State v. Williams ( 2015 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate
Procedure.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA14-1113
Filed: 5 May 2015
Wake County, Nos. 12 CRS 223032, 13 CRS 204337
STATE OF NORTH CAROLINA
v.
JULI ANN WILLIAMS
Appeal by Defendant from judgment entered 17 January 2014 by Judge
Michael R. Morgan in Wake County Superior Court. Heard in the Court of Appeals
4 March 2015.
Attorney General Roy Cooper, by Special Deputy Attorney General Harriet F.
Worley, for the State.
Charlotte Gail Blake for Defendant.
STEPHENS, Judge.
Factual and Procedural Background
On 21 May 2013, Defendant Juli Ann Williams was indicted on two counts of
felony embezzlement by a public officer or trustee under N.C. Gen. Stat. § 14-92. The
charges arose during Defendant’s service as president of the Parent Teacher
STATE V. WILLIAMS
Opinion of the Court
Association (“PTA”) of Forestville Road Elementary School (“the school”) in
Knightdale from August 2011 to September 2012.
The evidence at trial tended to show the following: During the 2011-2012
school year, another parent had solicited a total of $1,500.00 in contributions for the
PTA from three local Kohl’s stores (“the Kohl’s money”). The PTA did not have an
active treasurer over the summer of 2012 when the parent expected the checks to
arrive, so she asked Defendant on several occasions whether the checks had been
received and deposited in the PTA bank account. Defendant told the parent the
Kohl’s money had not yet arrived and continued to give the same response to other
PTA members in the fall of 2012. However, testimony from former PTA board
members as well as the PTA’s bank statements showed that, on 20 July 2012,
Defendant deposited the Kohl’s money into the PTA account and immediately
withdrew $1,500.00 in cash from the same account. Defendant did not complete the
forms required by the PTA for making deposits or follow PTA procedures for handling
large deposits. At some point in July 2012, Defendant had asked the school’s
principal to decide how the PTA could best spend the money to benefit the school, and
the principal stated that she wanted to purchase “smart” boards for classrooms.
However, no evidence indicated that Defendant used the cash she withdrew on 20
July 2012 for smart boards or any other school-related project.
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Opinion of the Court
In September 2012, the PTA conducted a fundraiser with the help of a
professional fundraising consultant. On the evening of 26 September 2012,
Defendant emailed PTA board members and asked for someone to meet her at the
school the following morning to help count the fundraising proceeds and deposit them
in the PTA bank account. No other PTA board member was able to join Defendant
the following morning. In violation of PTA rules, Defendant sat in the school office
and counted the fundraising money by herself. When she finished, Defendant showed
the school’s bookkeeper that she had separated the checks into one bag and the cash
in another. Defendant then told school staff that she was going to deposit the money
into the PTA bank account.
Shortly thereafter, Officer Travis Price of the Knightdale Police Department
responded to a report of a breaking and entering of a motor vehicle at a local bank.
When Officer Price arrived, Defendant reported that, on the way to deposit the
fundraising money at the bank, she had stopped at Walgreens to make a purchase.
Defendant said she had started to drive away, but after realizing she had forgotten
to buy cigarettes, returned to the Walgreens. After making the second purchase,
Defendant drove toward the bank. On her way, she noticed that her purse had been
dumped out in the car floorboard and a GPS unit was missing. As Defendant and
Officer Price stood in the bank parking lot, Defendant stated that she needed to make
a deposit for the PTA and took out a bank bag from her car’s glove compartment.
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Opinion of the Court
Defendant unzipped the bank bag, found only a plastic bag containing checks, and
told Officer Price that a second plastic bag containing $4,129.00 in cash was missing
from the bank bag. At trial, Officer Price testified that he was suspicious about
Defendant’s story because, in his experience, a thief would not take the time to unzip
the bank bag, remove only the cash, re-zip the bag, return the bank bag to the glove
compartment, and then close the glove compartment before fleeing.
