Petition — Agnew v. North Carolina

Supreme Court brief1978

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IN THE

Supreme Court of the United States

October Term 1977

NO. 77- {732

Betty Agnew

North Care ling

Petitioner

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF NORTH CAROLINA

Robinson O. Everett John A. Wilkinson

William A. Creech James R. Vosburgh

EVERETT, EVERETT, CREECH WILKINSON and VOSBURGH

& CRAVEN Ward Bldg.

301 First Union Natl. North Market St.

Bank Bldg., Washington, N. C.

Durham, N. C. 27701 27889

Counsel for Petitioner

FRED R. SURFACE & ASSOC. INC., HERITAGE BUILDING, RICHMOND, VA. (804) 643-7789

INDEX

Page

rT. a hy? Eee 1

I, © pth teins o hea ih we kc te 2

Questions Presented .............. 2

Constitutional Provisions and

eT Be) Ee ae 2

Statement of the Case ............ 3

Reasons Why the Court Should

0 a Ee re 5

1. Use of the Scintilla of Evi-

dence Rule by the North Caro-

lina Supreme Court and Other

Appellate Courts Violates a

Defendant's Due Process Right

to be Proven Guilty Beyond

Reasonable Doubt .........

2. Although the Trial Court's

Restrictions on Cross-Exami-

nation Violated Petitioner's

Right of Confrontation, the

1 North Carolina Courts Con-

doned the Violation of This

Due Process Right ........ 7

APPENDIX

Opinion of North Carolina

Supreme Court

SO ee A-1

North Carolina Court of

Appeals Opinion

Ge Ws EP ES eo eh évednce A-22

—— ee —

INDEX Continued

TABLE OF AUTHORITIES

Chapman v. California, 386 U.S.

18, 87 S. Ct. 824, 17

= Se 8 . fe

Hankerson v. North Carolina,:

432 U.S. 233, 97 ST. Ct. 2319,

OR 8 8 2) 7 ea

In re Winship

397 U.S. 358, 364, 90 S. Ct.

1068, 1071, 25 L.Ed.2d 368,

ee pee eeeeece

Ivan v. New York,

407 U.S. 203, 92 S. Ct.

1951 32 L.Ed. 2d. 659(1972)...

Leary v. United States,

395 U.S. 6, 89 S. Ct. 1532,

BD Wc OE SPURPEOR we cs cccccces

Mullaney v. Wilbur,

421 U.S. 684, 95 S. Ct.

1881 44 L.Ed.2d. 508(1975)....

Pointer v. Texas,

380 U.S. 400, 85 S. Ct.

1065, 13 L.Ed.2d 923(1965)....

Thompson v. Louisville,

362 U.S. 199, 80 S.Ct. 624,

4 L.Ed.2d 654(1960)...........

Tot v. United States,

319 U.S. 463, 63 S. Ct. 1241,

eS Fe re

INDEX Continued

CONSTITUTIONAL PROVISIONS:

Sixth Amendment, U. S.

Constitution ......... Sones

Fourteenth Amendment,

§ 1, U. S. Constitution ...

iii

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TExXM, 1977

No. 77-

BETTY AGNEW,

Petitioner

Vv.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE

SUPREME COURT OF NORTH CAROLINA

This petition for a writ of certio-

rari seeks review of a decision of the

Supreme Court of North Carolina, which

affirmed petitioner's conviction on two

of the three indictments of which she had

been adjudged guilty in the Superior Court

of Beaufort County.

OPINIONS BELOW

The Supreme Court of North Carolina

rendered its decision on March 7, 1978,

and, with Justice Exum dissenting, af-

firmed petitioner's conviction and sen-

tence on charges of embezzlement and

misapplication of public funds, 294 N.C.

382, 241 S.E.2d 684. As to a third in-

dictment for obtaining money by false

pretenses, the Supreme Court held the

evidence to be insufficient. The Sup-

reme Court reversed in part the decision

of the Court of Appeals of North Carolina,

which had ruled on July 6, 1977, that the

evidence was insufficient as to all three

charges. 33 prong t 496, 235 S.E.2d 287.

The opinion of the Supreme Court is repro-

duced in the Appendix to this Petition at

A-1; while that of the Court of the Court

of Appeals appears at A-22.

JURISDICTION

The decision of the Supreme Court of

North Carolina was filed on March 7, 1978,

and this petition is timely filed within

90 days thereof. Jurisdiction to review

this case is conferred on the Court by

28 U.S.C. § 1257(3).

QUESTIONS PRESENTED

1. By using the “scintilla of evi-

dence" standard in determining sufficiency

of the evidence, did the Supreme Court of

North Carolina deprive petitioner of her

due process right to be acquitted unless

proven guilty beyond reasonable doubt?

2. Did the trial court's limitation

of cross-examination of a prosecution wit-

ness deprive petitioner of her due pro-

cess right to confrontation?

CONSTITUTIONAL PROVISIONS INVOLVED

AMENDMENT VI

In all criminal prosecutions the ac-

cused shall enjoy the right to a speedy

and public trial, by an Tevertial jury of

the state and district wherein the crime

shall have been committed, which district

shall have been previously ascertained by

law, and to be informed of the nature and

cause of the accusation; to be confronted

with the witnesses against him; to have

compulsory process for obtaining witnesses

in his favor, and to have the assistance

of counsel for his defense.

AMENDMENT XIV - Sec. 1

§1. All persons born or naturalized

in the United States, and subject to the

jurisdiction thereof, are citizens of

the United States and of the state where-

in they reside. No state shall make or

enforce any law which shall abridge the

privileges or immunities of citizens of

the United states; nor shall any state

deprive any person of life, liberty, or

property, without due process of law; nor

deny to any person within its jurisdiction

the equal protection of the laws.

STATEMENT OF THE CASE

Until her conviction on June 3, 1976,

petitioner was Director of Social Services

for Beaufort County, North Carolina. She

was tried on three indictments which con-

cerned use of a special es phe account

in her Department. They alleged (a) ob-

taining money by false pretenses in con-

nection with reimbursement of travel ex-

penses; (b) embezzlement of County funds

in her case; and (c) misapplication of

public funds.

