The opinion
NO. COA13-757
NORTH CAROLINA COURT OF APPEALS
Filed: 15 April 2014
STATE OF NORTH CAROLINA
v. Union County
No. 11 CRS 54880
SUSAN LYNETTE PARKER,
Defendant.
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 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
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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.
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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).
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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
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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
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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
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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.
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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
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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 allows the jury
to draw an inference as to a disputed fact.
State v. Stager, 329 N.C. 278, 302, 406 S.E.2d 876, 890 (1991)
(citations omitted). The admissibility of evidence under Rule
404(b) is further constrained by the requirements of similarity
and temporal proximity. State v. Al-Bayyinah, 356 N.C. 150,
154—55, 567 S.E.2d 120, 123 (2002) (citations omitted).
The trial court conducted a hearing on the admissibility of
the State’s Rule 404(b) evidence during the trial, outside the
presence of the jury. The State presented four witnesses who
testified as to defendant’s misappropriation of funds from
Centerview Baptist Church, arguing that such evidence was
permissible under Rule 404(b) to show an absence of mistake,
opportunity, motive, intent, and/or common plan or scheme by
defendant to embezzle from the school system. The trial court
announced its findings of fact and conclusions of law in open
court and admitted the evidence. Defendant does not contest the
trial court’s findings of fact; therefore, these findings are
presumed to be supported by competent evidence and are binding
on this Court. See State v. Phillips, 151 N.C. App. 185, 190—
91, 565 S.E.2d 697, 701 (2002). Thus, we review the trial
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court’s conclusions of law based on its findings of fact.
Beckelheimer, 366 N.C. at 130, 726 S.E.2d at 159.
In making its Rule 404(b) ruling, the trial court stated
the following:
The Court would review this issue and
find that there are six different factors
that the Court must consider before 404(B)
evidence is admitted.
First, that the State must identify
specific purpose[s] in which to use this
404(B) evidence, and the Court is finding
that the State is seeking to admit this
evidence to show absence of mistake,
opportunity, motive, intent, and a similar
pattern of conduct.
Next, the Court must consider whether
or not this evidence is logically relevant
to the evidence in the main case in chief.
The Court would note that the dates of
employment for Ms. Parker at both Union
County Public Schools and Centerview Baptist
Church do overlap. In a review of the case
files, would also find that the dates of the
offenses overlap almost to the day. Case
number 11 CRS 54880, which is our current
case, alleges an offense date of on or
between August 24th of 2007 and August 10th of
2010, and the case with Centerview Baptist
Church, which is 10 CRS 54380 alleged dates
of offense of 1 September of 2007 through 9
August of 2010. Would also find that based
on the testimony and evidence presented that
the defendant was in similar positions of
trust where she had access to funds or
credit cards, checking accounts for both the
church and the school system.
The third factor the Court is to
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consider is, is there sufficient evidence to
prove the extrinsic act, and those are the
acts at Centerview Baptist Church [which]
were committed by the defendant. The
Court[,] based on the testimony specifically
of the pastor and the accountant, Mr. Helms,
would find that there is sufficient evidence
to show that Ms. Parker embezzled from
Centerview Baptist Church as her -- in her
duties as the bookkeeper.
The trial court went on to find that the probative value of the
evidence outweighed the danger of unfair prejudice, and admitted
the Rule 404(b) evidence.
Defendant contends the trial court erred in admitting the
Rule 404(b) evidence because defendant’s acts of
misappropriating Centerview Baptist Church funds and of
embezzling from the school system are “sufficiently distinct”
and, thus, are not permissible under Rule 404(b). Specifically,
while defendant concedes that these two acts are “overlapping in
time” (and thus, satisfy the requirement of temporal proximity),
she contends they are not similar because misappropriation of
the church funds was for personal purposes while the school
system embezzlement involved “large or bulk quantity items
suitable for use at various school events.”
The record supports the trial court’s conclusion of
similarity and temporal proximity. Here, the Rule 404(b)
evidence showed that the misappropriation of church funds
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occurred about the same time as the embezzlement of school
funds; that defendant held a similar position of trust in each
setting which allowed her access to funds — checking account for
the church, credit cards for the school; and that defendant
abused that position of trust through the unauthorized use of
funds and property. The only distinction is that defendant
admitted to the misappropriation of the church funds and was
allowed to repay the money. In the instant case, defendant
exercised her right to a jury trial, requiring the State to set
forth proof — substantial evidence by which a jury could find
beyond a reasonable doubt that her misappropriation of school
funds was intentional and constituted the crime of embezzlement.
“Where specific mental intent or state of mind is an essential
element of the offense charged, evidence of similar acts are
admissible to prove defendant's intent or state of mind.” State
v. Whitted, 99 N.C. App. 502, 506, 393 S.E.2d 590, 593 (1990)
(citation omitted). Accordingly, where, as here, the findings
of fact support the trial court’s conclusions of law, evidence
of defendant’s misappropriation of funds from the Centerview
Baptist Church was properly admitted under Rule 404(b).
Defendant further argues that the admission of the Rule
404(b) evidence was unfairly prejudicial to her as “[e]vidence
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of the Centerview events was prejudicial [on the] jury and not
probative on any issue in the case at bar.” We disagree.
Rule 404(b) is "a clear general rule of inclusion." State
v. Coffey, 326 N.C. 268, 278—79, 389 S.E.2d 48, 54 (1990). Rule
404(b) evidence must meet Rule 403’s balancing test which
requires the exclusion of relevant evidence only where its
probative value “is substantially outweighed by the danger of
unfair prejudice.” State v. Jacobs, 363 N.C. 815, 823, 689
S.E.2d 859, 864 (2010) (citing N.C. Gen. Stat. § 8C-1, Rule
403). However, any potential prejudicial effect caused by the
admission of 404(b) evidence can be constrained by a limiting
instruction to the jury. See Beckelheimer, 366 N.C. at 133, 726
S.E.2d at 160—61.
As previously discussed, the admission of evidence
concerning the Centerview Baptist Church was proper under Rule
404(b). The trial court conducted a Rule 403 balancing test and
gave an appropriate limiting instruction to the jury. We see
nothing in the record indicating that the trial court abused its
discretion in admitting the Rule 404(b) evidence against
defendant. See id. (finding no abuse of discretion where the
trial court conducted a hearing out of the presence of the jury,
made findings of fact and conclusions of law as to the
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admissibility of the evidence and its potential probative vs.
prejudicial effect, and gave the jury a limiting instruction as
to this evidence); see also State v. Jones, ___ N.C. App. ___,
___, 734 S.E.2d 617, 621—22 (2012) (State’s use of Rule 404(b)
evidence was proper to show element of intent in a charge of
embezzlement against the defendant, and the defendant was not
overly prejudiced where the trial court gave a limiting
instruction to the jury); State v. McDowell, No. COA05-424, 2006
N.C. App. LEXIS 1871 (Sept. 5, 2006) (the defendant failed to
show prejudice where the admission of Rule 404(b) evidence which
tended to show the defendant’s intent and knowledge for the
charge of embezzlement was proper pursuant to Rules 403 and
404(b)). Accordingly, defendant’s argument is overruled.
No error.
Judges STEPHENS and DILLON concur.