STATE OF NORTH CAROLINA
v
.
Halifax County
No. 05 CRS 53135
ZAVELLE MAURICE COOPER
Attorney General Roy Cooper, by Assistant Attorney General
Scott K. Beaver, for the State.
Stubbs, Cole, Breedlove, Prentis & Biggs, PLLC, by C. Scott
Holmes, for defendant-appellant.
CALABRIA, Judge.
Zavelle Maurice Cooper (“defendant”) appeals from judgment
entered upon a jury verdict finding him guilty of larceny by
employee. We find no error.
The State presented evidence that on 28 April 2005, defendant
was hired by Terry Williams (“Mr. Williams”) as a temporary
employee to unload boxes of merchandise from trucks for Scotland
Neck Industries, Inc. (“SNI”). Mr. Williams was employed as a
maintenance manager for SNI and acted as defendant's supervisor.
Defendant, along with three other men, helped Mr. Williams unload
approximately eight to ten thousand boxes. After unloading the
boxes, defendant accompanied Mr. Williams to the warehouse to coverthe boxes with plastic. At the end of the day, Mr. Williams paid
defendant and the defendant left the premises.
The following day, Mr. Williams noticed that a small number of
boxes containing comforter sets were missing from the warehouse.
Mr. Williams called defendant and asked him about the missing boxes
and comforter sets. Defendant denied having any knowledge
regarding the whereabouts of the boxes. Later, defendant talked
with Mr. Williams in person and defendant admitted that he had
taken the comforter sets. Mr. Williams instructed defendant to
retrieve the items that he had taken and return them to the
warehouse. Mr. Williams also testified that a pair of boots, some
nails, and a flashlight were missing from the warehouse. Defendant
returned a comforter, a pair of boots, a flashlight, and the nails
that were taken from the warehouse. Defendant also returned pieces
of scrap fencing that Mr. Williams had previously given to him.
Defendant was charged with one count of larceny by employee.
On 16 March 2006, a jury found defendant guilty of larceny by
employee. Halifax County Superior Court Judge J. Richard Parker
determined defendant's prior record level was a Level V and
sentenced defendant to a minimum term of 15 months to a maximum
term of 18 months in the North Carolina Department of Correction.
Defendant appeals.
Defendant argues the indictment charging him with the crime of
larceny by employee is fatally defective because it failed to name
a lawful owner of the property. Although the indictment lists SNI
as the lawful owner of the property, defendant argues because SNIwas administratively dissolved for failure to file an annual report
at the time of the indictment, SNI did not exist as a lawful
corporation and was not an entity capable of owning property. We
disagree.
Under N.C. Gen. Stat. § 55-14-20 (2005), the Secretary of
State may administratively dissolve a corporation if, inter alia,
the corporation is delinquent in delivering its annual report. Id.
If a corporation is administratively dissolved, N.C. Gen. Stat. §
55-14-05 provides that dissolution does not “[p]revent commencement
of a proceeding by or against the corporation in its corporate
name.” N.C. Gen. Stat. § 55-14-05(b)(5)(2005). See also, N.C.
Gen. Stat. § 55-14-21 (2005) (“The provisions of G.S. 55-14-05 . .
. apply to a corporation administratively dissolved.”).
Administrative dissolution under N.C. Gen. Stat. § 55-14-21 is
an entirely different procedure than that contemplated by N.C. Gen.
Stat. § 105-230 (2005), the statute upon which defendant relies.
Under § 105-230, a corporation's articles of incorporation,
articles of organization, or certificate of authority may be
suspended if the corporation fails to file any tax report or
return. Upon suspension under § 105-230, the corporation ceases to
have a legal existence. See Piedmont and Western Investment Corp.
v. Carnes-Miller Gear Co., 96 N.C. App. 105, 107, 384 S.E.2d 687,
688 (1989). In contrast, dissolution under § 55-14-20 does not
have the same impact or legal ramifications as suspension under §
105-230 and does not terminate the corporation's existence. SeeBaker v. Rushing, 104 N.C. App. 240, 250, 409 S.E.2d 108, 114
(1991).