During the trial petitioner contested

the sufficiency of the State evidence by

means of motions to dismiss for failure

"to make out a case”. (Record p. 124,

Exception 28). The motion was properly

renewed at the end of all the evidence

but was denied. (Record p. 327, Exception

93). Thereafter petitioner was found

guilty on the three indictments; and a

suspended sentence to confinement was im-

posed. By assignments of error (No. 15,

Record p. 358; No. 64, Record p. 365),

petitioner properly continued her challenge

to the sufficiency of the evidence during

her appeal.

The Court of Appeals (See Appendix

at A-22 ) agreed with petitioner that

the evidence was insufficient and re-

versed the convictions on all three in-

dictments. The State petitioned for a

writ of certiorari, which was granted.

Reversing the Court of Appeals, the Sup-

reme Court concluded that, although the

evidence had been insufficient as to false

pretenses, it was sufficient to sustain

conviction on the two remaining indict-

ments. In so doing, the majority relied

onthe ‘scintilla of evidence" standard

and stated, "Nonetheless, if more than a

scintilla of evidence is presented to

support the indictment, the case must be

submitted to the jury." (A-5 Pa

Justice Exum, who relied instead on

the “substantial evidence" standard, voted

to affirm the Court of Appeals and re-

verse the conviction as to all charges.

The North Carolina Rules of Appellate Pro-

cedure, Rule 31, make no provision for a

petition for reheading in a criminal pro-

ceeding, and so no such petition was sub-

mitted.

Among the State's witnesses at the

trial was an accountant, who by his audit

had revealed financial irregularities in

the Beaufort County Department of Social

Services. In response to cross-examination

about the clients represented by his ac-

counting firm, this witness claimed a pri-

vilege not to disclose his clients.

(Record p. 40). Petitioner was seeking

to show that among this witness' clients

was the newspaper published by petitioner's

chief critic and political foe. However,

the trial judge sustained the claim of

privilege and did not require an answer

from the accountant. Petitioner duly ex-

cepted to this action of the trial court

(Exceptions 7, 8, and 9, Record pp. 40-41)

and assigned the court's ruling as error.

(Assignment of Error 7, Record p. 357).

The Court of Appeals did not reach the

issue since it reversed for insufficiency

of the evidence as tc all three indict-

ments. The Supreme Court concluded that

the trial judge had erred since no pri-

vilege existed on the part of the witness

to keep secret his clients. However, it

did not consider the error prejudicial.

(App. pp. A-16 to A-17_ ).

REASONS WHY THE COURT SHOULD GRANT THE WRIT

1. Use of the Scintilla of Evidence

Rule by the North Carolina Supreme Court

and Other Appellate Courts Violates a

Defendant's ag gee Right to be Pro-

ven Guilty Beyond Reasonable Doubt.

The opinion 7: the majority in the North

Carolina Supreme Court utilized the scin-

tilla of evidence rule and concluded that

the State had _— established peti-

’ tioner's guilt of two charges. Justice

Exum, in dissent, and the Court of Ap-

peals used the “substantial evidence"

rule and concluded that the evidence was

insufficient to establish guilt on any

charge. Obviously, the choice of the

standard of review for sufficiency does

make a difference -- a difference between

affirmance and non-affirmance, between con-

viction and acquittal. To the extent the

scintilla of evidence standard is applied

in future cases in North Carolina and

other jurisdictions, it may be decisive

again.

This Court has ruled that it violates

the Due Process Clause of the Fourteenth

Amendment for a State court to convict a

defendant without evidentiary support.

Thompson v. Louisville, 362 U.S. 199,

80 S.Ct. 624, L. Ed.2d 654(1960). More-

over, it has held that "the Due Process

Clause protects the accused against con-

viction except upon whey beyond a reason-

able doubt of every fact necessary to con-

stitute the crime with which he is charged".

In re Winship, 397 U.S. 358, 364, 90 S.Ct.

1068, 1071, 5s L.Ed.2d 368, 375(1970) .

Accord: Ivan v. New York, 407 U.S. 203,

92 S.Ct. 1951(1972) (giving retroactive ef-

fect to Winship). A rule of law placing

the burden of proof on the defendant as to

a fact necessary to constitute the crime

charged deprives a defendant of due pro-

cess since it relieves the State of its

constitutional obligation to prove his

guilt beyond reasonable doubt. Mullane

v. Wilbur, 421 U.S. 684, 95 S. Ct. Teet

(1975); H ankerson v. North Carolina, 432

U.S. 233, 97 St. Ct. 2319, 53 L.Ed. 2d 306

(1977). Ct. Tot v. United States, 319

U.S. 463, 63 S. Ct. 1241, 87 L. Ed. 1519

(1943) ; Leary v. United States, 395 U.S.6,

89 S. Ct. 532 23 L.Ed.2d 57(1969).

Similarly, reliance by a trial or ap-

pellate court on the scintilla of evidence

standard in oe ge sufficiency of the

evidence flies in the face of a defendant's

right to have his guilt established beyond

reasonable doubt. As demonstrated in peti-

tioner's case, the "scintilla of evidence”

standard can yield a quite different re-

sult than the standard of "substantial

evidence". Since not only the North Car-

LR TT Re

olina courts but also other courts uti-

lize the scintilla test, the question pre-

sented is of general significance. Accord-

ingly, the petition for certiorari should

be granted in this case so that this Court

can make clear that the scintilla of evi-

dence standard does not comply with the

due process requirement of proof beyond

reasonable doubt.

2. Ai though i Trial Court's Res-

trictions ross-~ ation Violate

Petition ave Right of Confrontation, the

North Carolina Courts Loadone the Vio-

ation o s rocess ie

ross-examination is an ortant compo-

nent of the right of confrontation, safe-

rded by the Fourteenth Amendment.

ointer v. Texas, 380 U.S. 400, 85 S.Ct.

