STATE OF NORTH CAROLINA
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.
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.
Judges McGEE and STEPHENS concur.
Report per Rule 30(e).
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