State v. Steele ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-39
No. COA20-894
Filed 18 January 2022
Pamlico County, Nos. 19 CRS 66–67
STATE OF NORTH CAROLINA
v.
THOMAS WAYNE STEELE
Appeal by defendant from judgments entered 31 January 2020 by Judge John
E. Nobles, Jr., in Pamlico County Superior Court. Heard in the Court of Appeals 19
October 2021.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Amy
Kunstling Irene, for the State.
Tin Fulton Walker & Owen, PLLC, by Noell P. Tin, for defendant-appellant.
ZACHARY, Judge.
¶1 Defendant Thomas Wayne Steele appeals from judgments entered upon a
jury’s verdicts finding him guilty of one count of embezzlement and four counts of
exploitation of an older adult. On appeal, Defendant contends that the trial court
erred by (1) denying his motion to dismiss the embezzlement charge for insufficient
evidence, and (2) declining to give Defendant’s proposed special jury instruction. After
careful review, we conclude that Defendant received a fair trial, free from prejudicial
error.
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Background
¶2 Defendant first met Lillie Monk and her late husband, Pastor Mike Monk, Jr.,
in 1985. They became very close, eventually considering themselves family;
Defendant called Mrs. Monk and Pastor Monk “Mom” and “Dad,” and the Monks
referred to Defendant as their “son.” On 28 March 2015, Pastor Monk passed away
unexpectedly. Defendant, who was also a pastor, delivered the eulogy at Pastor
Monk’s funeral.
¶3 Mrs. Monk struggled to return to her daily life. She testified that her husband’s
death “almost took [her] out[,]” and she felt like she “couldn’t make it without him[.]”
Mrs. Monk’s family was concerned about her because she was so “grief-stricken” and
“distraught.”
¶4 Following the funeral, Mrs. Monk visited Defendant and his wife for a week in
their home in Concord, North Carolina, against her family’s advice. Over the next few
months, she stayed with Defendant and his wife periodically. Defendant told Mrs.
Monk that “he was there to help” her. Mrs. Monk testified at trial that she “thought
[Defendant] was a man of God” who “loved [her]” and was “going to take care of [her.]”
Mrs. Monk had little experience managing the household finances, as that had been
her husband’s responsibility throughout their marriage. Because she trusted
Defendant and thought of him as family, Mrs. Monk “just turned everything”—
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including the keys to her home and post office box—over to Defendant after Pastor
Monk’s death.
¶5 On 16 April 2015, less than a month after her husband’s death, Mrs. Monk
added Defendant as joint holder on her State Employees’ Credit Union (SECU)
savings and money-market accounts. She also redeemed over $146,000 in savings
bonds and deposited that money into the joint money-market account. That same day,
Mrs. Monk added Defendant as a joint holder on her First Citizens Bank accounts as
well. In addition, at some point, Defendant linked his personal SECU accounts to
Mrs. Monk’s SECU accounts, with the effect that any overdrafts on Defendant’s
personal SECU account would be paid from the joint SECU accounts funded with
Mrs. Monk’s money.
¶6 Shortly thereafter, on 12 June 2015, Defendant drove Mrs. Monk to an
attorney’s office. Mrs. Monk testified that at Defendant’s behest, she executed a
power of attorney naming Defendant as her attorney-in-fact. She also executed a will,
naming Defendant to serve as her executor and leaving the majority of her estate to
him.
¶7 A few months later, on 4 September 2015, funds were withdrawn from the joint
First Citizens accounts and used to fund two bank accounts at Wells Fargo Bank.
Mrs. Monk and Defendant were named as joint holders of the new Wells Fargo
accounts. There was conflicting evidence as to who opened the Wells Fargo accounts.
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Defendant testified that Mrs. Monk agreed to open these joint accounts. Mrs. Monk
testified that the signatures on the applications for the two Wells Fargo accounts did
not look like her handwriting; that she did not give Defendant permission to open the
Wells Fargo accounts; and that she “didn’t know what was going on” with the Wells
Fargo accounts because Defendant “took over.”
¶8 Concerned that Defendant was committing financial crimes against Mrs.
Monk, her brother contacted the Pamlico County Sheriff’s Office, which transferred
the case to Agent Kevin Snead at the State Bureau of Investigation. On 22 April 2019,
a Pamlico County grand jury returned indictments charging Defendant with four
counts of exploitation of an older adult and one count of embezzlement of $100,000 or
more. On 21 October 2019, a Pamlico County grand jury returned a superseding
indictment amending the range of dates alleged for one of the charges of exploitation
of an older adult.
