State v. Booker , 262 N.C. App. 290 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-165
Filed: 6 November 2018
Guilford County, No. 16 CRS 83608
STATE OF NORTH CAROLINA
v.
JALA NAMREH BOOKER
Appeal by defendant from judgment entered 20 July 2017 by Judge Michael D.
Duncan in Guilford County Superior Court. Heard in the Court of Appeals 5
September 2018.
Attorney General Joshua H. Stein, by Special Deputy Attorney General
Kimberley A. D’Arruda, for the State.
Joseph P. Lattimore for defendant-appellant.
DAVIS, Judge.
In this appeal, we address whether (1) an indictment for embezzlement was
legally sufficient where it failed to expressly allege fraudulent intent and did not
specify the acts allegedly constituting embezzlement; (2) the trial court committed
plain error by instructing the jury on an element of embezzlement not supported by
the evidence; and (3) the trial court plainly erred by allowing testimony concerning
the defendant’s post-arrest silence. After a thorough review of the record and
applicable law, we conclude that the defendant received a fair trial free from
prejudicial error.
STATE V. BOOKER
Opinion of the Court
Factual and Procedural Background
The State introduced evidence at trial tending to show the following facts: In
2013, Marjorie Hetzel owned Interstate All Battery Center franchises in Danville,
Virginia and Greensboro, North Carolina. In November 2013, Hetzel hired Jala
Namreh Booker (“Defendant”) as the office manager for the Greensboro franchise. As
part of her duties as office manager, Defendant was responsible for the daily reports
generated from the register, managing accounts payable and receivable, and
occasionally assisting with sales. None of the store’s other employees were
responsible for bookkeeping or “keeping track of the money” in any capacity.
At the close of business each day, Defendant was required to generate a daily
activity report from the cash register summarizing the store’s monetary transactions
for that day. After verifying that the cash register actually contained the amount of
money listed in the daily activity report, she was supposed to place the money from
the cash register in a bank deposit bag and lock the bag in a cabinet on the store’s
premises overnight. On the following business day, Defendant was expected to take
the money in the bag to the bank and deposit it.
Prior to June 2015, Hetzel did not have any concerns about Defendant’s job
performance or her handling of the business’s finances. That month, Defendant
called Hetzel to express confusion over how she should handle five dollars that an
outside salesman had placed in the cash register. Upon arriving at the store, Hetzel
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asked Defendant for the applicable deposit ticket. In response, Defendant retrieved
from her car five separate envelopes containing cash, checks, and deposit slips.
Together, the envelopes contained over $10,000.
Hetzel immediately began reviewing the business’s financial records and
noticed that the previous deposit made by Defendant was $447 short. When Hetzel
asked her about the missing funds, Defendant stated that the money was in the
envelopes she had retrieved from her car. Hetzel told Defendant to deposit the money
in the envelopes immediately, and she did so. Hetzel fired Defendant the following
day.
On 22 June 2015, Hetzel contacted the Greensboro Police Department
regarding financial discrepancies in her business records and subsequently discussed
her concerns with Detective Edward Bruscino. After analyzing various financial
documentation and bank records provided to him by Hetzel, Detective Bruscino
determined that discrepancies existed during the time period when Defendant was
employed between the amount of money that should have been deposited and the
amount that was actually deposited.
Detective Bruscino focused his investigation on the months of December 2014
and March 2015 because those “were the months that truly showed where cash was
missing from multiple deposits.” On numerous dates during those months,
Defendant had either deposited less money than the business’s financial records
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Opinion of the Court
indicated should have been deposited or she did not make a deposit at all. At no point
during her employment did Defendant ever inform Hetzel about any financial
discrepancies related to the business.
Defendant was indicted by a grand jury on 23 January 2017 on the charge of
embezzlement. A jury trial was held beginning on 19 July 2017 before the Honorable
Michael D. Duncan in Guilford County Superior Court. At the close of the State’s
evidence, Defendant moved to dismiss the embezzlement charge, and the trial court
denied the motion. She renewed her motion to dismiss at the close of all the evidence,
which was once again denied.
On 20 July 2017, the jury found Defendant guilty of embezzlement. The trial
court sentenced her to a term of 6 to 17 months imprisonment, suspended the
sentence, and placed Defendant on supervised probation for a period of 60 months.