. .Ed. 923(1965). Petitioner

was denied this right as to one of the

State's witnesses by virtue of the trial

court's ruling that, as an accountant, he

had a privilege not to reveal who were

his clients. The North Carolina Supreme

Court, while omens the tria

judge's error, held that it was not pre-

judicial. However, the standard of i

judicial error, as applied here by the

North Carolina Supreme Court, is not the

proper test for measuring the effects of

violation of a federal constitutional

right. Instead the absence of harm to

the petitioner should have been established

beyond reasonable doubt. Cha v. Cali-

fornia, 386 U.S. 18, &/ S. Ct. Boz 17

L. Ed.2d 705(1967). It is important for

this Court to grant the writ of certiorari

and reaffirm the principle that absence of

grquusses from violation of a defendant's

ederal constitutional rights must be de-

monstrated beyond reasonable doubt if his

conviction is to be affirmed.

CONCLUSION

In reversing the decision of the

Court of Appeals and reinstating peti-

tioner's conviction on two charges, the

North Carolina Supreme Court violated her

Fourteenth Amendment Due Process —

to be proven guilty beyond reasonab

doubt and to confront the witnesses a-

gainst her. The Court's opinion has im-

plications beyond the present case. By

applying the scintilla of evidence test

of sufficiency, it allows convictions to

be obtained without the constitutionally

required evidentiary support. By fail-

ing to require that a federal constitu-

tional error be shown beyond reasonable

doubt to have been harmless, the Court

authorizes an erosion of those rights

under the guise of "harmless error". Thus,

vindication of the constitutional rights

not only of petitioner here but of many

other defendants requires the grant of the

writ of certiorari.

ee se, “ex Ae

Aen O. Everett

aE: 1 of es

ee A. 57 ra)

Sete é Nye

730 n ile Cara

i. Of 4

PMI A Opec?

James R. Vosburgh .-

“ Attorneys for Petitioner

June 5, 1978 Agnew

CERTIFICATE OF SERVICE

I certify that, pursuant to Supreme

Court Rule 33, I have served the fore-

going Petition for a Writ of Certiorari

to the North Carolina Supreme Court by

mailing three copies, first class post-

age prepaid, to the Honorable Rufus L.

Edmisten, Attorney General of North

Carolina, Department of Justice, P.O.

Box 629, Raleigh, N.C. 27602.

This 5th day of June 1978.

Pea AW

Robinson O. Everett

301 FUNB Building

Durham, North Carolina

27701

(919) 682-5691

Counsel of Record for

Petitioner Agnew

APPENDIX TO PETITION

SUPREME COURT OF NORTH CAROLINA ~

SPRING TERM 1978 —

NO. 75 - BEAUFORT

State of North Carolina,

versus

Betty Agnew,

Defendant, on indictments proper in

form, was charged with and convicted of

obtaining property by false pretense,

embezzlement and willful misapplication

of funds. We granted the State's peti-

tion for discretionary review of the de-

cision of the Court of Appeals, 33 N.C.

App. 496, 236 S.E. 2d 287 (1977), (Mar-

tin, J., concurred in by Britt and Par-

ker, JJ.) ). reversi the ju mt of

Cowper, J., May 1976 Criminal Session

Beaufort County Superior Court, for

failure to grant defendant's motions for

nonsuit. This case was docketed and

argued during Fall Term 1977 as No. 98.

Defendant here was director of the

Beaufort County Department of Social

Services. The crimes charged by these

indictments concern athens’ irregula-

rities surrounding a checking account

maintained by this Department.

The State's evidence tended to show

the following:

A-1

Defendant had sole control of this

checking account which contained funds

received from the North Carolina Blind

Commission for use in administering the

Department's aid to the blind program,

money earned by work release prisoners

for distribution to their families, funds

received from other counties for care of

foster children being housed in Beaufort

County, donations, court ordered support

payments, and refunds from welfare

clients who had been overpaid by the

county. The so-called "blind money" was

received by the Department of Social

Services cheoush 1971, but thereafter,

pursuant to an opinion issued by the

Attorney General of North Carolina,

these funds were delivered to the county

to be deposited directly into the county

treasury.

On 15 July 1975 the Department of

Social Services received a letter from

the Board of County Commissioners stat-

ing that the county had contracted for

an audit of all its departments for the

fiscal year ending 30 June 1975. This

audit subsequently revealed that as of

18 August 1975 defendant had received

$1,314.75 in advances from the checking

account, repayment of which could not

be independently traced through cash

receipt books or bank deposit slips.

It further appeared that $430.75 had

been drawn from the account to cover the

costs of a business trip to Boston made

by defendant in October of 1974 to at-

tend a conference on child abuse. De-

fendant filed for reimbursement from

the county for the costs of this trip

and on 28 February 1975 she was issued

A-2

a check which included $434.63 for these

expenses.

It was also disclosed that defen-

dant had expended $1,128.94 from the

account for items such as food for staff

parties, two coffee pots for the office,

magazine subscriptions, gifts and

flowers for county commissioners and

other officials and advances to Depart-

ment employees for vacation and living

expenses.

After receiving notice of the im-

pending audit, on 20 July 1975 defen-

dant called one of her employees, Sue

Modlin, into her office and handed her

$900.00 in cash, saying it represented

repayment of defendant's advances. De-

fendant then directed her to find some

client refunds to be repaid to the

county accountant's office for that

amount of money and use the cash to pay

them, which was done.

Defendant's evidence tended to

show that:

This account was already in exis-

tence in 1968 when defendant became

director of the Department. She main-

tained that the blind money was discre-

tionary and could be used for any pur-

pose in the administration of the De-

partment of Social Services. Other

than the blind money and donations for

various specific functions, this

account was used as a pass-through

account to channel the work release,

foster care, support, and client refund

A-3

moneys delivered to the Department to

the proper recipients. The discretionary

funds were used to pay office expenses

and make advances to Department employees

when their travel expense reimbursement

checks were delayed. Defendant testified

that the Board of Social services was

aware of and approved the practice of

making travel advances. Defendant fur-

ther stated that advances from the check-

ing account were often repaid in cash and

used for other Department expenditures

without being repaid into the account.