¶9 On 28 January 2020, this matter was called for trial in Pamlico County
Superior Court, the Honorable John E. Nobles, Jr., presiding. At trial, SBI Agent
Snead testified that Defendant obtained a total of $123,367.09 from the accounts that
he held with Mrs. Monk.
¶ 10 Agent Snead explained that, because Defendant linked his personal SECU
checking account to Mrs. Monk’s now jointly held SECU accounts, SECU transferred
$21,350 from the joint money-market account to Defendant’s personal checking
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account to cover his overdrafts between 11 August 2015 and 11 May 2016. He also
testified that Defendant used $102,017 of Mrs. Monk’s money from the jointly-held
SECU, Wells Fargo, and First Citizens accounts for his benefit, including $15,000 for
a down payment on a Ford truck titled to Defendant; $6,000 in contributions to his
IRA; $4,850 for repairs to his Mercedes; $8,000 in payments on his credit card
account; and $25,250 in cash withdrawals.
¶ 11 Defendant testified that the money in the joint accounts belonged to Mrs.
Monk, stating, “it was her money—her accounts, her money. I was there to help her.
It wasn’t about me.” He maintained that he had “no idea” that SECU was transferring
money from the SECU accounts that he held with Mrs. Monk to cover overdrafts from
his personal checking account, because he had not reviewed the SECU statements
and instead “just stuck them in a drawer.” Defendant also testified that Mrs. Monk
asked him to recruit a new pastor for Pastor Monk’s church and agreed to fund that
project, and that he withdrew money from the accounts as she requested. However,
Defendant conceded that he suffered from financial difficulties. Although his annual
salary was $80,000, he had to pay the IRS “a bunch of money back” at one time and
had struggled with his finances and bookkeeping.
¶ 12 Mrs. Monk testified that, although she “just turned everything over” to
Defendant after her husband’s death, she never authorized Defendant to link his
personal SECU checking account to any joint account in order to cover his overdrafts,
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never gave Defendant permission to withdraw money from the joint accounts for his
personal use, and never requested that Defendant find a new pastor for the church.
She also stated that she never gave Defendant permission to use her money to
purchase a new truck or to fix his Mercedes.
¶ 13 At the close of the State’s evidence, Defendant moved to dismiss the
embezzlement charge due to insufficient evidence, and he renewed the motion at the
close of all evidence. The trial court denied the motion both times.
¶ 14 At the charge conference, Defendant submitted a written request for the
following special jury instruction with regard to the embezzlement charge:
Pursuant to NC law, NCGS [§] 54C-165, Any two or more
persons may open or hold a withdrawable account or
accounts. The withdrawable account and any balance of the
account is held by them as joint tenants. You should
consider this as well as all other evidence as you evaluate
whether the State has proven its case beyond a reasonable
doubt.
¶ 15 Defense counsel argued that the proposed special instruction was necessary
because “if the jury finds that [Defendant] was lawfully on the joint accounts,
meaning that there was no deception involved, then he would have been entitled to
use those funds regardless.” The trial court denied Defendant’s request on the
grounds that the special instruction was likely to confuse the jury.
¶ 16 On 31 January 2020, the jury returned its verdicts finding Defendant guilty of
all charges. The trial court sentenced Defendant to 6-17 months for three of the four
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counts of exploitation of an older adult and an additional 13-25 months for the fourth
count, with the sentences to run consecutively in the custody of the North Carolina
Division of Adult Correction. The court also sentenced Defendant to 73-100 months
for the embezzlement conviction, to run concurrently with Defendant’s other
sentences. In addition, the court ordered Defendant to pay $123,367.09 in restitution
to Mrs. Monk. Defendant entered oral notice of appeal in open court.
Discussion
¶ 17 On appeal, Defendant argues that the trial court erred by (1) denying his
motion to dismiss the embezzlement charge, and (2) declining to deliver his requested
special jury instruction. We disagree.
I. Motion to Dismiss
¶ 18 Defendant contends that the trial court erred in denying his motion to dismiss
because the State presented insufficient evidence that (1) he had a fiduciary
relationship with Mrs. Monk when he converted the funds to his use; (2) he
wrongfully converted Mrs. Monk’s money to his own use, when he was entitled to the
funds in the bank accounts as a joint holder; and (3) Defendant embezzled at least
$100,000.
