State v. Evans

• Court: Court of Appeals of North Carolina
• Decided: September 17, 2024
• Docket: 23-1160
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-1160

Filed 17 September 2024

Johnston County, Nos. 21-CR-052221-500, 21-CR-052222-500, 21-CR-052223-500

STATE OF NORTH CAROLINA

v.

LORI ANN EVANS

Appeal by Defendant from judgment entered 25 May 2023 by Judge Thomas

H. Lock in Johnston County Superior Court. Heard in the Court of Appeals 14 August

2024.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Phillip K. Woods, for the State-Appellee.

Wake Forest University School of Law Appellate Advocacy Clinic, by John J. Korzen, for Defendant-Appellant.

COLLINS, Judge.

Defendant Lori Ann Evans appeals from judgment entered upon a jury’s guilty

verdict of three counts of larceny by an employee. Defendant argues that the trial

court erred by denying her motion to dismiss for insufficient evidence and erred in

calculating her prior record level. Because the State presented sufficient evidence

that Defendant acted with the requisite intent, the trial court did not err by denying

Defendant’s motion to dismiss. Because the trial court properly applied the relevant

sentencing statute, the trial court did not err in calculating Defendant’s prior record STATE V. EVANS

Opinion of the Court

level. We find no error.

I. Background

Defendant was indicted on 4 April 2022 for three counts of larceny by an

employee. When the case came on for trial, the State’s evidence tended to show the

following:

Defendant was the manager of a Dollar General store in Benson off N.C.

Highway 50. On 13, 14, and 15 May 2021, Defendant was to deliver cash deposits to

First Citizens Bank on behalf of Dollar General. On each of these days, Defendant

indicated in the store deposit log that she was taking a bag of cash to deposit, and

Dollar General’s security footage captured Defendant leaving the store with a deposit

bag. In total, Defendant took $11,000.83 from the store. On 16 May, Defendant made

an entry into the store deposit log indicating that she had made the three deposits.

The next day, Defendant quit her job. A cash audit later revealed that these deposits

had not been made.

After being notified that the bank had never received the deposits, a loss

prevention officer for Dollar General attempted to contact Defendant several times

but was unsuccessful. The officer asked another store manager—who knew

Defendant well—to contact Defendant; however, that store manager was also

unsuccessful in doing so. The missing cash was then reported to the Johnston County

Sheriff's Office. A Sheriff’s deputy attempted to reach Defendant on several occasions

but was unsuccessful.

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Warrants were issued for Defendant’s arrest on 28 May 2021. Sheriff’s

deputies attempted to serve Defendant at her last known home address in Benson,

North Carolina; the home, however, was vacant when they arrived. Defendant was

finally located in Chadbourn, North Carolina, on 5 September 2021 and served with

arrest warrants.

More than six months later, on 29 March and 28 April 2022, Defendant made

three deposits totaling $11,000.83 into Dollar General’s bank account, using the same

cash bags that she had used to remove money from the store in May 2021. The three

cash bags contained twenty-six, thirty, and forty-four $100 bills, respectively.

According to Dollar General’s loss prevention officer, it was highly unusual for a

deposit bag to contain more than twenty $100 bills.

At trial, Defendant admitted to leaving the store with the deposit bags and

making an entry into the store deposit log indicating that she had made the three

deposits. She testified, however, that she left the bags in her car for her daughter to

deposit and assumed her daughter had made the deposits. When asked why she had

not answered the calls from Dollar General’s loss prevention officer and managers,

Defendant testified that she did not answer because, at that time, she did not know

any money was missing. Defendant further testified that once apprehended for the

missing cash, she “scrape[d] and scrounge[d]” $11,000.83 by working and borrowing

from family members and deposited this money into Dollar General’s bank account.

Defendant’s motions to dismiss the charges were denied. The jury convicted

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Defendant of all three counts of larceny by an employee.

At sentencing, the trial court classified Defendant as a prior record level two

and sentenced her to a term of five-to-fifteen months’ imprisonment, suspended, and

twenty-four months of supervised probation. Defendant gave an oral notice of appeal

in open court.

II. Discussion

A. Motion to Dismiss

Defendant first contends that the trial court erred by denying her motion to

dismiss because the evidence presented was insufficient to support a conclusion that

Defendant intended to permanently deprive Dollar General of its money.

This Court reviews the trial court’s denial of a motion to dismiss de novo. State

v. Summey, 228 N.C. App. 730, 733, 746 S.E.2d 403, 406 (2013). In doing so, the

reviewing court must determine “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’s being the perpetrator of such offense.” State v. Fritsch, 351 N.C.

373, 378, 526 S.E.2d 451, 455 (2000) (citation omitted). “If the evidence presented is

circumstantial, the court must consider whether a reasonable inference of [the]

defendant’s guilt may be drawn from the circumstances.” Id. at 379, 526 S.E.2d at

455. Once the court determines that a reasonable inference may be drawn, it is then

for the jury to decide whether the facts satisfy the defendant’s guilt beyond a

reasonable doubt. Id. “Circumstantial evidence may withstand a motion to dismiss

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and support a conviction even when the evidence does not rule out every hypothesis

of innocence.” Id. (quotation marks and citation omitted).