Additional facts relevant to the

decision are related in the opinion.

Attorney General RUFUS L. EDMISTEN,

by Assistant Attorney General WILLIAM F.

BRILEY for the State.

WILKINSON AND VOSBURGH, by JOHN A.

WILKINSON for defendant-appellee.

COPELAND, Justice.

After careful consideration of the

evidence in this case, we have deter-

mined that defendant's motion for judg-

ment of nonsuit as to the charge of ob-

taining property by false pretense should

have been allowed; however, the trial

court's denial of the motions for non-

suit of the charges of embezzlement and

willful misapplication of funds was pro-

per. We have examined defendant's

assignments of error concerning the con-

duct of the trial and found them to be

without merit. The decision of the

Court of Appeals, consequently, is

A-4

affirmed in part and reversed in part.

In ruling on a motion for judgment

of nonsuit, the evidence must be con-

sidered in the light most favorable to

the State and the State is entitled to

every reasonable inference to be drawn

therefrom. State v. Bell, 285 N.C. 746,

208 S.E. 2d 506 (1974). The court in

considering such a motion is concerned

only with the sufficiency of the evi-

dence to carry the case to the jury end

not with its weight. State v. Mclleil,

280 N.C. 159, 185 S.E. 2d 156 (1971).

Moreover, all evidence admitted during

the trial, whether competent or incompe-

tent, which is iwenable to the State

must be taken as true, State v. Roseman,

279 N.C. 573, 164 S.E. 2d 289 (1971),

and any contradictions or discrepanies

therein must be resolved in the State's

favor. State v. Evans, 272 N.C. 447,

183 S.E. 2d 540 (1971). Defendant's

evidence which tends to rebut the infer-

ence of guilt may be considered when it

is not inconsistent with the State's

evidence. State v. Blizzard, 280 N.C.

11, 184 S.E. 2d 851 (1971). Nonetheless,

if more than a scintilla of evidence is

presented to support the indictment, the

case must be submitted to the = -

State v. Kelly, 243 N.C. 177, 90 S.E. 2d

241 (1955).

A motion for nonsuit of a charge of

obtaining property by false pretense

must be denied if there is evidence

which, if believed, would establish or

from which the jury could reasonably

infer that the defendant (1) obtained

A-5

ee ee

value from another without compensation,

(2) by a false representation of a sub-

sisting fact, (3) which was calculated

and intended to deceive and (4) did in

fact deceive. State v. Davenport, 227

N.C. 475, 42 S.E. 2d 686 (1947). We

note that G.S. 14-100, which defines

this crime, was amended subsequent to

the date of the acts charged here so

that false representations of future ful-

or a or events are now also prohi-

ted.

The State's theory, as pointed out

by the Court of Appeals, appears to be

that defendant falsely represented to

the county that she had expended her

personal funds for the costs of the Bos-

ton trip and was entitled to reimburse-

ment, en in fact she had used funds

advanced from the Department of Social

Services account to cover these expenses

and thus was seeking to recover the same

money twice. An examination of all the

evidence presented rebuts this, however,

since it was uncontradicted that the De-

partment checking account was not re-

sponsible for travel enses, but was

used only for occasional advances which

were to be repaid when the individual

employee received his or her reimburse-

ment check from the county. The repre-

sentation by defendant that she was en-

titled to reimbursement of the funds

spent on the Boston trip, therefore, was

not false at the time it was made and

this essential element of the crime is

not supported by any evidence in the re-

cord.

A-6

The State further argues that,

because defendant had shared a hotel

room with two other women attending the

conference and had received cash from

them in payment of their portion of its

cost, she had actually claimed for a

double recovery when she filed her ex-

pense report. This too is not supported

by the evidence, since an examination of

the expense statement submitted by de-

fendant to the county discloses that

only one-third of the total cost of the

room was included in her claim for re-

imbursement.

The evidence also showed that de-

fendant, after receiving notice of the

impending audit, obtained back-dated

checks from the women who shared the

room with her in Boston and that the

reimbursement received by defendant from

the county was not deposited back into

the Department checking account until

over two months after she was notified

of the audit. This could support a

reasonable inference that when defendant

filed for reimbursement she never in-

tended to return the money to the De-

partment account and thus by implica-

tion falsely represented the use to

which the funds would be put when they

were received. Such a representation,

however, would pertain to a future ful-

fillment or event, rather than a past

or subsisting fact. The amendment to

G.S. 14-100 which added false repre-

sentations of future events to the stat-

utory prohibition became effective 1

October 1975, some seven months after

the reimbursement check was issued by

A-7

the county; therefore, the representa-

tion by defendant here was not a viola-

tion of the false pretenses statute at

the time it was made, since prior to the

enactment of this amendment promises of

future action could not be the basis of

a prosecution under this statute. State

v. Hargett, 259 N.C. 496, 130 S.E. 2d

865 (1963). Consequently, it is our

conclusion that defendant's motion for

judgment of nonsuit as to the charge of

obtaining property by false pretenses

should have been granted.

The State next contends that there

was sufficient evidence to go to the

jury on the charge of embezzlement. The

crime of embezzlement was unknown to the

common law and is defined solely by

statute. State v. Ross, 272 N.C. 67,

157 S.E. 2d 712 (1967). Under G.S. 14-

90, "If any person exercising a public

trust or holding a public office, or any

: . trustee .. . or any other fidu-

ciary .. .or any agent, .. . except

persons under the age of sixteen years,

of any person, shall embezzle or fraud-

ulently or knowingly and willfully mis-

apply or convert to his own use, or

shall take, make away with or secrete,

with intent to embezzle or fraudulently

or er and willfully misapply or

convert to his own use any money, goods

or .. . check . . . belonging to any

other person .. . or organization

which shall have come into his posses-

sion or under his care .. ." he shall

be guilty of the felony of embezzlement.

