              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA16-934

                               Filed: 21 March 2017

Mecklenburg County, No. 14 CRS 221625

STATE OF NORTH CAROLINA

             v.

DEVIN WAY FINK


      Appeal by defendant from judgment entered 30 March 2016 by Judge Hugh B.

Lewis in Mecklenburg County Superior Court. Heard in the Court of Appeals 22

February 2017.


      Attorney General Joshua H. Stein, by Assistant Attorney General Jeremy D.
      Lindsley, for the State.

      Cheshire Parker Schneider & Bryan, PLLC, by John Keating Wiles, for
      defendant-appellant.


      TYSON, Judge.


      Devin Way Fink (“Defendant”) appeals from judgment entered, following his

conviction of larceny by employee. We find no error.

                              I. Factual Background

      The State’s evidence tended to show Defendant was employed as the store

manager of an auto repair shop located on 4909 South Boulevard in Charlotte on 3

June 2014.    This shop is part of a chain of repair shops owned by Precision

Franchising, Incorporated, d/b/a Precision Tune Auto Care (“Precision”). Defendant
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managed all aspects of the shop, including discussing repairs with and pricing

estimates for customers, writing service orders and invoices, ordering parts, and

taking payments from customers.

        On 3 June 2014, Randall Stywall (“Stywall”) took her car to the South

Boulevard Precision shop, where Defendant was working as the sole manager on

duty.    Stywall explained to Defendant that, among other things, she needed

replacement of both front struts and rear shocks. Defendant filled out a service order,

which detailed the precise estimate for the work would be $1,501.93. Defendant

provided Stywall with a copy.

        Because Stywall’s mother, Pamela Nixon (“Nixon”), was paying for the repairs,

Stywall contacted Nixon to confirm the estimated price. After Nixon agreed to the

$1,501.93 estimate, Stywall left her car and a shop employee took her to work. Later

that day, Defendant notified Nixon the repairs to her daughter’s car were complete

and her car was ready to be picked up. After Nixon finished work for the day, she

went to the shop and paid $1,501.93, in cash, to Defendant, who provided her a

receipt. Thereafter, Defendant closed the shop for the day and left.

        After paying for the repairs and receiving the keys to the car, Nixon went to

pick up Stywall and brought her back to the shop to get her car. As soon as Stywall

got into her car and started to drive it, she noticed the car was still making the earlier

noise and was bouncing up and down as if the shocks were not replaced. Less than a



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minute after leaving Precision’s parking lot, Stywall called Nixon and told her “the

car’s not fixed.” Because Precision was already closed for the day, Nixon told her

daughter to slowly drive the car home.

      That evening, Nixon called Defendant’s cell phone number, which he had given

to her earlier in the day, notified him the car was not fixed, and demanded the parts

be removed and her money back. Defendant responded by stating he would not fulfill

her requests, but he would try to get the car fixed the following day. Defendant

requested Nixon not to call the shop.

      Not satisfied with Defendant’s responses, Nixon called Precision’s corporate

office and complained. The next day, 4 June 2014, Precision District Operations

Manager, Tony Lee Harp (“Harp”), contacted Nixon and discovered a discrepancy of

approximately $425.00 between the amount stated on Nixon’s service order and

receipt. Harp then told her he was going to “make it right.”

      Upon noticing this discrepancy, Harp called Defendant and questioned him.

Defendant admitted he had the missing money. Harp requested Defendant to return

to the shop immediately. Harp testified, that after the phone conversation with

Defendant, he checked the records and saw the service order for $1,501.93 and the

invoice for $1,076.56 for Stywall’s car. The computer did not disclose how much the

customer had tendered. Based off this invoice, Harp concluded the price discrepancy




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was the result of the deletion of the installation of the new rear shocks from the

original service order.

      During his phone conversation with Harp, Defendant claimed he could not find

the parts needed to complete the work, as the reason he still possessed the $425 in

cash. Further, Defendant asserted Stywall was aware of this fact, and the two of

them had agreed to Precision finishing the work once the necessary parts were

obtained. Harp, however, testified he checked for the allegedly missing parts the next

day, 4 June 2014, and found them “readily available.”        According to Harp, the

company’s policy for handling such a situation, where a customer paid an entire bill,

prior to all the work being completed, was to create a deposit for the amount paid for

uncompleted work.

