Link to original WordPerfect file
Link to PDF file
How to access the above link?
All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. ROBIN MEDFORD JONES
Filed: 2 August 2005
Embezzlement--public officer--local ABC board employee--subject matter jurisdiction
The Court of Appeals concluded ex mero motu that the trial court lacked subject matter
jurisdiction over defendant local ABC Board employee, and the judgments finding defendant
guilty of ten counts of embezzlement by a public officer under N.C.G.S. § 14-92 are vacated,
because: (1) the Asheville ABC is not a political subdivision of a city, county, or the
Commission; (2) although defendant is an employee of a local ABC board and is subject to
statutes that are applicable to a local ABC board's employees, defendant is not a public officer of
any county, unit or agency of local government, or local board of education; and (3) as a local
ABC Board employee, defendant should have been charged under N.C.G.S. § 14-90.
Appeal by defendant from judgments entered 3 November 2003 by
Judge J. Marlene Hyatt in Buncombe County Superior Court. Heard in
the Court of Appeals 21 April 2005.
Attorney General Roy Cooper, by Assistant Attorney General J.
Douglas Hill, for the State.
Reita P. Pendry, for defendant-appellant.
Robin Medford Jones (defendant) appeals from judgments
entered after a jury found her to be guilty of ten counts of
embezzlement by public officer under N.C. Gen. Stat. § 14-92. We
vacate the trial court's judgments.
Defendant was employed by the Asheville Board of Alcohol
Control (Asheville ABC) in 1990 and worked at the Mixed Beverage
Outlet (MBO). The MBO's sole function is to sell and distribute
alcohol to restaurants and bars in the City of Asheville and
surrounding areas. The selling process is uncomplicated: Customers place orders,
the MBO prepares orders, and customers pick up their orders. When
customers retrieve their orders, payment is made by cash or check.
Checks are accepted for payment only if a check guarantee letter is
on file from the customer's bank. Once the transaction is
complete, an invoice is printed showing payment has been made by
either cash or check.
In 1993 or 1994, defendant became the Assistant Manager of the
MBO. During this time, defendant and Gale Cole (Cole), the MBO
Manager, were the only employees working at the MBO. This
relationship continued for seven years. During this time, Cole did
not report any issues with deposits from the MBO. Cole became
aware of potential problems after Frank Worley (Worley),
supervisor of all employees of the Asheville ABC, questioned her in
May 2002. Worley had been advised of late deposits at the MBO by
the Asheville ABC's accountant, John Bradford (Bradford).
Several times Bradford reported late deposits to Worley from the
MBO before a shortage was detected.
On 1 June 2002, Worley advised Cole that the MBO's bank
account was $32,000.00 short. When Worley inquired of Cole about
the MBO's invoices, he was told defendant had taken them home to
file. Once the invoices were retrieved from defendant's home,
Worley and Cole found discrepancies. At this point, Rick Matthews
(Investigator Matthews), chief investigator for the Asheville
ABC, was notified. Investigator Matthews asked Cole to retrieveadditional records. Cole told him some of the records were
Investigator Matthews continued his investigation and spoke
with defendant on 11 June 2002. After defendant was told of the
missing records and shortages, she assured Investigator Matthews
that she had no knowledge of discrepancies with the deposits and if
problems existed, Cole would know about them.
In July 2002, an arrest warrant was issued for defendant. On
4 November 2002, defendant was indicted under N.C. Gen. Stat. § 14-
92 for ten counts of embezzlement by public officer. Defendant was
found by a jury to be guilty of all ten counts of embezzlement on
3 November 2003. Defendant appeals.
Defendant argues the trial court erred by: (1) denying her
motion to dismiss at the close of the State's evidence; (2)
permitting handwriting identification without laying a proper
foundation; and (3) finding as fact an element of the crime
The dispositive issue is whether the trial court possessed
subject matter jurisdiction over defendant.
The question of subject matter jurisdiction may properly be
raised for the first time on appeal. Furthermore, this Court may
raise the question on its own motion even when it was not argued by
the parties in their briefs. Bache Halsey Stuart, Inc. v.
Hunsucker, 38 N.C. App. 414, 421, 248 S.E.2d 567, 571 (1978) (citingJenkins v. Winecoff, 267 N.C. 639, 148 S.E.2d 577 (1966); N.C. Gen.