In the instant case, the State's

evidence tended to show that: Defendant

A-8

had received some $1,314.74 in advances

from the Department checking account,

repayment of which, as of the date of

the audit, could not be traced by cash

receipts or bank deposit slips. Five

days after the Department was notifed of

the audit, defendant gave $900.00 in

cash to one of her employees and told

her that it represented repayment of de-

fendant's advances. When the auditors

first requested to see all the cash on

the premises, defendant had $314.05 on

hand. Upon being informed by the audi-

tors that they were unable to account

for approximately $100.00, defendant sub-

sequently showed them cash in the amount

of $100.00, telling them it had initial-

ly been overlooked. The reimbursement

for the Boston trip received by defen-

dant from the county was not deposited

back into the Department checking

account until seven months after the

date of the check to defendant and over

two months after defendant received

notice of the ee audit. When the

auditors first examined the Department's

checking account records, they dis-

covered a $180.75 disbursement from the

account for which no corresponding check

could be found. Check number 459 could

not be found in the bank statements and

its stub in the check book had been

marked "Void." Defendant later found

check number 459, which was made out to

Statler-Hilton in the amount of $180.75,

and presented it to the auditors, tell-

ing them it was used to pay the hotel

bill for the Boston conference. At this

time, neither the two back-dated checks

from defendant's companions on the trip

nor defendant's check for her share of

A-9

the hotel bill had been deposited back

into the Department account. At some

point during the course of the audit,

the control card on which defendant re-

corded her personal advances from the

account was altered by the addition of

an extra column, apparently for appro-

vals, in which appeared the initials of

the chairman of the Board of County Com-

missioners.

The Court of Appeals held that

there could have been no fraudulent con-

version here because the allegedly

missing funds were on hand for disburse-

ment at the proper time. It is no de-

fense to a prosecution for embezzlement,

however, that the defendant intended to

return the property obtained or was able

and willing to do so at a later date.

State v. Howard, 222 N.C. 291, 22 S.E.

2d 917 (1942), State v. Summers, 141 N.

C. 841, 53 S.E. 856 (1906). Moreover,

the element of fraudulent intent neces-

sary to sustain an embezzlement convic-

tion may be established by evidence of

facts and circumstances from which it

reasonably may be inferred, as well as

by direct evidence. State v. McLean,

209 N.C. 38, 182 S.E. 700 (1935).

Defendant sought to show at trial

that she had repeatedly requested book-

keeping help in her Department from tk-

Board of County Commissioners. Yet,

defendant testified that the number of

budgeted positions in the county Vepart-

ment of Social Services had increased

from 19 at the time she became director

in 1968 to 62 at the time of trial.

While the lack of a competent bookkeeper

A-10

might arguably tend to negative fraudu-

lent intent, this would be rebutted by

the inference that someone competent to

handle the ten to fifteen minutes' work

per week this account required could

have been found among these additional

employees.

Considering the evidence set out

above in the light most favorable to the

State, we conclude that the jury reason-

ably could have found from the timing of

the payments of the various amounts by

defendant that she had converted the

funds to her own use and, when the dan-

ger of discovery became imminent, sought

to return the money to conceal her

wrongdoing. Further, the procurement of

the back-dated checks, together with

discrepancies in the amount of cash on

hand and irregularities in the check

book records, would tend to show guilty

knowledge on the part of defendant and

allow the jury to infer that the funds

had been converted or misapplied with a

fraudulent intent. We hold, therefore,

that the motion for nonsuit on the

charge of embezzlement was properly

denied by the trial court.

Defendant was also charged, under

G.S. 14-92, with willfully and corruptly

using and misapplying $1,128.94 for pur-

poses other than those for which it was

held. It is her contention that the

motion for nonsuit of this indictment

should have been granted because the

State failed to show that the moneys

which she allegedly ee” were

funds belonging to or held in trust for

the county. It was further held by the

A-11

Court of Appeals that the State offered

no proof that the alleged misapplication

was willful or corrupt.

Defendant argues that the blind

funds in the Department checking account

were not ey money because through

1971 they had been delivered to the

county Department of Social Services,

rather than the county treasury. The

State's evidence shows that this money

consisted of federal funds distributed

by the North Carolina State Commission

for the Blind to help defray the costs

of administering the aid to the blind

programs in the county. The practice of

disbursing this money to the county De-

partment of Social Services office rather

than to the county treasury was based on

a 1948 opinion of the Attorney General

of North Carolina. In 1971, however,

the Attorney General issued an opinion,

41 Op. Att. Gen. 329 (1971), which con-

cluded that these funds should be made

payable to the county treasuries and not

to the county Boards or Departments of

Social Services. It is defendant's

position that all such funds received

prior to this change in procedure were

not moneys belonging to or held in trust

for the county and, therefore, they

could not be the subject of an indict-

ment under G.S. 14-92.

An Opinion of the Attorney General,

however, is merely advisory. In re

Assessment of Additional Taxes against

Virginia-Carolina Chemical Corporation,

248 N.C. 531, 103 S.E. 2d 823 (1958).

If, under the law, the funds were pro-

perly owed to the county, the payment to

the Department of Soss* Services would

be in trust for the county, presumably

to be used by the Department for admini-

stration of the aid to the blind program.

Since the 1971 Attorney General's

opinion appears to be correct in finding

that the funds were earned on county

time by county employees and therefore

were moneys “belonging to the county"

under G.S. 155-7, and further because

defendant does not assert that this

finding was erroneous, we adopt its con-

clusion as our own. Thus we find that

the federal aid to the blind administra-

tive funds were indeed moneys owed to

the county treasury and were to be held

in trust for the county upon their re-

ceipt by the county Department of Social

Services.

