State v. Parker

• Decision Date: 15 April 2014
• Docket Number: No. COA13–757.,COA13–757.
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Susan Lynette PARKER, Defendant.

756 S.E.2d 122

STATE of North Carolina

v.Susan Lynette PARKER, Defendant.

No. COA13–757.

Court of Appeals of North Carolina.

April 15, 2014.

Appeal by defendant from judgment entered 28 January 2013 by Judge Christopher W. Bragg in Union County Superior Court. Heard in the Court of Appeals 19 February 2014.

Attorney General Roy Cooper, by Assistant Attorney General Katherine A. Murphy, for the State.

Leslie C. Rawls, Charlotte, for defendant-appellant.

BRYANT, Judge.

Where the State presents substantial evidence of each element of the charge of embezzlement, defendant's motion to dismiss the charge is properly denied. Where evidence of prior bad acts admitted pursuant to Rule 404(b) is used to show, inter alia, motive, intent and common plan or scheme, and where the probative value of such evidence outweighs its prejudicial effect, the trial court has neither erred nor abused its discretion by admitting the evidence.

In 2008, defendant Susan Lynette Parker began work as a secretary in the Union County Public Schools (the “school system”). Defendant's job responsibilities included purchasing food and non-food items for school meetings, training sessions, and programs. Purchases were typically conducted with a school system credit card. The school system would also reimburse employees such as defendant for purchases made using personal funds and for any mileage expenses incurred.

Also beginning in 2008, defendant worked as the bookkeeper for the Centerview Baptist Church. As church bookkeeper, defendant was responsible for paying the church's bills, keeping all financial records, and providing the church with quarterly financial reports.

In 2010, after noticing irregularities in the church's finances, the pastor of Centerview Baptist Church contacted the Union County Sheriff's Office. A police investigation and audit revealed that defendant had used the church's checking account to pay personal debts. Defendant subsequently apologized to the church and repaid the misappropriated funds.

The school system was notified of the police investigation into defendant's misappropriation of funds from the Centerview Baptist Church. Shortly thereafter, defendant's supervisor discovered her name had been forged on reimbursement forms submitted by defendant to the school system. After a police investigation of purchases defendant made using the school system credit card, defendant was arrested for embezzlement of school funds.

On 7 November 2011, a grand jury indicted defendant on one count of embezzlement. On 28 January 2013, a jury convicted defendant of embezzlement. Defendant appeals.

_________________________

On appeal, defendant argues that the trial court erred in (I) denying her motion to dismiss and (II) admitting evidence pursuant to Rule 404(b).

I.

Defendant first argues that the trial court erred in denying her motion to dismiss. We disagree.

A motion to dismiss is properly denied where there is substantial evidence of each element of the offense charged and of defendant being the perpetrator of that offense. State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980) (citations omitted). Evidence should be viewed in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom. State v. McKinney, 288 N.C. 113, 117, 215 S.E.2d 578, 581 (1975) (citation omitted). Where the State offers substantial evidence of each essential element of the crime charged, defendant's motion to dismiss must be denied. State v. Porter, 303 N.C. 680, 685, 281 S.E.2d 377, 381 (1981) (citation omitted). We review a denial of a motion to dismiss de novo. State v. Bagley, 183 N.C.App. 514, 523, 644 S.E.2d 615, 621 (2007).

Defendant contends the trial court erred in denying her motion to dismiss because the State failed to prove embezzlement. Specifically, defendant argues that the State failed to offer substantial evidence that defendant used the school system's property for a wrongful purpose.

N.C. Gen.Stat. § 14–90 defines the offense of embezzlement and requires the State to present proof of the following essential elements: (1) that the defendant, being more than 16 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 by virtue of his fiduciary relationship, and (3) that he fraudulently or knowingly misapplied or converted to his own use such money or valuable property of his principal which he had received in his fiduciary capacity.

