Opinion
No. 07-315.
Filed February 5, 2008.
Pitt County, No. 04 CRS 58140.
Appeal by defendant from judgment entered 25 August 2006 by Judge Thomas D. Haigwood in Superior Court, Pitt County. Heard in the Court of Appeals 30 October 2007.
Attorney General Roy Cooper, by Assistant Attorney General Seth P. Rosebrock, for the State. Jarvis John Edgerton, IV, for defendant-appellant.
Defendant Joel Compton Morgan appeals his conviction for embezzlement in connection with the sale of a 1996 Mercury Sable that was repossessed by his employer through a mechanic's lien for non-payment. After a careful review of his arguments on appeal, we find Defendant received a trial free of error.
Defendant worked for an AAMCO Transmissions shop in Greenville, North Carolina, with responsibilities including customer service, business intake, and price quotes. Jack Brubaker, the owner of the transmission shop, testified that he had moved away from North Carolina between 2000 and 2001, at which point Defendant was charged with the day-to-day management of the shop, acting as its "center manager," primarily in charge of dealing with customers. The AAMCO shop had a financing system of accepting a payment of half the amount due at the time the repair job was initiated, with the balance to be financed over a defined period of time, secured by a lien on the title to the vehicle. However, according to Mr. Brubaker, at some point after he moved, Defendant "decided that [the shop] would do jobs with nothing down, and just repair the vehicle and let [the customers] make payments." If a customer failed to make payments, the shop would repossess the vehicle.
On 9 May 2002, the AAMCO shop entered into a retail installment sales contract and security agreement with Wayne Leggett for repair services performed on Mr. Leggett's 1996 Mercury Sable. Defendant signed the contract on behalf of the AAMCO shop. After Mr. Leggett failed to make scheduled payments for the repairs, Mr. Brubaker instructed Defendant to have the vehicle repossessed, per the terms of the contract, and to sell it. The AAMCO shop then secured permission from the Department of Motor Vehicles and the Pitt County Clerk of Superior Court, authorizing AAMCO to sell the vehicle after 19 June 2003. The documents filed in support of the petition for authorization identified the AAMCO shop as the lienholder and stated that the shop was owed $1,1661.30 for repairs and $605.00 for storage of the vehicle, plus five dollars per day thereafter.
On 23 July 2003, Defendant sold the 1996 Mercury Sable to Donna Morgan, his ex-wife, for $5,100.00, to be paid in seventeen monthly installments of $300 each. Defendant, not the AAMCO shop, was listed as the lienholder in the vehicle sales contract. Cynthia Wells, the secretary at the AAMCO shop, testified that she deposited into Defendant's account money orders from Ms. Morgan made out to Defendant for payments on the vehicle. She further asserted that, despite her belief that Defendant should not be the lienholder on the vehicle, she made the deposits and did not tell Mr. Brubaker because Defendant had threatened to fire her if she exposed what was happening. However, in May 2004, Ms. Wells informed Mr. Brubaker that Defendant had been misappropriating the proceeds from the sale of the 1996 Mercury Sable by depositing Ms. Morgan's monthly installment payments into his own bank account. Defendant was then arrested and charged with embezzlement. On 13 February 2006, the State issued an indictment of Defendant for embezzlement of "a 1996 Mercury Sable, valued at $5,000.00."
At trial, the trial court allowed the State to amend its indictment at the close of its evidence. The State added the language, "$2,226.30 US currency in form of a mechanic's lien on a 1996 Mercury Sable" as the property embezzled by Defendant. The jury subsequently returned a verdict of guilty of embezzlement, and the trial court entered judgment on 25 August 2006, sentencing Defendant to a term of four to five months in prison.
Defendant now appeals, arguing that the trial court erred by (I) allowing the State to amend its indictment at the close of its evidence; and (II) denying Defendant's motion to dismiss for lack of evidence.
I.
Defendant contends that the trial court erred by allowing the State to amend its indictment to include "$2,226.30 US currency in form of a mechanic's lien on a 1996 Mercury Sable" as the property that had been embezzled. We disagree.