We next consider the determination

of the Court of Appeals that the State

here failed to show any willful or

corrupt misapplication of these county

funds. Since the State need not prove

embezzlement or misapplication of the

entire sum alleged in the indictment,

State v. Ward, 222 N.C. 316, 22 S.E. 2d

922 (1942), we need review only one

segment of the State's evidence to

establish the requisite elements of the

crime charged. There was testimony

tending to show that one of the Depart-

ment employees, Sue Modlin, was advanced

funds by defendant from the Department .

checking account on two specific occa-

sions for rag sy which were entirely

unrelated to her employment. The first

of these advances was in the amount of

$75.00 and was used by Mrs. Modlin to

ay her rent. The second was for

8100.00, which was used for vacation

A-13

expenses. Defendant testified that all

such advances came from the blind money

and that she regarded the uses to which

these funds were put as entirely within

her discretion. Defendant further

stated that she did not ask Mrs. Modlin

what she wanted the advances for, but

gave them to her merely because she

requested them.

The words "willfully" and "corrup-

tion", as they relate to misapplication

of funds under G.S. 14-92, have been de-

fined as "“[D]Jone with an unlawful in-

tent," and "The act of an official or

fiduciary person who unlawfully and

wrongfully uses his station or character

to procure some benefit for himself or

for another person, contrary to duty and

the rights of others." State v. Ship-

man, 202 N.C. 518, 540, 163 S.E. 657,

669 (1932). Although these advances

appear to have been repaid to the

account, it is clear that their dis-

bursement for such purely personal uses

had nothing to do with defraying the

administrative expenses of the aid to

the blind program in Beaufort County.

Such blatant misapplication of these

funds, coupled with defendant's apparent

reckless disregard for the purposes for

which they were to be used, lead us to

conclude that the jury could reasonably

have inferred the necessary elements of

willfulness and corruption from the

facts presented.

Typical of the items purchased from

this account under alleged misapplica-

tions were a > for a State Depart-

ment of Social Services official,

A-14

pumpkin pies for the county Department

of Social Services staff at Thanks-

giving, $50.00 worth of Christmas de-

corations for the office, and food for

the staff Christmas party.

Defendant has also attempted to

show that many of these items were

approved by the county Board of Social

Services and thus were not misapplica-

tions of Department funds. The fact that

a supervisory board has knowledge of a

subordinate's unlawful use of public

moneys. however, does not excuse or

justify one who knowingly misapplies

such funds unlawfully. State v. Linden,

171 Wash. 92, 17 P. 2d 635 (1932);

Glasheen v. State, 188 Wis. 268, 205

N.W. 820 (1925). For the reasons set

out above, defendant's contention that

this charge should have been dismissed

is without merit.

Defendant assigns many errors con-

cerning the admission and exclusion of

evidence by the trial court. Chief

among these was the admission at the

conclusion of the State's case of checks,

check stubs, audit reports, working

papers, client refund receipts, ledgers

and other documents. Defendant argues

that many of these exhibits contained

irrelevant and incompetent material and

that they were not properly authenti-

cated.

We have carefully examined these

documents, however, and find nothing

substantially pao gees. among the

allegedly irrelevant portions thereof.

Moreover, a review of the record

A-15

discloses that each of the challenged

exhibits had been authenticated before

its introduction. The majority of these

documents were obtained from defendant

by Claude Green, an investigator with

the North Carolina Department of Justice,

and consisted of records kept in the

county Department of Social Services

office under defendant's supervision.

Entries in corporate books or records

are admissible in evidence against the

officers of the corporation in a criminal

prosecution if there is evidence tending

to show that some actual connection

exists between the officers and the con-

tents other than their mere status as

corporate officers. State v. Franks,

262 N.C. 94, 136 S.E. 2d 623 (1964).

This principle, logically extended to

the case sub judice, clearly supports

the admission of the documents Mr. Green

obtained from defendant, since the county

Department's books were maintained under

the direction of defendant and the check-

ing account records were controlled

solely by her.

The remainder of the exhibits were

properly identified by persons who

either prepared them or received them

from defendant and turned them over to

Mr. Green. Defendant's assignment of

error regarding the admission of the

State's documentary evidence, therefore,

is overruled.

During the cross-examination of the

accountant who conducted the county

audit, the trial court sustained objec-

tions to questions concerning whether the

witness was an officer of the Washington

A-16

Daily News Corporation and whether his

firm did the accounting work for the

Washington Daily News. Counsel for de-

fendant then sought to have the answers

to these questions placed in the record,

at which time the witness asserted an

accountant-client privilege. The court,

on the basis of this claim, refused to

order the witness to answer for the re-

cord. Defendant argues that this was an

undue restriction of cross-examination

and was seriously prejudicial.

We agree that the court's refusal

to require the witness to answer for the

record was error, since North Carolina

recognizes no accountant-client privi-

lege. 1 Stansbury's N.C. Evidence,

(Brandis Rev. 1973), §54, p. 160. None-

theless, even if the witness had answered

these questions, nothing material would

have been shown. Defendant maintains

that she would have been able to demon-

strate the relevance of this evidence if

she had been allowed to proceed. We

note, however, that the court did not

prohibit this entire line of question-

ing. Counsel for defendant merely

failed to pursue it further after he was

initially rebuffed. Under these cir-

cumstances, we cannot speculate as to

what questions defendant might have pro-

pounded to this witness. Since defen-

dant has failed to demonstrate pre-

judice, this assignment of error is with-

out merit.

New trial will not be awarded absent

a showing of error so substantial that

a different result likely would have

ensued. State v. Cross, 284 N.C. 174,

A-17

200 S.E. 2d 27 (1973). We have care-

fully reviewed defendant's remaining

assignments of error concerning the trial

court's evidentiary rulings and found

none so eho wr oggeye as to warrant new

trial; therefore, they are overruled.

Defendant next contends that the

trial judge, by various comments in the

presence of the jury, ey ex-

pressed an opinion prejudicial to her in

violation of G.S. 1-180. It is the duty

of the trial court to supervise and con-

trol the course of the trial, including

the examination and cross-examination

of witnesses, so as to insure justice

for all parties. State v. Greene, 285

N.C. 482, 206 S.E. 2d 229 (1974). After

examining the statements challenged by

defendant as violative of G.S. 1-180, we

conclude that they were reasonable

efforts on the part of the trial judge

to maintain progress and proper decorum

in what was evidently a prolonged and

tedious trial. This assignment is like-

wise without merit and overruled.