The court also ordered her to pay restitution in the amount of $4,100.67. Defendant
filed a timely notice of appeal.
Analysis
On appeal, Defendant argues that the trial court erred by (1) denying her
motion to dismiss the embezzlement charge on the ground that the indictment was
facially invalid; (2) instructing the jury on an element of embezzlement not supported
by the evidence; and (3) permitting testimony concerning her post-arrest silence. We
address each argument in turn.
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Opinion of the Court
I. Motion to Dismiss
Defendant first contends that the trial court erred by denying her motion to
dismiss. Specifically, she asserts that the indictment was invalid because it failed to
allege any fraudulent intent on her part and did not specify the acts committed by
her that constituted embezzlement. We disagree.
An indictment must contain
a plain and concise factual statement in each count which,
without allegations of an evidentiary nature, asserts facts
supporting every element of a criminal offense and the
defendant’s commission thereof with sufficient precision
clearly to apprise the defendant or defendants of the
conduct which is the subject of the accusation.
State v. Jones, 367 N.C. 299, 306, 758 S.E.2d 345, 350 (2014) (citation, quotation
marks, and brackets omitted). An indictment that “fails to state some essential and
necessary element of the offense” is fatally defective, State v. Ellis, 368 N.C. 342, 344,
776 S.E.2d 675, 677 (2015) (citation and quotation marks omitted), and if an
indictment is fatally defective, the trial court lacks subject matter jurisdiction over
the case. State v. Justice, 219 N.C. App. 642, 643, 723 S.E.2d 798, 800 (2012).
An indictment “is constitutionally sufficient if it apprises the defendant of the
charge against him with enough certainty to enable him to prepare his defense and
to protect him from subsequent prosecution of the same offense.” State v. Stroud, __
N.C. App. __, __, 815 S.E.2d 705, 709 (citation and quotation marks omitted), appeal
dismissed and disc. review denied, __ N.C. __, 817 S.E.2d 573 (2018). A defendant
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Opinion of the Court
has received sufficient notice “if the illegal act or omission alleged in the indictment
is clearly set forth so that a person of common understanding may know what is
intended.” State v. Haddock, 191 N.C. App. 474, 477, 664 S.E.2d 339, 342 (2008)
(citation and quotation marks omitted). Furthermore, “while an indictment should
give a defendant sufficient notice of the charges against him, it should not be
subjected to hyper technical scrutiny with respect to form.” State v. Harris, 219 N.C.
App. 590, 592, 724 S.E.2d 633, 636 (2012) (citation and quotation marks omitted). On
appeal, this Court reviews the sufficiency of an indictment de novo. State v. Marshall,
188 N.C. App. 744, 748, 656 S.E.2d 709, 712, disc. review denied, 362 N.C. 368, 661
S.E.2d 890 (2008).
N.C. Gen. Stat. § 14-90 provides, in pertinent part, as follows:
(a) This section shall apply to any person:
....
(4) Who is an officer or agent of a corporation, or any
agent, consignee, clerk, bailee or servant, except
persons under the age of 16 years, of any person.
(b) Any person who shall:
(1) Embezzle or fraudulently or knowingly and willfully
misapply or convert to his own use, or
(2) Take, make away with or secrete, with intent to
embezzle or fraudulently or knowingly and willfully
misapply or convert to his own use, any money,
goods or other chattels, bank note, check or order for
the payment of money . . . or any other valuable
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Opinion of the Court
security whatsoever that (i) belongs to any other
person or corporation . . . which shall have come into
his possession or under his care, shall be guilty of a
felony.
N.C. Gen. Stat. § 14-90 (2017).
This Court has explained that in order to convict a defendant of embezzlement
the State must prove the following essential elements:
(1) [T]hat defendant, being more than sixteen 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 and through
his fiduciary relationship; and (3) that he fraudulently
or knowingly and willfully misapplied or converted to
his own use the money or valuable property of his
principal which he had received in his fiduciary
capacity.
State v. Melvin, 86 N.C. App. 291, 298, 357 S.E.2d 379, 383 (1987) (citation omitted).
With regard to the third element, “’[t]he 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[.]” State v. Parker, 233 N.C.
