State v. Booker, ___ N.C. App. ___, 821 S.E.2d 877 (Nov. 6, 2018)

In this embezzlement case, the trial court did not commit plain error with respect to the jury instructions. The defendant argued that the trial court committed plain error by instructing the jury on an alternative theory of guilt not supported by the evidence; specifically, by including as an element of embezzlement that she “did take and make away with” money entrusted to her. She conceded however that the jury was correctly instructed on the law during the trial court’s summation of the elements of embezzlement. Nevertheless the defendant argued she was deprived of a right to a unanimous jury because of the trial court’s error. No plain error occurred where the evidence that the defendant misapplied money entrusted to her in a fiduciary capacity was overwhelming and it cannot reasonably be argued that the jury would have returned a different verdict but for the trial court’s error in instructing on the alternate theory.