An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1271


Filed: 21 October 2003


v .                         Carteret County         
                            Nos. 01-CRS-6383, 3120-28, 3131-33, 3137-39

    Appeal by defendant from judgments entered 12 September 2001 by Judge Carl L. Tilghman in Carteret County Superior Court. Heard in the Court of Appeals 20 August 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General Karen E. Long, for the State.

    Conrad A. Airall for defendant-appellant.

    MARTIN, Judge.

    Robert Lee Albritton appeals from judgments entered upon his conviction by a jury of twelve counts of embezzlement, three counts of financial transaction card fraud, and one count of obtaining property by false pretenses. We find no error.
    The evidence at trial tended to show that while the defendant was pastor at St. Stephen's A.M.E. Zion Methodist Church (hereinafter “St. Stephen's”) in Morehead City, St. Stephen's received a bequest of $229,753.54 under the will of Osborne Hester(hereinafter “Hester”) “to be used for maintenance of the building under the control of the Board of Trustees.” Defendant disclosed the receipt of the request to a few members of the Board of Trustees, including the chairman, but decided not to disclose the gift to the congregation for fear they would be less inclined to donate.
    Jewell Green (hereinafter “Green”), Hester's niece and a lifelong member of St. Stephen's, was aware her uncle bequeathed the residue and remainder of his estate to St. Stephen's. Since her uncle had not been recognized at St. Stephen's for making the donation and her inquiries to Albritton regarding the handling of the money remained unanswered, Green contacted Hester's lawyer, who confirmed that approximately $229,000 of Hester's estate had been sent and accepted by the church. Upon learning this information, Green alerted the police and made it known to the congregation that St. Stephen's was the intended recipient of the bequest. Special Agent D. G. Whitford of the Financial Crimes Unit of the S.B.I. investigated after being contacted by the Morehead City Police Department.
    Under the governance structure for the church, a Board of Trustees governs St. Stephen's, holding title to all the church's property and handling all church finances. The members of the Board collectively make decisions and then present them to thecongregation for ratification. The Board of Stewards, which sees to the pastor's personal needs, functions in the same way; decisions are made by the Board but are voted on by the congregation before action is taken.
    In March 1998, defendant established a nonprofit organization, the St. Stephen's Redevelopment Low Income Housing Corporation (hereinafter “Redevelopment Corporation”), which had no affiliation to St. Stephen's. Although the corporate papers included a list of the Board of Directors, the persons listed were not aware they were on the Board or that the Redevelopment Corporation existed. Despite the fact that the Redevelopment Corporation's bank account contained approximately $38,000 of St. Stephen's money, the Board of Trustees never approved a transfer of funds from St. Stephen's to the Redevelopment Corporation.
    Adrick Sharp and Alexander Fox, St. Stephen's board members, obtained a credit card in the church's name for the defendant to use. Although Mr. Fox did not recall placing any restrictions for use on the card, Mr. Sharp testified that the card was restricted to purchasing building materials to repair houses owned by St. Stephen's. Mr. Sharp testified the board never authorized the defendant to use the card to pay for personal expenses such as food, gas, clothing and lodging.
    Robert Dudley, Chairman of the Board of Stewards, approved a$5,500 loan to the defendant to purchase a car. However, Mr. Sharp testified that he signed several blank checks at the request of the defendant so that he could pay church bills without having to locate a trustee to sign each check. One of these checks was used to purchase the car. Furthermore, when Mr. Sharpe inquired about the car, the defendant responded that he kept it in his garage because he did not want the members to think church money was used to purchase it.


    Defendant first argues that his convictions for embezzlement under G.S. § 14-92 must be vacated because the indictments were defective and insufficient to support the charges. The indictments alleged that the defendant embezzled funds “belonging to St. Stephens [sic] AME Zion Church in Morehead City, N.C., (a religious organization).” Defendant maintains the indictments were fatally flawed because they failed to allege the victim was an entity capable of owning property.
    “An indictment for embezzlement must allege ownership of the property in a person, corporation or other legal entity capable of owning property.” State v. Linney, 138 N.C. App. 169, 172, 531 S.E.2d 245, 249, appeal dismissed, 352 N.C. 595, 545 S.E.2d 214 (2000). G.S. § 14-92 provides that “charitable, religious, oreducational institution[s]” are entities capable of owning property such that they can be the victim of embezzlement. “The purpose of an indictment is to give defendant sufficient notice of the charge against him, to enable him to prepare his defense, and to raise the bar of double jeopardy in the event he is again brought to trial for the same offenses.” State v. Ingram, 20 N.C. App. 464, 466, 201 S.E.2d 532, 534 (1974). We hold the indictments for embezzlement provided proper notice of the charges including the identity of the victim and its ownership of the property alleged to have been embezzled and that it was an entity capable of owning property.