      After speaking with Harp, Defendant returned to the shop and provided

Precision with the missing $425.00. Precision completed the unfinished work to

Stywall’s car and provided Nixon with an additional future store credit for her

troubles. Defendant was arrested at the shop.

      On 15 September 2014, Defendant was indicted with one count of larceny by

employee.    The indictment alleged Defendant went away with, embezzled, and

converted to his own use United States currency, which had been delivered to be kept

for his employer, Precision Auto Care, Inc. (PACI). The case proceeded to trial on 28

March 2016.



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      At trial, Defendant objected to testimony by Charlotte Mecklenburg Police

Officer Jarrett Phillips (“Phillips”), concerning a past encounter with Defendant.

Phillips testified he had investigated Defendant for embezzlement in 2010.

Defendant had worked as the manager of a restaurant and admitted stealing from

the restaurant by voiding out cash transactions and keeping the cash for himself.

Defendant signed a three-page statement written by Officer Phillips, wherein

Defendant admitted he had been taking money from the restaurant. Defendant was

later arrested for embezzlement.

      At the close of the State’s evidence, Defendant moved to dismiss the charge on

three separate grounds: (1) insufficient evidence to convict in violation of the Due

Process Clause, U.S. Const. amends. V and XIV; (2) a fatal variance between the

crime alleged in the indictment and any crime for which the State’s evidence may

have been sufficient to go to the jury regarding the identity of the victim, namely a

larceny against Nixon, not an “embezzlement” against “Precision Auto Care,

Incorporated”; and (3) a fatal variance between the business as named in the

indictment and as identified in testimony during trial. The motion was denied.

      During its deliberations, the jury posed the following question: (1) “If company

name on charge is different than actual name, do we, the jury, need to consider? e.g.,

Precision Tune vs. Precision Auto vs. DBA.” In response, the trial court re-read its




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jury instruction regarding the offense of larceny by employee. On 30 March 2016, the

jury returned a verdict of guilty of one count of larceny by employee.

      Defendant gave notice of appeal in open court.

                                   II. Jurisdiction

      Jurisdiction of right lies in this Court by timely appeal from final judgment

entered by the superior court, following a jury’s verdict pursuant to N.C. Gen. Stat. §

7A-27(b)(1) (2015).

                                      III. Issues

      Defendant asserts the trial court erred by (1) denying his motion to dismiss the

charge of larceny by employee for insufficiency of the evidence; (2) denying his motion

to dismiss the charge of larceny by employee for a fatal variance of the evidence from

the indictment; and (3) allowing the State to present improper evidence under Rule

404(b), where the prejudicial effect outweighed the probative value under Rule 403.

                               IV. Motions to Dismiss

      Defendant argues the trial court erred by denying his motions to dismiss at the

close of the State’s evidence and again at the close of all the evidence where: (1) the

State failed to present sufficient evidence to show Precision was the true owner of or

entitled to the money Defendant took, and (2) there was a fatal variance between the

entity named in the indictment and the proof at trial.

                               A. Standard of Review



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This Court has stated:

                    The standard for ruling on a motion to dismiss is
             whether there is substantial evidence (1) of each essential
             element of the offense charged and (2) that defendant is the
             perpetrator of the offense. Substantial evidence is relevant
             evidence which a reasonable mind might accept as
             adequate to support a conclusion. In ruling on a motion to
             dismiss, the trial court must consider all of the evidence in
             the light most favorable to the State, and the State is
             entitled to all reasonable inferences which may be drawn
             from the evidence. Any contradictions or discrepancies
             arising from the evidence are properly left for the jury to
             resolve and do not warrant dismissal.

State v. Wood, 174 N.C. App. 790, 795, 622 S.E.2d 120, 123 (2005) (internal citations

and quotations omitted).

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

v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted). “[A]

variance between the indictment and the proof at trial does not require reversal

unless the defendant is prejudiced as a result.” State v. Weaver, 123 N.C. App. 276,

291, 473 S.E.2d 362, 371 (citation omitted), cert. denied and disc. review denied, 344

N.C. 636, 477 S.E.2d 53 (1996).

