State v. Tucker

• Court: North Carolina Court of Appeals
• Writing for the Court: DAVIS
• Citation: State v. Tucker, 743 S.E.2d 55 (N.C. App. 2013)
• Decision Date: 04 June 2013
• Docket Number: No. COA12–1068.,COA12–1068.
• Parties: STATE of North Carolina v. Dennis Dwayne TUCKER, Defendant.

743 S.E.2d 55

STATE of North Carolina

v.Dennis Dwayne TUCKER, Defendant.

No. COA12–1068.

Court of Appeals of North Carolina.

June 4, 2013.

Appeal by defendant from judgment entered 1 March 2012 by Judge R. Stuart Albright in Guilford County Superior Court. Heard in the Court of Appeals 26 February 2013.

Roy Cooper, Attorney General, by Robert K. Smith, Assistant Attorney General, for the State.

Staples Hughes, Appellate Defender, by Hannah Hall, Assistant Appellate Defender, for defendant-appellant.

DAVIS, Judge.

Dennis Dwayne Tucker (“defendant”) appeals his embezzlement conviction. After careful review, we find no error.

Factual Background

The State's evidence at trial tended to establish the following facts: Sometime prior to December 2010, defendant was hired by MBM Moving Systems, LLC (“MBM”), headquartered in Greensboro, North Carolina, to work as a long-distance truck driver. According to MBM's company policy, drivers are responsible for collecting payment upon delivery. When they receive the payment, they are supposed to use the company's FedEx account to send the payment, along with the paperwork associated with the move, to MBM headquarters. When a driver receives the payment in cash, the driver is required to convert the cash into a money order and then follow the established procedure for sending it in to MBM.

Under MBM's policy, drivers are not permitted to use funds derived from customer payments. MBM typically uses a system called Com Data to advance drivers money to pay for fuel, to make repairs, or to cover emergencies. The company will sometimes use a corporate credit card for such purposes when funds cannot be transferred quickly enough through Com Data.

Defendant, after delivering a load in the state of Washington in early December 2010, picked up another load consisting of household goods belonging to Leah Plotkin (“Plotkin”), a customer of MBM. Defendant delivered these goods to Plotkin at her new address in Las Vegas, Nevada on 4 December 2010. Upon delivery, Plotkin paid defendant the outstanding balance for the move—$2,086.19—in cash. Defendant then drove to Arizona to make another delivery. While he was in Arizona, defendant's commercial driver's license from Washington expired. For this reason, defendant purchased a plane ticket back to North Carolina—using some portion of the cash he received from Plotkin—and left the truck in Arizona.

Defendant eventually turned in the paperwork for the Plotkin move to MBM but never remitted the $2,086.19. Defendant stopped working for MBM in February 2011 and his “closeout statement” included an entry for “Missing Money” in the amount of $2,086.19. Matt Moran, MBM's vice president, contacted defendant several times in February and March 2011 in an attempt to resolve the issue. Moran, however, eventually lost contact with defendant and informed the police on 23 March 2011 that defendant had not returned the money.

Defendant was subsequently charged with embezzling the Plotkin funds. Prior to trial, the State moved to amend the indictment as described more fully below and, over defendant's objection, the trial court allowed the amendment. At the close of the State's evidence, defendant moved to dismiss the embezzlement charge on the ground that North Carolina lacked territorial jurisdiction over the offense. The trial court, after considering arguments from counsel, denied the motion.

Defendant then testified in his own defense, admitting that he had, in fact, used some of the Plotkin funds to purchase the airline ticket from Arizona to North Carolina. He claimed that although he had never been allowed by MBM management to use customer money before, he believed that, in this case, his supervisor had given him permission to use the money he had received from Plotkin. After testifying, defendant renewed his motion to dismiss for lack of territorial jurisdiction, and the trial court once again denied the motion.

The jury found defendant guilty of embezzlement. The trial court sentenced defendant to a presumptive range term of five to six months imprisonment, with credit for one day already served. Defendant gave notice of appeal in open court.

Analysis

I. Amendment of the Indictment

Defendant contends that the trial court erred in allowing the State to amend the indictment for the embezzlement charge prior to trial, claiming that the amendment substantially altered the charge in violation of N.C. Gen.Stat. § 15A–923 (2011). Originally, the indictment provided that, at the time of the alleged embezzlement, “the defendant ... was the employee of MBM Moving Systems, LLC....” Just prior to jury selection, however, the State moved to amend the indictment to include the words “or agent” after “employee” so that the indictment would allege that defendant was an “employee or agent of MBM Moving Systems, LLC.” Defendant objected, arguing that the amendment would prejudice his defense in that it would alter the nature of the relationship between defendant and MBM that the State would be attempting to establish at trial. The trial court allowed the amendment, ruling that it would not substantially alter the charge or prejudice defendant's defense.