    Defendant next argues the trial court erred in denying his motion to dismiss the embezzlement charges for lack of sufficient evidence. “On a defendant's motion for dismissal, the trial court must determine only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.” State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992). The evidence must be examined “in the light most favorable to the State, and the State is entitled to every reasonable inference and intendment that can be drawn therefrom.” Id.     The defendant contends that the State has not met its burden of proof because it has not shown that the defendant willfully and corruptly used and misapplied funds belonging to St. Stephen's. “The words 'willfully' and 'corruption', as they relate to misapplication of funds under G.S. 14-92, have been defined as '[D]one with an unlawful intent,' and 'The act of an official or fiduciary person who unlawfully and wrongfully uses his station or character to procure some benefit for himself or for another person, contrary to duty and the rights of others.'” State v. Agnew, 294 N.C. 382, 392-93, 241 S.E.2d 684, 691 (citation omitted), cert. denied, 439 U.S. 830, 58 L. Ed. 2d 124 (1978). Moreover, the “fraudulent intent required in the charge of embezzlement can be inferred from the facts proven. It is not necessary that there be direct evidence of such intent.” State v. Barbour, 43 N.C. App. 143, 148, 258 S.E.2d 475, 479 (1979).
    The evidence showed that the defendant deposited two checks from Allstate Insurance Company made out to St. Stephen's A.M.E. Zion Church for hurricane damage into the Redevelopment Corporation bank account without any knowledge or authorization of the St. Stephen's Board of Trustees. Over a period of four months, the defendant transferred $13,400.00 of the Hester bequest into the Redevelopment Corporation account, again without the knowledge or permission of the trustees.     The State also offered evidence of more than one hundred and thirty checks written from the St. Stephen's account from 1 January 1998 through 31 December 1999. Many of these checks were written to the defendant's family members and several were written to David Moore for fees to establish the Redevelopment Corporation. This evidence tended to show that defendant additionally embezzled money not in excess of $100,000. Consequently, the trial court properly denied the defendant's motion to dismiss the embezzlement charges.

    Defendant's motion to dismiss the credit card fraud charges was also properly denied. “If the trial court determines that a reasonable inference of the defendant's guilt may be drawn from the evidence, it must deny the defendant's motion and send the case to the jury even though the evidence may also support reasonable inferences of the defendant's innocence.” State v. Smith, 40 N.C. App. 72, 79, 252 S.E.2d 535, 540 (1979).
    To be convicted of credit card fraud, the State must prove that the defendant, with the intent to defraud, obtained goods, services or things of value, without the consent of the cardholder. N.C. GEN. STAT. § 14-113.13(a)(2)(b). Mr. Sharp, the guarantor of the credit card, testified that he understood the card was to be used only for building supplies. However, the evidence showed defendant used the credit card to purchase personal items such as gas, clothing, motels and food, as well as community college tuition for his son. Thus, construed in a light most favorable to the State, there was sufficient evidence of each element of the crime for the charge to go to the jury.

    Finally, defendant asserts that his motion to dismiss the charge of obtaining property by false pretenses was improperly denied. The elements of obtaining property by false pretenses are “(1) a false representation of a subsisting fact or a future fulfillment or event, (2) which is calculated and intended to deceive, (3) which does in fact deceive, and (4) by which one person obtains or attempts to obtain value from another.” State v. Parker, 354 N.C. 268, 284, 553 S.E.2d 885, 897 (2001). “[T]he false pretense need not come through spoken words, but instead may be by act or conduct.” Id.
    The State offered evidence showing the defendant, after requesting a trustee to sign a blank check to pay church bills, made the check payable to himself with a notation on the memo line “loan proceeds to Sand Castle Motors.” Notwithstanding the defendant's evidence that he obtained a loan from the church to purchase the car, the State's evidence supported a reasonable inference of the defendant's guilt and the trial court properlydenied the motion to dismiss.
    No error.
    Judges McCULLOUGH and LEVINSON concur.
    Report per Rule 30(e).

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