State v. Rupe, 109 N.C.App. 601, 608, 428 S.E.2d 480, 485 (1993) (citations omitted). In establishing the third element of embezzlement, a fraudulent or knowing misapplication of property, the State can show such intent by direct or circumstantial evidence. State v. McLean, 209 N.C. 38, 40, 182 S.E. 700, 702 (1935) (citations omitted). The 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, or that the agent intended to fraudulently or knowingly and willfully misapply it. State v. Smithey, 15 N.C.App. 427, 429–30, 190 S.E.2d 369, 370–71 (1972) (citations omitted).

Here, the State presented evidence that defendant was an employee of the school system who used a school system credit card to make food purchases. For example, defendant was instructed to purchase snack items such as pre-cut cheese, pre-cut fruit and grapes, and crackers, and other food items such as premade sandwiches and doughnuts to be served at teachers' conferences and events; defendant would then use the school system credit card to purchase these items at Harris Teeter, Krispy Kreme or McAllister's Deli. Each time defendant was asked to make food purchases for the school system, defendant was required to submit a request form indicating when, where, and why the credit card was to be used. Once the purchase was completed, defendant would submit the request form with receipts for final approval by a school administrator.

The State presented evidence and testimony that numerous food purchases made by defendant were questionable because they consisted of items that would not be purchased by or served at school system events. Items flagged as questionable included: a mop, beef tortelloni, marinara sauce, hash browns, chicken, chewing gum, blocks of cheese, oatmeal, and hot sauce. Defendant also purchased coffee, creamer, sugar, and cups using the school system's credit card, products which school administrators testified defendant would not need to buy because they were provided through an outside vendor. Further, evidence showed that defendant had forged her supervisors' signatures and/or changed budget code information on credit card authorization forms and reimbursement forms at least 29 times, and submitted forms for reimbursement with unauthorized signatures totaling $6,641.02. As such, the State presented sufficient evidence of each element of the charge of embezzlement to survive a motion to dismiss.

Defendant further argues that the State failed to meet its burden of proving each element of embezzlement because some witness testimony was contradictory as to whether certain food items were served at school events, and because purchase and reimbursement forms do not constitute embezzlement simply because the authorizing signatures are not authentic. We find defendant's argument to lack merit, as the State's evidence—of atypical food and item purchases and numerous forged signatures—presents sufficient evidence by which a jury could infer defendant's intent to commit embezzlement. See State v. Sutton, 53 N.C.App. 281, 287, 280 S.E.2d 751, 755 (1981) (holding that evidence that the defendant exceeded his authority in issuing himself coupons “permitted the inference” that the defendant had the fraudulent intent necessary for embezzlement); State v. Helsabeck, 258 N.C. 107, 128 S.E.2d 205 (1962) (holding that fraudulent intent, as required in the charge of embezzlement, can be inferred from the facts proven; direct evidence of such intent is not necessary). Accordingly, defendant's argument is overruled.

II.

Defendant next argues that the trial court erred by admitting evidence pursuant to Rule 404(b). We disagree.

When the trial court has made findings of fact and conclusions of law to support its 404(b) ruling, as it did here, we look to whether the evidence supports the findings and whether the findings support the conclusions. We review de novo the legal conclusion that the evidence is, or is not, within the coverage of Rule 404(b). We then review the trial court's Rule 403 determination for abuse of discretion.

State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159 (2012).

North Carolina Rules of Evidence, Rule 404(b), holds that:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation,plan, knowledge, identity, or absence of mistake, entrapment or accident.

N.C. Gen.Stat. § 8C–1, Rule 404(b) (2013). Rule 404(b) is “subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged.” State v. Coffey, 326 N.C. 268, 279, 389 S.E.2d 48, 54 (1990).

It is not required that evidence bear directly on the question in issue, and evidence is competent and relevant if it is one of the circumstances surrounding the parties, and necessary to be known, to properly understand their conduct or motives, or if it reasonably...