A. Standard of Review
¶ 19 We review the denial of a motion to dismiss based on an insufficiency of
evidence de novo. State v. Parker, 233 N.C. App. 577, 579, 756 S.E.2d 122, 124 (2014).
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¶ 20 “A motion to dismiss is properly denied where there is substantial evidence of
each element of the offense charged and of [the] defendant being the perpetrator of
that offense.” Id. “Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Id. (citation and internal
quotation marks omitted). The evidence “should be viewed in the light most favorable
to the State, giving the State the benefit of every reasonable inference to be drawn
therefrom. Where the State offers substantial evidence of each essential element of
the crime charged, [the] defendant’s motion to dismiss must be denied.” Id. (citation
omitted).
B. Embezzlement
¶ 21 The felony offense of embezzlement applies to any person “[w]ho is a guardian,
administrator, executor, trustee, or any receiver, or any other fiduciary[.]” N.C. Gen.
Stat. § 14-90(a)(3) (2019). Our embezzlement statute also provides that:
(b) Any [fiduciary] 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 issued by or drawn on any
bank or other corporation, or any treasury warrant,
treasury note, bond or obligation for the payment of money
issued by the United States or by any state, or any other
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valuable security whatsoever that . . . belongs to any other
person or corporation, unincorporated association or
organization . . . , which shall have come into his possession
or under his care, shall be guilty of a felony.
Id. § 14-90(b). In short, “to constitute embezzlement, the property in question initially
must be acquired lawfully, pursuant to a trust relationship, and then wrongfully
converted.” State v. Speckman, 326 N.C. 576, 578, 391 S.E.2d 165, 166 (1990). If the
value of the property embezzled is $100,000 or more, the offense constitutes a Class
C felony. N.C. Gen. Stat. § 14-90(c).
C. Fiduciary Relationship
¶ 22 Defendant first argues that the trial court erred in denying his motion to
dismiss because the State presented insufficient evidence that a fiduciary
relationship existed between himself and Mrs. Monk. Specifically, Defendant
contends that “[n]o such relationship existed . . . until the power of attorney was
executed on June 12, 2015, approximately two months after [Defendant] came into
possession of the funds in Mrs. Monk’s bank accounts[.]” We disagree.
¶ 23 It is axiomatic that “[t]he relationship created by a power of attorney between
the principal and the attorney-in-fact is fiduciary in nature[.]” Albert v. Cowart, 219
N.C. App. 546, 554, 727 S.E.2d 564, 570 (2012). However, a fiduciary relationship
may arise “under a variety of circumstances; it exists in all cases where there has
been a special confidence reposed in one who in equity and good conscience is bound
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to act in good faith and with due regard to the interests of the one reposing
confidence.” State v. Seay, 44 N.C. App. 301, 307, 260 S.E.2d 786, 789 (1979) (citation
omitted), appeal dismissed and disc. rev. denied, 299 N.C. 333, 265 S.E.2d 401, cert.
denied, 449 U.S. 826, 66 L. Ed. 2d 29 (1980). Indeed, as this Court explained in State
v. Newell:
In determining whether an agency or fiduciary
relationship exists, it is the terms of the relationship that
are important and not how the relationship is designated.
The question which determines the nature of the
relationship between the defendant and the alleged victim
is the ownership of the money at the time it came into the
hands of the defendant.
189 N.C. App. 138, 141, 657 S.E.2d 400, 403 (2008) (citation and internal quotation
marks omitted).
¶ 24 Here, Defendant concedes that he acted as Mrs. Monk’s fiduciary after she
executed the power of attorney naming Defendant as her attorney-in-fact.
Nevertheless, the evidence sufficiently established that a fiduciary relationship
existed between Defendant and Mrs. Monk prior to that point, when he “came into
possession of the funds in Mrs. Monk’s bank accounts[.]” The parties’ relationship
was certainly one of special confidence and trust: Defendant called Mrs. Monk “Mom,”
and she called him “son.” Mrs. Monk “thought he was a man of God” who “loved” and
was “going to take care of” her. Defendant told Mrs. Monk that “he was there to help”
her. Only a few weeks after her husband’s funeral, Mrs. Monk granted Defendant
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access to her accounts in reliance on Defendant’s promise to “take care of” her. She
“turned everything over” to Defendant—including the keys to her home and post
office box.
