State v. Sutton

• Decision Date: 04 August 1981
• Docket Number: No. 811SC95,811SC95
• Citation: 280 S.E.2d 751,53 N.C.App. 281
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Chester O. SUTTON.

Page 751

280 S.E.2d 751

53 N.C.App. 281

STATE of North Carolina v. Chester O. SUTTON.

No. 811SC95.

Court of Appeals of North Carolina.

Aug. 4, 1981.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Ben G. Irons, II, Raleigh, for the State.

Whitted, Jordan & Matthewson by Louis Jordan and Reginald Kenan, Goldsboro, for defendant-appellant.

CLARK, Judge.

Defendant's attorney violated Rule 28(b)(3) of the North Carolina Rules of Appellate Procedure which requires that exceptions and assignments of error be set out after each question argued in appellant's brief. Although we elect to reach the merits of defendant's case as authorized under Rule 2, we note that defendant, by not referring us to the point in the record where the alleged error occurred, has placed upon this Court the responsibility of searching the record for the exceptions and assignments of error upon which he bases his argument. Defendant will not be heard to protest that a particular argument was addressed to certain objections, exceptions, or assignments of error not attributed to that argument by this Court, since defendant was afforded the opportunity in his brief to direct our attention anywhere in the record he wished, but chose not to do so.

Defendant first argues that his motions to dismiss at the close of the State's evidence, at the close of all evidence, and after the verdict should have been granted because the State failed to offer substantial evidence of each material element of embezzlement. See State v. Seufert, 49 N.C.App. 524, 271 S.E.2d 756 (1980). The elements of embezzlement are as follows: (1) defendant must be the agent of the prosecutor; (2) by the terms of his employment he must receive the property of his principal; (3) he must receive the property in the course of his employment; and (4) he must convert the property to his own use knowing it not to be his own. State v. Ellis, 33 N.C.App. 667, 236 S.E.2d 299, cert. denied, 293 N.C. 255, 236 S.E.2d 708 (1977); State v. Buzzelli, 11 N.C.App. 52, 180 S.E.2d 472, cert. denied, 279 N.C. 350, 182 S.E.2d 583 (1971); see State v. Helsabeck, 258 N.C. 107, 128 S.E.2d 205 (1962). Defendant argues that the fourth element of embezzlement is not supported by substantial evidence. We disagree.

The State presented evidence that defendant improperly operated the cash register so that it would develop a cash surplus for the days for which he was indicted, but that he did not report any surplusage to the manager and he failed to note a surplus on the work sheets. There was also evidence that inventory was leaving the store unaccounted for. From this evidence the jury could reasonably infer that defendant sold this missing inventory, generating a secret surplus, and that this surplus was going into defendant's pocket. This is certainly more than a scintilla of evidence that defendant converted the money to his own use and thus satisfies the substantial evidence test. See State v. Smith, 40 N.C.App. 72, 252 S.E.2d 535 (1979); see also, State v. Agnew, 294 N.C. 382, 241 S.E.2d 684, cert. denied, 439 U.S. 830, 99 S.Ct. 107, 58 L.Ed.2d 124 (1978). It goes without saying that the jury could permissibly infer that defendant knew that money he received in payment for Hardee's inventory was not his own.

It was not necessary for the State to establish defendant's control and possession of the property to the exclusion of all others. State v. Barbour, 43 N.C.App. 143, 258 S.E.2d 475 (1979).

Defendant argues that there is a fatal variance between the indictment and the State's proof. The sufficiency of the indictments is not challenged. Defendant's argument is merely a meritless restatement of his argument that his motions to dismiss should have been granted for lack of substantial evidence.

Defendant argues that his motions to dismiss should have been granted as to the indictments for embezzling coupons, because the State failed to offer evidence that he wrongfully took the coupons with fraudulent intent. On this issue the evidence taken in the light most favorable to the State tended to show that the store had run out of coupons only once before November and December of 1979 and that those back coupons were restored to the employees no later than the first of July 1979. The State also presented evidence tending to show that upon first being confronted with his issuance to himself of unauthorized coupons, defendant said nothing about paying himself back for coupons he had missed in the past, but claimed he was entitled to the coupons because he had worked double shifts on some of the days in November and December 1979. When confronted with time sheets for those months which belied his statement, defendant admitted that he had not worked double shifts.

The evidence was that defendant was authorized to issue himself one coupon per day worked, that he issued more than one coupon per day worked, and that no one ever authorized him to issue more than one. This evidence permitted the inference that defendant knew he was exceeding his authority when he issued himself extra coupons to which he was not entitled. Our holding then is in substantial accord with the holding of this Court in State v. Barbour, 43 N.C.App. 143, 258 S.E.2d 475 (1979):

"We hold the trial court did not err in denying defendant's motions for dismissal. The test to be applied in ruling on a motion to dismiss is whether there is 'substantial evidence of all material elements of the offense to withstand the motion to dismiss.' State v. Stephens, 244 N.C. 380, 383, 93 S.E.2d 431, 433 (1956). Such a motion requires consideration of the evidence in the light most favorable to the state; the state is entitled to every reasonable inference which may be drawn from the evidence. State v. McKinney, 288 N.C. 113, 215 S.E.2d 578 (1975). The substantial evidence may be circumstantial or direct, or both. State v. Stephens, supra. The court is not required to find that the evidence excludes every reasonable hypothesis of innocence in denying a defendant's motion to dismiss. To do so would constitute the presiding judge the trier of facts. Substantial evidence of every material element of the crime charged is required before the court can submit the case to the jury. Proof of guilt beyond a reasonable doubt is required before the jury can convict. Id.

Although it is a basic tenet of our criminal law system that proof of guilt beyond a reasonable doubt is required before the jury can convict, once the trial court finds that substantial evidence exists to take the case to the jury, 'it is solely for the jury to determine whether the facts taken singly or in combination satisfy them beyond a reasonable doubt that the defendant is in fact guilty.' State v. Smith, 40 N.C.App. 72, 79-80, 252 S.E.2d 535, 540 (1979). The jury returned a verdict of guilty in this case, and there is no reason for this Court to reverse that verdict."

Id. at 147-49, 258 S.E.2d at 478-79.

Defendant argues that evidence of his monthly payments...