Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

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E.g., 09/21/2021
E.g., 09/21/2021

An embezzlement indictment was not fatally defective. The indictment alleged that the defendant:

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 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.

The defendant argued that the indictment failed to allege that she acted with fraudulent intent. The court determined that “the concept of fraudulent intent is already contained within the ordinary meaning of the term ‘embezzle,’” as used in the indictment. The court noted that the defendant did not argue that she was prejudiced in her ability to prepare a defense because of this issue. It further noted that to convict the defendant of embezzlement, the State must prove that she fraudulently or knowingly and willfully misapplied or converted the property. Here, the indictment can fairly be read to allege that the defendant “knowingly and willfully” embezzled from her employer.

            The court also rejected the argument that the indictment was defective for failing to specify the acts constituting embezzlement. The indictment alleges that the defendant embezzled a specific sum of money entrusted to her in a fiduciary capacity as an employee of the company. The court “fail[ed] to see how these allegations would not adequately apprise Defendant as to the charges facing her or prejudice her ability to prepare a defense.”

The evidence was sufficient to sustain the defendant’s convictions for embezzlement under G.S. 14-90. The defendant, a director of accounting for a Foundation, transferred over $400,000 from the Foundation’s account into her personal account. The defendant asserted that she was not entrusted with the funds in the course of her employment. To access the funds, her employer’s bank required the defendant to use both her own security device, which they referred to as a “key fob,” along with her supervisor’s key fob. Because the bank issued the key fobs to each employee individually, the defendant asserted that she was not entrusted with the funds. Here however the defendant’s employer entrusted her with both key fobs, even if the bank intended otherwise. She had lawful possession or control of both her own key fob and her supervisor’s key fob when she obtained the funds. 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, it entrusted the entire process to the defendant.

There was sufficient evidence to convict the defendant of larceny by employee. The victim brought her vehicle in for repairs at an auto shop. The defendant, who was the shop manager, provided an estimate for the work, which the victim accepted. When she was told her vehicle was ready, the victim paid the defendant in cash and took her vehicle, later learning that the work had not been done. The defendant deposited a portion of the cash paid by the victim to the shop’s account and kept the remaining amount. As soon as the victim tendered payment to the defendant as the shop’s manager and agent, the funds became the property of the shop for purposes of larceny by employee.

The evidence was sufficient to establish that the defendant embezzled funds from a school. The defendant contended that the State failed to offer substantial evidence that she used the school system’s property for a wrongful purpose. The defendant’s responsibilities included purchasing food and non-food items for school meetings and related events. The State’s evidence showed numerous questionable purchases made by the defendant, consisting of items that would not be purchased by or served at school system events. Also, evidence showed that the defendant had forged her supervisors’ signatures and/or changed budget code information on credit card authorization forms and reimbursement forms at least 29 times, and submitted forms for reimbursement with unauthorized signatures totaling $6,641.02. This evidence showed an intent to use the school’s property for a wrongful purpose, even if the forged signatures did not constitute embezzlement.

There was sufficient evidence of embezzlement where the defendant, a bookkeeper controller for the victim company, was instructed to close the company’s credit cards but failed to do so, instead incurring personal charges on the cards and paying the card bills from company funds. The court rejected the defendant’s argument that the evidence was insufficient because it did not show that she had been physically entrusted with the credit cards. The evidence also showed that the defendant embezzlement funds by paying for her personal insurance with company funds without making a required corresponding deduction from her personal paycheck.

(1) In an embezzlement case in which the defendant was alleged to have improperly written company checks to herself, there was sufficient evidence that the defendant was an agent of the company and not an independent contractor. Two essential elements of an agency relationship are the authority of the agent to act on behalf of the principal and the principal’s control over the agent. Here, the defendant had authority to act on behalf of the corporation because she had full access to the company’s checking accounts, could write checks on her own, and delegated the company’s funds. Evidence of the company’s control over the defendant included that she was expected to meet several responsibilities and that a member of the company communicated with her several times a week. (2) There was sufficient evidence that the defendant had constructive possession of the corporation’s money when she was given complete access to the corporation’s accounts and was able to write checks on behalf of the corporation and to delegate where the corporation’s money went.

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