App. 577, 580, 756 S.E.2d 122, 124-25 (2014) (citation omitted).
In the present case, Defendant’s indictment stated, in pertinent part, as
follows:
[D]efendant named above unlawfully, willfully and
feloniously did embezzle three thousand nine hundred fifty
seven dollars and eighty one cents ($3,957.81) in good and
lawful United States currency belonging to AMPZ, LLC
d/b/a Interstate All Battery Center. At the time the
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Opinion of the Court
defendant was over 16 years of age and was the employee
of AMPZ, LLC d/b/a Interstate All Battery Center and in
that capacity had been entrusted to receive the property
described above and in that capacity the defendant did
receive and take into her care and possession that property.
Defendant first argues that her indictment failed to adequately allege that she
acted with fraudulent intent. As quoted above, the indictment stated that Defendant
“unlawfully, willfully and feloniously did embezzle” $3,957.81 in her capacity as an
employee of Interstate All Battery Center. Defendant nevertheless contends that her
indictment was facially invalid because it merely stated that she “did embezzle” a
sum of money without specifically alleging that she did so with a fraudulent intent.
However, “embezzle” has been defined as “to appropriate (as property entrusted to
one’s care) fraudulently to one’s own use.” Webster’s Ninth New Collegiate
Dictionary 406 (9th ed. 1991); see also State v. Smithey, 15 N.C. App. 427, 429, 190
S.E.2d 369, 370 (1972) (“Fraudulent intent which constitutes a necessary element of
the crime of embezzlement . . . is the intent of the agent to embezzle or otherwise
willfully and corruptly use or misapply the property of the principal or employer for
purposes other than those for which the property is held.” (citation and quotation
marks omitted)).
Thus, the concept of fraudulent intent is already contained within the ordinary
meaning of the term “embezzle.” As noted above, a defendant receives sufficient
notice where the allegations in the indictment permit a “person of common
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Opinion of the Court
understanding [to] know what is intended.” Haddock, 191 N.C. App. at 477, 664
S.E.2d at 342 (citation and quotation marks omitted). Defendant makes no
contention in her appellate brief that she was prejudiced in her ability to prepare a
defense based upon a misapprehension of the meaning of the term “embezzle.”
Moreover, this Court has held that an allegation that a defendant acted
willfully “implies that the act is done knowingly” and “suffice[s] to allege the requisite
knowing conduct” for purposes of determining the validity of an indictment. Harris,
219 N.C. App. at 595-96, 724 S.E.2d at 637-38 (citation and quotation marks omitted).
As discussed above, in order to convict a defendant of embezzlement the State is
required to prove that she “fraudulently or knowingly and willfully misapplied or
converted to [her] own use” the property of her principal. Melvin, 86 N.C. App. at
298, 357 S.E.2d at 383 (emphasis added). Thus, the allegation contained in
Defendant’s indictment that she “unlawfully, willfully and feloniously did embezzle”
can fairly be read to allege that she “knowingly and willfully” embezzled from her
employer. Therefore, we are satisfied that the indictment is not insufficient for failing
to specifically allege a fraudulent intent on the part of Defendant.
We find similarly unavailing Defendant’s contention that her indictment was
defective for failing to specify the acts constituting embezzlement. She makes the
conclusory assertion that “the ambiguous term ‘embezzle’” was inadequate to
properly inform her of the charge against her. However, we find nothing vague or
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Opinion of the Court
insufficiently particular about the allegations contained in the indictment. Indeed,
it alleges that Defendant embezzled $3,957.81 entrusted to her in a fiduciary capacity
as an employee of Interstate All Battery Center. We fail to see how these allegations
would not adequately apprise Defendant as to the charges facing her or prejudice her
ability to prepare a defense. Accordingly, we hold that the trial court did not err in
denying Defendant’s motion to dismiss. See State v. Lowe, 295 N.C. 596, 604, 247
S.E.2d 878, 884 (1978) (upholding validity of indictment where “Defendant was
sufficiently informed of the accusation against him”).
II. Jury Instructions
Defendant next contends that the trial court erred by instructing the jury that
it could convict her of embezzlement based upon the theory that she “did take and
make away with U.S. currency with the intent to embezzle” where the State’s sole
theory at trial was instead that she “misapplied” the money. Although Defendant
concedes that the trial court did, in fact, correctly charge the jury as to the theory of
misapplication, she nevertheless asserts that the erroneous instruction on an
alternative theory entitles her to a new trial.