Defendant's final group of assign-

ments concerns the trial court's charge

to the jury. She contends that the trial

judge erred in failing to give certain

specific instruction requested by her.

She further argues that the court did

not adequately review the evidence or

relate the law to the facts. The re-—

quested instructions were submitted to

the court shortly before it was to a

the jury, at which time the judge state

that he would not read them to the jury

because they had been tendered too late.

This was not a proper basis upon which

A-18

—

to reject the instructions, since G.S.

1-181 requires only that written requests

for special instructions be submitted

before the judge begins his charge.

A defendant is not entitled to have

his requested instructions given verba-

tim, so long as they are given in sub-

stance. State v. Howard, 274 N.C. 186,

162 S.E. 2d 495 (1968). Moreover, the

court may totally refuse instructions

based on an erroneous statement of the

law, State v. Smith, 237 N.C. 1, 74 S.E.

2d 291 (1953), or which concern issues

irrelevant to the case. State v. Smith,

202 N.C. 581, 163 S.E. 554 (1932). We

find in reviewing the record that in

substance the court's instructions

stated all the relevant and legally

correct propositions requested by defen-

dant. In addition, the court's review

of the evidence, while concise, was

accurate and sufficient to permit the

jury to comprehend the issues they were

to decide. This group of assignments,

consequently, is overruled.

In summary, we have determined that

there was insufficient evidence to go to

the jury on the charge of obtaining pro-

perty by false pretenses; however, the

motions for nonsuit of the charges of

embezzlement and willful misapplication

of funds were properly denied. Further,

the remaining assignments of error here

reveal nothing of sufficient prejudice

to merit a new trial. The decision of

the Court of Appeals holding that the

charge of obtaining property by false

pretense should have been dismissed is

affirmed. The holding that the embezzle-

A-19

ment and willful misapplication of funds

charges should have been dismissed is

reversed.

AFFIRMED IN PART AND REVERSED IN

PART.

EXUM, Justice, dissenting:

While there may be statements in

earlier cases that “more than a scin-

tilla of evidence” is enough in a crimi-

nal case to survive a motion for non-

suit, see State v. Kelly, 243 N.C. 177,

90 S.E. 2d 241 (1955), relied on by the

majority for this test, our more recent

cases have correctly stated that the

true test is whether there is "substan-

tial evidence--direct, circumstantial,

or both--to support a finding that the

offense charged has been committed and

that the accused committed it." State

v. Stewart, 292 N.C. 219, 224, 232 S.E.

2d 443, 447 (1977), accord, State v.

White, 293 N.C. 91, 735 S.E. 2d 55

(1977), State v. Smith, 291 N.C. 505,

231 S.E. 2d 663 (1976); State v. Cousin,

291 N.C. 413, 230 S.E. 2d 518 (1976),

compare the citations supporting the

"More than scintilla™" test with those

support the "substantial evidence

test" in Strong's N.C. Index 3d, Crimi-

nal Law § 106, p. 548, nn. 61-63. In

its consideration of this case the Court

of Appeals correctly applied the sub-

stantial evidence test, relying on our

decision in State v. Evans, 279 N.C.

447, 453, 193 S.E. 2d 540, 544 (1971).

A-20

Applying the substantial evidence

test here, which I believe to be the pro-

per one, I feel defendant's motions for

nonsuit as to all charges should have

been allowed. There is substantial

evidence here of inadequate and perhaps

careless bookkeeping in the embezzlement

case and poor judgment in the misapplica-

tion of funds came by a harried county

employee. There is no substantial evi-

dence of criminal or corrupt conduct on

her part. I vote to affirm the well-

considered decision of the Court of

Appeals.

A-21

NO. 762SC894

NORTH CAROLINA COURT OF APPEALS

Filed: 6 July 1977

State of North Carolina

Beaufort County

v. Nos. 76CR1509

76CR1510

Betty Agnew 76CR1511

Appeal by defendant from Cowper,

Judge. Judgment entered 3 June 1976 in

Superior Court, Beaufort County. Heard

in the Court of Appeals 7 April 1977.

Defendant was indicted for obtain-

ing $434.63 from Beaufort County and the

Beaufort County Department of Social

Services by means of false pretenses by

representing to them that she had ex-

pended her personal funds for a business

trip to Boston and was entitled to be

reimbursed when in fact she had expended

funds from the Beaufort County and the

Beaufort County Board of Social Services

checking account which funds she failed

to repay after obtaining reimbursement

from the county. Defendant was also in-

dicted for embezzling $1,300.00 from the

county and the Department of Social Ser-

vices and for misapplying $1,128.94 be-

songans to the county and the Department

of Social Services.

State's evidence tended to show

that the Department of Social Services

maintained a checking account which was

A-22

within the sole control of defendant,

director of the Department of Social

Services; that the account contained

federal and state "blind funds," i.e.,

money received from the Blind Commission

for use as the director saw fit in the

administration of the Department of

Social Services’ aid to the blind pro-

gram; that the account also contained

work release funds (funds earned by

prisoners on work release to be distri-

buted to their families), foster care

funds (funds from other counties for

their foster children being cared for in

Beaufort County), donations, support pay-

ments (court ordered payments for depen-

dent families) and refunds from clients

who had been overpaid by the county;

that “blind funds" were received and

placed into the account until 1971 after

which no more such payments were re-

ceived; that some time shortly after 11

July 1975 a memo was sent to defendant

and the Department of Social Services

stating that they were to be audited;

that an audit of the account revealed

that as of a certain date defendant had

outstanding $1,314.64 in "advances" to

herself from the account; that of those

advances three checks totaling $430.75

had been drawn by defendant on the

account to cover the costs of a business

trip to Boston in 1974; that defendant

also filed a travel voucher with the

county auditor for said trip and re-

ceived $434.63 from him for her alleged

expenses on the trip; that the audit also

revealed that defendant had expended

$1,128.94 from the account for expenses

such as food for the staff at staff

parties, two coffee pots for the office,

gifts and flowers for county commis-

A-23

sioners, Department of Social Services'

entertainment expenses, magazine sub-

scriptions and dues; that on 20 July

1975, after receiving notice of the

audit, defendant gave to one of her

employees $900 in cash, telling her it

was in repayment of advances made to de-

fendant and instructing the employee to

transmit the money to the county auditor

which the employee did; and that on 29

September 1975 defendant deposited

$414.64 into the account.

