State v. Williams

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate
Procedure.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA14-1113

Filed: 5 May 2015

Wake County, Nos. 12 CRS 223032, 13 CRS 204337

STATE OF NORTH CAROLINA

v.

JULI ANN WILLIAMS

Appeal by Defendant from judgment entered 17 January 2014 by Judge

Michael R. Morgan in Wake County Superior Court. Heard in the Court of Appeals

4 March 2015.

Attorney General Roy Cooper, by Special Deputy Attorney General Harriet F.
Worley, for the State.

Charlotte Gail Blake for Defendant.

STEPHENS, Judge.

Factual and Procedural Background

On 21 May 2013, Defendant Juli Ann Williams was indicted on two counts of

felony embezzlement by a public officer or trustee under N.C. Gen. Stat. § 14-92. The

charges arose during Defendant’s service as president of the Parent Teacher
 STATE V. WILLIAMS

Opinion of the Court

Association (“PTA”) of Forestville Road Elementary School (“the school”) in

Knightdale from August 2011 to September 2012.

The evidence at trial tended to show the following: During the 2011-2012

school year, another parent had solicited a total of $1,500.00 in contributions for the

PTA from three local Kohl’s stores (“the Kohl’s money”). The PTA did not have an

active treasurer over the summer of 2012 when the parent expected the checks to

arrive, so she asked Defendant on several occasions whether the checks had been

received and deposited in the PTA bank account. Defendant told the parent the

Kohl’s money had not yet arrived and continued to give the same response to other

PTA members in the fall of 2012. However, testimony from former PTA board

members as well as the PTA’s bank statements showed that, on 20 July 2012,

Defendant deposited the Kohl’s money into the PTA account and immediately

withdrew $1,500.00 in cash from the same account. Defendant did not complete the

forms required by the PTA for making deposits or follow PTA procedures for handling

large deposits. At some point in July 2012, Defendant had asked the school’s

principal to decide how the PTA could best spend the money to benefit the school, and

the principal stated that she wanted to purchase “smart” boards for classrooms.

However, no evidence indicated that Defendant used the cash she withdrew on 20

July 2012 for smart boards or any other school-related project.

-2-
 STATE V. WILLIAMS

Opinion of the Court

In September 2012, the PTA conducted a fundraiser with the help of a

professional fundraising consultant. On the evening of 26 September 2012,

Defendant emailed PTA board members and asked for someone to meet her at the

school the following morning to help count the fundraising proceeds and deposit them

in the PTA bank account. No other PTA board member was able to join Defendant

the following morning. In violation of PTA rules, Defendant sat in the school office

and counted the fundraising money by herself. When she finished, Defendant showed

the school’s bookkeeper that she had separated the checks into one bag and the cash

in another. Defendant then told school staff that she was going to deposit the money

into the PTA bank account.

Shortly thereafter, Officer Travis Price of the Knightdale Police Department

responded to a report of a breaking and entering of a motor vehicle at a local bank.

When Officer Price arrived, Defendant reported that, on the way to deposit the

fundraising money at the bank, she had stopped at Walgreens to make a purchase.

Defendant said she had started to drive away, but after realizing she had forgotten

to buy cigarettes, returned to the Walgreens. After making the second purchase,

Defendant drove toward the bank. On her way, she noticed that her purse had been

dumped out in the car floorboard and a GPS unit was missing. As Defendant and

Officer Price stood in the bank parking lot, Defendant stated that she needed to make

a deposit for the PTA and took out a bank bag from her car’s glove compartment.

-3-
 STATE V. WILLIAMS

Opinion of the Court

Defendant unzipped the bank bag, found only a plastic bag containing checks, and

told Officer Price that a second plastic bag containing $4,129.00 in cash was missing

from the bank bag. At trial, Officer Price testified that he was suspicious about

Defendant’s story because, in his experience, a thief would not take the time to unzip

the bank bag, remove only the cash, re-zip the bag, return the bank bag to the glove

compartment, and then close the glove compartment before fleeing.