Because Defendant failed to object to the trial court’s jury instructions, our
review of this issue is limited to plain error. See N.C. R. App. P. 10(a)(4) (“In criminal
cases, an issue that was not preserved by objection noted at trial and that is not
deemed preserved by rule or law without any such action nevertheless may be made
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Opinion of the Court
the basis of an issue presented on appeal when the judicial action questioned is
specifically and distinctly contended to amount to plain error.”).
For error to constitute plain error, a defendant must
demonstrate that a fundamental error occurred at trial. To
show that an error was fundamental, a defendant must
establish prejudice—that, after examination of the entire
record, the error had a probable impact on the jury’s
finding that the defendant was guilty. Moreover, because
plain error is to be applied cautiously and only in the
exceptional case, the error will often be one that seriously
affects the fairness, integrity or public reputation of
judicial proceedings[.]
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal citations,
quotation marks, and brackets omitted).
Our appellate courts have held that a new trial is required where a trial court
instructs the jury — over the objection of the defendant — on a theory of the
defendant’s guilt that is not supported by the evidence presented at trial. See, e.g.,
State v. Pakulski, 319 N.C. 562, 574, 356 S.E.2d 319, 326 (1987) (holding new trial
required where trial court instructed jury on alternative theory unsupported by the
evidence); State v. O’Rourke, 114 N.C. App. 435, 442, 442 S.E.2d 137, 140 (1994)
(“Where the trial court instructs on alternative theories, one of which is not supported
by the evidence, and it cannot be discerned from the record upon which theory the
jury relied in arriving at its verdict, the error entitles the defendant to a new trial.”
(citation omitted)).
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STATE V. BOOKER
Opinion of the Court
However, a new trial is not necessarily required as a result of such an error in
cases where no objection is raised at trial.
Recently . . . , our Supreme Court has declared that such
instructional errors not objected to at trial are not plain
error per se. In State v. Boyd, 366 N.C. 548, 742 S.E.2d 798
(2013), the Supreme Court, adopting a dissent from this
Court, 222 N.C. App. 160, 730 S.E.2d 193 (2012) (Stroud,
J., dissenting), declared an additional requirement for a
defendant arguing an unpreserved challenge to a jury
instruction as unsupported by the evidence. The Court in
Boyd shifted away from the long standing assumption that
the jury based its verdict on the theory for which it received
an improper instruction, and instead placed the burden on
the defendant to show that an erroneous disjunctive jury
instruction had a probable impact on the jury’s verdict.
State v. Malachi, __ N.C. App. __, __, 799 S.E.2d 645, 649 (2017) (internal citations
and quotation marks omitted). Thus, a reviewing court conducting a plain error
analysis in this context “is to determine whether a disjunctive jury instruction
constituted reversible error, without being required in every case to assume that the
jury relied on the inappropriate theory.” State v. Robinson, __ N.C. App. __, __, 805
S.E.2d 309, 318 (2017) (citation and quotation marks omitted).
In the present case, the trial court instructed the jury, in pertinent part, as
follows:
The defendant in this case, members of the jury, has
been charged with embezzlement by virtue of employment.
For you to find the defendant guilty of this offense, the
state must prove three things beyond a reasonable doubt:
First, that the defendant was an agent or clerk of AMPZ,
LLC, doing business as Interstate All Battery Center.
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Opinion of the Court
Second, that while acting as an agent or clerk, U.S.
currency came into the defendant’s possession or care.
And third, that the defendant did take and make
away with U.S. currency with the intent to embezzle and
fraudulently, knowingly, and willfully misapply and/or
convert U.S. currency into the defendant’s own use.
If you find from the evidence beyond a reasonable
doubt that on or about the alleged date the defendant was
an agent or clerk of AMPZ, LLC, doing business as
Interstate All Batteries Center, that while the defendant
was acting as agent or clerk, U.S. currency came into the
defendant’s possession or care, and that the defendant
embezzled and/or fraudulently or knowingly and willfully
misapplied or converted to the defendant’s own use U.S.
currency with the intent to embezzle, fraudulently or
knowingly and willfully misapply or convert U.S. currency
to the defendant’s own use, it would be your duty to return
a verdict of guilty.
