State v. Warren

738 S.E.2d 225, 225 N.C. App. 791, 2013 WL 791775, 2013 N.C. App. LEXIS 225
CourtCourt of Appeals of North Carolina
DecidedMarch 5, 2013
DocketNo. COA12-811
StatusPublished

This text of 738 S.E.2d 225 (State v. Warren) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Warren, 738 S.E.2d 225, 225 N.C. App. 791, 2013 WL 791775, 2013 N.C. App. LEXIS 225 (N.C. Ct. App. 2013).

Opinion

BRYANT, Judge.

Where the testimony was based on the personal knowledge of the witness, the trial court did not err in overruling defendant’s challenge pursuant to Rule 602. Where the statement of ownership in the indictment was not defective and there was not a material variance between the business name used in the indictment and the evidence elicited at trial, the trial court did not err in denying defendant’s motion to dismiss. And, the trial court did not err by denying defendant’s motion to dismiss for insufficiency of the evidence.

Defendant Tracy Lee Warren worked for the Comfort Inn West in Buncombe County. At some point after 2000, defendant was promoted to general manager for the hotel. Her duties then included handling customer service, filling in when employees failed to show up [793]*793for work, writing bills, inspecting rooms, helping out in laundry or housekeeping, and making deposits.

On 12 July 2010, defendant was charged with embezzlement in thirteen indictments, one for each month from June 2008 through June 2009. In total, the indictments charged defendant with embezzling $80,405.96 over a period of thirteen months. A jury trial commenced during the 28 November 2011 Criminal Session of Buncombe County Superior Court, the Honorable James U. Downs presiding. Defendant was found guilty on all thirteen counts. Judgment was entered in accordance with the jury verdicts and defendant was sentenced to a term of six to eight months for each offense, each term to be served consecutively. The trial court then suspended each sentence and imposed supervised probation for a period of sixty months. Defendant appeals.

On appeal, defendant raises the following issues: Whether the trial court committed reversible error (I) by allowing a witness to testify that defendant put the deposits together; (II) in failing to dismiss the charges due to a variance between the indictment and the evidence adduced at trial; and (III) in denying defendant’s motion to dismiss for insufficient evidence.

I

Defendant argues that the trial court erred in allowing Mahesh Patel, a witness for the prosecution, to testify over objection that defendant was responsible for removing deposits from the safe, confirming a match of the figures, preparing deposit slips and taking the money to the bank. Specifically, defendant argues that Patel was testifying to tasks within defendant’s job description but that he had no first-hand knowledge of what tasks she performed. We disagree.

Per our Rules of Evidence, Rule 602, “[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself.” N.C. Gen. Stat. § 8C-1, Rule 602 (2011).

Patel was the owner of the Comfort Inn West. He promoted defendant to general manager and assigned to her the duties she performed at the time of the events in question. Patel testified on direct examination that in June 2008 there was a discrepancy between the cash report — the record of the amount of money received by the hotel, and [794]*794the deposit reconciliation — the report detailing the amounts that were deposited in the hotel’s bank account. The discrepancy-amounted to $8,740.48. Defendant contends that the trial court erred in overruling his objection to the following testimony:

Q. And again, the cash report — the deposit summaries in QuickBooks, those were all generated by the defendant?
A. Yes'.
Q. And the deposits themselves, they were all put together by the defendant?
A. Yes.
MR. OWEN: Objection, unless he has firsthand knowledge.

We note that earlier in his testimony, Patel described defendant’s duties as general manager for Comfort Inn West: Defendant was responsible for “handling customer service. When somebody don’t show up, she fills in; writing bills, doing the deposits, inspecting rooms, helping out in laundry or housekeeping. Whatever it took, she was in charge.” With regard to handling deposits for the business, Patel testified that defendant “would take the money to the bank, the cash and the checks” and that she “did the payroll.”

A. Usually after midnight, a night audit is run. And the report is usually — we put it in the back [office], where one is for cash reconciliation and one is a hotel detail summary, which gives you the credit cards and the whole thing. And we enter — take those two reports and put it into QuickBooks in the back office, manually putting the figures in.
Q. Okay. Well, and when she was — when the defendant was your manager from 2006 through July of 2009, who all had a key to access the back office?
A. The back office, Tracy had a key, I had a key ....
Q. And was there a safe involved in your recordkeeping as well?
A. Not for recordkeeping, but—
[795]*795Q. Well, for the deposits.
A. Deposits, there was a safe in the front where you drop the deposit and it’s a combination. You have to get to it.
Q. And who had the combination to the safe during the period that [defendant] was your manager, ‘06 to ‘09?
A. [Defendant] and me.
Q. [Defendant] and you?
A. Only the two of us.

Patel testified to his knowledge of the duties of defendant in the position of general manager of the Comfort Inn West, and given that knowledge, his testimony that defendant generated the deposit summaries and put together the bank deposits was properly within the scope of his personal knowledge as contemplated by Rule 602. See State v. Corbett, 339 N.C. 313, 330, 451 S.E.2d 252, 261 (1994). Accordingly, defendant’s argument is overruled.

II

Defendant next argues that the trial court committed reversible error in failing to dismiss the charges due to a fatal variance between the allegation of ownership in the indictments and the evidence presented at trial. Specifically, defendant contends that the allegation in the indictments that Smokey Park Hospitality, Inc., d/b/a Comfort Inn had an interest in the property embezzled varied significantly from the evidence presented at trial. We disagree.

“A variance occurs where the allegations in an indictment, although they may be sufficiently specific on their face, do not conform to the evidence actually established at trial.” State v. Norman, 149 N.C. App. 588, 594, 562 S.E.2d 453, 457 (2002) (citation omitted). “In order for a variance between the indictment and the evidence presented at trial to warrant reversal of a conviction, that variance must be material. A variance is not material, and is therefore not fatal, if it does not involve an essential element of the crime charged.” State v. Lilly, 195 N.C. App. 697, 700, 673 S.E.2d 718, 720-21 (2009) (citation omitted).

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Related

State v. Pickens
488 S.E.2d 162 (Supreme Court of North Carolina, 1997)
State v. Kornegay
326 S.E.2d 881 (Supreme Court of North Carolina, 1985)
State v. Lilly
673 S.E.2d 718 (Court of Appeals of North Carolina, 2009)
State v. Norman
562 S.E.2d 453 (Court of Appeals of North Carolina, 2002)
State v. Penley
178 S.E.2d 490 (Supreme Court of North Carolina, 1971)
State v. Corbett
451 S.E.2d 252 (Supreme Court of North Carolina, 1994)
State v. Ellis
236 S.E.2d 299 (Court of Appeals of North Carolina, 1977)
State v. Farrar
651 S.E.2d 865 (Supreme Court of North Carolina, 2007)
State v. Farmer
630 S.E.2d 244 (Court of Appeals of North Carolina, 2006)
State v. Linney
531 S.E.2d 245 (Court of Appeals of North Carolina, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
738 S.E.2d 225, 225 N.C. App. 791, 2013 WL 791775, 2013 N.C. App. LEXIS 225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-warren-ncctapp-2013.