Defendant testified that when she

became director of the Department of

Social Services in 1968 an account con-

taining the "blind funds" was already in

existence; that these funds were discre-

tionary and could be used for anything

in the administration of the Department

of Social Services; that defendant also

found money lying around the office from

collections for various functions and so,

with the Board's approval, defendant con-

solidated all of the money into one

checking account; that also funneled

into the checking account were work re-

lease funds, foster care funds, dena-

tions for specific functions, support

payments and client refunds (but these

rarely remained in the account, the

social worker usually drawing a check on

the account immediately after their de-

posit made payable to the intended re-

cipient and the refunds being paid over

to the county auditor); that the account

was merely a pass-through account for

those funds; that defendant used the re-

maining funds for office expenses and

advances to employees for travel ex-

penses pending their reimbursement by

A-24

the county, which often took as much as

two months; that the Board was aware of

and approved the practice of making

travel advances; that 11 advances to

employees had been repaid; that defendant

repaid part of the advances for the Bos-

ton wie 4 by giving $180 in cash to Mr.

Randolph, former Chairman of the Board,

at a Board meeting; that the $180 re-

presented $114 given to defendant by

two women who shared her hotel room in

Boston and $66 for defendant's share of

the hotel cost; that Mr. Randolph mis-

placed the money and for that reason

only it was not in the account at the

time of the audit; that the money was

ages eee found but prior to finding

it defendant had the two women give her

backdated checks in order to have proof

that they had shared expenses; that de-

fendant's office expenditures from the

account would eventually deplete the

discretionary or blind funds entirely

since they have ceased coming in,

although defendant does not know how

much blind money is in the account; that

the $900 payment to Mrs. Modlin together

with the $414.64 deposit which was made

by defendant after the audit commenced

consisted of money which was already in

the account in that it was cash on hand;

that the "account" consisted of the

amount in the checking account, the

amount of cash on hand and the amount

represented by advances; and that

advances were often repaid in cash and

the cash then used for some other ex-

penditure without being deposited into

the a account. Four present or

former Board members and three present

or former county commissioners testified

A-25

and they corroborated defendant's testi-

mony as to their eeren: of the office

expenditures from the account and their

knowledge of defendant's practice of

advancing travel funds from the account

even though the Commission's policy was

for employees to expend their own funds

for travel prior to being reimbursed by

the county. They further testified that

neither the Board nor the county commis-

sioners had adopted a policy governing

use of the account but had left it to

defendant's discretion; that they did

not know pracy | what funds were in the

account although they knew it contained

"blind funds" and referred to the account

as defendant's discretionary account;

that defendant had asked for bookkeeping

help with the account several times;

that they knew of th» advances and

approved them on the basis of their

understanding that they would be repaid.

Mr. Randolph, a member of the Board from

1969 to 1975 and chairman from 1973 to

1975, testified that he knew the contents

of the account and approved defendant's

expenditures therefrom while he was

chairman and that he knew of no instance

where county funds contained in the

account did not reach the recipient for

whom they were intended. He also corro-

borated defendant's testimony concerning

pe mag or of her advance for the Boston

trip by testifying that at a Board meet-

ing defendant had given him an envelope

containing money, although he did not

count it, representing payments to her

by two ladies who shared her hotel room

in Boston and that he subsequently mis-

placed the envelope.

A-26

Defendant was convicted of all

three coffenses and sentenced to one year

for each offense. The sentences were

all suspended for two years upon payment

of a total of $5,000 in fines and on

condition that she not violate any laws.

Defendant appealed.

Attorney General Edmisten, by

Associate Attorney Patricia H. Wagner,

for the State.

Wilkinson & Vosburgh, by John A.

Wilkinson, for the defendant.

MARTIN, Judge.

Defendant contends that the trial

court committed error when it failed to

grant defendant's motions to dismiss in

each of the three cases at the conclu-

sion of all the evidence. We agree

with defendant and hold that the evi-

dence was insufficient to survive the

motions.

Defendant's motions to dismiss,

made at the close of all the evidence,

draws into ya omg the sufficiency of

all the evidence to g° to the jury.

See State v. Hitt, 25 N.C. App. 216,

212 S.E. 2d 540 (1975).

Our Supreme Court has stated that:

“There must be substantial

evidence of all material ele-

ments of the offense charged

in order to withstand a motion

for judgment of nonsuit.

(Citations omitted.) If, con-

sidered in accordance with the

A-27

above mentioned rule, the

evidence is sufficient only

to raise a suspicion or con-

jecture as to whether the

offense charged was committed,

the motion for nonsuit should

be allowed even though the

suspicion so aroused by the

evidence is strong." (Cita-

tions omitted.) State v.

Evans and State v. Britton

and State v. Hairston, 279

N.C. 447, 453, 183 S.E. 2d

504, 544 (1971).

CHARGE OF FALSE PRETENSE

The crime of false pretense is

statutory. G.S. 14-100. The essential

elements which the State must prove to

the satisfaction of the jury beyond a

reasonable doubt in order to convict one

of the crime of false pretense are as

follows:

""'. . .{A] false representation

of a wag A ey fact [or of

a future fulfillment or event

as provided in G.S. 14-100 as

amended in 1975], calculated

to deceive, and which does

deceive, and is intended to

deceive, whether the repre-

sentation be in writing, or

in words, or in acts, by which

one man obtains value from

another, without compensa-

tion. ...'" State v.

Davenport, 227 N.C. 475, 495,

42 S.E. 2d 686, 700 (1947);