Appeal by defendant from judgment entered 3 February 2006 by
Judge Clifton W. Everett, Jr. in Washington County Superior Court.
Heard in the Court of Appeals 21 March 2007.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Daniel P. O'Brien, for the State.
Ferguson, Stein, Chambers, Gresham & Sumter, P.A., by William
G. Simpson, Jr. and Julius Chambers, for defendant-appellant.
Stanley Ray James (defendant) appeals from a jury verdict of
guilty on one count of embezzlement by a public officer. After
careful review, we find no error.
Defendant was sheriff of Washington County from 1998 until
August 2004, when he was removed from office. On or before 3
January 2001, defendant received a check for $2,665.00 from the
United States Treasury made out to Washington County Detention in
payment for housing a military prisoner. The county budgetary
policy for money received by the sheriff's office was for the money
to be turned over to the county's finance office to be put in the
general fund, from which it was then disbursed. In this case,
however, defendant instead used the money directly for sheriff's
office purposes: Two thousand dollars went to an account belonging
to the Washington County Law Enforcement Association, and the
remaining $655.00 was used as petty cash for the sheriff's office.
Five hundred dollars of that petty cash amount was given or loaned
to a deputy for moving expenses; the remaining $155.00 was used to
purchase a watch for a retiring chief deputy.
A jury found defendant guilty of one count of embezzlement by
a public officer on 30 January 2006. He received a suspended
sentence of sixteen to twenty months imprisonment, sixty days
active sentence, and forty-eight months supervised probation. Hewas also ordered to make restitution in the amount of $2,655.00.
 Defendant first argues that the trial court erred in its
instructions to the jury by improperly explaining the element of
fraudulent intent. We disagree.
Per statute, a trial judge must instruct the jury on the law
arising on the evidence. State v. Bogle
, 324 N.C. 190, 195, 376
S.E.2d 745, 748 (1989); see
N.C. Gen. Stat. .§ 15A-1231, -1232
(2005). This includes instruction on the elements of the crime.
, 324 N.C. at 195, 376 S.E.2d at 748. Failure to instruct the
jury on these elements is prejudicial error requiring a new trial.
Prejudicial error is defined as a question of whether 'there is a
reasonable possibility that, had the error in question not been
committed, a different result would have been reached at the trial
out of which the appeal arises.' State v. Lanier
, 165 N.C. App.
337, 354, 598 S.E.2d 596, 607 (2004) (citation omitted) (quoting
N.C. Gen. Stat. § 15A-1443(a) (2003)).
Fraudulent intent is a necessary element of embezzlement by a
public officer under N.C. Gen. Stat. . 14-92 (2005). See State v.
, 209 N.C. 38, 40, 182 S.E. 700, 701 (1935); State v. Agnew,
294 N.C. 382, 390, 241 S.E.2d 684, 690-91, cert. denied
, 439 U.S.
830, 58 L. Ed. 2d 124 (1978). The court in the case at hand
instructed the jury as to this element as follows:
And, third, that the defendant, Stanley
James, unlawfully and willfully did one or
more of these things: Intentionally,
fraudulently and dishonestly used this moneyfor some purpose other than that for which he
received it; or, corruptly used the money; or,
misapplied this money for any purpose other
than that for which the same was held; or,
failed to pay over and deliver this money to
the proper persons entitled to receive the
same when lawfully required to do so.
To satisfy this third element of the
offense, the State need only prove to you
beyond a reasonable doubt that the defendant
unlawfully and willfully did one or more of
the alternative acts listed above as I have
just instructed you.
(Emphasis added.) Defendant argues that the last two alternatives
presented by the trial court misstate the element of fraudulent
intent. We disagree.
N.C. Gen. Stat. § 14-92 actually encompasses two forms of
embezzlement by a public officer: The first applies to any
officer, agent, or employee of a county or other unit of local
government who embezzles the funds of that unit; the second applies
only to certain types of officers, including sheriffs, who embezzle
funds received by virtue of their office in trust for any person or
corporation. It is the first part of the statute that applies to
the case at hand, because defendant was not holding funds in trust
for any person or corporation, but rather accused of misusing funds
belonging to the county.