In the case before us, the Certificate of Dissolution issued
by the North Carolina Department of the Secretary of State
administratively dissolved SNI pursuant to § 55-14-21 for failure
to file an annual report. The legal existence of SNI was not
terminated and SNI continued to exist as a corporate entity. Thus,
the indictment was not fatally defective because it properly stated
the name of an existing corporation. See State v. Thornton, 251
N.C. 658, 111 S.E.2d 901 (1960). Therefore, this assignment of
error is overruled.
Defendant next argues the trial court erred by ordering
defendant to pay restitution to SNI because SNI did not legally
exist at the time of the indictment. Because we have already held
that SNI existed as a corporate entity at the time of the
indictment, this assignment of error is overruled. We also note
defendant argues in his brief that N.C. Gen. Stat. § 15A-1340.34
does not authorize payment of restitution to corporations.
However, not one of defendant's assignments of error address this
argument. Thus, this argument is not properly before us for
review.
Defendant also contends the trial court erred by not granting
his motion to dismiss because the State failed to present evidence
establishing two elements of larceny by employee: 1) that defendant
was an employee of SNI, and 2) that the stolen goods were entrusted
to defendant for the use of SNI. We disagree. “In ruling on a motion to dismiss, the trial court must
examine the evidence in the light most favorable to the State, and
the State is entitled to every reasonable inference and intendment
that can be drawn therefrom.” State v. Olson, 330 N.C. 557, 564,
411 S.E.2d 592, 595 (1992). “[T]he 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.” Id.
“[T]he elements of larceny by employee are: (1) the defendant
was an employee of the owner of the stolen goods; (2) the goods
were entrusted to the defendant for the use of the employer; (3)
the goods were taken without the permission of the employer; and
(4) the defendant had the intent to steal the goods or to defraud
his employer.” State v. Frazier, 142 N.C. App. 207, 209, 541
S.E.2d 800, 801 (2001). “[W]hether a relationship is one of
employer-employee or independent contractor turns upon the extent
to which the party for whom the work is being done has the right to
control the manner and method in which the work is performed.”
Williams v. ARL, Inc., 133 N.C. App. 625, 630, 516 S.E.2d 187, 191
(1999) (quotations omitted). Factors relevant to determining
whether the relationship is that of an independent contractor
include:
[whether] [t]he person employed (a) is engaged
in an independent business, calling, or
occupation; (b) is to have the independent use
of his special skill, knowledge, or training
in the execution of the work; (c) is doing a
specified piece of work at a fixed price or
for a lump sum or upon a quantitative basis;
(d) is not subject to discharge because headopts one method of doing the work rather
than another; (e) is not in the regular employ
of the other contracting party; (f) is free to
use such assistants as he may think proper;
(g) has full control over such assistants; and
(h) selects his own time.
Hughart v. Dasco Transp., Inc., 167 N.C. App. 685, 694, 606 S.E.2d
379, 385 (2005). “'No particular one of these factors is
controlling in itself, and all the factors are not required.
Rather, each factor must be considered along with all other
circumstances to determine whether the claimant possessed the
degree of independence necessary for classification as an
independent contractor.'” Id. (quoting McCown v. Hines, 353 N.C.
683, 687, 549 S.E.2d 175, 178 (2001)).
Defendant's relationship with SNI was that of an employee.
Defendant was hired by Mr. Williams on behalf of SNI to help unload
boxes containing merchandise. Defendant's relationship with SNI
was not that of an independent contractor because defendant was not
engaged in an independent business or calling. Defendant was not
allowed to perform the work in a manner that he elected because Mr.
Williams directly supervised the mode and time frame in which
defendant unloaded the truck. Further, the work defendant was
hired to perform did not require defendant to have independent use
of special skills and was not an independent calling or occupation.
Overall, the factors surrounding defendant's employment with SNI,
albeit temporary, do not establish that defendant was an
independent contractor. Defendant places great emphasis on the
fact that he was hired on a temporary basis; however, that fact
standing alone does not automatically establish defendant'sindependent contractor status. Based on the factors and
circumstances of defendant's employment relationship with SNI,
defendant was hired as an employee of SNI and was not an
independent contractor.