                           B. Insufficiency of the Evidence

      N.C. Gen. Stat. § 14-74 provides:

             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


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             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 defraud his master
             thereof, the servant so offending shall be guilty of a felony:
             Provided, that nothing contained in this section shall
             extend to . . . servants within the age of 16 years.

N.C. Gen. Stat. § 14-74 (2015).

      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) 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) (citation omitted).

      In this case, the indictment alleged that Defendant had

             unlawfully, willfully and feloniously being the employee of
             Precision Auto Care, Inc. (PACI), a corporation, go away
             with, embezzle, and convert to his own use United States
             currency, which had been delivered to be kept for his
             employer’s use, with the intent to steal and to defraud his
             employer. This act was done without his employer’s
             consent and contrary to the trust and confidence reposed in
             him by his employer.

      Defendant contends he could not have committed larceny by employee under

N.C. Gen. Stat. § 14-74 because the cash given to Defendant remained the customer’s

property, and never became Precision’s property. Defendant bases this contention on

the following exchange between defense counsel and Harp:


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            Q. After the repair is complete, the customer — and — and
            the work orders, the customer has given you the money, is
            that when you would say the money becomes Precision
            Tune’s?

            A. Whenever the customer pays the bill. I mean, that’s —
            I mean, that would be —

            Q. I mean, if the — if the customer pays the bill but the
            work isn’t done is it still your money?

            A. If the customer pays the bill they would have to create
            a deposit. And if the work wasn’t done, no, it would not be
            Precision Tune’s money until —

            Q. Until the work was done?

            A. — until the customer decided that they were satisfied
            with the repair. But if they create a deposit, like I said
            before, it is discretionary on the manager’s position
            whether or not the money’s returned to the customer,
            depending on — if they’re special order parts, it can’t be
            returned, then I guess the deposit would be non-
            refundable.

      Defendant argues this exchange establishes the $425.00 remained Nixon’s

property, not Precision’s, because the work had not been performed at the time she

had made the payment. As a result, Defendant asserts the State failed to present

sufficient evidence that “[D]efendant was an employee of the owner of the stolen

goods.” See id. (emphasis supplied). Defendant’s contention is without merit.

      Evidence tended to show the cash was the property of Precision for purposes of

larceny by employee under N.C. Gen. Stat. § 14-74.        Harp testified Defendant

returned the money to Precision, not Nixon. Nixon never received the $425.00 after


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delivering it to Defendant, who was the manager of the Precision shop.               After

Defendant returned the cash to Precision, the shop fixed Nixon’s car and never offered

her a refund. Instead, she was offered a voucher for future services worth $250.00 at

Precision. Defendant does not show or argue he received the money from Nixon for

any other reason or in any capacity other than as a manager of the Precision shop.

       Precision is bound under agency principles by Nixon’s payment to Defendant,

as its manager of Precision’s shop. See Haynes Petroleum Corp. v. Turlington, 261

N.C. 475, 478, 135 S.E.2d 43, 45-46 (1964) (citation omitted) (“No duty rests upon a

debtor, who makes a payment to an agent designated to receive it, to see that the

money reaches the principal, if the debtor is without notice of an improper purpose

or intention on the part of the collecting agent.”); see also Lucas v. Li’l General Stores,

289 N.C. 212, 220, 221 S.E.2d 257, 262 (1976) (citation omitted) (“[A] principal, who

has clothed his agent with apparent authority to contract in behalf of the principal,

is bound by a contract made by such agent, within the scope of such apparent

authority, with a third person who dealt with the agent in good faith, in the exercise

of reasonable prudence and without notice of limitations placed by the principal upon

the agent’s authority.”).

       As shop manager, Defendant’s responsibilities included providing estimates

and taking customer’s payments. Defendant solely acted as Precision’s agent when

he provided the proposal and accepted the cash as full payment from Nixon for the



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agreed upon work. As soon as Nixon tendered payment to Defendant as Precision’s

manager and agent, the funds became Precision’s “property” for purposes of larceny

by employee under N.C. Gen. Stat. § 14-74.

