State v. Earnest

306 S.E.2d 560 (1983)

STATE of North Carolina v. Jerry Allen EARNEST.

No. 8225SC1172.

Court of Appeals of North Carolina.

September 20, 1983.

*561 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Archie W. Anders, Raleigh, for the State.

Reginald L. Yates, Charlotte, for defendant-appellant.

ARNOLD, Judge.

The defendant first contends that the trial court erred in denying his motion to *562 dismiss made at the close of all the evidence. The defendant argues that there was no showing that he misapplied or converted the funds to his own use.

In order to convict a defendant of embezzlement under G.S. 14-90, the State must prove three distinct elements: (1) that the defendant, being more than sixteen years of age, acted as an agent or fiduciary for his principal, (2) that he received money or valuable property of his principal in the course of his employment and through his fiduciary relationship, and (3) that he fraudulently or knowingly and willfully misapplied or converted to his own use the money or valuable property of his principal which he had received in his fiduciary capacity. State v. Pate, 40 N.C.App. 580, 253 S.E.2d 266 (1979). Only the third element is in dispute in the present case. In order to meet the requirements of that element it is not necessary to show that the defendant converted his principal's property to his own use, provided it is shown that he fraudulently or knowingly and willfully misapplied it. Id.

The fraudulent intent required under G.S. 14-90 is the intent to willfully or corruptly use or misapply the property of another for purposes other than those for which the agent or fiduciary received it in the course of his employment. Id. It is not necessary, however, that the State offer direct proof of fraudulent intent if facts and circumstances are shown from which it may be reasonably inferred. Id.

Upon a motion to dismiss in a criminal action, all of the evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable inference from that evidence. State v. Smith, 300 N.C. 71, 265 S.E.2d 164 (1980). Contradictions and discrepancies are for the jury to resolve and do not warrant dismissal. In considering a motion to dismiss, it is the duty of the court to determine whether there is substantial evidence of each essential element of the offense charged, substantial evidence being such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id.

When viewed in the light most favorable to the State, the evidence in this case was sufficient to allow a reasonable inference to be drawn that the defendant either fraudulently or knowingly and willfully misapplied funds of Hepco Publishing, Inc. As president of the corporation the defendant's duties were to hire and fire employees and to direct payment of bills. His duties did not encompass the authority to open a separate bank account for the purpose of depositing corporate funds. It would not have been difficult for the defendant to give any checks he had received to the treasurer, or to simply deposit them in Hepco's own bank account.

The defendant next maintains that the trial court erred in denying his motion for appropriate relief, wherein he sought to have the verdict set aside and an order entered dismissing the charge of embezzlement or in the alternative, granting the defendant a new trial. This motion was without merit and was properly denied by the trial judge, as there was no error committed at trial.

No error.

WELLS and EAGLES, JJ., concur.