procedures, but there is no evidence showing that these
materials were in the possession of the State or under the State's
control. There is also no evidence that the State ever intended to
submit the requested materials as evidence against defendant.
Defendant cites
State v. Canady, 355 N.C. 242, 559 S.E.2d 762
(2002), in support of her argument, but
Canady is distinguishable
from the facts before us. In
Canady, the State possessed
exculpatory evidence that linked another individual to the crime
and refused to make it available to the defendant.
Id. at 252, 559
S.E.2d at 767. The State also lost ballistics evidence before the
defendant was able to examine it and called an expert to testify to
the results.
Id. at 253-54, 559 S.E.2d at 767-68. In the case
before us, the State did not possess the materials requested by
defendant and provided defendant with copies of all evidence it
intended to enter into evidence at trial. Accordingly, defendant
was not entitled to discovery of the requested materials and the
State did not violate defendant's due process rights.
Defendant also argues that denial of her discovery requests
resulted in the denial of defendant's right to effective assistance
of counsel. "When a defendant attacks his conviction on the basis
that counsel was ineffective, he must show that his counsel's
conduct fell below an objective standard of reasonableness."
State
v. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985).
First, the defendant must show that counsel's
performance was deficient. This requires
showing that counsel made errors so serious
that counsel was not functioning as the
"counsel" guaranteed the defendant by the
Sixth Amendment. Second, the defendant mustshow that the deficient performance prejudiced
the defense. This requires showing that
counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose
result is reliable.
Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693
(1984).
Defendant
argues she is entitled to a presumption of prejudice
because "'the likelihood that any lawyer, even a fully competent
one, could provide effective assistance' is remote" on the facts of
this case.
State v. Tunstall, 334 N.C. 320, 329, 432 S.E.2d 331,
336 (1993) (citing
United States v. Cronic, 466 U.S. 648, 658, 659-
60, 80 L. Ed. 2d 657, 667, 667-68 (1984)). In
Tunstall, the
defendant argued he had been denied effective assistance of counsel
because of the brief time period his attorney had for trial
preparation and the trial court's refusal to continue the case.
Tunstall at 330-31, 432 S.E.2d at 337-38. Our Supreme Court
denied
the defendant's appeal and held that the defendant had failed to
demonstrate how his case could have been better prepared had a
continuance been granted.
Id. at 332, 432 S.E.2d at 338-39.
In the case before us, defendant does not argue that time
constraints impacted her defense and does not demonstrate how the
denial of employer's bank statements and accounting procedures
would render any attorney unable to provide assistance. Defendant
has failed to demonstrate that her attorney's performance at trial
was deficient and that she was prejudiced and deprived of a fair
trial as a result. This assignment of error is without merit.
No error. Judges HUNTER and CALABRIA concur.
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