“Substantial evidence is such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265

S.E.2d 164, 169 (1980) (citations omitted). When considering a motion to dismiss, the

evidence must be considered in the light most favorable to the State, “giving the State

the benefit of every reasonable inference and resolving any contradictions in its

favor.” State v. Rose, 339 N.C. 172, 192–93, 451 S.E.2d 211, 223 (1994) (citation

omitted).

To survive a motion to dismiss a charge of larceny by an employee, the State

must present sufficient evidence of the following elements:

(1) the defendant was an employee of the owner of the stolen goods; (2) the goods were entrusted to the defendant for the use of the employer; (3) the goods were taken without the permission of the employer; and (4) the defendant had the intent to steal the goods or to defraud his employer.

State v. Frazier, 142 N.C. App. 207, 209, 541 S.E.2d 800, 801 (2001) (citations

omitted); see also N.C. Gen. Stat. § 14-74 (2023). The intent required by the fourth

element includes “both the intent to wrongfully take and the intent to permanently

deprive the owner of possession.” State v. Spera, 290 N.C. App. 207, 216, 891 S.E.2d

637, 644 (2023).

Direct evidence of a defendant’s intent to permanently deprive the owner of

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possession is not required; the requisite intent is often inferred from circumstantial

evidence. Id. at 215, 891 S.E.2d at 644. For example, this intent can “be deemed

proved if it appears [the defendant] kept the goods as his own [un]til his

apprehension, or that he gave them away, or sold or exchanged or destroyed

them . . . .” State v. Smith, 268 N.C. 167, 173, 150 S.E.2d 194, 200 (1966) (quotation

marks and citation omitted); see, e.g., State v. Osborne, 149 N.C. App. 235, 243, 562

S.E.2d 528, 534 (2002) (defendant’s keeping the stolen goods among his own

possessions until apprehension was sufficient evidence of the requisite intent); State

v. Allen, 193 N.C. App. 375, 381, 667 S.E.2d 295, 299 (2008) (defendant’s

abandonment of the stolen item, demonstrating an indifference to whether the stolen

item would ever be recovered by the victim, was sufficient evidence of the requisite

intent).

Here, Defendant was entrusted with three bags of Dollar General’s money

totaling $11,000.83 between 13 and 15 May 2021. She made an entry into Dollar

General’s deposit log on 16 May 2021 indicating that she had deposited that money

into the bank. In reality, she had not made those deposits and had no first-hand

knowledge of anyone else making those deposits. The next day, Defendant quit her

job.

Dollar General’s loss prevention officer, a Dollar General store manager, and

law enforcement officers attempted to contact Defendant on numerous occasions. All

of those attempts failed. When law enforcement officers attempted to serve

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Defendant with her arrest warrants at her home, her home appeared vacant.

Ultimately, it took law enforcement over three months to locate Defendant, who was

found in Chadbourn.

On 29 March and 28 April 2022, more than ten months after taking the cash

out of the Dollar General store and indicating to Dollar General that the cash had

been deposited in the bank, and more than six months after being arrested,

Defendant deposited $11,000.83 into Dollar General’s bank account. The

denominations of the bills deposited were different from the denominations of bills

typically deposited by Dollar General. Defendant admitted at trial that the cash she

deposited in March and April 2022 was not the cash she took from the store in May

2021; the cash she had been entrusted to by the store was gone.

Defendant quit her job the day after she falsely indicated that she had

deposited Dollar General’s money into its bank account and left town. Considered in

the light most favorable to the State, the evidence was sufficient to support a

conclusion that Defendant intended to wrongfully take and permanently deprive

Dollar General of the money she was entrusted with. See Rose, 339 N.C. at 192, 451

S.E.2d at 223.

Citing Spera, Defendant contends that her reimbursement of the stolen funds

shows that she never intended to permanently deprive Dollar General of the money.

Unlike in Spera, however, Defendant did not deposit any money into Dollar General’s

bank account until after she was arrested for three counts of larceny by an employee,

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more than ten months after she had failed to deposit the money. See, e.g., Spera, 290

N.C. App. at 219–20, 891 S.E.2d at 646–47 (holding that there was insufficient

evidence of a permanent deprivation, as the evidence tended to show that the

defendant merely took the stolen car for a “joy ride” and returned the keys to the

victim roughly thirty minutes after the taking). Defendant’s contentions do not

warrant dismissal for insufficient evidence. See Fritsch, 351 N.C. at 378, 526 S.E.2d

at 455.

Because the State presented sufficient evidence of each element of the offense

of larceny by an employee, the trial court did not err by denying Defendant’s motions

to dismiss.

