State v. Sutton , 53 N.C. App. 281 ( 1981 )

280 S.E.2d 751 (1981)

STATE of North Carolina
v.
Chester O. SUTTON.

No. 811SC95.

Court of Appeals of North Carolina.

August 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 was irrelevant and highly prejudicial. We hold that evidence which tended to show that defendant was living far and away above the standard to be expected of one earning $265 a week was relevant to establish motive. See 1 Stansbury's N.C. Evidence § 83 (Brandis rev. 1973) and cases cited therein.

Defendant argues that evidence of three large cash transactions in April was not relevant to prove his guilt of embezzlement in the preceding November, December, and January. We disagree. That defendant possessed extensive unexplained wealth would appear relevant to the issue of whether he had taken money from Hardee's. See Annot., 91 A.L.R.2d 1046, 1056 (1963). The fact that these transactions took place over two months after defendant's employment was terminated might somewhat diminish their probative value; however, in light of defendant's income of less than $14,000, in light of the large sums of money involved in the three transactions ($20,000 in $100 bills and a check for $16,000), and in light of the restaurant manager's statement that the shortages had averaged around $1,000 a month from sometime prior to August 1979 until February 1, 1980, we are unable to say that the passage of two short months rendered the transaction so remote as to be devoid of any probative force. Defendant's reliance on obiter dictum in 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), is misplaced for the reason that that case involved a substantially smaller transaction occurring almost seven months after the alleged embezzlement. As the size of the fund embezzled and of the unexplained wealth increase, their probative force increases as well. While lapse of time serves to diminish that probative force, it will not totally vitiate it where as here the unexplained wealth is so grossly disproportionate to the defendant's apparent ability to amass such wealth. This testimony was relevant and properly admitted. The jury was free to consider the remoteness of the transactions as bearing on the weight it wished to attach to the evidence.

Defendant next argues that the court properly allowed a State's witness to testify from records and to introduce certain exhibits without laying the proper foundation. In these assignments, defendant contends that the trial court should not have permitted a private investigator to testify from reports written by him. Defendant contends that the Court allowed the witness to refresh his recollection even though he had not indicated a loss of memory. Defendant concedes that trial counsel did not object to the State's attempt to refresh the recollection of its witness or to the lack of a proper foundation for the introduction of the records. The Defendant's failure to object in either instance constitutes a waiver and the Court properly submitted the evidence to the jury for its consideration. 1 Stansbury's North Carolina Evidence § 27 (Brandis rev. 1973).

In his final argument defendant contends that the Clerk improperly polled the jury. The record indicates that the Clerk stated separately to each juror that that juror had returned a verdict of guilty as to Issue No. 1, guilty as to Issue No. 2, guilty as to Issue No. 3, guilty as to Issue No. 4, and guilty as to Issue No. 5. He then asked that juror whether that was his verdict, to which the juror assented, and whether he still assented thereto, to which the juror replied in the affirmative. This procedure was repeated twelve different times, the only variation was that with the first two jurors the Clerk identified separately each of the five issues as "embezzling money" or "embezzling coupons." Thereafter, with the other ten jurors he denominated the charges only as Issues No. 1, No. 2, No. 3, No. 4 and No. 5. "The important thing is that all jurors clearly indicate their assent to the verdict ...." State v. Fate, 38 N.C.App. 68, 75, 247 S.E.2d 310, 314 (1978). This each juror clearly did. We hold that this procedure was substantially in accord with the requirements of G.S. 15A-1238 and note in passing that defendant made no request at trial that the Clerk be instructed to be more specific in the questions propounded to the jurors. See id.

No error.

ROBERT M. MARTIN and HILL, JJ., concur.