State v. Agnew

• Decision Date: 07 March 1978
• Docket Number: No. 75,75
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Betty AGNEW.

Page 684

241 S.E.2d 684

294 N.C. 382

STATE of North Carolina v. Betty AGNEW.

No. 75.

Supreme Court of North Carolina.

March 7, 1978.

Atty. Gen. Rufus L. Edmisten, by Asst. Atty. Gen. William F. Briley, Raleigh, for the State.

Wilkinson & Vosburgh, by John A. Wilkinson, Washington, for defendant-appellee.

COPELAND, Justice.

After careful consideration of the evidence in this case, we have determined that defendant's motion for judgment of nonsuit as to the charge of obtaining property by false pretense should have been allowed; however, the trial court's denial of the motions for nonsuit of the charges of embezzlement and willful misapplication of funds was proper. We have examined defendant's assignments of error concerning the conduct of the trial and found them to be without merit. The decision of the Court of Appeals, consequently, is affirmed in part and reversed in part.

In ruling on a motion for judgment of nonsuit, the evidence must be considered in the light most favorable to the State and the State is entitled to every reasonable inference to be drawn therefrom. State v. Bell, 285 N.C. 746, 208 S.E.2d 506 (1974). The court in considering such a motion is concerned only with the sufficiency of the evidence to carry the case to the jury and not with its weight. State v. McNeil, 280 N.C. 159, 185 S.E.2d 156 (1971). Moreover, all evidence admitted during the trial, whether competent or incompetent, which is favorable to the State must be taken as true, State v. Roseman, 279 N.C. 573, 184 S.E.2d 289 (1971), and any contradictions or discrepancies therein must be resolved in the State's favor. State v. Evans, 279 N.C. 447, 183 S.E.2d 540 (1971). Defendant's evidence which tends to rebut the inference of guilt may be considered when it is not inconsistent with the State's evidence. State v. Blizzard, 280 N.C. 11, 184 S.E.2d 851 (1971). Nonetheless, if more than a scintilla of evidence is presented to support the indictment, the case must be submitted to the jury. State v. Kelly, 243 N.C. 177, 90 S.E.2d 241 (1955).

A motion for nonsuit of a charge of obtaining property by false pretense must be denied if there is evidence which, if believed, would establish or from which the jury could reasonably infer that the defendant (1) obtained value from another without compensation, (2) by a false representation of a subsisting fact, (3) which was calculated and intended to deceive and (4) did in fact deceive. State v. Davenport, 227 N.C. 475, 42 S.E.2d 686 (1947). We note that G.S. 14-100, which defines this crime, was amended subsequent to the date of the acts charged here so that false representations of future fulfillments or events are now also prohibited.

The State's theory, as pointed out by the Court of Appeals, appears to be that defendant falsely represented to the county that she had expended her personal funds for the costs of the Boston trip and was entitled to reimbursement, when in fact she had used funds advanced from the Department of Social Services account to cover these expenses and thus was seeking to recover the same money twice. An examination of all the evidence presented rebuts this, however, since it was uncontradicted that the Department checking account was not responsible for travel expenses, but was used only for occasional advances which were to be repaid when the individual employee received his or her reimbursement check from the county. The representation by defendant that she was entitled to reimbursement of the funds spent on the Boston trip, therefore, was not false at the time it was made and this essential element of the crime is not supported by any evidence in the record.

The State further argues that, because defendant had shared a hotel room with two other women attending the conference and had received cash from them in payment of their portion of its cost, she had actually claimed for a double recovery when she filed her expense report. This too is not supported by the evidence, since an examination of the expense statement submitted by defendant to the county discloses that only one-third of the total cost of the room was included in her claim for reimbursement.

