{
  "id": 8547360,
  "name": "STATE OF NORTH CAROLINA v. SHEILA DAVIS",
  "name_abbreviation": "State v. Davis",
  "decision_date": "1980-02-05",
  "docket_number": "No. 795SC690",
  "first_page": "72",
  "last_page": "75",
  "citations": [
    {
      "type": "official",
      "cite": "45 N.C. App. 72"
    }
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  "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."
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  "cites_to": [
    {
      "cite": "N.C. Gen. Stat. \u00a7\u00a7 159-25",
      "category": "laws:leg_statute",
      "reporter": "N.C. Gen. Stat.",
      "pin_cites": [
        {
          "page": "(a)(2)"
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    },
    {
      "cite": "183 S.E. 2d 661",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1971,
      "opinion_index": 0
    },
    {
      "cite": "279 N.C. 435",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8569459
      ],
      "year": 1971,
      "opinion_index": 0,
      "case_paths": [
        "/nc/279/0435-01"
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    {
      "cite": "184 S.E. 2d 289",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1971,
      "opinion_index": 0
    },
    {
      "cite": "279 N.C. 573",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8571231
      ],
      "year": 1971,
      "opinion_index": 0,
      "case_paths": [
        "/nc/279/0573-01"
      ]
    },
    {
      "cite": "261 S.E. 2d 114",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1980,
      "opinion_index": 0
    },
    {
      "cite": "299 N.C. 95",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8573434
      ],
      "year": 1980,
      "opinion_index": 0,
      "case_paths": [
        "/nc/299/0095-01"
      ]
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  "last_updated": "2023-07-14T22:44:38.339487+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Hedrick and Wells concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. SHEILA DAVIS"
    ],
    "opinions": [
      {
        "text": "MARTIN (Robert M.), Judge.\nThe defendant by her second assignment of error contends that the trial court erred in denying defendant\u2019s motion for dismissal at the close of the State\u2019s evidence and at the close of all the evidence. We agree.\nUpon 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 and (2) of defendant being the perpetrator of such offense. If so, the motion is properly denied. State v. Powell, 299 N.C. 95, 261 S.E. 2d 114 (1980). State v. Roseman, 279 N.C. 573, 184 S.E. 2d 289 (1971); State v. Mason, 279 N.C. 435, 183 S.E. 2d 661 (1971). We must, therefore, examine the essential elements of the offense with which defendant was charged.\nDefendant was charged in the fourth count of the indictment with wilfully failing to perform her duty as finance officer to preaudit an obligation of the Town of Carolina Beach. The essential elements of the offense of failing to preaudit are set forth by N.C. Gen. Stat. \u00a7\u00a7 159-25(a)(2), 159-28(a) and 159-181. Section 159-25(a)(2) imposes on a finance officer in local government the duty to preaudit obligations and disbursements as required by this Chapter 159. Although the term preaudit is not defined, \u00a7 159-28(a) contains a description of what the finance officer must do in order to fulfill his duty to preaudit obligations.\n\u00a7 159-28. Budgetary accounting for appropriations.\u2014\n(a) Incurring obligations. \u2014 No obligation may be incurred . . . unless the budget ordinance includes an appropriation authorizing the obligation and an unencumbered balance remains in the appropriation sufficient to pay in the current fiscal year the sums obligated. . .\nSimply stated, the finance officer, in order to fulfill his duty to preaudit, must determine whether there are sufficient unencumbered funds in an appropriation to pay for an obligation before the obligation is incurred. Section 159-181 governing enforcement of Chapter 159 makes the wilfull failure or refusal of a finance officer to perform any duty imposed on him by this Chapter a misdemeanor. A conviction under this statute would require the State to prove that defendant wilfully failed to determine that there were sufficient unencumbered funds to pay an obligation of the Town of Carolina Beach prior to incurring that obligation.\nIn applying the foregoing principles, it is obvious that the State does not have sufficient evidence on the essential element that the obligation in issue is an obligation of the Town of Carolina Beach. Throughout the trial, the State has based its theory of embezzlement, felonious approval of an invalid bill and wilfull failure to preaudit on the assumption that the obligation was defendant\u2019s personal obligation. This position is inconsistent with the duty to preaudit which does not arise until there is a valid obligation of the Town of Carolina Beach. All of the State\u2019s testimony indicates that the fence was purchased for defendant\u2019s own use and was never intended to be an obligation of the town. Defendant\u2019s motion to dismiss at the close of the State\u2019s evidence should have been allowed.\nReversed.\nJudges Hedrick and Wells concur.",
