State v. Johnson

• Decision Date: 28 January 1994
• Docket Number: No. 5PA93,5PA93
• Citation: 335 N.C. 509,438 S.E.2d 722
• Parties: STATE of North Carolina v. Jefferson D. JOHNSON, III.
• Court: North Carolina Supreme Court

Page 722

438 S.E.2d 722

335 N.C. 509

STATE of North Carolina v. Jefferson D. JOHNSON, III.

No. 5PA93.

Supreme Court of North Carolina.

Jan. 28, 1994.

Michael F. Easley, Atty. Gen. by Charles M. Hensey, Sp. Deputy Atty. Gen., Raleigh, for State appellant.

Tharrington, Smith & Hargrove by Roger W. Smith and Douglas E. Kingsbery, Raleigh, for defendant-appellee.

WEBB, Justice.

The defendant argues, and the Court of Appeals agreed, that there was not sufficient evidence to convict the defendant of embezzlement because the evidence did not show the defendant came into possession of the draft lawfully. This is an element which must be proved in order to convict a person of embezzlement. State v. Speckman, 326 N.C. 576, 391 S.E.2d 165 (1990); State v. Griffin, 239 N.C. 41, 79 S.E.2d 230 (1953).

We believe the evidence showed the defendant came into possession of the draft lawfully so far as Ms. McCoy was concerned and that he wrongfully converted it to his own use. The defendant was the agent of Ms. McCoy with authority to negotiate the settlement of her claim. If he obtained the draft by a misrepresentation to State Farm that Ms. McCoy would accept the offer of settlement, he may have been guilty of obtaining property by a false pretense as to State Farm, but he was still the agent of Ms. McCoy and in possession of the draft as her agent. At that point, Ms. McCoy had the right to ratify the act of her agent and accept the draft. McCrillis v. Enterprises, 270 N.C. 637, 155 S.E.2d 281 (1967). The defendant so far had not committed any fraudulent act toward Ms. McCoy. She owned an interest in the draft in that she could, by accepting State Farm's offer, be entitled to the draft. The defendant, so far as Ms. McCoy was concerned, was in lawful possession of the draft in which she had a legal interest. When he converted it to his own use he was guilty of embezzlement. We believe that the relationship between the principal and agent governs as to whether the possession of the property was lawfully gained. Lawful possession does not depend on the relation between the agent and a third party.

The defendant says that because he received the draft from State Farm with instructions to hold it until Ms. McCoy signed the release he was acting as an agent for State Farm, holding the draft in escrow for State Farm until the release was signed. He says the title to the draft remained in State Farm and did not pass to Ms. McCoy. For this reason, he could not have embezzled the draft from Ms. McCoy. Whatever the relationship between the defendant and State Farm as to title to the draft, Ms. McCoy had sufficient property interest in the draft so that the defendant could have embezzled it from her.

For the reasons stated in this opinion, we reverse the Court of Appeals and remand for remand to Superior Court, Sampson County for the reinstatement of the sentence.

REVERSED AND REMANDED.

EXUM, C.J., did not participate in the consideration or decision of this case.

FRYE, Justice, concurring.

I concur fully in the majority's opinion. I write separately only to emphasize that the State has presented sufficient evidence to support a finding of all of the elements of embezzlement.

To constitute an embezzlement, the property in question initially must be acquired lawfully, pursuant to a trust relationship. State v. Speckman, 326 N.C. 576, 391 S.E.2d 165 (1990); State v. Griffin, 239 N.C. 41, 79 S.E.2d 230 (1953). Because he had satisfactorily represented her in a similar case in 1982, Ms. McCoy employed defendant in 1987 for the express purpose of collecting money for damages caused by an automobile accident. Thus, by the very terms of his employment, defendant was charged with receiving money on behalf of Ms. McCoy from the tort-feasor's insurance company, State Farm Mutual (hereinafter State Farm). The fact that a settlement was not expressly authorized by Ms. McCoy does not require a finding that the $20,000 draft was acquired unlawfully. It is well settled in the law of agency that when an agent contracts in the name of his principal without authority, upon knowledge of the formation of such a contract, the principal can either ratify the agent's act or disavow it. See Patterson v. Lynch, Inc., 266 N.C. 489, 146 S.E.2d 390 (1966); 2A C.J.S. Agency § 67, at 652-54 (1972).

The elements of embezzlement are as follows:

First, that the accused was the agent of the person or corporation alleged, and ... by the terms of his employment he was charged with receiving the money or property of his principal; second, that he did, in fact, receive such money; third, that he received it in the course of his employment; further, that he, knowing it was not his own, converted it to his own use or to the use of some third person, not the true owner.