B. Defendant’s Prior Record Level

Defendant next contends that the trial court erred in calculating her prior

record level for sentencing. Specifically, Defendant argues that by treating her 1999

misdemeanor conviction as a felony, the trial court breached her 1999 plea

agreement, wherein she pled guilty to misdemeanor possession of methamphetamine

after being charged with felony possession of methamphetamine.

A trial court’s determination of a defendant’s prior record level is a conclusion

of law reviewed de novo review on appeal. State v. Bohler, 198 N.C. App. 631, 633,

681 S.E.2d 801, 804 (2009). Likewise, this Court reviews de novo whether the State

breached a plea agreement and whether the trial court entered a judgment

inconsistent with the terms of a plea agreement. State v. Knight, 276 N.C. App. 386,

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390, 857 S.E.2d 728, 732 (2021).

“The prior record level of a felony offender is determined by calculating the

sum of the points assigned to each of the offender’s prior convictions . . . .” N.C. Gen.

Stat. § 15A-1340.14(a) (2023). One point is assigned for misdemeanor convictions.

Id. § 15A-1340.14(b) (2023). Felony convictions are assigned more points, depending

upon the class of felony, with two points assigned to each prior felony Class H or I

conviction. Id. For purposes of determining a defendant’s prior record level, “the

classification of a prior offense is the classification assigned to that offense at the time

the offense for which the offender is being sentenced is committed.” Id. §

15A-1340.14(c) (2023).

The State presented to the trial court a computerized criminal history printout

indicating that Defendant was charged in 1999 with felony possession of

methamphetamine and misdemeanor possession of drug paraphernalia; pled “guilty

to a lesser degree” to misdemeanor possession of methamphetamine; and was

sentenced to forty-five days of confinement, suspended for one year of unsupervised

probation, and ordered to pay a $100 fine and court costs. That same year, however,

the North Carolina General Assembly amended our general statutes by striking the

offense of misdemeanor possession of methamphetamine and classifying the

possession of any amount of methamphetamine as a felony. See 1999 N.C. Sess. Laws

370. By the plain language of N.C. Gen. Stat. § 15A-1340.14(c), because possession

of methamphetamine was classified as a Class I felony on the date Defendant

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committed larceny by an employee in the present case, the trial court did not err by

assigning her 1999 conviction two points for the purpose of determining her prior

record level. See N.C. Gen. Stat. § 15A-1340.14(c); see also State v. Beck, 359 N.C.

611, 614, 614 S.E.2d 274, 277 (2005) (“If the statutory language is clear and

unambiguous, the court eschews statutory construction in favor of giving the words

their plain and definite meaning.”) (citation omitted).

Defendant argues that by classifying her prior conviction as a felony, the trial

court breached her 1999 plea agreement. In essence, Defendant argues that she did

not get the benefit of her earlier bargain. We disagree.

“A plea agreement is treated as contractual in nature, and the parties are

bound by its terms.” State v. Russell, 153 N.C. App. 508, 509, 570 S.E.2d 245, 247

(2002) (citation omitted). Plea agreements differ from ordinary contracts, however,

because a defendant waives various constitutional rights by pleading guilty to a

crime. Knight, 276 N.C. App. at 390, 857 S.E.2d at 732. Therefore, the plea bargain

process “must be attended by safeguards to [e]nsure the defendant receives what is

reasonably due in the circumstances.” Id. (quotation marks and citation omitted).

On this record, Defendant was charged with felony possession of

methamphetamine and misdemeanor possession of drug paraphernalia. She

“bargained” for a conviction to a lesser degree of possession of methamphetamine,

dismissal of the possession of drug paraphernalia charge, and a sentence in

accordance with that agreement. Defendant thus received “what [was] reasonably

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due in the circumstances.” Id.

N.C. Gen. Stat. § 1340.14(c) was enacted in 1993, six years before Defendant

pled guilty to possession of methamphetamine. See 1993 N.C. Sess. Laws 538. With

the passage of 1999 N.C. Sess. Laws 370, Defendant was on notice that, should she

be convicted of an offense in the future, her conviction for possession of

methamphetamine would be assigned two points for the purpose of determining her

prior record level. The language of N.C. Gen. Stat. § 15A-1340.14(c) is clear and

unambiguous: Defendant’s prior offense must be classified as it would be classified at

the time she committed the offense for which she is currently being sentenced.

Additionally, as the trial court noted below, Defendant is not now a convicted felon.

“But for purposes of calculating her prior record level, she is a prior record level two

because two points would be assigned to that offense. Since [possession of

methamphetamine] is now a felony.”

Accordingly, because the trial court properly applied N.C. Gen. Stat. §

15A-1340.14(c) and did not otherwise breach Defendant’s 1999 plea agreement, the

trial court did not err in calculating Defendant’s prior record level.

III. Conclusion

Because the State presented substantial evidence of each element of the charge

of larceny by an employee, the trial court did not err by denying Defendant’s motion

to dismiss. Because the trial court did not breach Defendant’s prior plea agreement,

the trial court did not err in calculating Defendant’s prior record level.

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NO ERROR.

Judges MURPHY and FLOOD concur.

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