State v. Gamble

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA20-83

Filed: 1 December 2020

Wilkes County, No. 18CRS421

STATE OF NORTH CAROLINA

v.

SHELLEY LOVETTE GAMBLE

Appeal by Defendant from judgment entered 25 July 2019 by Judge Michael

D. Duncan in Wilkes County Superior Court. Heard in the Court of Appeals

17 November 2020.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Teresa

L. Townsend, for the State.

Patterson Harkavy LLP, by Narendra K. Ghosh, for Defendant.

COLLINS, Judge.

Defendant challenges her sentence following conviction of eight counts of

embezzlement of property received by virtue of office or employment. She argues that

the trial court erred by applying the aggravating factor of “taking of property of great

monetary value,” N.C. Gen. Stat. § 15A-1340.16(d)(14), to one of her convictions

because the value embezzled, $202,242.62, was not far greater than the $100,000

STATE V. GAMBLE

Opinion of the Court

threshold amount required to support a conviction of Class C felony embezzlement

under N.C. Gen. Stat. § 14-90(c). We discern no error.

I. Factual Background and Procedural History

Brushy Mountain Group Homes is a nonprofit which runs three group homes

in Wilkes County for adults with intellectual disabilities. Brushy Mountain first

hired Defendant as a manager in 1989. Defendant subsequently became Brushy

Mountain’s executive director in July 2001.

In July 2016, Defendant informed Brushy Mountain’s Board of Directors that

the nonprofit was out of funds. Between June 2012 and July 2016, the balance in

Brushy Mountain’s various accounts had fallen from over $400,000 to $440.

Concerned, the Board of Directors forwarded Brushy Mountain’s financial records to

its attorney, and then to the State Bureau of Investigation (“SBI”). An SBI

investigation revealed $410,203.41 in unauthorized expenditures. These

expenditures included 373 checks totaling $26,251.81 in 2014, $202,242.62 in 2015,

and $168,240.00 in 2016, as well as $13,468.98 in credit card charges spanning 2012

to 2016. All of the checks were deposited into Defendant’s checking account or

endorsed by Defendant. Defendant resigned her position as executive director in

August 2016.

On 4 September 2018, Defendant was indicted on eight counts of

embezzlement of property received by virtue of office or employment, pursuant to

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Opinion of the Court

N.C. Gen Stat. § 14-90; two of the counts alleged Defendant embezzled property

valued $100,000 or more. Each individual indictment corresponded to the sum of one

particular year’s unauthorized checks or credit card transactions. Defendant was

tried before a jury in Wilkes County Superior Court from 22 to 25 July 2019. The

jury found Defendant guilty of all charges.

At sentencing, Defendant pled guilty to the aggravating factor that one of the

offenses involving unauthorized credit card transactions and all three offenses

involving unauthorized checks “involved an . . . actual taking of property of great

monetary value.” See N.C. Gen. Stat. § 15A-1340.16(d)(14) (2019). The trial court

applied the aggravating factor to Defendant’s conviction of embezzlement of

$202,242.62 in 2015, and sentenced Defendant to 92 to 123 months’ imprisonment.1

The trial court consolidated the remaining convictions and imposed sentences within

the presumptive range, suspended for 60 months of supervised probation.

Additionally, the trial court ordered Defendant to pay $25,000 in restitution.

Defendant gave notice of appeal in open court.

II. Discussion

Defendant’s sole argument on appeal is that the trial court erred by imposing

a sentence in the aggravated range. Specifically, Defendant contends that the “great

1 While the trial court consolidated Defendant’s convictions for the 2015 and 2016 checks for

the purposes of sentencing, it only applied the aggravating factor on the basis of the $202,242.62

Defendant was convicted of embezzling in 2015.

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Opinion of the Court

monetary value” aggravating factor cannot be applied because the value embezzled,

$202,242.62, was not far greater than the $100,000 amount required to support a

conviction of Class C felony embezzlement under N.C. Gen. Stat. § 14-90(c). Alleged

statutory sentencing errors are questions of law which we review de novo. State v.

Allen, 249 N.C. App. 376, 379, 790 S.E.2d 588, 591 (2016).

