State v. Grandy , 261 N.C. App. 691 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-79
Filed: 2 October 2018
Guilford County, No. 14 CRS 077410-11
STATE OF NORTH CAROLINA,
v.
SHIRLYE CORNELIA GRANDY, Defendant.
Appeal by defendant from judgment entered 2 October 2017 by Judge Tanya
T. Wallace in Superior Court, Guilford County. Heard in the Court of Appeals 22
August 2018.
Attorney General Joshua H. Stein, by Assistant Attorney General Torrey D.
Dixon, for the State.
Leslie Rawls, for defendant-appellant.
STROUD, Judge.
Defendant appeals her two convictions for embezzlement. Defendant’s sole
argument on appeal is that her motion to dismiss the embezzlement charges should
have been granted because her employer had not entrusted her with the funds since
the employer’s bank required two employees jointly to use a security measure
provided by the bank to issue checks. Because the evidence showed that defendant’s
employer had entrusted defendant with both security devices, despite the bank’s
STATE V. GRANDY
Opinion of the Court
intention to require participation by two employees, the trial court did not err in
denying her motion.
I. Background
The State’s evidence showed that defendant was the director of accounting for
North Carolina A&T University Foundation, Inc. (“the Foundation”). After a check
did not timely clear, other employees in the Foundation began to investigate financial
discrepancies. During the investigation, defendant admitted both to other employees
and law enforcement that she had transferred money from the Foundation’s account
into her personal account. The total amount transferred to defendant was
$402,402.99. Defendant was tried by a jury, convicted of two counts of embezzlement
and one count of corporate malfeasance, and sentenced by the trial court. Defendant
appeals.
II. Motion to Dismiss
Defendant makes only one argument on appeal,1 contending her motion to
dismiss the embezzlement charges should have been allowed “because embezzlement
requires the accused to have been entrusted with the property taken and the State’s
evidence showed that [defendant] took the funds by using her supervisor’s security
device without permission[.]” (Original in all caps).
The standard of review for a motion to dismiss is well
known. A defendant’s motion to dismiss should be denied
1 Defendant does not contest her conviction for corporate malfeasance.
-2-
STATE V. GRANDY
Opinion of the Court
if there is substantial evidence of: (1) each essential
element of the offense charged, and (2) of defendant’s being
the perpetrator of the charged offense. Substantial
evidence is relevant evidence that a reasonable mind might
accept as adequate to support a conclusion. The Court
must consider the evidence in the light most favorable to
the State and the State is entitled to every reasonable
inference to be drawn from that evidence. Contradictions
and discrepancies do not warrant dismissal of the case but
are for the jury to resolve.
State v. Johnson, 203 N.C. App. 718, 724, 693 S.E.2d 145, 148 (2010) (citations and
quotation marks omitted).
N.C. Gen. Stat. § 14-90 defines the offense of
embezzlement and requires the State to present proof of
the following essential elements: (1) that the defendant,
being more than 16 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 by virtue of his fiduciary relationship, and
(3) that he fraudulently or knowingly misapplied or
converted to his own use such money or valuable property
of his principal which he had received in his fiduciary
capacity.
State v. Rupe, 109 N.C. App. 601, 608, 428 S.E.2d 480, 485 (1993); see also N.C. Gen.
Stat. § 14-90 (2017); State v. Robinson, 166 N.C. App. 654, 658, 603 S.E.2d 345, 347
(2004) (“To survive a motion to dismiss a charge of embezzlement, the State must
have presented evidence of the following: (1) Defendant was the agent of the
complainant; (2) pursuant to the terms of his employment he was to receive property
of his principal; (3) he received such property in the course of his employment; and
(4) knowing it was not his, he either converted it to his own use or fraudulently
-3-
STATE V. GRANDY
Opinion of the Court
misapplied it.” (citation and quotation marks omitted)).
Defendant’s only argument on appeal is that she was not entrusted with the
funds in the course of her employment. See generally Rupe, 109 N.C. App. at 608,
428 S.E.2d at 485. To access the funds, the employer’s bank required defendant to
use both her own security device, which they referred to as a “key fob,” along with her
supervisor’s key fob. The bank issued the key fobs to each employee individually, so
defendant contends “[n]either the funds nor the key fob was entrusted to [defendant].
Without the property having been entrusted, embezzlement did not occur.”
