1. Appeal and Error--preservation of issues--failure to argue in brief
Two of the original four assignments of error on appeal are deemed abandoned pursuant
to N.C. R. App. P. 28(b)(6) because defendant failed to argue them in her brief.
2. Embezzlement--fiduciary relationship--merchandise associate or store clerk--
clothing store
Assuming arguendo that the trial court erred in an embezzlement case by instructing the
jury that by law a fiduciary relationship existed between a merchandise associate and the
clothing store where she worked, the error was not prejudicial because: (1) N.C.G.S. § 14-90
specifically references clerks, and witnesses testified that a merchandise associate is the same as
a store clerk; and (2) the jury could have found defendant guilty of embezzlement in her
nonfiduciary capacity as a store clerk based on the State's presentation of the remaining elements
of the crime.
3. Embezzlement--motion to dismiss--sufficiency of evidence
The trial court did not err by denying defendant's motion to dismiss the charge of
embezzlement, because the State provided substantial evidence that: (1) as a merchandise
associate or sales clerk authorized to conduct sale transactions on behalf of the pertinent clothing
company, defendant was an agent of the company; (2) pursuant to the terms of defendant's
employment, she was to receive and did receive property belonging to the company; and (3)
defendant knew that the merchandise was not hers, and converted it to her own use or
fraudulently sold some of the merchandise.
Attorney General Roy Cooper, by Special Deputy Attorney
General Robert O. Crawford, III, for the State.
ROBINSON LAW OFFICE, by Charles Everett Robinson, for
defendant-appellant.
TIMMONS-GOODSON, Judge.
Tikelia Robinson (“defendant”) appeals her conviction of
embezzlement. For the reasons stated herein, we find no error in
the trial court's judgment.
The State's evidence presented at trial tends to show the
following: On 3 April 2000, defendant was hired as a merchandise
associate at TJ Maxx Department Store (“TJ Maxx”) in Rocky Mount,
North Carolina. In September 2000, Dwayne Gooding (“Gooding”), a
loss prevention detective for TJ Maxx, received information from
transaction reports and store employees that defendant may have
been selling merchandise for less than the marked price. On 21
September 2000, Gooding interviewed defendant, at which time she
provided a written confession that during her employment she
engaged in “underringing,” “free bagging,” and “markdown fraud.”
“Underringing” occurs when an employee receives merchandise from a
customer for purchase, and the employee keys in a price on the cash
register lower than the price stated on the price tag. “Free
bagging” occurs when a customer presents multiple items for
purchase at a cash register and the employee rings up fewer than
all of the items, but places all of the items in a bag for the
customer to take from the store. “Markdown fraud” occurs when an
employee takes an item from the sales floor to a markdown machine,
creates a price tag for the item that is lower than the true price
of the item, and then purchases the item at the lower price.
Defendant admitted to underringing and free bagging $15,000 in
merchandise. She further admitted purchasing and selling to other
employees $20,000 in merchandise by way of markdown fraud. Defendant was arrested and charged with one count of
embezzlement, and tried before a jury on 11 June 2003. At the
charge conference following the conclusion of the evidence, counsel
for defendant objected to any jury instruction on embezzlement and
argued that larceny by an employee (N.C. Gen. Stat. § 14-74) was
the appropriate charge. Defense counsel stated that if the trial
court proceeded to instruct the jury on embezzlement that the court
should also instruct on the definition of a fiduciary relationship.
The trial court instructed the jury in pertinent part as follows:
Ladies and gentlemen, the defendant Tikelia
Robinson has been charged with embezzlement
which occurs when a merchandise associate
rightfully receives property in her role as
merchandise associate and then intentionally,
fraudulently and dishonestly uses it for some
purpose other than which _ other than that for
which she received it.
. . . .
Ladies and gentlemen, a fiduciary is a person
in whom another person has placed special
faith, confidence and trust. Because of the
trust and confidence placed in him by another
person, a fiduciary is required to act
honestly, in good faith, and in the best
interests of that person.
A fiduciary relationship may exist in a
variety of circumstances. Any time one places
special faith, confidence and trust in another
person to represent his best interests, a
fiduciary relationship exists. It is not
necessary that it be a technical or legal
relationship.
By law, a fiduciary relationship exists
between a merchandise associate and TJ Maxx.
The jury convicted defendant of embezzlement and the trial
court sentenced her to a suspended sentence of forty-eight monthssupervised probation on the condition that she pay an undetermined
probation supervision fee, $250 in court costs, a $1000 fine, and
$20,000 in restitution. It is from this conviction that defendant
appeals.
[1] As an initial matter, we note that defendant's brief
contains arguments supporting only two of the original four
assignments of error on appeal. The omitted assignments of error
are deemed abandoned pursuant to N.C. R. App. P. 28(b)(6) (2004).
We therefore limit our review to the assignments of error addressed
in defendant's brief.
The issues presented on appeal are whether the trial court
erred by (I) instructing the jury regarding a fiduciary
relationship; and (II) denying defendant's motion to dismiss.