Defendant next argues the evidence failed to establish that
the goods were entrusted to defendant for the use of SNI. Pursuant
to N.C. Gen. Stat. § 14-74 (2005), larceny by employee must be
committed in violation of a trust relationship between the employer
and the employee. Further, unlike common law larceny, larceny by
an employee requires an additional element of lawful possession.
State v. Brown, 56 N.C. App. 228, 231, 287 S.E.2d 421, 424 (1982).
In the case before us, Mr. Williams testified that SNI
manufactured and distributed bed linens. On the day that defendant
was hired, a shipment of comforter sets was returned to be unloaded
from the transfer truck and stored in one of SNI's warehouses. Mr.
Williams, on behalf of SNI, hired defendant to assist in unloading
the boxes containing the comforter sets into SNI's warehouse.
Through his employment with SNI, defendant was entrusted with the
comforter sets and had lawful possession of the comforter sets when
he removed them from the warehouse.
We note that although defendant was also charged with taking
a pair of boots and two bags of nails, defendant did not have
lawful possession of those items. Thus, the pair of boots and the
bags of nails did not support a conviction of larceny by employee.
See State v. Lovick, 42 N.C. App. 577, 257 S.E.2d 146 (1979).
However, the fact that defendant was charged with larceny byemployee for those items is harmless error. The evidence presented
established that defendant was entrusted with the comforter sets
and that defendant removed the comforter sets without the
permission of SNI. Therefore, the trial court did not err by
denying defendant's motion to dismiss and this assignment of error
is overruled.
Defendant next argues that the trial court erred in sentencing
defendant because the State did not present sufficient evidence of
defendant's prior record level. We disagree.
The State bears the burden of proving a prior conviction.
State v. Wade, ___ N.C. App. ___, ___, 639 S.E.2d 82, 85 (2007).
Prior convictions may be proven by:
(1) Stipulation of the parties.
(2) An original or copy of the court record of
the prior conviction.
(3) A copy of records maintained by the
Division of Criminal Information, the Division
of Motor Vehicles, or of the Administrative
Office of the Courts.
(4) Any other method found by the court to be
reliable.
N.C. Gen. Stat. § 15A-1340.14 (f) (2005). “A sentencing worksheet
standing alone, prepared by the State and listing a defendant's
prior convictions, is insufficient proof of prior convictions.”
State v. Hurley, ___ N.C. App. ___, ___, 637 S.E.2d 919, 923
(2006). However, “[s]tipulations do not require affirmative
statements and silence may be deemed assent in some circumstances,
particularly if the defendant had an opportunity to object, yet
failed to do so.” Id. The record indicates that the only evidence of defendant's
prior record level offered by the State was a prior record level
worksheet. “Therefore, we must review the dialogue between counsel
and the trial court to determine whether there was a stipulation of
the prior convictions listed on the worksheet the State presented.”
State v. Cromartie, 177 N.C. App. 73, 80, 627 S.E.2d 677, 682
(2006).
During sentencing, the following exchange took place:
THE COURT: [Prosecutor], do you have a
worksheet on this defendant?
[PROSECUTOR]: I do, if I could hand it to
[Defense Counsel] first.
. . .
THE COURT: As to the worksheet, the Court has
determined the prior record points to be 15
and the prior record level to be a level five.
[Defense Counsel] is there anything you care
to say on [defendant's] behalf?
[DEFENSE COUNSEL]: He is 30 years of age. He
lives with his grandmother. He has got five
children and he supports those five children
himself by doing carpentry work. . . .
In the instant case, after reviewing the worksheet, defendant had
the opportunity to object. Instead, defendant failed to object and
requested that the trial court impose a lenient sentence based upon
defendant's circumstances. Standing alone, the sentencing
worksheet submitted by the State was insufficient to establish
defendant's prior record level. However, defense counsel's conduct
during the course of the sentencing hearing constituted a
stipulation of defendant's prior convictions and was sufficient to
meet the requirements of § 15A-1340.14(f). See Hurley, ___ N.C.App. at ___, 637 S.E.2d at 923. Therefore, this assignment of
error is overruled.
Defendant has failed to argue his remaining assignments of
error and they are therefore deemed abandoned pursuant to N.C. R.
App. P. 28(b)(6). For the foregoing reasons, we find no error.
No error.
Judges McGEE and STEPHENS concur.
Report per Rule 30(e).
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