State v. Keyes , 64 N.C. App. 529 ( 1983 )

307 S.E.2d 820 (1983)

STATE of North Carolina
v.
Ruffin KEYES.
STATE of North Carolina
v.
Frank CASHION.

Nos. 832SC50, 832SC342.

Court of Appeals of North Carolina.

October 18, 1983.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Richard H. Carlton, Raleigh, for the State in No. 832SC342.

Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. John R.B. Matthis and Asst. Atty. Gen. John F. Maddrey, Raleigh, for the State in No. 832SC50.

Sumrell, Sugg & Carmichael by James R. Sugg and Rudolph A. Ashton, III, New Bern, for defendant-appellant Cashion.

Stephen A. Graves, Washington, for defendant-appellant Keyes.

EAGLES, Judge.

Defendants assign as error the trial court's denial of defendants' motions to dismiss at the end of the evidence. We agree that the trial court erred.

To withstand a motion to dismiss for insufficiency of the evidence, there must be substantial evidence of all material elements of the offense charged. G.S. 15A-1227; State v. Murphy, 49 N.C.App. 443, 271 S.E.2d 573 (1980). Whether the State offered substantial evidence of all the material elements is a question of law for the trial judge. In ruling on a motion for dismissal, the trial judge must consider the evidence in the light most favorable to the State, and the State is entitled to every reasonable intendment and every reasonable inference to be drawn from the evidence. State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982). If the evidence is sufficient only to raise suspicion or conjecture as to the commission of the offense or the identity of the perpetrator, the motion to dismiss should be allowed. State v. Bright, 301 N.C. 243, 257, 271 S.E.2d 368, 377 (1980).

The elements of embezzlement on which the State must offer substantial evidence in order to withstand a motion to dismiss are:

(1) [T]hat the defendant was the agent of the prosecutor, and

(2) by the terms of his employment had received property of his principal;

(3) that he received it in the course of his employment; and

(4) knowing it was not his own, converted it to his own.

G.S. 14-90; State v. McCaskill, 47 N.C.App. 289, 292, 267 S.E.2d 331, 333, cert. denied 301 N.C. 101, 273 S.E.2d 306 (1980). The State offered no substantial evidence that either defendant had received the machinery components by virtue of their fiduciary capacity. In fact, the foreman who had direct supervision over defendants testified that: "I had never given them approval to purchase an impeller or any brass bearing housings. Nor had I given either of them authority to sell any materials or equipment of Texasgulf. Neither Cashion nor Keyes ever asked my permission to sell or remove from the premises a brass Hazelton bearing housing or a Worthington impeller." The evidence shows that defendants may have had access to machinery parts, but there is no evidence that they received machinery parts by the terms of their employment.

There is a difference between having access to property and possessing property in a fiduciary capacity. Embezzlement is the fraudulent conversion of property by one who has lawfully acquired possession of it for the use and benefit of the owner, i.e., in a fiduciary capacity.

Larceny is the fraudulent conversion of property by one who has acquired possession of it by trespass. State v. McDonald, 133 N.C. 680, 683, 45 S.E. 582, 583 (1903). The fact that a defendant is an employee of a business does not change theft of goods from larceny to embezzlement if the defendant never had lawful possession of the property. State v. Whitley, 208 N.C. 661, 663, 182 S.E. 338, 340 (1935). This case is unlike State v. Lancaster, 37 N.C.App. 528, 246 S.E.2d 575, cert. denied 295 N.C. 650, 248 S.E.2d 255 (1978), where a warehouse manager was properly charged with embezzling component parts because he had the responsibility of supervising and receiving all materials in the warehouse. Here, neither Cashion nor Keyes received, took lawful possession of, or were entrusted with components by virtue of a fiduciary capacity.

A defendant must be convicted, if convicted at all, of the particular offense charged in the bill of indictment. State v. Babb, 34 N.C.App. 336, 340, 238 S.E.2d 308, 310 (1977). We hold that there was a fatal variance between the allegations of the indictment and the proof the State presented at trial, and, therefore, the motion to dismiss the embezzlement charges should have been granted.

We do not reach defendants' other assignments of error, concerning the trial court's denial of defense motions to sever, deficiency of the corrected indictments, admission of the results of chemical tests, introduction of certain statements by defendant Cashion, the jury instructions, application of aggravating and mitigating factors during the sentencing hearing, and denial of defendants' motion for appropriate relief.

Reversed.

ARNOLD and PHILLIPS, JJ., concur.