State v. Blackley, 138 N.C. 620, 625-26, 50 S.E. 310, 312 (1905) (citations omitted).

As Ms. McCoy's attorney and agent, defendant was charged with receiving the money or property of his principal; thus, the State has presented sufficient evidence of the first element. The point of contention between the majority and the dissent is whether the second element of embezzlement--that the agent did in fact receive such money or property of his principal--has been satisfied.

The draft was jointly payable to Ms. McCoy and defendant as her attorney along with instructions to hold it until Ms. McCoy signed the release. According to the dissent, Ms. McCoy did not have a property interest in the draft since she "never endorsed the draft, signed the release, or took control of the funds." These acts may be necessary in order to allege "actual ownership" of property but as the dissent correctly points out, the State can also properly allege ownership in a person with a "special property interest." State v. Carr, 21 N.C.App. 470, 204 S.E.2d 892 (1974), citing State v. Smith, 266 N.C. 747, 147 S.E.2d 165 (1966), and State v. Law, 228 N.C. 443, 45 S.E.2d 374 (1947).

Ms. McCoy is indeed a person with a "special property interest" even though she did not expressly authorize this specific settlement of her claim with State Farm. She was not even aware that the draft existed. Nevertheless, as a principal, she had the right to ratify or reject this unauthorized action of her agent, defendant. See Patterson v. Lynch, Inc., 266 N.C. 489, 146 S.E.2d 390; 2A C.J.S. Agency § 67, at 652-54 (1972). Under the law of agency:

'It is not necessary ... that the principal's assent or sanction be given in advance of the performance of the transaction which constitutes the subject-matter or purpose of the agency. If his assent be obtained after the transaction by a confirmation of the assumed relation, it is equally binding and efficacious....'

Walker Grading & Hauling v. S.R.F. Management Corp., 311 N.C. 170, 182, 316 S.E.2d 298, 305 (1984), citing Trollinger v. Fleer, 157 N.C. 81, 87, 72 S.E. 795, 797 (1911). It is the majority's position that this right of ratification is a sufficient property interest to satisfy the ownership element of embezzlement. Conversely, the dissent concludes that "prior to [actual] ratification, the principal retains no benefit from the unauthorized contract and consequently has nothing of value from the agent's transaction." It is my position that the right of ratification itself, notwithstanding whether Ms. McCoy ultimately chose to exercise it or not, is extremely beneficial to her and is a sufficient property interest to satisfy the ownership element of embezzlement.

The record reflects that Ms. McCoy was under continual care of doctors after the accident and that as a result she could not return to work for some time. During this period, Ms. McCoy's source of income was her husband's social security. Because her car was a total loss as result of the accident, she purchased a new car from an area auto dealership. Ms. McCoy testified that she returned to work even though she had not been released from the doctor because she had bills to pay. Under these circumstances, I am at a loss to see how the dissent concludes that the right to ratify the unauthorized contract with State Farm and accept the draft for $20,000 was of no benefit to Ms. McCoy. She had a right to sign both the release and draft and have the funds represented by the draft paid to her or applied for her benefit. By forging her signature on the release and draft and converting the funds to his own use, defendant deprived Ms. McCoy of this right. In doing so, defendant took a valuable property right from his client, not a "mere possibility" as suggested by the dissenting opinion.

Additionally, the State has presented sufficient evidence of the remaining elements of embezzlement by showing that defendant received the draft in the course of his employment as the attorney representing Ms. McCoy in this matter, and finally that defendant knowing that the draft was not his, converted it to his own use by depositing it into his personal bank account. Thus, the trial court was correct in entering judgment on the jury verdict finding defendant guilty of embezzlement.

WHICHARD, Justice, dissenting.

I agree with the Court of Appeals' conclusion that the State did not present substantial evidence to support the charge of embezzlement. Embezzlement occurs when a person has "been entrusted with and received into his possession lawfully the personal property of another, and thereafter with felonious intent ... fraudulently convert[s] the property to his own use." State v. Griffin, 239 N.C. 41, 45, 79 S.E.2d 230, 233 (1953). The State must present sufficient evidence of each element of the crime charged. State v. Bates, 309 N.C. 528, 533, 308 S.E.2d 258, 262 (1983). The elements of embezzlement are: "First, that the accused was the agent of the person or corporation alleged, and ... by the terms of his employment he was charged with receiving the money...