{
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  "name": "STATE OF NORTH CAROLINA v. ROBIN MEDFORD JONES",
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  "casebody": {
    "judges": [
      "Chief Judge MARTIN and Judge LEVINSON concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. ROBIN MEDFORD JONES"
    ],
    "opinions": [
      {
        "text": "TYSON, Judge.\nRobin Medford Jones (\u201cdefendant\u201d) appeals from judgments entered after a jury found her to be guilty of ten counts of embezzlement by public officer under N.C. Gen. Stat. \u00a7 14-92. We vacate the trial court\u2019s judgments.\nI. Background\nDefendant was employed by the Asheville Board of Alcohol Control (\u201cAsheville ABC\u201d) in 1990 and worked at the Mixed Beverage Outlet (\u201cMBO\u201d). The MBO\u2019s sole function is to sell and distribute alcohol to restaurants and bars in the City of Asheville and surrounding areas.\nThe selling process is uncomplicated: Customers place orders, the MBO prepares orders, and customers pick up their orders. When customers retrieve their orders, payment is made by cash or check. Checks are accepted for payment only if a check guarantee letter is on fil\u00e9 from the customer\u2019s bank. Once the transaction is complete, an invoice is printed showing payment has been made by either cash or check.\nIn 1993 or 1994, defendant became the Assistant Manager of the MBO. During this time, defendant and Gale Cole (\u201cCole\u201d), the MBO Manager, were the only employees working at the MBO. This relationship continued for seven years. During this time, Cole did not report any issues with deposits from the MBO. Cole became aware of potential problems after Frank Worley (\u201cWorley\u201d), supervisor of all employees of the Asheville ABC, questioned her in May 2002. Worley had been advised of late deposits at the MBO by the Asheville ABC\u2019s accountant, John Bradford (\u201cBradford\u201d). Several times Bradford reported late deposits to Worley from the MBO before a shortage was detected.\nOn 1 June 2002, Worley advised Cole that the MBO\u2019s bank account was $32,000.00 short. When Worley inquired of Cole about the MBO\u2019s invoices, he was told defendant had taken them home to file. Once the invoices were retrieved from defendant\u2019s home, Worley and Cole found discrepancies. At this point, Rick Matthews (\u201cInvestigator Matthews\u201d), chief investigator for the Asheville ABC, was notified. Investigator Matthews asked Cole to retrieve additional records. Cole told him some of the records were missing.\nInvestigator Matthews continued his investigation and spoke with defendant on 11 June 2002. After defendant was told of the missing records and shortages, she assured Investigator Matthews that she had no knowledge of discrepancies with the deposits and if problems existed, Cole would know about them.\nIn July 2002, an arrest warrant was issued for defendant. On 4 November 2002, defendant was indicted under N.C. Gen. Stat. \u00a7 14-92 for ten counts of embezzlement by public officer. Defendant was found by a jury to be guilty of all ten counts of embezzlement on 3 November 2003. Defendant appeals.\nII. Issues\nDefendant argues the trial court erred by: (1) denying her motion to dismiss at the close of the State\u2019s evidence; (2) permitting handwriting identification without laying a proper foundation; and (3) finding as fact an element of the crime charged.\nIII. Jurisdiction\nThe dispositive issue is whether the trial court possessed subject matter jurisdiction over defendant.\n\u201cThe question of subject matter jurisdiction may properly be raised for the first time on appeal. Furthermore, this Court may raise the question on its own motion even when it was not argued by the parties in their briefs.\u201d Bache Halsey Stuart, Inc. v. Hunsucker, 38 N.C. App. 414, 421, 248 S.E.2d 567, 571 (1978) (citing Jenkins v. Winecoff, 267 N.C. 639, 148 S.E.2d 577 (1966); N.C. Gen. Stat. \u00a7 1A-1, Rule 12(h)(3)), cert. denied, 296 N.C. 583, 254 S.E.2d 32 (1979). Defendant alleges the trial court erred by finding as fact an element of the crime charged but fails to specifically allege the trial court lacked subject matter jurisdiction. We raise the question of subject matter jurisdiction ex mero motu. Id.\nIV. Embezzlement\n\u201c \u2018[E]mbezzlement is a criminal offense created by statute to cover fraudulent acts which did not contain all the elements of larceny.\u2019 \u201d State v. Weaver, 359 N.C. 246, 255, 607 S.E.2d 599, 604 (2005) (quoting State v. Griffin, 239 N.C. 41, 79 S.E.2d 230 (1953)). Over the past 130 years, embezzlement statutes have been revised \u201cexpanding the class of individuals who are capable of committing the offense . . .\" Weaver, 359 N.C. at 253, 607 S.E.2d at 603 (citations omitted). During this time, statutes were enacted defining more specific incidences of embezzlement as applicable to certain classes of individuals. Id.