As to intent, the first portion of the statute (the portion
applicable here) uses the language 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[.] Id
. The second
uses the language embezzle or wrongfully convert to his own use,
or corruptly use, or shall misapply for any purpose other than thatfor which the same are held, or shall fail to pay over and deliver
to the proper persons entitled to receive the same when lawfully
required so to do[.] Id
The first of the disputed alternatives in the jury
instructions -- unlawfully and willfully . . . misapplied this
money for any purpose other than that for which the same was held
-- comes almost verbatim from the first portion of the statute, and
thus correctly states the requirement of intent. N.C. Gen. Stat.
Defendant argues that the second of the disputed alternatives
-- unlawfully and willfully . . . failed to pay over and deliver
this money to the proper persons entitled to receive the same when
lawfully required to do so -- was improperly included by the trial
court, as it comes from the second portion of the statute. It is
in fact the only definition of intent that is included in the
second portion of the statute but not the first. Apparently,
language was inadvertently lifted from the second portion of the
statute for the jury instructions even though only the first
portion of the statute applies.
However, this language pulled from the second portion does not
appear to misstate the definition of intent required by the crime
described in the first portion of the statute. In State v. Agnew
our Supreme Court stated:
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 characterto procure some benefit for himself or for
another person, contrary to duty and the
rights of others.
, 294 N.C. at 392-93, 241 S.E.2d at 691 (quoting State v.
, 202 N.C. 518, 540, 163 S.E. 657, 669 (1932)). Our Supreme
Court has also upheld jury instructions in which the terms done in
bad faith, fraudulently, wilfully and corruptly were used
, 202 N.C. at 539, 163 S.E. at 668 (emphasis
Thus, the instruction given by the court in this case equates
to: Defendant fraudulently or with unlawful intent failed to give
certain money to those entitled to it in spite of a legal
requirement to do so. This does not misstate the element of
intent required by the applicable portion of the statute, and as
such, we find that the instructions were not in error.
 Defendant next argues that because the trial court
misstated the requirement of fraudulent intent in its instructions
to the jury, it is impossible to conclude that the jury unanimously
concluded that defendant acted with fraudulent intent, as the jury
could have based its verdict on either of the two invalid
descriptions of required intent. This argument depends on the
validity of the first argument, since without a finding that the
instructions were incorrect, there is no disjunctive quality to the
instructions. Because the first argument is without merit, this
one must also fail.
 Defendant next argues that the trial court erred in
refusing to instruct the jury on two lesser included offenses.
This argument is without merit.
In North Carolina, defendants are entitled to have lesser
included offenses supported by evidence submitted to the jury.
State v. Smith
, 351 N.C. 251, 267, 524 S.E.2d 28, 40 (2000); State
, 300 N.C. 731, 735-36, 268 S.E.2d 201, 204 (1980).
However, the two offenses defendant requested be included in the
jury instructions do not qualify as lesser included offenses.
The determination of whether one offense is a lesser included
offense of another is made on a definitional as opposed to a
factual basis. State v. Westbrooks
, 345 N.C. 43, 55, 478 S.E.2d
483, 490-91 (1996). That is, the test is not whether the facts of
the case could warrant charges under more than one crime, but
whether two crimes include the same essential elements: To be a
lesser included offense, all of the essential elements of the
lesser crime must also be essential elements included in the
greater crime. If the lesser crime has an essential element which
is not completely covered by the greater crime, it is not a lesser
included offense. State v. Weaver
, 306 N.C. 629, 635, 295 S.E.2d
375, 379 (1982), overruled on other grounds by State v. Collins
334 N.C. 54, 431 S.E.2d 188 (1993). The three essential elements
of N.C. Gen. Stat. . 14-92 are: (1) defendant was an officer,
agent, or employee of a named entity (including a county); (2)
defendant received and held money belonging to the entity by virtue
of that position; and (3) defendant willfully and corruptly use[d]or misappl[ied] the money for a purpose other than the purpose for
which the entity intended it. Id
Defendant requested the jury be instructed on two lesser
included offenses: Violations of N.C. Gen. Stat. .. 159-8(a) and
159-181(a). Neither of these offenses has the same essential
elements as those of N.C. Gen. Stat. . 14-92, and as such they are
not lesser included offenses.