(Emphasis added.)
Defendant argues that the trial court committed plain error by instructing the
jury on an alternative theory of guilt not supported by the evidence — namely, by
including as an element of embezzlement that she “did take and make away with”
money entrusted to her in a fiduciary capacity. She concedes, however, that the jury
was “correctly instructed on the law arising from the evidence” during the trial court’s
summation of the elements of embezzlement. Nevertheless, Defendant contends that
the trial court deprived her of the right to a unanimous verdict by charging the jury
“correctly at one point and incorrectly at another.”
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Opinion of the Court
We are unable to conclude that the trial court’s instructions amounted to plain
error. Here, Defendant was the only store employee responsible for depositing money
into Interstate All Battery Center’s bank account. She was also the only employee
whose duties included maintaining financial records and “keeping track of the
money.” Detective Bruscino testified with regard to numerous dates throughout
Defendant’s employment on which she should have made cash deposits but either did
not deposit any cash at all or deposited less money than she should have.
Furthermore, Defendant never expressed any concerns to Hetzel regarding difficulty
in balancing the books or the existence of discrepancies in financial records.
The evidence that Defendant misapplied money entrusted to her in a fiduciary
capacity was overwhelming. Therefore, it cannot reasonably be argued that the jury
“probably would have returned a different verdict,” see Lawrence, 365 N.C. at 507,
723 S.E.2d at 327, but for the trial court’s error in instructing it upon the alternative
theory that Defendant “did take and make away with” her employer’s money.
Accordingly, we hold that the trial court’s error did not rise to the level of plain error.
See Robinson, __ N.C. App. at __, 805 S.E.2d at 319 (no plain error where improper
instruction on alternative theory not supported by the evidence “did not play a
significant role in the jury’s decision”).
III. Testimony Concerning Post-Arrest Silence
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STATE V. BOOKER
Opinion of the Court
Finally, Defendant argues that the trial court plainly erred by permitting
Detective Bruscino to testify with regard to her post-arrest silence. Specifically, she
asserts that the admission of this testimony violated her Fifth Amendment right
against self-incrimination. Once again, we disagree.
“Whether the State may use a defendant’s silence at trial depends on the
circumstances of the defendant’s silence and the purpose for which the State intends
to use such silence.” State v. Boston, 191 N.C. App. 637, 648, 663 S.E.2d 886, 894,
appeal dismissed and disc. review denied, 362 N.C. 683, 670 S.E.2d 566 (2008). This
Court has held that “a defendant’s pre-arrest silence and post-arrest, pre-Miranda
warnings silence may not be used as substantive evidence of guilt, but may be used
by the State to impeach the defendant by suggesting the defendant’s prior silence is
inconsistent with his present statements at trial.” State v. Mendoza, 206 N.C. App.
391, 395, 698 S.E.2d 170, 174 (2010) (citation omitted).
At trial, the following exchange took place between Defendant’s counsel and
Detective Bruscino on cross-examination:
[DEFENSE COUNSEL]: Did you ever interview
[Defendant] in connection with this case?
[DETECTIVE BRUSCINO]: I did not.
[DEFENSE COUNSEL]: Did you attempt to try to locate
her before you issued a warrant to speak with her about it?
[DETECTIVE BRUSCINO]: Yes. We went to multiple
locations looking for her. We had many, many addresses
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Opinion of the Court
to go to, but we didn’t go to all of them. We could only go
to a few of them. And we weren’t able to locate [Defendant].
[DEFENSE COUNSEL]: Did you come to find out how this
warrant was served on her?
[DETECTIVE BRUSCINO]: I did not. All I got was
notification that it was served.
[DEFENSE COUNSEL]: Okay. So you weren’t ever
notified that she turned herself in on this case?
[DETECTIVE BRUSCINO]: No.
....
[DEFENSE COUNSEL]: So did you go to the Rankin King
address?
[DETECTIVE BRUSCINO]: The Rankin King address?
Yes, we did. We knocked on that door.
[DEFENSE COUNSEL]: Okay. And do you know what
happened when you knocked on that door?