      The State presented substantial evidence to allow a jury to determine whether

the $425.00 belonged to Defendant’s employer, Precision, or to Nixon. See State v.

Mabry, 269 N.C. 293, 296, 152 S.E.2d 112, 114-15 (1967) (citation omitted) (holding

“[a]ny contradictions and discrepancies in the State’s case are for the jury to resolve”).

Viewed in the light most favorable to the State, and giving the State the benefit of

every reasonable inference upon Defendant’s motion to dismiss, sufficient evidence

was presented to allow the jury to convict Defendant of the larceny by employee

charge. The trial court properly denied Defendant’s motion to dismiss for insufficient

evidence. Defendant’s argument is overruled.

              C. Variance between Indictment and Proof at Trial

      Defendant argues the trial court erred by denying his motion to dismiss the

larceny by employee charge.        He asserts a fatal variance exists between the

indictment and the proof at trial. We disagree.

      “It is well established that ‘[a] defendant must be convicted, if at all, of the

particular offense charged in the indictment’ and that ‘[t]he State’s proof must

conform to the specific allegations contained’ therein.” State v. Henry, 237 N.C. App.

311, 322, 765 S.E.2d 94, 102 (2014), disc. review denied, 368 N.C. 277, 775 S.E.2d 852



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(2015) (quoting State v. Pulliam, 78 N.C. App. 129, 132, 336 S.E.2d 649, 651 (1985)).

However, “a variance between the indictment and the proof at trial does not require

reversal unless the defendant is prejudiced as a result.” Weaver, 123 N.C. App. at 291,

473 S.E.2d at 371 (citation omitted).

      Defendant argues prejudice is shown, because the evidence presented by the

State did not establish his employer was “Precision Auto Care, Inc. (PACI), a

corporation,” as alleged in the indictment. Evidence tended to show the actual name

of the corporation is “Precision Franchising, Inc.” which does business as “Precision

Tune Auto Care.” Defendant relies heavily on the holding in State v. Miller as

authority to support their fatal variance argument. 271 N.C. 646, 157 S.E.2d 335

(1967).

      In Miller, the Defendant was charged with one count of feloniously breaking

and entering a building “occupied by one Friedman’s Jewelry, a corporation” and one

count of felonious larceny from the same corporation named in count one. Id. at 653-

54, 157 S.E.2d at 342. At trial, the evidence showed that “the felonious breaking and

entering was in a building occupied by ‘Friedman’s Lakewood, Incorporated’; that

there [were] three Friedman’s stores in Charlotte and that each is a separate

corporation, but that all the merchandise that was stolen from the store that was

broken into and entered was owned by ‘Friedman’s Jewelry, Incorporated,’ with its

home office located in Augusta, Georgia.” Id.



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      Our Supreme Court held the variance in the breaking and entering charge of

the indictment was fatal because the building was owned by an entirely separate

corporation, “Friedman’s Lakewood, Incorporated,” than the corporation named in

the indictment, “Friedman’s Jewelry, a corporation.” Id. However, our Supreme

Court held the variance between the indictment, which alleged that stolen rings were

the property of “Friedman’s Jewelry, a corporation,” and the evidence, which showed

the rings were the property of “Friedman’s Jewelry, Incorporated,” was not fatal as

to the charge of felonious larceny. Id.

      Miller is readily distinguishable from the facts at bar. Where the variance in

Miller involved two entirely separate corporate entities, the present case only

involves one corporation. See id. Further, Miller’s holding as to the second charge of

felonious larceny supports the State’s assertion that this variance is immaterial. Id.

(holding the variance between the indictment, which alleged that stolen rings were

the property of “Friedman’s Jewelry, a corporation,” and the evidence, which showed

the rings were the property of “Friedman’s Jewelry, Incorporated,” was not fatal as

to the charge of felonious larceny).

