State v. Booker
| Decision Date | 06 November 2018 |
| Docket Number | No. COA18-165,COA18-165 |
| Citation | 262 N.C.App. 290,821 S.E.2d 877 |
| Parties | STATE of North Carolina v. Jala Namreh BOOKER |
| Court | North Carolina Court of Appeals |
Attorney General Joshua H. Stein, by Special Deputy Attorney General Kimberley A. D'Arruda, for the State.
Joseph P. Lattimore, for defendant-appellant.
In this appeal, we address whether (1) an indictment for embezzlement was legally sufficient where it failed to expressly allege fraudulent intent and did not specify the acts allegedly constituting embezzlement; (2) the trial court committed plain error by instructing the jury on an element of embezzlement not supported by the evidence; and (3) the trial court plainly erred by allowing testimony concerning the defendant's post-arrest silence. After a thorough review of the record and applicable law, we conclude that the defendant received a fair trial free from prejudicial error.
The State introduced evidence at trial tending to show the following facts: In 2013, Marjorie Hetzel owned Interstate All Battery Center franchises in Danville, Virginia and Greensboro, North Carolina. In November 2013, Hetzel hired Jala Namreh Booker ("Defendant") as the office manager for the Greensboro franchise. As part of her duties as office manager, Defendant was responsible for the daily reports generated from the register, managing accounts payable and receivable, and occasionally assisting with sales. None of the store's other employees were responsible for bookkeeping or "keeping track of the money" in any capacity.
At the close of business each day, Defendant was required to generate a daily activity report from the cash register summarizing the store's monetary transactions for that day. After verifying that the cash register actually contained the amount of money listed in the daily activity report, she was supposed to place the money from the cash register in a bank deposit bag and lock the bag in a cabinet on the store's premises overnight. On the following business day, Defendant was expected to take the money in the bag to the bank and deposit it.
Prior to June 2015, Hetzel did not have any concerns about Defendant's job performance or her handling of the business's finances. That month, Defendant called Hetzel to express confusion over how she should handle five dollars that an outside salesman had placed in the cash register. Upon arriving at the store, Hetzel asked Defendant for the applicable deposit ticket. In response, Defendant retrieved from her car five separate envelopes containing cash, checks, and deposit slips. Together, the envelopes contained over $10,000.
Hetzel immediately began reviewing the business's financial records and noticed that the previous deposit made by Defendant was $447 short. When Hetzel asked her about the missing funds, Defendant stated that the money was in the envelopes she had retrieved from her car. Hetzel told Defendant to deposit the money in the envelopes immediately, and she did so. Hetzel fired Defendant the following day.
On 22 June 2015, Hetzel contacted the Greensboro Police Department regarding financial discrepancies in her business records and subsequently discussed her concerns with Detective Edward Bruscino. After analyzing various financial documentation and bank records provided to him by Hetzel, Detective Bruscino determined that discrepancies existed during the time period when Defendant was employed between the amount of money that should have been deposited and the amount that was actually deposited.
Detective Bruscino focused his investigation on the months of December 2014 and March 2015 because those "were the months that truly showed where cash was missing from multiple deposits." On numerous dates during those months, Defendant had either deposited less money than the business's financial records indicated should have been deposited or she did not make a deposit at all. At no point during her employment did Defendant ever inform Hetzel about any financial discrepancies related to the business.
Defendant was indicted by a grand jury on 23 January 2017 on the charge of embezzlement. A jury trial was held beginning on 19 July 2017 before the Honorable Michael D. Duncan in Guilford County Superior Court. At the close of the State's evidence, Defendant moved to dismiss the embezzlement charge, and the trial court denied the motion. She renewed her motion to dismiss at the close of all the evidence, which was once again denied.
On 20 July 2017, the jury found Defendant guilty of embezzlement. The trial court sentenced her to a term of 6 to 17 months imprisonment, suspended the sentence, and placed Defendant on supervised probation for a period of 60 months. The court also ordered her to pay restitution in the amount of $4,100.67. Defendant filed a timely notice of appeal.