[2] Defendant first argues that the trial court erred by
instructing the jury that “[b]y law, a fiduciary relationship
exists between a merchandise associate and TJ Maxx.” Assuming
arguendo that the trial court erred in providing the fiduciary
instruction, we conclude that the error was not prejudicial to
defendant where N.C. Gen. Stat. § 14-90 specifically references
“clerks.”
The General Statutes of North Carolina provide as follows with
respect to embezzlement:
If any person exercising a public trust or
holding a public office, or any guardian,
administrator, executor, trustee, or any
receiver, or any other fiduciary, or any
officer or agent of a corporation, or anyagent, consignee, clerk, bailee or servant
. . . shall embezzle or fraudulently or
knowingly and willfully misapply or convert to
his own use, or shall take, make away with or
secrete, with intent to embezzle or
fraudulently or knowingly and willfully
misapply or convert to his own use any money,
goods or other chattels . . . which shall
have come into his possession or under his
care, he shall be guilty of a felony.
N.C. Gen. Stat. § 14-90 (2003) (emphasis added).
“The primary rule of statutory construction is that the intent
of the legislature controls the interpretation of a statute.”
Stevenson v. City of Durham, 281 N.C. 300, 303, 188 S.E.2d 281, 283
(1972). “Where the statutory language is clear and unambiguous,
'the Court . . . must apply the statute to give effect to the plain
and definite meaning of the language.'” Carolina Power & Light Co.
v. City of Asheville, 158 N.C. 512, 518, ___ S.E.2d ___, ___ (2004)
(quoting Fowler v. Valencourt, 334 N.C. 345, 348, 435 S.E.2d 530,
532 (1993)). The legislature's use of the conjunction “or,” used
to indicate an alternative, indicates that a person who serves in
any of the capacities described, and engages in any of the
activities described, may be found guilty of embezzlement.
In the present case, Gooding and Cynthia Taylor (“Taylor”), an
assistant manager at the store, testified that a merchandise
associate is the same as a store clerk. Clearly, clerks are among
the group of persons that the legislature intended to cover by the
statute. Thus, we conclude that the trial court properly
instructed the jury that embezzlement can occur “when a merchandise
associate rightfully receives property in her role as a merchandise
associate and then intentionally, fraudulently and dishonestly usesit for some purpose . . . other than that for which she received
it.” Therefore, because the State presented sufficient evidence of
the remaining elements of the crime, the jury could have found
defendant guilty of embezzlement in her non-fiduciary capacity as
a store clerk. Accordingly, we conclude that defendant was not
prejudiced by the trial court's jury instruction regarding
fiduciary relationship.
[3] Defendant next argues that the trial court erred by
denying defendant's motion to dismiss. We disagree.
In ruling on a motion to dismiss, “the trial court must
determine whether there is substantial evidence of each essential
element of the offense charged.” State v. Bullard, 312 N.C. 129,
160, 322 S.E.2d 370, 387 (1984). “Substantial evidence is 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). When reviewing the
evidence, the trial court must consider even incompetent evidence
in the light most favorable to the prosecution, granting the State
the benefit of every reasonable inference. State v. Brown, 310
N.C. 563, 566, 313 S.E.2d 585, 587 (1984).
To survive a motion to dismiss a charge of embezzlement, the
State must have presented evidence of the following:
(1) Defendant was the agent of the
complainant; (2) pursuant to the terms of his
employment he was to receive property of his
principal; (3) he received such property in
the course of his employment; and (4) knowing
it was not his, he either converted it to his
own use or fraudulently misapplied it.
State v. Tedder, 62 N.C. App. 12, 17, 302 S.E.2d 318, 322, disc.
rev. denied, 309 N.C 324, 305 S.E.2d 561 (1983) (citing State v.
Ellis, 33 N.C. App. 667, 236 S.E.2d 299 (1977)). The term “agent”
is defined as “one who is authorized to act for or in place of
another; a representative.” Black's Law Dictionary 68 (8th ed. 2004).
In the present case, the evidence establishes that defendant
was an agent of TJ Maxx. Gooding and Taylor testified that TJ Maxx
authorized defendant to sell its merchandise to customers. As a
merchandise associate or sales clerk authorized to conduct sales
transactions on behalf of the company, defendant was an agent of TJ
Maxx. Thus, the first element of embezzlement analysis is
satisfied.
The evidence also tends to show that pursuant to the terms of
defendant's employment, she was to receive, and did receive,
property belonging to TJ Maxx. Gooding and Taylor testified that
all store employees, including defendant, are entrusted with the
merchandise in the store. Thus, the second and third elements of
embezzlement analysis are satisfied.
The evidence further demonstrates that defendant knew that the
merchandise was not hers, converted it to her own use or
fraudulently sold some of the merchandise. In defendant's
handwritten confession, as read into evidence by Gooding, defendant
confesses the following: “Since my employment at TJ Maxx I have
been involved in underringing, free bagging, and markdown fraud;”
“I intentionally gave away merchandise about 300 times over a 4 to
5 month period;” “I knew this was wrong and against company policyand against the law.” Thus, the fourth element of embezzlement
analysis is satisfied.
Because the State provided substantial evidence of each
offense charged, we conclude that the trial court properly denied
defendant's motion to dismiss.
NO ERROR.
Chief Judge MARTIN and Judge HUDSON concur.
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