¶ 25 Mrs. Monk clearly granted Defendant access to the funds in her bank accounts
“pursuant to a trust relationship[.]” Speckman, 326 N.C. at 578, 391 S.E.2d at 166.
Because Defendant and Mrs. Monk had a relationship of trust, and because “it is the
terms of the relationship that are important and not how the relationship is
designated[,]” Newell, 189 N.C. App. at 141, 657 S.E.2d at 403 (citation omitted), we
conclude that there was sufficient evidence that Defendant was acting as Mrs. Monk’s
fiduciary when he gained access to her money.
D. Joint Ownership of Bank Accounts
¶ 26 Defendant next argues that the trial court erred in denying his motion to
dismiss because there was insufficient evidence that Defendant wrongfully converted
Mrs. Monk’s money to his own use, in that “[a]s a holder of the [joint] accounts, [he]
was entitled to the balance of the [joint] accounts” that he held with Mrs. Monk.
Again, we disagree.
¶ 27 In support of his theory of the case, Defendant relies on N.C. Gen. Stat. § 54C-
165(a), which provides, inter alia:
Any two or more persons may open or hold a withdrawable
account or accounts. The withdrawable account and any
balance of the account is held by them as joint tenants, with
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or without right of survivorship, as the contract shall
provide. . . . Unless the persons establishing the account
have agreed with the savings bank that withdrawals
require more than one signature, payment by the savings
bank to, or on the order of, any persons holding an account
authorized by this section is a total discharge of the savings
bank’s obligation as to the amount so paid.
N.C. Gen. Stat. § 54C-165(a).
¶ 28 Defendant interprets this statute as granting joint ownership of the funds
deposited into the accounts by virtue of his being named a joint holder. Consequently,
Defendant maintains that as a joint holder of the accounts, he was an owner of the
funds, and thus, he could not be prosecuted for unlawful withdrawal and use of the
funds. This contention is without merit.
¶ 29 Although § 54C-165 governs savings banks, it is essentially the same as § 53C-
6-6 (formerly § 53-146, governing banks) and § 54-109.58 (governing credit unions).
See id. §§ 53C-6-6(f); 54-109.58(f); 54C-165(a). These statutes simply provide, in sum,
that the financial institution “may safely pay either of the two persons.” O’Brien v.
Reece, 45 N.C. App. 610, 617, 263 S.E.2d 817, 821 (1980). It is well established that
these statutes are “for the protection of the [financial institution] only, and absent
any other evidence, [are] not dispositive as to the ownership of funds.” Id.¶ 30 It is true that “[t]he ownership of funds in a bank account is presumed to belong
to or be owned by the person(s) named on the account.” Mut. Cmty. Sav. Bank, S.S.B.
v. Boyd, 125 N.C. App. 118, 122, 479 S.E.2d 491, 493 (1997). Nevertheless, where
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ownership is disputed, the presumption may be rebutted with evidence of the “facts
surrounding the creation and history of the account, the source of the funds, the
intent of the depositor[,] the nature of the bank’s transactions with the parties, and
whether the owner of the monies . . . intended to make a gift to the person named[.]”
Id. at 122, 479 S.E.2d at 494 (citations omitted). “The depositor is . . . deemed to be
the owner of the funds.” Myers v. Myers, 68 N.C. App. 177, 181, 314 S.E.2d 809, 812
(1984) (concluding that husband’s unauthorized removal and use of funds deposited
by wife in a joint checking account supported a claim of conversion). “[A] deposit by
one party into an account in the names of both, standing alone, does not constitute a
gift to the other. In order for the exchange of property to constitute a gift, there must
be donative intent coupled with loss of dominion over the property.” Hutchins v.
Dowell, 138 N.C. App. 673, 678, 531 S.E.2d 900, 903 (2000). The intent of the parties
controls when ownership is disputed. McAulliffe v. Wilson, 41 N.C. App. 117, 120, 254
S.E.2d 547, 549 (1979).
¶ 31 In the instant case, it is undisputed that Mrs. Monk, alone, funded the joint
accounts. Indeed, Defendant testified that all of the money in the accounts “was [Mrs.