      Our courts have repeatedly held that minor variations between the name of

the corporate entity alleged in the indictment and the evidence presented at trial are

immaterial, so long as “[t]he defendant was adequately informed of the corporation

which was the accuser and victim. A variance will not be deemed fatal where there



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is no controversy as to who in fact was the true owner of the property.” State v. Ellis,

33 N.C. App. 667, 669, 236 S.E.2d 299, 301 (1977) (citation omitted); see also State v.

Wilson, 264 N.C. 595, 597-98, 142 S.E.2d 180, 181-82 (1965) (finding no error when

the indictment referred to the property owner as “B.M. Hancock & Son, a corporation”

and evidence at trial referred to the corporation as “B.M. Hancock & Son’s Feed Mill,

Inc.,” “B.M. Hancock & Son, Inc.,” “B.M. Hancock & Son’s,” and “B.M. Hancock’s Feed

Mill”); State v. Wyatt, 254 N.C. 220, 221-22, 118 S.E.2d 420, 420-21 (1961) (finding no

fatal variance where the indictment for embezzlement alleged ownership by the

“Pestroy Exterminating Company,” the bill of particulars alleged ownership in

“Pestroy Exterminators, Inc.,” and the evidence at trial referred to both of these

names as well as “Pestroy Exterminating Corporation”); State v. Davis, 253 N.C. 224,

226, 116 S.E.2d 381, 383 (1960) (“The fact that the property was stolen from T.A.

Turner & Co., Inc. rather than from T.A. Turner Co., a corporation, as charged in the

bill of indictment, is not a fatal variance.”); State v. Morris, 156 N.C. App. 335, 339,

576 S.E.2d 391, 394 (2003) (finding no fatal variance where the indictment referred

to the employer as “AAA Gas and Appliance Company, Inc.” and the evidence at trial

referred to the corporation as “AAA Gas and Appliance Company,” “AAA Gas,” or

“AAA”).

      Harp testified at trial he was the district operations manager for “Precision

Tune Auto Care, North Carolina.” When questioned by defense counsel, Harp noted



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the official name of the corporation was “Precision Franchising, Incorporated,” doing

business as “Precision Tune Auto Care.” Harp and other witnesses subsequently

referred to the company at various times as “Precision,” “Precision Auto Care,”

“Precision Tune Auto Care,” and “Precision Tune” throughout their testimony. The

trial transcript demonstrates these names were simply shorthand methods for

identifying the company during testimony.

      The evidence presented sufficiently identified Defendant as the employee of

Precision Auto Care, as alleged in the indictment. On cross-examination of Harp, the

following exchange occurred:

             [Defense Counsel]: Okay. So, to be clear, you work for
             Precision Franchising, Incorporated?

             [Harp]: That is correct.

             [Defense Counsel]:         And not Precision Auto Care,
             Incorporated?

             [Harp]: One of the same.

             [Defense Counsel]: But there is only one, right? Which one
             — which one do you work for?

             [Harp]: They are one of the same. We do business as
             Precision Auto Care in a court of law.

      Additionally, Defendant has failed to demonstrate that he was prejudiced by

use of the shorthand references to his employer during trial. The variation in names

did not hamper Defendant’s ability to defend against the charges or expose Defendant



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to potential future prosecution for the same crime. The trial court properly denied

Defendant’s motion to dismiss this charge. Defendant’s contention is without merit.

This assignment of error is overruled.

            V. Admission of Officer Phillips’ Testimony under Rule 404(b)

      Defendant argues the trial court erred by allowing the jury to hear Officer

Phillips’ testimony regarding Defendant’s prior embezzlement charge because: (1) the

dissimilarity and remoteness between the two crimes makes its admission improper

under Rule 404(b); (2) the testimony was not relevant to show the purposes to which

the court limited its use: to show intent, plan, and absence of mistake or accident;

and (3) the testimony was unduly prejudicial and inadmissible under Rule 403. We

disagree.

                               A. Standard of Review

      Our Supreme Court held:

             [W]hen analyzing rulings applying Rules 404(b) and 403,
             we conduct distinct inquiries with different standards of
             review. When the trial court has made findings of fact and
             conclusions of law to support its 404(b) ruling . . . we look
             to whether the evidence supports the findings and whether
             the findings support the conclusions. We review de novo
             the legal conclusion that the evidence is, or is not, within
             the coverage of Rule 404(b). We then review the trial
             court’s Rule 403 determination for abuse of discretion.

