{ "id": 4356765, "name": "STATE OF NORTH CAROLINA v. SHERI MCGAHA SMALLEY", "name_abbreviation": "State v. Smalley", "decision_date": "2012-04-17", "docket_number": "No. COA11-918", "first_page": "142", "last_page": "146", "citations": [ { "type": "official", "cite": "220 N.C. App. 142" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "650 S.E.2d 29", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639310 ], "year": 2007, "pin_cites": [ { "page": "33" } ], "opinion_index": 0, "case_paths": [ "/se2d/650/0029-01" ] }, { "cite": "291 S.E.2d 190", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "194", "parenthetical": "citation omitted" }, { "page": "194", "parenthetical": "quotations and citations omitted" }, { "page": "194" } ], "opinion_index": 0 }, { "cite": "57 N.C. App. 71", "category": "reporters:state", "reporter": "N.C. 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Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "515 U.S. 1135", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1563969, 1564577, 1564483, 1564008, 1564296, 1564331, 1564174, 1563855, 1564503, 1564049, 1563795, 1563863, 1563768, 1564252, 1564093 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/us/515/1135-02", "/us/515/1135-14", "/us/515/1135-10", "/us/515/1135-04", "/us/515/1135-15", "/us/515/1135-07", "/us/515/1135-03", "/us/515/1135-09", "/us/515/1135-08", "/us/515/1135-01", "/us/515/1135-12", "/us/515/1135-11", "/us/515/1135-05", "/us/515/1135-06", "/us/515/1135-13" ] }, { "cite": "451 S.E.2d 211", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "223" } ], "opinion_index": 0 }, { "cite": "339 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556681 ], "year": 1994, "pin_cites": [ { "page": "192" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0172-01" ] }, { "cite": "265 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "year": 1980, "pin_cites": [ { "page": "78" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "148 L. Ed. 2d 150", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2000, "opinion_index": 0 }, { "cite": "531 U.S. 890", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9564641, 9565507, 9564931, 9565413, 9565127, 9565834, 9565727, 9565933, 9565644, 9565235, 9564441, 9564731, 9564539, 9564829, 9565023 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/us/531/0890-03", "/us/531/0890-11", "/us/531/0890-06", "/us/531/0890-10", "/us/531/0890-08", "/us/531/0890-14", "/us/531/0890-13", "/us/531/0890-15", "/us/531/0890-12", "/us/531/0890-09", "/us/531/0890-01", "/us/531/0890-04", "/us/531/0890-02", "/us/531/0890-05", "/us/531/0890-07" ] }, { "cite": "526 S.E.2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "455" } ], "opinion_index": 0 }, { "cite": "351 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155599 ], "year": 2000, "pin_cites": [ { "page": "378" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0373-01" ] }, { "cite": "186 N.C. App. 57", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8154614 ], "year": 2007, "pin_cites": [ { "page": "62" } ], "opinion_index": 0, "case_paths": [ "/nc-app/186/0057-01" ] } ], "analysis": { "cardinality": 454, "char_count": 7851, "ocr_confidence": 0.759, "pagerank": { "raw": 5.207966869300525e-08, "percentile": 0.32798340752684807 }, "sha256": "c80b7a80933ee9a518ec550c026c011604b1ff753c00af8d5387b5f8165c7295", "simhash": "1:8a6afd3ad0cfb47e", "word_count": 1277 }, "last_updated": "2023-07-14T21:35:53.925153+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEELMAN and STROUD concur." ], "parties": [ "STATE OF NORTH CAROLINA v. SHERI MCGAHA SMALLEY" ], "opinions": [ { "text": "ELMORE, Judge.\nSheri McGaha Smalley (defendant) appeals from a judgment entered upon a jury conviction of one count of embezzlement. We find no error.\nIn 1997, Chris Manus started Manus Contracting, Inc. (the company). In 2004, Manus hired defendant to handle the company\u2019s finances. Manus gave defendant a signature stamp so that she could sign checks for the company, and defendant was responsible for taking the money that came into the company and distributing it as needed. She worked primarily from her home.\nIn October 2005, Manus informed defendant that the company no longer needed her services. Manus then requested that defendant return the company\u2019s materials to him. However, defendant did not return any of the materials until August 2006, and the materials she returned were incomplete. As a result, Manus contacted Deputy Lori Pierce of the Union County Sheriff\u2019s Department. Deputy Pierce investigated the company\u2019s bank records, and discovered that defendant had written numerous checks to herself. Deputy Pierce estimated that defendant had paid herself approximately $18,540.00 more than her agreed upon salary.\nIn July 2007, defendant was arrested for embezzling the company\u2019s funds. On 8 March 2011, her case came on for trial by jury. At the conclusion of the State\u2019s evidence, defendant moved to dismiss the charges against her for insufficiency of the evidence. The trial court denied her motion. Defendant did not present any evidence at trial, and at the conclusion of all evidence she renewed her motion. The trial court again denied the motion. Defendant was then convicted of one count of embezzlement. The trial court sentenced her to 6-8 months imprisonment, but suspended the sentence on condition that defendant serve a split sentence of 60 days imprisonment and be placed on 36 months supervised probation. Defendant now appeals.\n\u201cThis Court reviews the trial court\u2019s denial of a motion to dismiss de novo\u201d State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). \u201cUpon defendant\u2019s motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant\u2019s being the perpetrator of such offense. If so, the motion is properly denied.