Monk’s] money.” Thus, Mrs. Monk, as the depositor, was “still deemed to be the owner
of the funds.” Myers, 68 N.C. App. at 181, 314 S.E.2d at 812.
¶ 32 Moreover, there was ample evidence that Mrs. Monk did not intend to make a
gift to Defendant of $123,367.09, the total amount of funds that Defendant was
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eventually convicted of embezzling from her. Mrs. Monk testified that she did not give
Defendant permission to use the funds for his personal expenses, nor did she gift him
the money. Although there was contrary evidence presented at trial—Defendant
testified that Mrs. Monk did, in fact, authorize his particular use of the funds—in
reviewing the denial of a motion to dismiss, we nonetheless must “view [the evidence]
in the light most favorable to the State, giving the State the benefit of every
reasonable inference to be drawn therefrom.” Parker, 233 N.C. App. at 579, 756
S.E.2d at 124.
¶ 33 We conclude that there was sufficient evidence that the funds taken were the
property of Mrs. Monk, and that she did not have the requisite “donative intent” to
grant Defendant the money to withdraw and use for his personal benefit. Hutchins,
138 N.C. App. at 678, 531 S.E.2d at 903. Thus, Defendant was not entitled to convert
the money to his use without her permission.
E. Amount Embezzled
¶ 34 Defendant also contends that the State presented insufficient evidence that
the amount of money he embezzled was $100,000 or more—thus elevating the offense
to a Class C felony—because: (1) less than $100,000 was taken while Defendant acted
as a fiduciary to Mrs. Monk; and (2) Defendant did not have the requisite intent to
embezzle the overdraft fees, and therefore, the amount of money embezzled was less
than $100,000. We disagree with both contentions.
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¶ 35 Defendant first argues that the trial court erred in denying his motion to
dismiss the Class C embezzlement charge, because there was insufficient evidence
that Defendant was acting as a fiduciary when he converted $100,000 or more of Mrs.
Monk’s funds to his personal use. As explained above, there was sufficient evidence
that Defendant was acting as Mrs. Monk’s fiduciary prior to his appointment as her
attorney-in-fact. The wrongful conversion of $123,367.09 occurred while Defendant
acted as a fiduciary. Accordingly, this argument fails.
¶ 36 Second, Defendant maintains that there was insufficient evidence that he had
the requisite intent to wrongfully convert $21,350 in transfers from a joint account in
order to cover overdraft fees in his personal checking account. Defendant asserts that
“[t]here was no evidence that [he] initiated or knowingly allowed those transfers, nor
was there evidence that [he] was aware of those transfers when they occurred” or that
“he knowingly linked the joint account to his personal account” with the intent of
instituting the overdraft transfers.
¶ 37 “The fraudulent intent required [for the offense of embezzlement] is the intent
to willfully or corruptly use or misapply the property of another for purposes other
than those for which the agent or fiduciary received it[.]” State v. Rupe, 109 N.C. App.
601, 609, 428 S.E.2d 480, 486 (1993). “When a defendant receives money under an
agency relationship and does not transmit it to the party to whom it is due, this is
circumstantial evidence of intent. Evidence that the defendant was experiencing
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personal financial problems is also circumstantial evidence of intent.” Newell, 189
N.C. App. at 142–43, 657 S.E.2d at 404 (citations omitted).
¶ 38 Here, there was sufficient evidence of Defendant’s fraudulent intent to
embezzle $21,350 in overdraft fees from Mrs. Monk. Although Defendant denied
linking the accounts or knowing that his personal checking account overdrafts were
being covered with funds from a joint account, the $21,350 in overdraft fees
constituted more than a quarter of his approximately $80,000 annual salary, and
Defendant admitted receiving SECU statements for that account. Moreover,
transfers from the joint account covered Defendant’s personal overdrafts for many
months, from August 2015 to May 2016, with each month’s statements providing
Defendant with additional notice of the transfers. Defendant also testified that he
was experiencing money problems, as he struggled with his finances and
bookkeeping, and had to pay the IRS “a bunch of money back” at one time.
¶ 39 The evidence was sufficient to support that Defendant embezzled $100,000 or
more from Mrs. Monk. Accordingly, the trial court did not err in denying Defendant’s
motion to dismiss the charge of embezzlement.