Stat. § 1A-1, Rule 12(h)(3)), cert. denied, 296 N.C. 583, 254 S.E.2d
32 (1979). Defendant alleges the trial court erred by finding as
fact an element of the crime charged but fails to specifically
allege the trial court lacked subject matter jurisdiction. We raise
the question of subject matter jurisdiction ex mero motu. Id.
'[E]mbezzlement is a criminal offense created by statute to
cover fraudulent acts which did not contain all the elements of
larceny.' State v. Weaver, 359 N.C. 246, 255, 607 S.E.2d 599, 604
(2005) (quoting State v. Griffin, 239 N.C. 41, 79 S.E.2d 230
(1953)). Over the past 130 years, embezzlement statutes have been
revised expanding the class of individuals who are capable of
committing the offense . . . . Weaver, 359 N.C. at 253, 607 S.E.2d
at 603 (citations omitted). During this time, statutes were enacted
defining more specific incidences of embezzlement as applicable to
certain classes of individuals. Id.
Defendant was indicted under N.C. Gen. Stat. § 14-92 entitled,
Embezzlement of funds by public officers and trustees, which
states in part:
If an officer, agent, or employee of an entity
listed below, or a person having or holding
money or property in trust for one of the
listed entities, shall embezzle or otherwise
willfully and corruptly use or misapply the
same for any purpose other than that for which
such moneys or property is held, such person
shall be guilty of a felony . . . [i]f any
clerk of the superior court or any sheriff,
treasurer, register of deeds or other public
officer of any county, unit or agency of local
government, or local board of education shallembezzle or wrongfully convert to his own use,
or corruptly use, or shall misapply for any
purpose other than that for which the same are
held . . . .
Local Alcoholic Beverage Control (ABC) Boards are governed
by N.C. Gen. Stat. §§ 18B-700 through 18B-703. N.C. Gen. Stat. §§
18B-101(3) and 18B-101(8) (2003) defines a local board as an
independent local political subdivision of the State and not an
agency of a city or county or of the Commission. N.C. Gen. Stat.
§ 18B-702 (2003) provides in pertinent part:
Financial operations of local boards
(a) Generally. -- A local board may transact
business as a corporate body, except as limited
by this section. A local board shall not be
considered a public authority . . . .
. . . .
(f) Applicability of Criminal Statutes. -- The
provisions of G.S. 14-90 and G.S. 14-254 shall
apply to any person appointed to or employed by
a local board, and any person convicted of a
violation of G.S. 14-90 or G.S. 14-254 shall be
punished as a Class H felon.
In Fowler v. Valencourt, our Supreme Court stated, [w]here one
of two statutes might apply to the same situation, the statute which
deals more directly and specifically with the situation controls
over the statute of more general applicability. 334 N.C. 345, 349,
435 S.E.2d 530, 532 (1993) (citations omitted).
In State v. Thompson, this Court upheld an embezzlement
conviction although the defendant was indicted under an incorrect
statute. 50 N.C. App. 484, 487, 274 S.E.2d 381, 383, cert denied,
302 N.C. 633, 280 S.E.2d 448 (1981). The indictments against
defendant do not refer specifically to any statute, and they aresufficient to charge defendant with violations of either G.S. 14-90
or 14-92. Id. Each indictment before us specifically charges
defendant for violations of N.C. Gen. Stat. § 14-92. Id. The
Asheville ABC is not a political subdivision of a city, county, or
the Commission. N.C. Gen. Stat. § 18B-101.
It is undisputed that defendant is an employee of a local ABC
board and is subject to statutes that are applicable to a local ABC
board's employees. Defendant is not a public officer of any county,
unit or agency of local government, or local board of education.
As a local ABC Board employee, defendant should have been
charged under N.C. Gen. Stat. § 14-90. See N.C. Gen. Stat. § 18B-
702(f). The trial court lacked jurisdiction to hear this case where
defendant was charged with violation of N.C. Gen. Stat. § 14-92.
The trial court's judgments are vacated.
Defendant is a local ABC Board employee charged with
embezzlement under N.C. Gen. Stat. § 14-92. The appropriate statute
to charge a local ABC Board employee is N.C. Gen. Stat. § 14-90.
The trial court lacked subject matter jurisdiction to hear the
State's case against defendant.
Defendant's conviction and the trial court's judgments are
Chief Judge MARTIN and Judge Levinson concur.
*** Converted from WordPerfect ***