The withdrawal of the Kohl’s money and the disappearance of the fundraising
money resulted in Defendant’s arrest in October 2012. In May 2013, she was indicted
on two counts of embezzlement. Defendant was tried before a jury at the 14 January
2014 criminal session of Wake County Superior Court. At the close of the State’s
evidence, Defendant moved to dismiss the charges for insufficiency of the evidence
and for a fatal variance between the State’s evidence and the crime charged in the
indictments. The trial court denied the motion, and Defendant presented evidence.
At the close of all evidence, she renewed her motion to dismiss on both bases, and the
trial court again denied it. The jury returned guilty verdicts on both charges, and the
trial court, after finding one aggravating factor and no mitigating factors, sentenced
Defendant to an aggravated sentence of 23 to 37 months in prison, suspended the
sentence and placed Defendant on 48 months of supervised probation, and required
as a special condition of probation that Defendant serve a six-month active sentence.
Defendant gave notice of appeal in open court.
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Opinion of the Court
Discussion
On appeal, Defendant brings forward three arguments, that the trial court
erred in (1) denying her motion to dismiss based on a fatal variance between the
indictments and the evidence presented at trial, (2) sentencing her to a term of
probation which exceeded the permitted statutory period, and (3) ordering her to pay
an amount of restitution not supported by sufficient evidence. We find no error in
part, but reverse and remand on the issue of restitution.
I. Fatal variance between indictments and evidence
Defendant argues that the trial court erred in denying her motion to dismiss
for a fatal variance between the indictments and the evidence presented at trial.
Specifically, Defendant contends that the indictments (1) did not correctly allege the
victim of the offense and (2) incorrectly alleged that Defendant was a public officer or
trustee, an element required by the statute under which Defendant was charged. We
disagree.
We review a trial court’s ruling on a motion to dismiss based upon an alleged
fatal variance in an indictment de novo. State v. Call, 349 N.C. 382, 424, 508 S.E.2d
496, 522 (1998). “Where an indictment charges the defendant with a crime against
someone other than the actual victim, the variance is fatal.” State v. Abraham, 338
N.C. 315, 340, 451 S.E.2d 131, 144 (1994) (citation omitted).
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STATE V. WILLIAMS
Opinion of the Court
Here, the indictments alleged that the victim was “Forestville Elementary
School-Knightdale.” However, the evidence at trial was that Defendant embezzled
from the PTA affiliated with Forestville Road Elementary School in Knightdale.
Defendant first notes that the PTA is a separate entity from the school. We agree,
but in an indictment for embezzlement, “the State is not limited to alleging ownership
in the legal owner but may allege ownership in anyone else who has a special property
interest recognized by law.” State v. Kornegay, 313 N.C. 1, 27, 326 S.E.2d 881, 900
(1985). Here, the uncontradicted evidence showed that the money Defendant was
alleged to have embezzled was raised by the PTA explicitly and exclusively for the
benefit of the school. Thus, the school was properly named in the indictments as the
victim of Defendant’s embezzlement.
Even assuming that the school had a special property interest in the embezzled
money, Defendant further contends that the discrepancy between the school’s actual
name and the name that appears in the indictments is similar to the discrepancies in
State v. Bell, 270 N.C. 25, 153 S.E.2d 741 (1967) and State v. Overman, 257 N.C. 464,
125 S.E.2d 920 (1962), two cases in which variances in the names of the alleged
victims were determined to be fatal. We find those cases easily distinguishable. Both
cases involved indictments that listed the wrong first name or surname of an
individual victim (“Jean Rogers” instead of “Susan Rogers” in Bell and “Frank E.