The first offense defendant requested be included is a
violation of N.C. Gen. Stat. . 159-8(a) (2005), part of the Local
Government Budget and Fiscal Control Act: [N]o local government
or public authority may expend any moneys, regardless of their
source . . . , except in accordance with a budget ordinance or
project ordinance adopted under this Article or through an
intragovernmental service fund or trust and agency fund properly
excluded from the budget ordinance. This statute prohibits (1)
the expending of money (2) by a government or other public
authority (3) without proper authority via ordinance or fund.
While defendant is correct that section 159-8(a), like section
14-92, concerns the misapplication of public funds, the former
prohibits such action by a government body or authority, not an
individual working for such an entity. That is, as part of the
Local Government Budget and Fiscal Control Act, it is intended to
control the actions of the entities
named in section 14-92 (a
county, a city or other unit or agency of local government, etc.),
while section 14-92 is intended to ensure that the individuals
employed by such entities act properly on the entity's behalf. The second requested offense was a violation of N.C. Gen.
Stat. . 159-181(a) (2005):
If any finance officer, governing board
member, or other officer or employee of any
local government or public authority . . .
shall approve any claim or bill knowing it to
be fraudulent, erroneous, or otherwise
invalid, or make any written statement, give
any certificate, issue any report, or utter
any other document required by this Chapter,
knowing that any portion of it is false, or
shall willfully fail or refuse to perform any
duty imposed upon him by this Chapter, he is
guilty of a Class 3 misdemeanor and upon
conviction shall only be fined not more than
one thousand dollars ($1,000) and forfeits his
office, and shall be personally liable in a
civil action for all damages suffered thereby
by the unit or authority or the holders of any
of its obligations.
. This statute prohibits: (1) any officer of local government
or public authority: (a) approving a claim knowing it to be
fraudulent; (b) making a statement or report knowing it to be
false; or (c) willfully failing or refusing to perform any duty
imposed on him by Chapter 159.
While defendant might be correct that the portion of section
159-181(a) forbidding the willful failure to perform duties also
applies to his situation, again, this failure to perform is not an
element shared by section 14-92. Further, when one statute
requires proof of a fact that the other does not, the elements of
the offenses are not the same, and thus neither is a lesser
included offense. State v. Etheridge
, 319 N.C. 34, 50, 352 S.E.2d
673, 683 (1987). For a charge under section 14-92, no proof need
be offered that defendant refused to perform a duty required of
him, though it would be necessary for a charge under section 159-181; and, for a charge under section 159-181, no proof need be
offered that defendant fraudulently intended to misappropriate
funds, though section 14-92 requires such proof.
Because the two proposed statutes have different essential
elements or require additional facts to be proven, they are not
lesser included offenses, and the trial court did not err in
refusing to instruct the jury on them.
 Finally, defendant argues that because fraudulent intent
is an essential element of embezzlement by a public officer, the
trial court erred in refusing to instruct the jury that a good
faith, mistaken belief that he was not violating the law was a
defense. This argument is without merit.
As the trial court pointed out, fraudulent intent is an
essential element of the charge of embezzlement by a public
officer. If the jury found that defendant did not have the
requisite intent -- whether because of good faith mistake or
otherwise -- they would not find him guilty. To be convicted, a
defendant must have a felonious intent. Unless the intent is
proved, the offense is not proved. State v. Agnew
, 33 N.C. App.
496, 509, 236 S.E.2d 287, 295 (1977), rev'd in part on other
, 294 N.C. at 382, 241 S.E.2d at 684; see also State
, 202 N.C. 204, 162 S.E. 367 (1932). The trial court's
instructions to the jury regarding intent, laid out above,
describes the four alternatives for intent using the words
fraudulently and dishonestly, corruptly, misapplied, andfailed to pay over . . . to the persons entitled to receive
[money] when lawfully required to do so. All of these terms
properly convey the fact that if the jury decided that defendant
had made a good faith mistake, they could not find him not guilty
of the charge. Thus, the jury instructions inherently included an
instruction on good faith mistake.
Because the trial court's instructions were not incorrect, we
find no error in the verdict and judgment entered thereon.
Judges TYSON and JACKSON concur.
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