State v. Beckelheimer, 366 N.C. 127, 130, 726 S.E.2d 156, 159 (2012).




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      “A trial court may be reversed for an abuse of discretion only upon a showing

that its ruling was so arbitrary that it could not have been the result of a reasoned

decision.” State v. Hayes, 314 N.C. 460, 471, 334 S.E.2d 741, 747 (1985) (citation

omitted).

                                       B. Analysis

                                    1. 404(b) Evidence

      “Evidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show that he acted in conformity therewith.” N.C.

Gen. Stat. § 8C-1, Rule 404(b) (2013). However, evidence of a defendant’s prior

crimes, statements, actions, and conduct is admissible, if relevant to any fact or issue

other than the defendant’s character. See Beckelheimer, 366 N.C. at 130-31, 726

S.E.2d at 159 (citation omitted).

      North Carolina Rule of Evidence 404(b) is a rule of inclusion, not exclusion. Id.

at 131, 726 S.E.2d at 159 (citing State v. Coffey, 326 N.C. 268, 278, 389 S.E.2d 48, 54

(1990)).

             The rule lists numerous purposes for which evidence of
             prior acts may be admitted, including motive, opportunity,
             intent, preparation, plan, knowledge, identity, or absence
             of mistake, entrapment or accident. This list is not
             exclusive, and such evidence is admissible as long as it is
             relevant to any fact or issue [at trial] . . . .

Beckelheimer, 366 N.C. at 130, 726 S.E.2d at 159 (internal citations and quotation

marks omitted).


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      Our Supreme Court has ruled Rule 404(b) is “subject to but one exception

requiring the exclusion of evidence if its only probative value is to show that the

defendant has the propensity or disposition to commit an offense of the nature of the

crime charged. State v. Lyons, 340 N.C. 646, 668, 459 S.E.2d 770, 782 (1995)

(emphasis in original) (citation omitted).

      Rule 404(b) “evidence is relevant and admissible so long as the incidents are

sufficiently similar and not too remote [in time].” State v. Blackwell, 133 N.C. App.

31, 35, 514 S.E.2d 116, 119 (1999) (citing State v. Bagley, 321 N.C. 201, 207, 362

S.E.2d 244, 247-48 (1987)); see also State v. Smith, 152 N.C. App. 514, 527, 568 S.E.2d

289, 297 (“The use of evidence permitted under Rule 404(b) is guided by two

constraints: similarity and temporal proximity.”) (citation omitted), disc. review

denied, 356 N.C. 623, 575 S.E.2d 757 (2002).

      Officer Phillips’ testimony, along with a written statement signed by

Defendant, contained admissions that Defendant had embezzled cash receipts from

his previous employer.     Specifically, Officer Phillips stated he had interviewed

Defendant in response to a fraud call at Encore Bistro Bar (“Encore”) on 6 October

2010. Defendant had worked as Encore’s manager and admitted stealing money from

Encore by “voiding out” customer transactions and keeping the cash for himself.

      In a motion in limine, the State argued Officer Phillips’ testimony regarding

Defendant’s prior conviction for embezzlement was admissible because it showed



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Defendant’s prior knowledge, plan, or scheme and intent to permanently deprive

Precision of its property. The trial court granted the State’s motion in limine and

allowed Officer Phillips to testify regarding Defendant’s prior embezzlement charge.

      The State argued the specific facts and circumstances of Defendant’s prior

embezzlement charge described by Officer Phillips’ testimony were relevant to show

the Defendant’s intent to permanently deprive Precision of its property, an essential

element of larceny by employee. See Frazier, 142 N.C. App at 209, 541 S.E.2d at 801

(describing one of the elements of larceny by employee: “the defendant had the intent

to steal the goods or to defraud his employer”).

      Evidence tending to show Defendant embezzled from a previous employer four

years prior to the incident at bar was clearly relevant to show his “intent,” “plan,” or

“absence of mistake or accident.” In both cases, Defendant: (1) worked for the victim

business; (2) held a managerial position; (3) took cash paid to and intended for the

victim business; (4) kept the cash for himself; and (5) manipulated the accounting

procedures in an effort to cover his tracks. Officer Phillips’ testimony was relevant

under Rule 401, and served a proper purpose under Rule 404(b).