The evidence also showed that defendant, after receiving notice of the impending audit, obtained back-dated checks from the women who shared the room with her in Boston and that the reimbursement received by defendant from the county was not deposited back into the Department checking account until over two months after she was notified of the audit. This could support a reasonable inference that when defendant filed for reimbursement she never intended to return the money to the Department account and thus by implication falsely represented the use to which the funds would be put when they were received. Such a representation, however, would pertain to a future fulfillment or event, rather than a past or subsisting fact. The amendment to G.S. 14-100 which added false representations of future events to the statutory prohibition became effective 1 October 1975, some seven months after the reimbursement check was issued by the county; therefore, the representation by defendant here was not a violation of the false pretenses statute at the time it was made, since prior to the enactment of this amendment promises of future action could not be the basis of a prosecution under this statute. State v. Hargett, 259 N.C. 496, 130 S.E.2d 865 (1963). Consequently, it is our conclusion that defendant's motion for judgment of nonsuit as to the charge of obtaining property by false pretenses should have been granted.

The State next contends that there was sufficient evidence to go to the jury on the charge of embezzlement. The crime of embezzlement was unknown to the common law and is defined solely by statute. State v. Ross, 272 N.C. 67, 157 S.E.2d 712 (1967). Under G.S. 14-90, "If any person exercising a public trust or holding a public office, or any . . . trustee . . . or any other fiduciary . . . or any agent, . . . except persons under the age of sixteen years, of any person, shall embezzle or fraudulently or knowingly and willfully misapply or convert to his own use, or shall take, make away with or secrete, with intent to embezzle or fraudulently or knowingly and willfully misapply or convert to his own use any money, goods or . . . check . . . belonging to any other person . . . or organization which shall have come into his possession or under his care . . ." he shall be guilty of the felony of embezzlement.

In the instant case, the State's evidence tended to show that: Defendant had received some $1,314.74 in advances from the Department checking account, repayment of which, as of the date of the audit, could not be traced by cash receipts or bank deposit slips. Five days after the Department was notified of the audit, defendant gave $900.00 in cash to one of her employees and told her that it represented repayment of defendant's advances. When the auditors first requested to see all the cash on the premises, defendant had $314.05 on hand. Upon being informed by the auditors that they were unable to account for approximately $100.00, defendant subsequently showed them cash in the amount of $100.00, telling them it had initially been overlooked. The reimbursement for the Boston trip received by defendant from the county was not deposited back into the Department checking account until seven months after the date of the check to defendant and over two months after defendant received notice of the impending audit. When the auditors first examined the Department's checking account records, they discovered a $180.75 disbursement from the account for which no corresponding check could be found. Check number 459 could not be found in the bank statements and its stub in the check book had been marked "Void." Defendant later found check number 459, which was made out to Statler-Hilton in the amount of $180.75, and presented it to the auditors, telling them it was used to pay the hotel bill for the Boston conference. At this time, neither the two back-dated checks from defendant's companions on the trip nor defendant's check for her share of the hotel bill had been deposited back into the Department account. At some point during the course of the audit, the control card on which defendant recorded her personal advances from the account was altered by the addition of an extra column, apparently for approvals, in which appeared the initials of the chairman of the Board of County Commissioners.

The Court of Appeals held that there could have been no fraudulent conversion here because the allegedly missing funds were on hand for disbursement at the proper time. It is no defense to a prosecution for embezzlement, however, that the defendant intended to return the property obtained or was able and willing to do so at a later date. State v. Howard, 222 N.C. 291, 22 S.E.2d 917 (1942); State v. Summers, 141 N.C. 841, 53 S.E. 856 (1906). Moreover, the element of fraudulent intent necessary to sustain an embezzlement conviction may be established by evidence of facts and circumstances from which it reasonably may be inferred, as well as by direct evidence. State v. McLean, 209 N.C. 38, 182 S.E. 700 (1935).

Defendant sought to show at trial that she had repeatedly requested bookkeeping help in her Department from the Board of County Commissioners. Yet, defendant testified that the number of budgeted positions in the county Department of Social Services had increased from 19 at the time she became director in 1968 to 62 at the time of trial. While the lack of a competent bookkeeper might arguably tend to negative fraudulent intent, this would be rebutted by the inference that someone competent to handle the ten to fifteen minutes' work per week this account required could have been found among these additional employees.

Considering the evidence set out above in the light most favorable to the State, we conclude...