\u201d State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455, cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Smith, 300 N.C. 71, 78, 265 S.E.2d 164, 169 (1980). \u201cIn making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.\u201d State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995).\nDefendant first argues that the trial court erred in denying her motion to dismiss because the State failed to prove that defendant was an agent of the company. Specifically, defendant argues that she was an independent contractor and was therefore not a servant or agent under the embezzlement statute. We disagree.\nAccording to our General Statutes, a person may be criminally liable for the embezzlement of property from a corporation if that person is an agent of the corporation. See N.C. Gen. Stat. \u00a7 14-90 (2011). \u201cTwo essential elements of an agency relationship are: (1) the authority of the agent to act on behalf of the principal, and (2) the principal\u2019s control over the agent.\u201d State v. Weaver, 359 N.C. 246, 258, 607 S.E.2d 599, 606 (2005) (citation omitted).\nHere, the State\u2019s evidence showed the following: 1) defendant \u201chad full access to [the company\u2019s] checking accounts\u201d; 2) defendant \u201ccould write checks on her own\u201d; 3) defendant \u201cwould delegate the funds\u201d of the company. Thus, we conclude that the State presented sufficient evidence to show that defendant had the authority to act on behalf of the corporation. The State also presented sufficient evidence to prove that the company had control over defendant\u2019s performance. At trial, Manus expl\u00e1ined that defendant had several responsibilities he expected her to meet. Manus also testified that he spoke to defendant \u201c[i]n person probably once a week. By telephone, I probably talked to her three, four times a week, sometimes a lot more than that. If she had a question, she would call me.\u201d We conclude that when this evidence is viewed in the light most favorable to the State, it is sufficient to prove that the company had the ability to control defendant\u2019s performance.\nIn sum, the State\u2019s evidence shows that defendant was an agent of the company and not an independent contractor. As a result, we conclude that the trial court did not err with regards to this issue.\nDefendant next argues that the trial court erred in denying her motion to dismiss because the State failed to prove that she received into her possession lawfully the personal property of the company. We disagree.\nTo be guilty of embezzlement, \u201c[t]he person accused must have . . . received into his possession lawfully the personal property of another])]\u201d Id. at 255, 607 S.E.2d at 604 (2005) (citation omitted) (emphasis in original). This Court has held that \u201cthe possession required by [statute] to make out a prima facie case of embezzlement may be actual or constructive possession.\u201d State v. Jackson, 57 N.C. App. 71, 77, 291 S.E.2d 190, 194 (1982) (citation omitted). \u201cConstructive possession of goods exists without actual personal dominion over them, but with an intent and capability to maintain control and dominion over them.\u201d Id. at 76, 291 S.E.2d at 194 (quotations and citations omitted).\nIn Jackson, we held that the defendant had constructive possession of the corporation\u2019s goods when, while acting as an agent of the corporation and during the course of his employment there, he took deliveries of meat for the corporation, signed the invoices, and arranged for the diversion of the meat to various places. See Id. at 77, 291 S.E.2d at 194.\nHere, the State\u2019s evidence showed that defendant was given complete access to the corporation\u2019s accounts. She was also able to write checks on behalf of the corporation and to delegate where the corporation\u2019s money went. Thus, we conclude that the State presented sufficient evidence to prove that defendant had constructive possession of the corporation\u2019s money according to our holding in Jackson.\nIn sum, we conclude that defendant had lawful constructive possession of the company\u2019s funds, because she was able to maintain control and dominion of the funds. Thus, we conclude that the trial court did not err with reg\u00e1rds to this issue.\nNo error.\nJudges STEELMAN and STROUD concur.", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper by Assistant Attorney General David D. Lennon for the State.", "Robert W. Ewing of Ewing Law Firm, P.C., for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. SHERI MCGAHA SMALLEY\nNo. COA11-918\n(Filed 17 April 2012)\n1. Embezzlement \u2014 sufficient evidence \u2014 agent of corporation\nThe trial court did not err in an embezzlement case by denying defendant\u2019s motion to dismiss the charge as the State\u2019s evidence showed that defendant was an agent of the company and not an independent contractor.\n2. Embezzlement \u2014 sufficient evidence \u2014 constructive possession of corporation\u2019s money\nThe trial court did not err in an embezzlement case by denying defendant\u2019s motion to dismiss the charge as the State presented sufficient evidence to prove that defendant had constructive possession of the corporation\u2019s money.\nAppeal by defendant from judgment entered 10 March 2011 by Judge W. David Lee in Union County Superior Court. Heard in the Court of Appeals 8 March 2012.\nAttorney General Roy Cooper by Assistant Attorney General David D. Lennon for the State.\nRobert W. Ewing of Ewing Law Firm, P.C., for defendant." }, "file_name": "0142-01", "first_page_order": 152, "last_page_order": 156 }