        "type": "majority",
        "author": "MARTIN (Robert M.), Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten by Assistant Attorney General Thomas B. Wood, for the State.",
      "Smith and Kendrick, by W. G. Smith and George H. Sperry, for the defendant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. SHEILA DAVIS\nNo. 795SC690\n(Filed 5 February 1980)\nMunicipal Corporations \u00a7 9\u2014 failure of finance officer to preaudit town obligation \u2014 purchase of fence not town obligation\nIn order for a town finance officer to fulfill his statutory duty to preaudit obligations of the town, he must determine whether there are sufficient unencumbered funds in an appropriation to pay for an obligation before the obligation is incurred; therefore, in a prosecution of defendant, who was finance officer for the Town of Carolina Beach, for failure to preaudit an obligation of the Town, the trial court should have granted defendant\u2019s motion to dismiss at the close of the State\u2019s evidence where the State based its theory of willful failure to preaudit on the assumption that the obligation, payment for a split rail fence, was defendant\u2019s personal obligation, and all the State\u2019s evidence indicated that the fence was purchased for defendant\u2019s own use and was never intended to be an obligation of the Town. G.S. 159-25; G.S. 159-28.\nAPPEAL by defendant from Reid, Judge. Judgment entered 9 March 1979 in Superior Court, New HANOVER County. Heard in the Court of Appeals 7 January 1980.\nDefendant was indicted on charges of embezzlement, felonious approval of an invalid bill while acting as Finance Officer for the Town of Carolina Beach (G.S. 159-181), failure to keep an accurate record of financial transactions for the Town of Carolina Beach (G.S. 14-230, Section 2-2003 of the General Ordinances of Carolina Beach), failure to preaudit an obligation of the Town of Carolina Beach, and failure to establish procedures necessary to assure compliance with the provision of G.S. 159-28 entitled \u201cBudgetary Accounting For Appropriations\u201d (G.S. 14-230). The trial judge submitted three issues to the jury relating to the charges of embezzlement (G.S. 14-92), knowingly approving an invalid bill while acting as Finance Officer for the Town of Carolina Beach (G.S. 159-181) and failure to preaudit an obligation for the Town of Carolina Beach (G.S. 159-25(a)(2), 28(a) and 181). The jury returned a verdict of not guilty on the first two issues and a verdict of guilty of failure to preaudit a town obligation. From judgment entered, defendant appealed.\nState\u2019s evidence tended to show that in April, 1977 the defendant requested Robert Warren, a fellow employee of the Town of Carolina Beach, to purchase a split rail fence at Lowe\u2019s in Wilmington and to have the materials charged to her account. The defendant intended to erect the fence on her own property. An employee of Lowe\u2019s informed Robert Warren that the defendant did not have a charge account, at which time Warren spoke with the defendant\u2019s secretary by phone. He received permission to provide Lowe\u2019s with a purchase order (No. 3046) of the Town of Carolina Beach. Defendant\u2019s secretary, Lona Lewis, typed purchase order No. 3046. She also typed \u201cpersonal\u201d on the order since the defendant told her she intended to pay for the fence herself. A purchase order consists of four parts \u2014 the original, which is sent to the vendor, two copies, which are filed numerically and alphabetically, and a fourth copy, which is attached to the vendor\u2019s invoice and given to the Finance Officer for bookkeeping purposes. Ms. Lewis believes that she wrote \u201cvoid\u201d on the original, although she has not seen the original since it was typed. The words \u201cpaid personal\u201d on the two copies produced by the State as exhibits are in the defendant\u2019s handwriting. Lowe\u2019s continued to bill the Town of Carolina Beach until it received payment for the fence by means of a town check for $198.45, dated 19 September 1977, which was signed by the defendant and a town councilman. Deanna George, a town employee who processed bills for payment from March 1977 until August 1978, informed the defendant that the town was repeatedly being billed for a fence which had already been paid for (purchase order #3313). At the close of State\u2019s evidence, defendant\u2019s motion to dismiss was denied.\nDefendant testified that she did not see or sign the original purchase order, although the words \u201cvoid paid personal\u201d look like her handwriting. The defendant did not recall signing the check in payment of the fence. She stated that she thought she paid for the fence in cash in May, 1977. Occasionally the purchase orders and invoices were not attached to the checks which were placed on her desk for signature. When she signed the check in question, she had no idea that it was to pay for the fence. Defendant\u2019s renewed motion to dismiss was denied.\nAttorney General Edmisten by Assistant Attorney General Thomas B. Wood, for the State.\nSmith and Kendrick, by W. G. Smith and George H. Sperry, for the defendant."
  },
  "file_name": "0072-01",
  "first_page_order": 100,
  "last_page_order": 103
}