\nDefendant was indicted under N.C. Gen. Stat. \u00a7 14-92 entitled, \u201cEmbezzlement of funds by public officers and trustees,\u201d which states in part:\nIf an officer, agent, or employee of an entity listed below, or a person having or holding money or property in trust for one of the listed entities, shall embezzle or otherwise willfully and corruptly use or misapply the same for any purpose other than that for which such moneys or property is held, such person shall be guilty of a felony . . . [i]f any clerk of the superior court or any sheriff, treasurer, register of deeds or other public officer of any county, unit or agency of local government, or local board of education shall embezzle or wrongfully convert to his own use, or corruptly use, or shall misapply for any purpose other than that for which the same are held ....\nLocal Alcoholic Beverage Control (\u201cABC\u201d) Boards are governed by N.C. Gen. Stat. \u00a7\u00a7 18B-700 through 18B-703. N.C. Gen. Stat. \u00a7\u00a7 18B-101(3) and 18B-101(8) (2003) defines a \u201clocal board\u201d as \u201can independent local political subdivision of the State\u201d and not an \u201cagency of a city or county or of the Commission.\u201d N.C. Gen. Stat. \u00a7 18B-702 (2003) provides in pertinent part:\nFinancial operations of local boards\n(a) Generally. \u2014 A local board may transact business as a corporate body, except as limited by this section. A local board shall not be considered a public authority .... (f) Applicability of Criminal Statutes. \u2014 The provisions of G.S. 14-90 and G.S. 14-254 shall apply to any person appointed to or employed by a local board, and any person convicted of a violation of G.S. 14-90 or G.S. 14-254 shall be punished as a Class H felon.\nIn Fowler v. Valencourt, our Supreme Court stated, \u201c[w]here one of two statutes might apply to the same situation, the statute which deals more directly and specifically with the situation controls over the statute of more general applicability.\u201d 334 N.C. 345, 349, 435 S.E.2d 530, 532 (1993) (citations omitted).\nIn State v. Thompson, this Court upheld an embezzlement conviction although the defendant was indicted under an incorrect statute. 50 N.C. App. 484, 487, 274 S.E.2d 381, 383, cert denied, 302 N.C. 633, 280 S.E.2d 448 (1981). \u201cThe indictments against defendant do not refer specifically to any statute, and they are sufficient to charge defendant with violations of either G.S. 14-90 or 14-92.\u201d Id. Each indictment before us specifically charges defendant for violations of N.C. Gen. Stat. \u00a7 14-92. Id. The Asheville ABC is not a political subdivision of a city, county, or the Commission. N.C. Gen. Stat. \u00a7 18B-101.\nIt is undisputed that defendant is an employee of a local ABC board and is subject to statutes that are applicable to a local ABC board\u2019s employees. Defendant is not a public officer of any county, unit or agency of local government, or local board of education.\nAs a local ABC Board employee, defendant should have been charged under N.C. Gen. Stat. \u00a7 14-90. See N.C. Gen. Stat. \u00a7 18B-702(f). The trial court lacked jurisdiction to hear this case where defendant was charged with violation of N.C. Gen. Stat. \u00a7 14-92. The trial court\u2019s judgments are vacated.\nV. Conclusion\nDefendant is a local \u201cABC Board\u201d employee charged with embezzlement under N.C. Gen. Stat. \u00a7 14-92. The appropriate statute to charge a local \u201cABC Board\u201d employee is N.C. Gen. Stat. \u00a7 14-90. The trial court lacked subject matter jurisdiction to hear the State\u2019s case against defendant.\nDefendant\u2019s conviction and the trial court\u2019s judgments are vacated.\nChief Judge MARTIN and Judge LEVINSON concur.",
        "type": "majority",
        "author": "TYSON, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General J. Douglas Hill, for the State.",
      "Reita P. Pendry, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. ROBIN MEDFORD JONES\nNo. COA04-967\n(Filed 2 August 2005)\nEmbezzlement\u2014 public officer \u2014 local ABC board employee\u2014 subject matter jurisdiction\nThe Court of Appeals concluded ex mero motu that the trial court lacked subject matter jurisdiction over defendant local ABC board employee, and the judgments finding defendant guilty of ten counts of embezzlement by a public officer under N.C.G.S. \u00a7 14-92 are vacated, because: (1) the Asheville ABC Board is not a political subdivision of a city, county, or the Commission; (2) although defendant is an employee of a local ABC board and is subject to statutes that are applicable to a local ABC board\u2019s employees, defendant is not a public officer of any county, unit or agency of local government, or local board of education; and (3) as a local ABC Board employee, defendant should have been charged under N.C.G.S. \u00a7 14-90.\nAppeal by defendant from judgments entered 3 November 2003 by Judge J. Marlene Hyatt in Buncombe County Superior Court. Heard in the Court of Appeals 21 April 2005.\nAttorney General Roy Cooper, by Assistant Attorney General J. Douglas Hill, for the State.\nReita P. Pendry, for defendant-appellant."
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  "file_name": "0161-01",
  "first_page_order": 191,
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