                                 NO. COA13-757

                     NORTH CAROLINA COURT OF APPEALS

                            Filed: 15 April 2014


STATE OF NORTH CAROLINA


    v.                                  Union County
                                        No. 11 CRS 54880
SUSAN LYNETTE PARKER,
     Defendant.


    Appeal by defendant from judgment entered 28 January 2013

by Judge Christopher W. Bragg in Union County Superior Court.

Heard in the Court of Appeals 19 February 2014.


    Attorney General Roy Cooper, by Assistant Attorney General
    Katherine A. Murphy, for the State.

    Leslie C. Rawls for defendant-appellant.


    BRYANT, Judge.


    Where    the    State   presents   substantial      evidence   of   each

element of the charge of embezzlement, defendant’s motion to

dismiss the charge is properly denied.           Where evidence of prior

bad acts admitted pursuant to Rule 404(b) is used to show, inter

alia, motive, intent and common plan or scheme, and where the

probative   value    of   such   evidence   outweighs    its   prejudicial
                                            -2-
effect,     the     trial    court    has    neither       erred   nor     abused    its

discretion by admitting the evidence.

      In 2008, defendant Susan Lynette Parker began work as a

secretary     in     the    Union    County       Public    Schools      (the    “school

system”). Defendant’s job responsibilities included purchasing

food and non-food items for school meetings, training sessions,

and programs. Purchases were typically conducted with a school

system credit card.            The school system would also reimburse

employees such as defendant for purchases made using personal

funds and for any mileage expenses incurred.

      Also beginning in 2008, defendant worked as the bookkeeper

for   the    Centerview      Baptist     Church.           As   church     bookkeeper,

defendant was responsible for paying the church’s bills, keeping

all financial records, and providing the church with quarterly

financial reports.

      In    2010,    after    noticing       irregularities        in    the    church’s

finances, the pastor of Centerview Baptist Church contacted the

Union County Sheriff’s Office.               A police investigation and audit

revealed that defendant had used the church’s checking account

to pay personal debts.          Defendant subsequently apologized to the

church and repaid the misappropriated funds.
                                            -3-
    The school system was notified of the police investigation

into defendant’s misappropriation of funds from the Centerview

Baptist    Church.         Shortly     thereafter,            defendant’s       supervisor

discovered    her    name     had    been     forged         on     reimbursement      forms

submitted by defendant to the school system.                            After a police

investigation       of     purchases       defendant         made    using     the    school

system credit card, defendant was arrested for embezzlement of

school funds.

    On 7 November 2011, a grand jury indicted defendant on one

count of embezzlement.              On 28 January 2013, a jury convicted

defendant of embezzlement.            Defendant appeals.

                             ____________________________

    On appeal, defendant argues that the trial court erred in

(I) denying her motion to dismiss and (II) admitting evidence

pursuant to Rule 404(b).

                                                  I.

    Defendant        first    argues        that       the   trial     court       erred   in

denying her motion to dismiss.               We disagree.

    A     motion    to     dismiss     is   properly         denied     where      there   is

substantial evidence of each element of the offense charged and

of defendant being the perpetrator of that offense.                                State v.

Powell,    299      N.C.     95,     98,     261       S.E.2d       114,     117     (1980).
                                               -4-
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).              Evidence should be viewed in the light

most favorable to the State, giving the State the benefit of

every reasonable inference to be drawn therefrom.                               State v.

McKinney,        288    N.C.     113,    117,        215    S.E.2d    578,    581    (1975)

(citation omitted).             Where the State offers substantial evidence

of   each   essential          element    of    the    crime       charged,   defendant's

motion to dismiss must be denied.                          State v. Porter, 303 N.C.

680, 685, 281 S.E.2d 377, 381 (1981) (citation omitted).                                 We

review a denial of a motion to dismiss                             de novo.     State v.

Bagley, 183 N.C. App. 514, 523, 644 S.E.2d 615, 621 (2007).

      Defendant contends the trial court erred in denying her

motion      to     dismiss       because        the        State     failed    to    prove

embezzlement.          Specifically,       defendant         argues    that    the   State

failed to offer substantial evidence that defendant used the

school system’s property for a wrongful purpose.