      In State v. Riddick, our Supreme Court stated: “Remoteness in time is less

important when the other crime is admitted because its modus operandi is so

strikingly similar to the modus operandi of the crime being tried as to permit a

reasonable inference that the same person committed both crimes.” 316 N.C. 127,



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134, 340 S.E.2d 422, 427 (1986); see also State v. Gray, 210 N.C. App. 493, 507, 709

S.E.2d 477, 488 (2011) (“[T]he more striking the similarities between the facts of the

crime charged and the facts of the prior bad act, the longer evidence of the prior bad

act remains relevant and potentially admissible for certain purposes.”).            The

similarity of the two crimes and the methods Defendant used to conceal and steal

cash receipts from his employers supports the trial judge’s ruling. See Id.

      This evidence was properly admitted under the North Carolina Rules of

Evidence, Rule 404(b). See Coffey, 326 N.C. at 278–79, 389 S.E.2d at 54 (holding Rule

404(b) is a rule of inclusion). The trial court also gave the jury a limiting instruction

regarding the purposes for which the jury could consider the evidence. The jury is

presumed to have followed these instructions. State v. Montgomery, 291 N.C. 235,

244, 229 S.E.2d 904, 909 (1976) (citation omitted) (“We assume, as our system for

administration of justice requires, that the jurors in this case were possessed of

sufficient character and intelligence to understand and comply with th[e limiting]

instruction by the court.”).

      The testimony of Officer Phillips and Defendant’s signed statement was not

admitted to show Defendant had a propensity to commit crimes. This evidence was

admitted for the limited purposes to show Defendant’s prior knowledge, plan, or

scheme and intent to permanently deprive Precision of its property. The trial court




                                          - 20 -
                                       STATE V. FINK

                                     Opinion of the Court



did not err in concluding that Rule 404(b) permitted admission of these statements

into evidence.

                               2. Rule 403 – Unfair Prejudice

       The trial court’s admission of Officer Phillips’ testimony did not violate Rule

403.   “Evidence which is probative of the State’s case necessarily will have a

prejudicial effect upon the defendant; the question is one of degree.” Coffey, 326 N.C.

at 281, 389 S.E.2d at 56 (citation omitted). The trial court determined the probative

value of this evidence was not substantially outweighed by any prejudicial effect the

admission of this evidence would have on Defendant based on the State’s purposes of

showing intent, plan, absence of mistake or accident.

       The trial court also gave a specific limiting instruction to the jury, both at the

time of Officer Phillips’ testimony and during the instruction to the jury.         This

limiting instruction stated:

             Evidence has been received tending to show that there was
             prior embezzlement from Encore Bistro & Bar. This
             evidence was received solely for the purpose of showing that
             the Defendant had the intent which is necessary — which is
             a necessary element of the crime charged in this case, that
             there existed in the mind of the Defendant a plan involving
             the crime charged in this case, the absence of mistake, the
             absence of accident. If you believe this evidence you many
             consider it but only for the limited purpose for which it is
             received. You may not consider it for any other purpose.

(emphasis supplied).




                                            - 21 -
                                    STATE V. FINK

                                   Opinion of the Court



       The trial court found the admission of Officer Phillips’ testimony and the

statement signed by Defendant was for a permissible purpose under Rule 404(b). The

trial court also specifically limited its use in its instructions to the jury. Defendant

has failed to show the trial court’s process or admission of this evidence constitutes

an abuse of discretion. Defendant’s argument is overruled.

                                    V. Conclusion

       The trial court did not err by denying Defendant’s motions to dismiss the

charge of larceny by employee, which asserted insufficiency of the evidence and a

fatal variance between the evidence presented and the allegations in the indictment.

The trial court properly allowed the State to present evidence under Rule 404(b).

Defendant has failed to show an abuse of discretion in the trial court’s ruling under

Rule 403, that the prejudicial effect was not outweighed by the probative value.

Defendant received a fair trial, free from prejudicial errors he preserved and argued.

It is so ordered.

       NO ERROR.

       Judges CALABRIA and STROUD concur.




                                          - 22 -
