An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.

NO. COA04-1665


Filed: 06 September 2005


         v.                        Caldwell County
                                No. 01 CRS 9603

    Appeal by defendant from judgment entered 23 June 2004 by Judge David S. Cayer in Caldwell County Superior Court. Heard in the Court of Appeals 08 August 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Kevin L. Anderson, for the State.

    W.C. Palmer for defendant-appellant.

    STEELMAN, Judge.

    A jury found defendant guilty of three counts of embezzlement, upon evidence that she misappropriated funds from the bank account of the Hudson Child Development Center, a daycare center operated by the Hudson United Methodist Church in Hudson, North Carolina, in the course of her employment as the daycare's financial secretary from October of 2000 to October of 2001. The trial court consolidated defendant's offenses and imposed a community punishment of six to eight months' imprisonment, suspended, plus thirty months of supervised probation. Defendant filed timely notice of appeal from the judgment.
    In her lone assignment of error on appeal, defendant claimsthe trial court erred in denying her motion to dismiss due to a fatal variance between the allegations of the indictment and the State's proof at trial. We disagree.
    Defendant notes that the indictment charged her with embezzling the property of the “Trustees of the Hudson United Methodist Child Development Center[,]” while the evidence at trial showed ownership of the property by the Western North Carolina Conference of the United Methodist Church (“Western Conference”). Defendant contends that the trustees named in the indictment lacked title or any ownership interest in the subject property, inasmuch as Hudson United Methodist Church “is not recognized in North Carolina as an 'entity' capable of owning property.” She further avers that the indictment identifies the property's owner as the Trustees of Hudson United Methodist Church Child Development Center, rather than the Trustees of Hudson United Methodist Church.
    It is a cardinal principle of our criminal law that “a defendant must be convicted, if convicted at all, of the particular offense charged in the bill of indictment.” State v. Kornegay, 313 N.C. 1, 32, 326 S.E.2d 881, 903 (1985) (quoting State v. Evans and State v. Britton and State v. Hairston, 279 N.C. 447, 452, 183 S.E. 2d 540, 544 (1971)). Accordingly, the facts proved by the State at trial “must correspond” to the allegations of the indictment. Id. (citing State v. Jackson, 218 N.C. 373, 376, 11 S.E.2d 149, 151 (1940)).
    Although an indictment for the offense of embezzlement must allege the owner of misappropriated property, it need not identifythe person or entity possessed of legal title to the property. See, e.g., Kornegay, 313 N.C. at 27, 326 S.E.2d at 900 (citing State v. Greene, 289 N.C. 578, 584, 223 S.E.2d 365, 369 (1976)). “'It is sufficient if the person alleged in the indictment to be the owner has a special property interest, such as that of a bailee or a custodian, or otherwise has possession and control of [the property].'” State v. Linney, 138 N.C. App. 169, 172, 531 S.E.2d 245, 250 (quoting State v. Bost, 55 N.C. App. 612, 616, 286 S.E.2d 632, 635, disc. review denied, 305 N.C. 588, 292 S.E.2d 572 (1982)), appeal dismissed and petition for disc. review dismissed ex mero motu, 352 N.C. 595, 545 S.E.2d 214 (2000). As noted above, however, if “proof of ownership at trial varies from the allegation of ownership in the indictment, the indictment is invalid.” State v. Hughes, 118 N.C. App. 573, 575-76, 455 S.E.2d 912, 914 (citing State v. Brown, 263 N.C. 786, 140 S.E.2d 413 (1965)), disc. review denied, 340 N.C. 570, 460 S.E.2d 326 (1995).
    The sums at issue here were diverted by defendant from the checking account of the Hudson Child Development Center. The daycare center was operated by the Hudson United Methodist Church. Although “[t]he church ha[d] its own budget and operated on its own revenue, and the daycare ha[d] its own budget and operated on its own revenue,” all funds collected by the Hudson United Methodist Church and Hudson Child Development Center were the property of the Western Conference. Rodney Reese, who served on the board of trustees of the Hudson United Methodist Church during the period of defendant's employment with the Hudson Child Development Center,testified that the trustees were “responsible for the building, the grounds, any monies that came in[.]” He specifically affirmed that “the trustees [were] entrusted with money . . . taken in from the church and the daycare[.]” Reese described the trustees' duties in this regard as ensuring that the money “got distributed in the ways that it was supposed to be distributed.” He characterized the trustees' relationship to the Western Conference as follows:
        Q. Were you lawfully given permission from the Western Co[nference] to possess property and funds from . . . both the daycare and the church?

        . . .

        A. Well, not so much to possess it but [to] be the trustee of it, to overlook it. . . .

Reese also explained that the board of trustees “would oversee all groups” within the local church, clarifying that “just one set of trustees” oversaw both the church and the daycare center.
    As summarized above, the evidence reflected the trustees' custody and control of the funds in the Hudson Child Development Center's checking account. Although the trustees lacked ownership of the funds in question, their designation as trustees by the actual owner was sufficient to establish their “special property interest” in the property embezzled by defendant. Accordingly, there was no fatal variance between the indictment's allegations and the State's proof at trial. Moreover, inasmuch as Reese testified that a single board of trustees oversaw both the Hudson United Methodist Church and its Hudson Child Development Center, we find no merit to defendant's claim of a fatal variance based on theindictment's reference to “Trustees of the Hudson United Methodist Church Child Development Center[.]” See generally State v. Westbrooks, 345 N.C. 43, 57-58, 478 S.E.2d 483, 492 (1996) (discussing requirements and purposes of indictment under N.C. Gen. Stat. § 15-153).
    Defendant next challenges the sufficiency of the indictment on the ground that it does not explicitly identify the Trustees of the Hudson United Methodist Church Child Development Center as “a legal entity capable of owning property.” State v. Norman, 149 N.C. App. 588, 593, 562 S.E.2d 453, 457 (2002). This issue is not preserved by any assignment of error in the record, and is therefore dismissed. N.C.R. App. P. 10(a), (c)(1); State v. White, 82 N.C. App. 358, 360, 346 S.E.2d 243, 245 (1986).
    We note this Court's previous rejection of a similar claim in State v. Reid, 66 N.C. App. 698, 699, 311 S.E.2d 675, 676 (1984). In Reid, an indictment charged the defendant with felonious larceny of certain “personal property of the Board of Trustees/Linden Assoc. Reform Presbyterian Church[.]” The defendant in Reid argued that the indictment was fatally defective, inasmuch as “no allegations are contained therein of an entity capable of ownership of a property interest.” Id. While noting that the defendant had not challenged the indictment in the trial court, we reviewed the merits of his claim and held that the indictment “sufficiently allege[d] a violation of N.C. Gen. Stat. [§§] 14-54 and 14-72.” Id. Defendant attempts to distinguish Reid by positing a difference between the organizational structures of the respectivechurches. We find no evidence to support her assertion that Hudson United Methodist Church was incapable of owning property as a matter of North Carolina law; nor does she cite any authority for her claim. We deem it sufficient to observe that, as in Reid, the indictment alleged ownership by the trustees, not the church. This assignment of error is without merit.
    Chief Judge MARTIN and Judge HUNTER concur.
    Report per Rule 30(e).

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