On appeal, Defendant argues that the trial court erred by (1) denying her motion to dismiss the embezzlement charge on the ground that the indictment was facially invalid; (2) instructing the jury on an element of embezzlement not supported by the evidence; and (3) permitting testimony concerning her post-arrest silence. We address each argument in turn.
Defendant first contends that the trial court erred by denying her motion to dismiss. Specifically, she asserts that the indictment was invalid because it failed to allege any fraudulent intent on her part and did not specify the acts committed by her that constituted embezzlement. We disagree.
State v. Jones , 367 N.C. 299, 306, 758 S.E.2d 345, 350 (2014) (citation, quotation marks, and brackets omitted). An indictment that "fails to state some essential and necessary element of the offense" is fatally defective, State v. Ellis , 368 N.C. 342, 344, 776 S.E.2d 675, 677 (2015) (citation and quotation marks omitted), and if an indictment is fatally defective, the trial court lacks subject matter jurisdiction over the case. State v. Justice , 219 N.C. App. 642, 643, 723 S.E.2d 798, 800 (2012).
An indictment "is constitutionally sufficient if it apprises the defendant of the charge against him with enough certainty to enable him to prepare his defense and to protect him from subsequent prosecution of the same offense." State v. Stroud , ––– N.C. App. ––––, ––––, 815 S.E.2d 705, 709 (citation and quotation marks omitted), appeal dismissed and disc. review denied , ––– N.C. ––––, 817 S.E.2d 573 (2018). A defendant has received sufficient notice "if the illegal act or omission alleged in the indictment is clearly set forth so that a person of common understanding may know what is intended." State v. Haddock , 191 N.C. App. 474, 477, 664 S.E.2d 339, 342 (2008) (citation and quotation marks omitted). Furthermore, "while an indictment should give a defendant sufficient notice of the charges against him, it should not be subjected to hyper technical scrutiny with respect to form." State v. Harris , 219 N.C. App. 590, 592, 724 S.E.2d 633, 636 (2012) (citation and quotation marks omitted). On appeal, this Court reviews the sufficiency of an indictment de novo . State v. Marshall , 188 N.C. App. 744, 748, 656 S.E.2d 709, 712, disc. review denied , 362 N.C. 368, 661 S.E.2d 890 (2008).
N.C. Gen. Stat. § 14-90 provides, in pertinent part, as follows:
N.C. Gen. Stat. § 14-90 (2017).
This Court has explained that in order to convict a defendant of embezzlement the State must prove the following essential elements:
(1) [T]hat defendant, being more than sixteen years of age, acted as an agent or fiduciary for his principal; (2) that he received money or valuable property of his principal in the course of his employment and through his fiduciary relationship; and (3) that he fraudulently or knowingly and willfully misapplied or converted to his own use the money or valuable property of his principal which he had received in his fiduciary capacity.
State v. Melvin , 86 N.C. App. 291, 298, 357 S.E.2d 379, 383 (1987) (citation omitted). With regard to the third element, "[t]he State does not need to show that the agent converted his principal's property to the agent's own use, only that the agent fraudulently or knowingly and willfully misapplied it[.]" State v. Parker , 233 N.C. App. 577, 580, 756 S.E.2d 122, 124-25 (2014) (citation omitted).
In the present case, Defendant's indictment stated, in pertinent part, as follows:
[D]efendant named above unlawfully, willfully and feloniously did embezzle three thousand nine hundred fifty seven dollars and eighty one cents ($3,957.81) in good and lawful United States currency belonging to AMPZ, LLC d/b/a Interstate All Battery Center. At the time the defendant was over 16 years of age and was the employee of AMPZ, LLC d/b/a Interstate All Battery Center and in that capacity had been entrusted to receive the property described above and in that capacity the defendant did receive and...
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