[DETECTIVE BRUSCINO]: No one was home. Typically
when no one is home, we leave a business card with a phone
number on it.
[DEFENSE COUNSEL]: Did you come to find out later
that was her mother’s address?
[DETECTIVE BRUSCINO]: I did not.
[DEFENSE COUNSEL]: So you didn’t go back at any point
to try to knock on the door again later?
[DETECTIVE BRUSCINO]: No. We had left a card, as
well as that was the address on her license.
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Opinion of the Court
[DEFENSE COUNSEL]: Okay. So after [Defendant] did
turn herself in when she found out about the warrant, did
you try to make an interview with her after that?
[DETECTIVE BRUSCINO]: I did not.
Immediately after the above-quoted testimony from Detective Bruscino, the
following exchange took place on redirect examination:
[PROSECUTOR]: Detective Bruscino, after you left your
card at the residence listed on [Defendant’s] driver’s
license, when was it after you did that that [Defendant]
called you to talk to you?
[DETECTIVE BRUSCINO]: [Defendant] never made
contact with me.
[PROSECUTOR]: After you took out charges and
[Defendant] was served, when did [Defendant] call you so
she could come in and talk to you about this?
[DETECTIVE BRUSCINO]: She never contacted me.
[PROSECUTOR]: Has [Defendant] ever emailed you,
voicemailed you or anything to come in and discuss all of
this with you?
[DETECTIVE BRUSCINO]: She’s never made contact
with me.
[PROSECUTOR]: And have you met with people accused
of embezzlement and gone over records and things with
people who are facing these type of charges?
[DETECTIVE BRUSCINO]: Yes. Many times people will
come in to discuss any allegations against them.
[PROSECUTOR]: And do you consider that part of your
job?
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Opinion of the Court
[DETECTIVE BRUSCINO]: Yes.
Defendant contends that Detective Bruscino’s testimony on redirect
examination violated her Fifth Amendment right against self-incrimination. The
State argues, in response, that Defendant “opened the door” to such testimony. The
legal concept of “[o]pening the door refers to the principle that where one party
introduces evidence of a particular fact, the opposing party is entitled to introduce
evidence in explanation or rebuttal thereof, even though the rebuttal evidence would
be incompetent or irrelevant had it been offered initially.” State v. Ligon, 206 N.C.
App. 458, 467, 697 S.E.2d 481, 487 (2010) (citation and quotation marks omitted).
Thus, “the law wisely permits evidence not otherwise admissible to be offered to
explain or rebut evidence elicited by the defendant himself.” Id. at 466, 697 S.E.2d
at 487 (citation, quotation marks, and brackets omitted). The State asserts that
Defendant opened the door to Detective Bruscino’s testimony by pursuing a line of
inquiry on cross-examination centered around his attempts to contact Defendant both
prior to and following her arrest.
We agree with the State that Defendant opened the door for the prosecutor to
ask Detective Bruscino about his attempts to contact her. However, we are not
persuaded that Defendant similarly opened the door for testimony concerning the
extent to which other defendants facing embezzlement charges had spoken to
Detective Bruscino in the past. Nevertheless, even assuming arguendo that this
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Opinion of the Court
portion of Detective Bruscino’s testimony was improper, because Defendant failed to
object to this exchange at trial she is once again limited to plain error review on
appeal. See State v. Wagner, __ N.C. App. __, __, 790 S.E.2d 575, 580 (2016)
(“Defendant did not object to this testimony at trial. Therefore, our review is limited
to plain error.” (citation omitted)), disc. review denied, 369 N.C. 483, 795 S.E.2d 221
(2017).
Based on our thorough review of the record, we fail to see how this portion of
Detective Bruscino’s testimony could have had a probable impact on the jury’s verdict.
Therefore, we hold that the trial court’s admission of the challenged testimony did
not constitute plain error. See State v. Stancil, 355 N.C. 266, 267, 559 S.E.2d 788,
789 (2002) (“The overwhelming evidence against defendant leads us to conclude that
the error committed did not cause the jury to reach a different verdict than it
otherwise would have reached.”).
Conclusion
For the reasons stated above, we conclude that Defendant received a fair trial
free from prejudicial error.
NO PREJUDICIAL ERROR.
Judges ELMORE and DILLON concur.
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