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State v. Frazier2/6/2001
Appeal by defendant from judgment entered on 22 September 1999 by Judge Howard R. Greeson, Jr. in Montgomery County Superior Court. Heard in the Court of Appeals 11 January 2001.
Clifton Frazier, defendant, was indicted for larceny by employee and found guilty in a jury trial. On appeal, defendant argues inter alia, that an inmate performing a mandatory work assignment cannot be convicted of larceny by employee because such an inmate is not an "employee" within the meaning of N.C. Gen. Stat. § 14-74. We agree and, for the reasons discussed herein, reverse defendant's conviction.
The State's evidence tended to show defendant was assigned to work in the prison canteen at Southern Correctional Center in Troy, North Carolina on 30 July 1998. He received $1.00 per day from the State for his work. On 2 November 1998, the canteen supervisor, Donna McRae, while taking inventory, discovered merchandise was missing and reported it to her supervisor, Ralph Coble. Coble and another administrative officer, Jerry Lassiter, investigated and determined the amount of shortage in both money and goods to be $655.75. During an interrogation by Detective Chris Poole, defendant confessed to taking money from the canteen.
Defendant's evidence tended to show he worked at the canteen for over three months without any problems. However, at least one week before the inventory was taken, he realized merchandise was missing and proceeded to fill the merchandise boxes with clothing, paper bags and other materials. Upon discovery of the shortage by prison officials, defendant volunteered to make restitution with his own money when he believed it would amount to $140. Defendant maintained his innocence throughout his testimony and said the shortage was due to his "sloppiness."
The jury returned a verdict of guilty of larceny by an employee. Defendant then pled guilty to being an habitual felon. He was sentenced to 80-105 months to be served at the completion of the sentence he is currently serving. From this conviction, defendant appeals.
By defendant's first assignment of error, he argues the trial court erred in denying defendant's motions to dismiss because there was insufficient evidence to prove every element of larceny by employee.
We agree, and note that this is a case of first impression in North Carolina.
In considering a motion to dismiss, "the question presented is whether the evidence is legally sufficient to support a verdict of guilty on the offense charged, thereby warranting submission of the charge to the jury." State v. Walston, __ N.C. App. __, 536 S.E.2d 630, 633 (2000)(citing State v. Thomas, 65 N.C.App. 539, 541, 309 S.E.2d 564, 566 (1983)). Larceny by employee is statutorily defined: If any servant or other employee, to whom any money, goods or other chattels, . . . by his master shall be delivered safely to be kept to the use of his master, shall withdraw himself from his master and go away with such money, goods or other chattels, . . . with intent to steal the same and defraud his master thereof, contrary to the trust and confidence in him reposed by his said master; or if any servant, being in the service of his master, without the assent of his master, shall embezzle such money, goods or other chattels, . . . or otherwise convert the same to his own use, with like purpose to steal them, or to defraud his master thereof, the servant so offending shall be guilty of a felony . . . . N.C. Gen. Stat. § 14-74 (1999).
More concisely, the elements of larceny by employee are: (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) t
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