Nutley” rather than the correct “Frank E. Hatley” in Overman). Here, in contrast,
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Opinion of the Court
the indictment did not incorrectly name the school, but merely omitted the word
“Road.” We find this omission more analogous to the omission in State v. Whitley,
208 N.C. 661, 662, 182 S.E. 338, 339 (1935), where an indictment correctly listed the
victim’s proper name, “Cannon Mills Company,” but some witnesses referred to the
entity as “Cannon Mills.” Our Supreme Court found this variance was not fatal. Id.;
see also State v. Wallace, 71 N.C. App. 681, 688-89, 323 S.E.2d 403, 409 (1984) (finding
no fatal variance where there was a “slight discrepancy between the corporate name
given in the indictment [American Cleaners Corporation, a corporation doing
business as Holiday Cleaners] and the name given by an employee at trial [American
Cleaning Corporation, Holiday Cleaners Division]”) (internal quotation marks
omitted), disc. review denied, 313 N.C. 611, 332 S.E.2d 82 (1985). Accordingly, we
hold that the omission of the word “Road” from the name of the school was not a fatal
variance.
Finally, Defendant argues that a fatal variance exists because the indictment
alleged that Defendant was “an officer or trustee of a local board of education or
educational institution” while the evidence at trial failed to show that Defendant held
such a position. Section 14-92 of our General Statutes, entitled “Embezzlement of
funds by public officers and trustees,” provides that,
[i]f an officer, agent, or employee of an entity listed below
[including a local board of education or educational
institution], or a person having or holding money or
property in trust for one of the listed entities, shall
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Opinion of the Court
embezzle or otherwise willfully and corruptly use or
misapply the same for any purpose other than that for
which such moneys or property is held, such person shall
be guilty of a felony. . . .
N.C. Gen. Stat. § 14-92 (2013). In State v. Kennedy, a retailer was charged under
section 14-92 after he collected county sales and use taxes from purchasers, but failed
to turn those monies over to the county. 130 N.C. App. 399, 400-01, 503 S.E.2d 133,
133-34 (1998), affirmed, 350 N.C. 87, 511 S.E.2d 305 (1999). The defendant
“contend[ed] that he did not hold the taxes ‘in trust’ as required for conviction under”
section 14-92. Id. at 401, 503 S.E.2d at 134. Although agreeing with the “defendant
that the collection of sales taxes by a retailer lacks some of the trappings of a
traditional trust,” this Court held “that a purchaser pays sales taxes to a retailer as
‘trustee’ for the state and county[.]” Id. at 401-02, 503 S.E.2d at 134. Likewise here,
while we agree with Defendant’s assertion that there was no evidence of an express
trust, there was sufficient evidence that the PTA held the money at issue in a
constructive trust for the school’s benefit. See, e.g., Teachey v. Gurley, 214 N.C. 288,
292, 199 S.E. 83, 87 (1938) (“[C]onstructive trusts . . . are such as are raised by equity
in respect to property . . . where though acquired originally without fraud, it is against
equity that it should be retained by him who holds it. This type of trust likewise
arises purely by construction of equity independently of any contract or of any actual
or presumed intention of the parties to create a trust.”). The indictments here alleged
that Defendant “held the position of PTA President, an officer or trustee of a local
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Opinion of the Court
board of education or educational institution, and in that capacity had been entrusted
to receive” the fundraising money and the Kohl’s money on behalf of the school. The
evidence showed that these monies were donated or raised for the benefit of the
school, and the school’s principal testified that Defendant told the principal to decide
how the money should be spent. We reject each of Defendant’s arguments that there
was a fatal variance between the indictments and the evidence at trial and hold that
the trial court did not err in denying Defendant’s motion to dismiss.
II. Defendant’s sentence
Defendant next argues that the trial court erred in sentencing her to an
intermediate punishment which exceeded the permitted statutory period. We
disagree.
We will review whether a defendant’s sentence “was unauthorized at the time
imposed, exceeded the maximum authorized by law, was illegally imposed, or is
otherwise invalid as a matter of law” regardless of whether any objection was made
at trial. See N.C. Gen. Stat. § 15A-1446(d)(18) (2013).