              N.C. Gen. Stat. § 14-90 defines the offense
              of embezzlement and requires the State to
              present proof of the following essential
              elements: (1) that the defendant, being more
              than 16 years of age, acted as an agent or
              fiduciary for his principal, (2) that he
              received money or valuable property of his
              principal in the course of his employment
                                            -5-
             and by virtue of his fiduciary relationship,
             and (3) that he fraudulently or knowingly
             misapplied or converted to his own use such
             money or valuable property of his principal
             which he had received in his fiduciary
             capacity.

State v. Rupe, 109 N.C. App. 601, 608, 428 S.E.2d 480, 485

(1993) (citations omitted).                 In establishing the third element

of   embezzlement,       a    fraudulent         or    knowing         misapplication     of

property,     the    State         can    show    such        intent       by    direct    or

circumstantial evidence.             State v. McLean, 209 N.C. 38, 40, 182

S.E. 700, 702 (1935) (citations omitted).                           The State does not

need to show that the agent converted his principal's property

to the agent's own use, only that the agent fraudulently or

knowingly     and    willfully           misapplied         it,   or     that    the   agent

intended to fraudulently or knowingly and willfully misapply it.

State v. Smithey, 15 N.C. App. 427, 429—30, 190 S.E.2d 369, 370—

71 (1972) (citations omitted).

       Here, the State presented evidence that defendant was an

employee of the school system who used a school system credit

card   to    make    food     purchases.              For    example,      defendant      was

instructed to purchase snack items such as pre-cut cheese, pre-

cut fruit and grapes, and crackers, and other food items such as

premade     sandwiches       and    doughnuts         to    be    served    at    teachers’

conferences    and    events;        defendant        would       then   use     the   school
                                        -6-
system credit card to purchase these items at Harris Teeter,

Krispy Kreme or McAllister’s Deli.                    Each time defendant          was

asked to make food purchases for the school system, defendant

was required to submit a request form indicating when, where,

and why the credit card was to be used. Once the purchase was

completed, defendant would submit the request form with receipts

for final approval by a school administrator.

       The State presented evidence and testimony that numerous

food purchases made by defendant were questionable because they

consisted of items that would not be purchased by or served at

school system events.         Items flagged as questionable included: a

mop,   beef     tortelloni,    marinara       sauce,    hash    browns,       chicken,

chewing    gum,     blocks    of     cheese,     oatmeal,       and     hot    sauce.

Defendant also purchased coffee, creamer, sugar, and cups using

the    school     system’s     credit     card,        products       which     school

administrators testified defendant would not need to buy because

they were provided through an outside vendor.                   Further, evidence

showed    that    defendant   had    forged     her    supervisors’      signatures

and/or    changed     budget       code   information           on    credit      card

authorization forms and reimbursement forms at least 29 times,

and    submitted     forms     for     reimbursement           with    unauthorized

signatures totaling $6,641.02.                As such, the State presented
                                              -7-
sufficient         evidence       of      each      element       of      the     charge    of

embezzlement to survive a motion to dismiss.

      Defendant further argues that the State failed to meet its

burden   of    proving       each      element      of     embezzlement         because    some

witness testimony was contradictory as to whether certain food

items were served at school events, and because purchase and

reimbursement        forms        do    not      constitute        embezzlement         simply

because the authorizing signatures are not authentic.                                  We find

defendant’s argument to lack merit, as the State’s evidence – of

atypical food and item purchases and numerous forged signatures

–   presents       sufficient       evidence        by    which    a   jury     could     infer

defendant’s intent to commit embezzlement.                         See State v. Sutton,

53 N.C. App. 281, 287, 280 S.E.2d 751, 755 (1981) (holding that

evidence that the defendant exceeded his authority in issuing

himself coupons “permitted the inference” that the defendant had

the   fraudulent       intent       necessary        for    embezzlement);         State     v.