Defendant compares her case to State v. Weaver, 359 N.C. 246, 607 S.E.2d 599(2005). In Weaver, our Supreme Court reversed an embezzlement conviction where
the defendant-employee took a company signature stamp without her employer’s
knowledge or permission and used it to write checks to herself:
The dispositive issue presented for review on direct
appeal is whether the lawful possession or control element
of the crime of embezzlement was satisfied when an
administrative employee took a corporate signature stamp
without permission and wrote unauthorized corporate
checks, thereby misappropriating funds from her
employer. That employee’s misappropriation is the basis
of defendant’s convictions for aiding and abetting
embezzlement and conspiracy to embezzle. We conclude
that the employee did not lawfully possess or control the
misappropriated funds and therefore affirm the decision of
the Court of Appeals which reversed defendant’s
convictions.
359 N.C. at 247, 607 S.E.2d at 599. Defendant argues a key fob is the modern-day
-4-
STATE V. GRANDY
Opinion of the Court
equivalent of a signature stamp, so the State did not meet the elements of
embezzlement. See id.However, the facts of Weaver are different from this case, because the employer
in Weaver had not authorized the defendant to write checks or to use the signature
stamp. Id. The Court in Weaver explained,
In the instant case, it is undisputed that [defendant] had
no independent authority to write checks from R & D
accounts or to use Shirley Weaver’s signature stamp. In
fact, both [defendant] and Shirley Weaver testified that
direct authorization from Shirley was required before
[defendant] wrote each individual check. Although the
record is unclear as to the exact location of each check used
to misappropriate the company funds, the record indicates
that the signature stamp was kept in a desk drawer in
Shirley Weaver’s office and that [defendant] could not
access this stamp without Shirley Weaver’s direct
permission. While [defendant] had access to the checks
and signature stamp by virtue of her status as an employee
at R & D and International Color, we cannot say, based on
these facts, that [defendant’s] possession of this property
was lawful nor are we persuaded that this property was
under [defendant’s] care and control as required by
N.C.G.S. § 14-90. Because [defendant] never lawfully
“possessed” the misappropriated funds and because the
funds were not “under [her] care” we conclude that
[defendant] did not commit the crime of embezzlement as
defined in N.C.G.S. § 14-90.
Weaver, 359 N.C. at 256, 607 S.E.2d at 605 (emphasis omitted); see also State v.
Palmer, 175 N.C. App. 208, 213, 622 S.E.2d 676, 680 (2005) (“In this case, like in
Keyes and Weaver, Defendant never took lawful possession of the incoming checks,
nor was she entrusted with the checks by virtue of a fiduciary capacity.” (emphasis
-5-
STATE V. GRANDY
Opinion of the Court
omitted)).
Defendant ignores the fact that here, unlike in Weaver, Palmer, and Keyes –all
cases she cited–her employer, the Foundation, entrusted her with both its funds and
both key fobs, even if the bank intended otherwise. Cf. Weaver, 359 N.C. at 256, 607
S.E.2d at 605; Palmer, 175 N.C. App. at 213; 622 S.E.2d at 680; State v. Keyes, 64
N.C. App. 529, 532, 307 S.E.2d 820, 823 (1983) (“Here, [neither defendant] received,
took lawful possession of, or were entrusted with components by virtue of a fiduciary
capacity.”). Defendant had “lawful possession or control” of both her own key fob and
her supervisor’s key fob. Defendant kept both fobs during the course of her
employment as the director of accounting from approximately 2008 to 2014 and she
routinely wrote checks using both fobs.2 Although the bank intended for two
employees to participate in each transaction as a security measure, the Foundation
did not require its employees to use the key fobs as the bank intended. Instead, the
Foundation “entrusted” the entire process to defendant. The former executive
director of the Foundation testified that defendant’s duties included “[p]rocessing
checks and depositing them and overseeing finances and payroll and things like that.”
Defendant’s supervisor was also entrusted with the funds and there was a dual
security measure in place, but the evidence showed that the Foundation had
2 The evidence does not show the exact dates the Foundation opened the relevant bank
accounts or when the bank issued the key fobs, but it does tend to show the Foundation allowed
defendant to handle financial transactions in this manner for an extended time period prior to 2011
and 2014, when transactions for which defendant was charged with embezzlement occurred.
-6-
STATE V. GRANDY
Opinion of the Court
entrusted defendant with such funds; exclusivity of the entrustment is not an element
of the crime. See N.C. Gen. Stat. § 14-90. Therefore, the trial court did not err in
denying defendant’s motion to dismiss. This argument is overruled.
III. Conclusion
We conclude there was no error.
NO ERROR.
Judges ZACHARY and MURPHY concur.
-7-