II. Special Jury Instruction
¶ 40 Finally, Defendant argues on appeal that the trial court erred in declining to
give his requested special jury instruction that “if the jury found that he was lawfully
named on the joint bank accounts with [Mrs.] Monk, then he would be entitled to use
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the funds in the accounts[.]” A review of the record, however, reveals that Defendant’s
requested special instruction was in fact a brief summary of N.C. Gen. Stat. § 54C-
165; counsel had intended to use this statute to argue that Defendant was not guilty
of the embezzlement charge. We conclude that the trial court did not err in denying
Defendant’s request for this special instruction.
A. Standard of Review
¶ 41 A trial court should give a specific jury instruction when “(1) the requested
instruction [i]s a correct statement of law and (2) [i]s supported by the evidence, and
. . . (3) the [pattern jury] instruction . . . , considered in its entirety, fail[s] to
encompass the substance of the law requested and (4) such failure likely misle[ads]
the jury.” State v. Oxendine, 242 N.C. App. 216, 219, 775 S.E.2d 19, 21–22 (2015)
(citation omitted). “Where the request for a specific instruction raises a question of
law,” this Court reviews de novo “the trial court’s decisions regarding jury
instructions[.]” State v. Palmer, 273 N.C. App. 169, 171, 847 S.E.2d 449, 451 (2020).
“Failure to give a requested and appropriate jury instruction is reversible error if the
requesting party is prejudiced as a result of the omission.” State v. Guerrero, 2021-
NCCOA-457, ¶ 9 (citation omitted).
B. Discussion
¶ 42 During the charge conference, Defendant requested that the trial court
instruct the jury that:
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Pursuant to NC law, NCGS [§] 54C-165, Any two or more
persons may open or hold a withdrawable account or
accounts. The withdrawable account and any balance of the
account is held by them as joint tenants. You should
consider this as well as all other evidence as you evaluate
whether the State has proven its case beyond a reasonable
doubt.
Defendant requested this special instruction in the hopes of arguing to the jurors that
if they found that Defendant “was lawfully on the joint accounts, meaning that there
was no deception involved,” then they should also find that “he would have been
entitled to use those funds regardless.”
¶ 43 Defendant’s requested special instruction is a correct statement of law insofar
as “[a]ny two or more persons may open or hold a withdrawable account or accounts.
The withdrawable account and any balance of the account is held by them as joint
tenants[.]” N.C. Gen. Stat. § 54C-165(a). It does not, however, accurately negate any
element of the offense of embezzlement; Defendant was not entitled to spend the
funds because he was a joint holder of the accounts. Consequently, the trial court
correctly concluded that such an instruction would have been confusing to the jury.
¶ 44 As we addressed above, N.C. Gen. Stat. § 54C-165 and its related statutes,
§§ 53C-6-6 and 54-109.58, are “for the protection of the bank only, and absent any
other evidence, [are] not dispositive as to the ownership of funds.” O’Brien, 45 N.C.
App. at 617, 263 S.E.2d at 821 (emphases added). Furthermore, Defendant admitted
at trial that all of the money in the joint accounts belonged to Mrs. Monk: “[I]t was
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her money—her accounts, her money. I was there to help her. It wasn’t about me.”
Mrs. Monk testified that she granted Defendant joint access so that he could “take
care of [her].”
¶ 45 Additionally, Defendant can show no prejudice from the trial court’s refusal to
give the requested special instruction. Indeed, the requested instruction actually
supports an element of the offense of embezzlement—that Defendant had lawful
access to the funds. See N.C. Gen. Stat. § 14-90; Speckman, 326 N.C. at 578, 391
S.E.2d at 166. Thus, there is no reasonable possibility that, had the trial court given
the requested special instruction, the jury would have reached a different result at
trial. Moreover, it is evident upon review that the trial court appropriately instructed
the jury.
¶ 46 Because the requested special instruction could have misled the jury and was
likely to create an inference unsupported by the law and the record—that Defendant’s
lawful access to the funds in the joint accounts entitled him to freely spend the money
therein—the trial court properly declined to deliver Defendant’s requested special
jury instruction. See Guerrero, 2021-NCCOA-457 at ¶ 9.
Conclusion
¶ 47 For the foregoing reasons, we conclude that the trial court did not err in
denying Defendant’s motion to dismiss the embezzlement charge, nor in refusing to
deliver Defendant’s requested special jury instruction.
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NO ERROR.
Judges MURPHY and COLLINS concur.