State v. Livingston

MORRIS, Judge. By her first assignment of error, defendant contends that the trial court should have granted her motion for a directed verdict. This motion has the same legal effect as a motion to dismiss the action or a motion for judgment as in case of nonsuit, and it challenges the sufficiency of the State’s evidence to take the case [168] to the jury. State v. Williams, 286 N.C. 422, 212 S.E. 2d 113 (1975). Defendant presented evidence in this case, and we, therefore, consider only her motion for a directed verdict made at the close of all the evidence. State v. Chavis, 30 N.C. App. 75, 226 S.E. 2d 389 (1976). Viewing the evidence in the present case in the light most favorable to the State and giving the State the benefit of all legitimate inferences to be drawn therefrom, we conclude that the trial court properly denied defendant’s motion for a directed verdict. Defendant’s principal argument on this point is that while the evidence shows that receipts and other documentation were missing from the store’s bookkeeping files, there was no showing that any money was missing. The missing documentation, standing alone, shows either that the documentation had been lost or destroyed or that false entries had been made to account for sums of money which were periodically taken from the cash register. There was evidence that defendant admitted that she might have misappropriated some money. Furthermore, on 8 March 1976, Yost questioned defendant about some missing documentation shortly after she had made an unsupported entry in the store’s records. This confrontation occurred at a time when defendant could reasonably have been expected to remember the source of the entry, but she could not account for the expenditure. The absence of supporting documentation occurring only while defendant was performing the duties of bookkeeper, coupled with the other evidence, permits an inference of a consistent pattern of misappropriation by defendant of sums of money received by her in the course of her employment and by the terms of her employment. The fraudulent intent necessary to establish the crime of embezzlement can rarely be shown by direct proof, but the facts and circumstances presented to the jury were sufficient to support an inference of the requisite fraudulent intent. See State v. Helsabeck, 258 N.C. 107, 128 S.E. 2d 205 (1962); State v. Smithey, 15 N.C. App. 427, 190 S.E. 2d 369 (1972). The second assignment of error is directed to the court’s admission into evidence, over defendant’s objection, of the memorandum of the 9 March meeting between Yost, Leach, defendant, and defendant’s husband. The memorandum was admitted only for the purpose of corroborating the testimony of the State’s witness. The North Carolina rule regarding the ad [169] missibility of prior consistent statements for corroboration is quite liberal, 1 Stansbury, N.C. Evidence (Brandis Rev.), § 52, and we find no error in the admission of this memorandum. Evidence of prior consistent statements is particularly persuasive where, as here, the time gap between the event in issue and the prior statement is short. In her brief, defendant relies on the case of State v. Austin, 285 N.C. 364, 204 S.E. 2d 675 (1974). However, in that case there was no authentication of the signature on the document in question, thereby raising substantial questions as to its genuineness. In the present case, the person who drafted the memorandum and the persons who signed it authenticated the document and were available for cross-examination. The lack of authenticity condemned in Austin is not present here. This assignment of error is overruled. Defendant next assigns error to a portion of the court’s instructions to the jury. The indictment charged in part that defendant “did embezzle and convert to her own use” a specified sum, and the court charged the jury that it could return a verdict of guilty upon a finding, inter alia, that the defendant “used any amount of money for some purpose other than that for which she received it.” Defendant argues that the charge in the indictment permits a verdict of guilty only if the jury finds that defendant converted the money “to her own use.” We disagree. The indictment properly charged defendant with embezzlement, and fraudulent misapplication of the money amounts to embezzlement even if defendant did not apply the money to her own use. State v. Foust, 114 N.C. 842, 19 S.E. 275 (1894). As a special condition of probation, the court ordered defendant to pay the sum of $4,652.88 in restitution to Phillips Drug Company. Defendant assigns error to this condition of probation. Making restitution a condition of probation is authorized by G.S. 15-199(10), and the amount is supported in the record by the testimony of Mr. Yost, who stated that the total amount of discrepancies he discovered was $4,652.88. Therefore, this assignment of error is overruled. Defendant’s final assignment of error is directed to the length of her sentence. The court imposed a split sentence as authorized by G.S. 15-197.1. The court imposed an active sentence [170] of six months. The remainder of defendant’s five-year sentence was suspended with defendant placed on probation for a period of five years. As the State concedes in its brief, this sentence exceeds that permitted by G.S. 15-197.1(b), which provides that the period of probation, together with the period of active sentence, may not exceed five years. The case must, therefore, be remanded for proper sentencing. Remanded for sentencing. Judges Hedrick and Arnold concur.