When sentencing a criminal defendant, the trial court must consider “evidence

of aggravating or mitigating factors present in the offense that make an aggravated

or mitigated sentence appropriate . . . .” N.C. Gen. Stat. § 15A-1340.16(a) (2019). A

“defendant may admit to the existence of an aggravating factor, and the factor so

admitted shall be treated as though it were found by a jury . . . .”

Id. § 15A-1340.16(a1) (2019).

“Evidence necessary to prove an element of the offense shall not be used to

prove any factor in aggravation . . . .” Id. § 15A-1340.16(d) (2019). The aggravating

factor at issue in this case is whether “[t]he offense involved an attempted or actual

taking of property of great monetary value . . . .” Id. § 15A-1340.16(d)(14). One of the

elements of Class C felony embezzlement of property received by virtue of office or

employment is that the value of the property taken was $100,000 or more.

Id. § 14-90(c) (2019).

Though a conviction for Class C felony embezzlement requires evidence of this

threshold value, a trial court may still be permitted to apply the “great monetary

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Opinion of the Court

value” aggravating factor when sentencing a defendant for the offense. See State v.

Cobb, 187 N.C. App. 295, 297, 652 S.E.2d 699, 700 (2007) (permitting application of

the “great monetary value” aggravating factor where the defendant pled guilty to

three counts of Class C felony embezzlement). The trial court’s ability to do so is not

subject to a

rigid test based upon a ratio of the amount embezzled to

the threshold amount of the offense. Rather, the ratio is a

factor to be considered along with the total amount of

money actually taken in deciding whether it is appropriate

to find this aggravating factor.

Id. at 298, 652 S.E.2d at 701.

For example, in Cobb, the defendant pled guilty to three counts of Class C

felony embezzlement under N.C. Gen. Stat. § 14-90(c). Id. at 296-97, 652 S.E.2d at

700. At sentencing, the trial court applied the “great monetary value” aggravating

factor to the counts involving embezzlement of $404,436 and $296,901. Id. at 297,

652 S.E.2d at 700. This Court held that the trial court did not err because these “were

sums of ‘great monetary value’ when compared with the threshold amount required

for the offense of $100,000.00.” Id. at 298, 652 S.E.2d at 701.

In the context of Class H felony larceny under N.C. Gen. Stat. § 14-72(a)—an

offense which requires a threshold value of more than $1,000—this Court has held

that values between $2,500 and $3,000 are sufficient to support application of the

“great monetary value” aggravating factor. State v. Pender, 176 N.C. App. 688, 694-

95, 627 S.E.2d 343, 347-48 (2006); State v. Simmons, 65 N.C. App. 804, 806, 310

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Opinion of the Court

S.E.2d 139, 141 (1984). Additionally, “there is no bar that prevents this Court from

holding that a great monetary amount” for the purpose of a Class H felony larceny

conviction “may include an amount less than [$2,500].” Pender, 176 N.C. App. at 695,

627 S.E.2d at 348.

Here, both the ratio between the amount embezzled and the statutory

threshold, as well as the total amount of money embezzled, support the application

of the “great monetary value” aggravating factor. Defendant was convicted of

embezzling $202,242.62 in 2015, more than two times greater than the applicable

$100,000 threshold. See N.C. Gen. Stat. § 14-90(c). Defendant’s argument that “[t]his

Court has never approved use of the ‘great monetary amount’ aggravator where the

ratio of the amount taken and the offense’s threshold amount was less than 2.5”

disregards our disavowal of any rigid test based upon a fixed ratio. Cobb, 187 N.C.

App. at 298, 652 S.E.2d at 701.

Additionally, $202,242.64 is, from the standpoint of an ordinary person, a great

value of money. Defendant’s assertion that “the amount at issue here is only

somewhat above the $100,000 threshold” is not credible. Defendant’s argument that

the trial court erred by applying the “great monetary value” aggravating factor when

sentencing her is overruled.

III. Conclusion

Because Defendant was convicted of embezzling $102,242.62 in excess of the

$100,000 threshold required for a conviction of Class C felony embezzlement under

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Opinion of the Court

N.C. Gen. Stat. § 14-90(c), the trial court did not err by applying the aggravating

factor of “taking of property of great monetary value” when sentencing Defendant.

NO ERROR.

Judges DIETZ and ZACHARY concur.

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