Although N.C. Gen.Stat. § 15A–923(e) provides that “[a] bill of indictment may not be amended[,]” our appellate courts have “interpreted that provision to mean a bill of indictment may not be amended in a manner that substantially alters the charged offense.” State v. Silas, 360 N.C. 377, 379, 627 S.E.2d 604, 606 (2006). In determining whether an amendment is a substantial alteration of the charge, courts “must consider the multiple purposes served by indictments, the primary one being ‘to enable the accused to prepare for trial.’ ” Id. at 380, 627 S.E.2d at 606 (quoting State v. Hunt, 357 N.C. 257, 267, 582 S.E.2d 593, 600,cert. denied,539 U.S. 985, 124 S.Ct. 44, 156 L.Ed.2d 702 (2003)).

Defendant was charged with embezzlement under section 14–90, which provides, in pertinent part, as follows:

(a) This section shall apply to any person:

(1) Exercising a public trust.

(2) Holding a public office.

(3) Who is a guardian, administrator, executor, trustee, or any receiver, or any other fiduciary, including, but not limitedto, a settlement agent, as defined in G.S. 45A–3.

(4) Who is an officer or agent of a corporation, or any agent, consignee, clerk, bailee or servant, except persons under the age of 16 years, of any person.

(b) Any person who shall:

(1) Embezzle or fraudulently or knowingly and willfully misapply or convert to his own use, or

(2) 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 other chattels, bank note, check or order for the payment of money issued by or drawn on any bank or other corporation, or any treasury warrant, treasury note, bond or obligation for the payment of money issued by the United States or by any state, or any other valuable security whatsoever that (i) belongs to any other person or corporation, unincorporated association or organization or (ii) are closing funds as defined in G.S. 45A–3, which shall have come into his possession or under his care, shall be guilty of a felony.

N.C. Gen.Stat. § 14–90(a)–(b) (2011).

Because “[t]he embezzlement statute makes criminal the fraudulent conversion of personal property by one occupying some position of trust or some fiduciary relationship as specified in the statute[,]” State v. Griffin, 239 N.C. 41, 45, 79 S.E.2d 230, 233 (1953), defendant contends that the nature of that relationship is “critical to the charge of embezzlement” such that the amendment of the indictment in this case substantially altered the charge against him. We disagree.

It is well established that “[a]n agent is one who, by the authority of another, undertakes to transact some business or manage some affairs on account of such other, and to render an account of it.” SNML Corp. v. Bank of North Carolina, 41 N.C.App. 28, 36, 254 S.E.2d 274, 279,disc. review denied, 298 N.C. 204, 254 S.E.2d 274 (1979). Similarly, an employee is defined as “a person in the service of another under a contract of hire ... which gives the employer the right to control and direct the person in the material details of how the work is to be performed.” 27 Am.Jur.2d Employment Relationship § 2 (2013). The overlap in meaning between the terms “employee” and “agent” is illustrated by the fact that the Restatement defines “employee” by referencing the term “agent”: “[A]n employee is an agent whose principal controls or has the right to control the manner and means of the agent's performance of work....” Restatement (Third) Of Agency § 7.07(3)(a) (2006).

We believe that the terms “employee” and “agent” are essentially interchangeable for purposes of N.C. Gen.Stat. § 14–90(a). Accordingly, we hold that the amendment of the indictment in this case to allege that defendant was an “employee or agent” of MBM did not substantially alter the crime charged. See also Patterson v. State, 38 Ala.App. 166, 168–69, 81 So.2d 344, 346 (1955) (holding embezzlement indictment was not subject to dismissal due to “addition of ‘or servant’ to the description of defendant” as “officer, agent, clerk, [or] employee” because indictment still allowed defendant to “know what [was] intended” and enabled trial court to “pronounce the proper judgment”), cert. denied,262 Ala. 684, 81 So.2d 349 (1955); Lemmon v. State, 121 N.J.L. 466, 467–68, 3 A.2d 299, 299–300 (1938) (holding defendant was not prejudiced by embezzlement indictment charging defendant as “agent and servant” of complainant because terms were fundamentally interchangeable and similar legal consequences flowed from relationships).

Significantly, although defendant stresses the critical nature of the agency or fiduciary relationship to an indictment for embezzlement, he does not contend that he was “misled or surprised as to the nature of the charge...