The withdrawal of the Kohl’s money and the disappearance of the fundraising

money resulted in Defendant’s arrest in October 2012. In May 2013, she was indicted

on two counts of embezzlement. Defendant was tried before a jury at the 14 January

2014 criminal session of Wake County Superior Court. At the close of the State’s

evidence, Defendant moved to dismiss the charges for insufficiency of the evidence

and for a fatal variance between the State’s evidence and the crime charged in the

indictments. The trial court denied the motion, and Defendant presented evidence.

At the close of all evidence, she renewed her motion to dismiss on both bases, and the

trial court again denied it. The jury returned guilty verdicts on both charges, and the

trial court, after finding one aggravating factor and no mitigating factors, sentenced

Defendant to an aggravated sentence of 23 to 37 months in prison, suspended the

sentence and placed Defendant on 48 months of supervised probation, and required

as a special condition of probation that Defendant serve a six-month active sentence.

Defendant gave notice of appeal in open court.

-4-
 STATE V. WILLIAMS

Opinion of the Court

Discussion

On appeal, Defendant brings forward three arguments, that the trial court

erred in (1) denying her motion to dismiss based on a fatal variance between the

indictments and the evidence presented at trial, (2) sentencing her to a term of

probation which exceeded the permitted statutory period, and (3) ordering her to pay

an amount of restitution not supported by sufficient evidence. We find no error in

part, but reverse and remand on the issue of restitution.

I. Fatal variance between indictments and evidence

Defendant argues that the trial court erred in denying her motion to dismiss

for a fatal variance between the indictments and the evidence presented at trial.

Specifically, Defendant contends that the indictments (1) did not correctly allege the

victim of the offense and (2) incorrectly alleged that Defendant was a public officer or

trustee, an element required by the statute under which Defendant was charged. We

disagree.

We review a trial court’s ruling on a motion to dismiss based upon an alleged

fatal variance in an indictment de novo. State v. Call, 349 N.C. 382, 424, 508 S.E.2d

496, 522 (1998). “Where an indictment charges the defendant with a crime against

someone other than the actual victim, the variance is fatal.” State v. Abraham, 338

N.C. 315, 340, 451 S.E.2d 131, 144 (1994) (citation omitted).

-5-
 STATE V. WILLIAMS

Opinion of the Court

Here, the indictments alleged that the victim was “Forestville Elementary

School-Knightdale.” However, the evidence at trial was that Defendant embezzled

from the PTA affiliated with Forestville Road Elementary School in Knightdale.

Defendant first notes that the PTA is a separate entity from the school. We agree,

but in an indictment for embezzlement, “the State is not limited to alleging ownership

in the legal owner but may allege ownership in anyone else who has a special property

interest recognized by law.” State v. Kornegay, 313 N.C. 1, 27, 326 S.E.2d 881, 900

(1985). Here, the uncontradicted evidence showed that the money Defendant was

alleged to have embezzled was raised by the PTA explicitly and exclusively for the

benefit of the school. Thus, the school was properly named in the indictments as the

victim of Defendant’s embezzlement.

Even assuming that the school had a special property interest in the embezzled

money, Defendant further contends that the discrepancy between the school’s actual

name and the name that appears in the indictments is similar to the discrepancies in

State v. Bell, 270 N.C. 25, 153 S.E.2d 741 (1967) and State v. Overman, 257 N.C. 464,

125 S.E.2d 920 (1962), two cases in which variances in the names of the alleged

victims were determined to be fatal. We find those cases easily distinguishable. Both

cases involved indictments that listed the wrong first name or surname of an

individual victim (“Jean Rogers” instead of “Susan Rogers” in Bell and “Frank E.