In general, an indictment may not be amended. See N.C. Gen. Stat. § 15A-923(e) (2005). Nevertheless, under our case law, because "the purpose of an indictment is to give a defendant notice of the crime for which he is being charged[,]" an amendment to an indictment is allowed if it does not substantially alter the charge, such that a court finds "that the proof was in line with the indictment[.]" State v. Bowen, 139 N.C. App. 18, 27, 533 S.E.2d 248, 254 (2000). Additionally, a charge of embezzlement must be proven by four distinct propositions of fact: (1) the defendant was the agent of the prosecutor, and (2) by the terms of his employment, the defendant had received property of his principal; (3) he received it in the course of his employment; and (4) knowing it was not his own, the defendant converted it to his own use. State v. Palmer, 175 N.C. App. 208, 212, 622 S.E.2d 676, 679 (2005); see also N.C. Gen. Stat. § 14-90 (2005).
Here, the evidence offered by the State at trial corresponded to the allegations in the indictment essential to charge the offense, and the proof required of the State to convict under either the original or the amended indictment was the same. The distinction was solely the nature of the property that was embezzled, namely, either the vehicle itself or the mechanic's lien on the vehicle and its related proceeds. Under either indictment, Defendant had notice of the crime for which he was being charged. See, e.g., State v. Parker, 146 N.C. App. 715, 719, 555 S.E.2d 609, 612 (2001) (allowing amendment to indictment as to what goods were actually stolen because it would not result in a "substantial alteration" that would alter the proof needed for each element of the charge). We note, too, that after hearing an argument as to prejudice suffered by Defendant, the trial court allowed Defendant additional time to gather documents that would be relevant to the mechanic's lien rather than the Sable, and also issued a subpoena for a defense witness to appear.
Accordingly, we hold that the original indictment properly served its purpose of providing Defendant notice of the crime being charged, and the amendment was not a "substantial alteration" of the charge given that the same set of operative facts was at issue. This assignment of error is overruled.
II.
Next, Defendant contends that the trial court erred by denying his motion to dismiss the charge of embezzlement. He specifically asserts that the State failed to present any evidence that he was entrusted with the proceeds of the mechanic's lien on the 1996 Mercury Sable, or that he fraudulently used the 1996 Mercury Sable for an improper purpose. We disagree.
To survive a motion to dismiss, the State must have presented "substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense." State v. Garcia, 358 N.C. 382, 412, 597 S.E.2d 724, 746 (2004) (citation and quotations omitted), cert. denied, 543 U.S. 1156, 161 L. Ed. 2d 122 (2005). "Substantial evidence" is "relevant evidence that a reasonable person might accept as adequate, or would consider necessary to support a particular conclusion." Id. (internal citations omitted). In considering a motion to dismiss by the defense, such evidence "must be taken in the light most favorable to the state . . . [which] is entitled to all reasonable inferences that may be drawn from the evidence." State v. Sumpter, 318 N.C. 102, 107, 347 S.E.2d 396, 399 (1986).
In the instant case, Defendant argues that, since the original indictment referred to the 1996 Mercury Sable itself, rather than to the proceeds of the mechanic's lien, the State's case should have been dismissed because the State failed to offer any evidence that Defendant received the Sable or converted it to his own use. Because we have already held that the trial court did not err in allowing the State to amend its indictment, we consider only Defendant's assertion that the State failed to present any evidence that he "received" the mechanic's lien on the Sable in the course of his employment. See Palmer, 175 N.C. App. at 212, 622 S.E.2d at 679 (stating the four elements of a charge of embezzlement, including that a defendant "received [property of his principal] in the course of his employment").
According to testimony at trial, the AAMCO shop took possession of the 1996 Mercury Sable after Mr. Leggett failed to make payments on his installment contract for repairs. Mr.Brubaker further testified that he entrusted Defendant with the sale of the vehicle. Defendant had therefore "received" the vehicle in the course of his employment; moreover, at that point in time, the AAMCO shop's mechanic's lien was attached to the vehicle, according to the terms of the contract between Mr. Leggett and the shop. The State presented additional evidence that Defendant then sold the vehicle to his ex-wife, naming himself instead of the AAMCO shop as the lienholder, that he had her monthly payments deposited into his personal bank account, and that he threatened Ms. Wells with termination if she exposed his activities to Mr. Brubaker. This evidence was sufficient to withstand Defendant's motion to dismiss for lack of evidence. Accordingly, this assignment of error is without merit.
No error.
Judges STEELMAN and GEER concur.
Report by Rule 30(e).