“Alleged statutory errors are questions of law, and as such,
are reviewed de novo.” State v. Mackey, 209 N.C. App. 116,
118, 708 S.E.2d 719, 721 (2011) (citations omitted). By
statute, the maximum length of probation that the trial
court may impose is thirty-six months “[u]nless the court
makes specific findings that longer or shorter periods of
probation are necessary.” N.C. Gen. Stat. § 15A-1343.2(d)
(2011). If such findings are made, the probation may
extend up to five years (sixty months). Id. Yet the statute
merely requires a finding that a longer term is needed; it
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Opinion of the Court
does not require [a] detailed rationale. See State v. Mucci,
163 N.C. App. 615, 625, 594 S.E.2d 411, 418 (2004) (“[W]e
must remand this case for re-sentencing in order for the
trial court to either impose a probation term consistent
with the statute or to make the appropriate finding of fact
that a longer probationary period is necessary.” (emphasis
added and citation omitted)); State v. Cardwell, 133 N.C.
App. 496, 509, 516 S.E.2d 388, 397 (1999) (“The trial court
may either reduce [the d]efendant’s probation to the
statutory period or may enter a finding that the longer
period is necessary.” (emphasis added)).
State v. Wilkerson, __ N.C. App. __, __, 733 S.E.2d 181, 184 (2012).
Here, Defendant was convicted of two Class F felonies and received a
consolidated intermediate sentence in the aggravated range. The trial court
sentenced Defendant to an active term of six months in prison followed by 48 months
of supervised probation. The trial court marked a preprinted box on the judgment
form indicting that a “longer” period of probation than normally provided for in
section 15A-1343.2(d) was necessary in Defendant’s case. Under Wilkerson, this
finding is sufficient to support the imposition of an extended period of supervised
probation. Further, just as the court in Wilkerson “went beyond the statutory
requirement” by referencing the evidence which supported its decision, see id., the
trial court here made statements in open court which explained its rationale for
imposing the longer period of probation, to wit, that Defendant had previously been
convicted of forgery more than ten years before and had violated probation in the
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past. Accordingly, we conclude the trial court made the required finding to support
its imposition of an extended term of probation. This argument is overruled.
III. Amount of restitution
Finally, Defendant argues that the trial court erred in ordering her to pay an
amount of restitution not supported by sufficient evidence. Specifically, Defendant
was ordered to pay $2,500.00 in restitution to cover the cost of an audit of the PTA.
Defendant contends that this amount was not supported by evidence presented to the
trial court. We agree.
“[E]ven where a defendant does not specifically object to the trial court’s entry
of an award of restitution, this issue is deemed preserved for appellate review under
N.C. Gen. Stat. § 15A-1446(d)(18).” State v. Replogle, 181 N.C. App. 579, 584, 640
S.E.2d 757, 761 (2007) (citations and internal quotation marks omitted). We review
the sufficiency of the evidence to support an award of restitution de novo. State v.
Wright, 212 N.C. App. 640, 711 S.E.2d 979, 801, disc. review denied, 365 N.C. 351,
717 S.E.2d 743 (2011). “The amount of restitution recommended by the trial court
must be supported by evidence adduced at trial or at sentencing. Furthermore, this
Court has held that the unsworn statements of the prosecutor do not constitute
evidence and cannot support the amount of restitution recommended.” Replogle, 181
N.C. App. at 584, 640 S.E.2d at 761 (citation, internal quotation marks, brackets, and
ellipsis omitted). Here, as Defendant notes and the State concedes, the prosecutor
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Opinion of the Court
informed the trial court that the PTA spent $2,500.00 for an audit following the
disappearance of the fundraising money, but no documentation, testimony, or other
evidence regarding the cost of the audit was introduced. We cannot distinguish the
facts of this case from those in Replogle, and accordingly, as in that case, “we reverse
on the issue of restitution and remand to the trial court for resentencing consistent
with this decision.” See id.NO ERROR in part; REVERSED and REMANDED in part.
Judges HUNTER, JR., and TYSON concur.
Report per Rule 30(e).
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