Nutley” rather than the correct “Frank E. Hatley” in Overman). Here, in contrast,

-6-
 STATE V. WILLIAMS

Opinion of the Court

the indictment did not incorrectly name the school, but merely omitted the word

“Road.” We find this omission more analogous to the omission in State v. Whitley,

208 N.C. 661, 662, 182 S.E. 338, 339 (1935), where an indictment correctly listed the

victim’s proper name, “Cannon Mills Company,” but some witnesses referred to the

entity as “Cannon Mills.” Our Supreme Court found this variance was not fatal. Id.;

see also State v. Wallace, 71 N.C. App. 681, 688-89, 323 S.E.2d 403, 409 (1984) (finding

no fatal variance where there was a “slight discrepancy between the corporate name

given in the indictment [American Cleaners Corporation, a corporation doing

business as Holiday Cleaners] and the name given by an employee at trial [American

Cleaning Corporation, Holiday Cleaners Division]”) (internal quotation marks

omitted), disc. review denied, 313 N.C. 611, 332 S.E.2d 82 (1985). Accordingly, we

hold that the omission of the word “Road” from the name of the school was not a fatal

variance.

Finally, Defendant argues that a fatal variance exists because the indictment

alleged that Defendant was “an officer or trustee of a local board of education or

educational institution” while the evidence at trial failed to show that Defendant held

such a position. Section 14-92 of our General Statutes, entitled “Embezzlement of

funds by public officers and trustees,” provides that,

[i]f an officer, agent, or employee of an entity listed below
[including a local board of education or educational
institution], or a person having or holding money or
property in trust for one of the listed entities, shall

-7-
 STATE V. WILLIAMS

Opinion of the Court

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. . . .

N.C. Gen. Stat. § 14-92 (2013). In State v. Kennedy, a retailer was charged under

section 14-92 after he collected county sales and use taxes from purchasers, but failed

to turn those monies over to the county. 130 N.C. App. 399, 400-01, 503 S.E.2d 133,

133-34 (1998), affirmed, 350 N.C. 87, 511 S.E.2d 305 (1999). The defendant

“contend[ed] that he did not hold the taxes ‘in trust’ as required for conviction under”

section 14-92. Id. at 401, 503 S.E.2d at 134. Although agreeing with the “defendant

that the collection of sales taxes by a retailer lacks some of the trappings of a

traditional trust,” this Court held “that a purchaser pays sales taxes to a retailer as

‘trustee’ for the state and county[.]” Id. at 401-02, 503 S.E.2d at 134. Likewise here,

while we agree with Defendant’s assertion that there was no evidence of an express

trust, there was sufficient evidence that the PTA held the money at issue in a

constructive trust for the school’s benefit. See, e.g., Teachey v. Gurley, 214 N.C. 288,

292, 199 S.E. 83, 87 (1938) (“[C]onstructive trusts . . . are such as are raised by equity

in respect to property . . . where though acquired originally without fraud, it is against

equity that it should be retained by him who holds it. This type of trust likewise

arises purely by construction of equity independently of any contract or of any actual

or presumed intention of the parties to create a trust.”). The indictments here alleged

that Defendant “held the position of PTA President, an officer or trustee of a local

-8-
 STATE V. WILLIAMS

Opinion of the Court

board of education or educational institution, and in that capacity had been entrusted

to receive” the fundraising money and the Kohl’s money on behalf of the school. The

evidence showed that these monies were donated or raised for the benefit of the

school, and the school’s principal testified that Defendant told the principal to decide

how the money should be spent. We reject each of Defendant’s arguments that there

was a fatal variance between the indictments and the evidence at trial and hold that

the trial court did not err in denying Defendant’s motion to dismiss.

II. Defendant’s sentence

Defendant next argues that the trial court erred in sentencing her to an

intermediate punishment which exceeded the permitted statutory period. We

disagree.

We will review whether a defendant’s sentence “was unauthorized at the time

imposed, exceeded the maximum authorized by law, was illegally imposed, or is

otherwise invalid as a matter of law” regardless of whether any objection was made

at trial. See N.C. Gen. Stat. § 15A-1446(d)(18) (2013).

“Alleged statutory errors are questions of law, and as such,
are reviewed de novo.” State v. Mackey, 209 N.C. App. 116,
118, 708 S.E.2d 719, 721 (2011) (citations omitted). By
statute, the maximum length of probation that the trial
court may impose is thirty-six months “[u]nless the court
makes specific findings that longer or shorter periods of
probation are necessary.” N.C. Gen. Stat. § 15A-1343.2(d)
(2011). If such findings are made, the probation may
extend up to five years (sixty months). Id. Yet the statute
merely requires a finding that a longer term is needed; it

-9-
 STATE V. WILLIAMS

Opinion of the Court

does not require [a] detailed rationale. See State v. Mucci,
163 N.C. App. 615, 625, 594 S.E.2d 411, 418 (2004) (“[W]e
must remand this case for re-sentencing in order for the
trial court to either impose a probation term consistent
with the statute or to make the appropriate finding of fact
that a longer probationary period is necessary.” (emphasis
added and citation omitted)); State v. Cardwell, 133 N.C.
App. 496, 509, 516 S.E.2d 388, 397 (1999) (“The trial court
may either reduce [the d]efendant’s probation to the
statutory period or may enter a finding that the longer
period is necessary.” (emphasis added)).

State v. Wilkerson, __ N.C. App. __, __, 733 S.E.2d 181, 184 (2012).

Here, Defendant was convicted of two Class F felonies and received a

consolidated intermediate sentence in the aggravated range. The trial court

sentenced Defendant to an active term of six months in prison followed by 48 months

of supervised probation. The trial court marked a preprinted box on the judgment

form indicting that a “longer” period of probation than normally provided for in

section 15A-1343.2(d) was necessary in Defendant’s case. Under Wilkerson, this

finding is sufficient to support the imposition of an extended period of supervised

probation. Further, just as the court in Wilkerson “went beyond the statutory

requirement” by referencing the evidence which supported its decision, see id., the

trial court here made statements in open court which explained its rationale for

imposing the longer period of probation, to wit, that Defendant had previously been

convicted of forgery more than ten years before and had violated probation in the

- 10 -
 STATE V. WILLIAMS

Opinion of the Court

past. Accordingly, we conclude the trial court made the required finding to support

its imposition of an extended term of probation. This argument is overruled.

III. Amount of restitution

Finally, Defendant argues that the trial court erred in ordering her to pay an

amount of restitution not supported by sufficient evidence. Specifically, Defendant

was ordered to pay $2,500.00 in restitution to cover the cost of an audit of the PTA.

Defendant contends that this amount was not supported by evidence presented to the

trial court. We agree.

“[E]ven where a defendant does not specifically object to the trial court’s entry

of an award of restitution, this issue is deemed preserved for appellate review under

N.C. Gen. Stat. § 15A-1446(d)(18).” State v. Replogle, 181 N.C. App. 579, 584, 640

S.E.2d 757, 761 (2007) (citations and internal quotation marks omitted). We review

the sufficiency of the evidence to support an award of restitution de novo. State v.

Wright, 212 N.C. App. 640, 711 S.E.2d 979, 801, disc. review denied, 365 N.C. 351,

717 S.E.2d 743 (2011). “The amount of restitution recommended by the trial court

must be supported by evidence adduced at trial or at sentencing. Furthermore, this

Court has held that the unsworn statements of the prosecutor do not constitute

evidence and cannot support the amount of restitution recommended.” Replogle, 181

N.C. App. at 584, 640 S.E.2d at 761 (citation, internal quotation marks, brackets, and

ellipsis omitted). Here, as Defendant notes and the State concedes, the prosecutor

- 11 -
 STATE V. WILLIAMS

Opinion of the Court

informed the trial court that the PTA spent $2,500.00 for an audit following the

disappearance of the fundraising money, but no documentation, testimony, or other

evidence regarding the cost of the audit was introduced. We cannot distinguish the

facts of this case from those in Replogle, and accordingly, as in that case, “we reverse

on the issue of restitution and remand to the trial court for resentencing consistent

with this decision.” See id.

NO ERROR in part; REVERSED and REMANDED in part.

Judges HUNTER, JR., and TYSON concur.

Report per Rule 30(e).

- 12 -