Helsabeck, 258 N.C. 107, 128 S.E.2d 205 (1962) (holding that

fraudulent          intent,        as      required          in        the       charge      of

embezzlement, can           be    inferred       from     the     facts      proven;    direct

evidence      of     such        intent    is       not     necessary).         Accordingly,

defendant’s argument is overruled.

                                              II.
                                     -8-
       Defendant   next    argues    that   the    trial    court     erred   by

admitting evidence pursuant to Rule 404(b).              We disagree.

                When the trial court has made findings
           of fact and conclusions of law to support
           its 404(b) ruling, as it did here, 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).

       North Carolina Rules of Evidence, Rule 404(b), holds that:

           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.    It may, however, be
           admissible for other purposes, such as proof
           of motive, opportunity, intent, preparation,
           plan, knowledge, identity, or absence of
           mistake, entrapment or accident.

N.C. Gen. Stat. § 8C-1, Rule 404(b) (2013).                  Rule 404(b) is

"subject to but one exception requiring its exclusion 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. Coffey, 326 N.C. 268, 279, 389

S.E.2d 48, 54 (1990).

           It is not        required that evidence bear
           directly on      the question in issue, and
                                      -9-
            evidence is competent and relevant if it is
            one of the circumstances surrounding the
            parties, and necessary to be known, to
            properly   understand   their    conduct   or
            motives, or if it reasonably allows the jury
            to draw an inference as to a disputed fact.

State v. Stager, 329 N.C. 278, 302, 406 S.E.2d 876, 890 (1991)

(citations omitted).        The admissibility of evidence under Rule

404(b) is further constrained by the requirements of similarity

and temporal proximity.         State v. Al-Bayyinah, 356 N.C. 150,

154—55, 567 S.E.2d 120, 123 (2002) (citations omitted).

    The trial court conducted a hearing on the admissibility of

the State’s Rule 404(b) evidence during the trial, outside the

presence of the jury.         The State presented four witnesses who

testified    as   to    defendant’s    misappropriation        of   funds   from

Centerview    Baptist      Church,    arguing    that   such    evidence     was

permissible under Rule 404(b) to show an absence of mistake,

opportunity, motive, intent, and/or common plan or scheme by

defendant to embezzle from the school system.              The trial court

announced its findings of fact and conclusions of law in open

court and admitted the evidence.            Defendant does not contest the

trial court’s findings of fact; therefore, these findings are

presumed to be supported by competent evidence and are binding

on this Court.         See State v. Phillips, 151 N.C. App. 185, 190—

91, 565 S.E.2d 697, 701 (2002).                 Thus, we review the trial
                                      -10-
court’s   conclusions    of     law   based    on   its   findings    of   fact.

Beckelheimer, 366 N.C. at 130, 726 S.E.2d at 159.

    In making its Rule 404(b) ruling, the trial court stated

the following:

                The Court would review this issue and
           find that there are six different factors
           that the Court must consider before 404(B)
           evidence is admitted.

                First, that the State must identify
           specific purpose[s] in which to use this
           404(B) evidence, and the Court is finding
           that the State is seeking to admit this
           evidence   to   show absence  of  mistake,
           opportunity, motive, intent, and a similar
           pattern of conduct.

                Next, the Court must consider whether
           or not this evidence is logically relevant
           to the evidence in the main case in chief.
           The Court would note that the dates of
           employment for Ms. Parker at both Union
           County Public Schools and Centerview Baptist
           Church do overlap. In a review of the case
           files, would also find that the dates of the
           offenses overlap almost to the day.       Case
           number 11 CRS 54880, which is our current
           case, alleges an offense date of on or
           between August 24th of 2007 and August 10th of
           2010, and the case with Centerview Baptist
           Church, which is 10 CRS 54380 alleged dates
           of offense of 1 September of 2007 through 9
           August of 2010.   Would also find that based
           on the testimony and evidence presented that
           the defendant was in similar positions of
           trust where she had access to funds or
           credit cards, checking accounts for both the
           church and the school system.

                 The    third     factor      the   Court   is   to
                                     -11-
             consider is, is there sufficient evidence to
             prove the extrinsic act, and those are the
             acts at Centerview Baptist Church [which]
             were committed by the defendant.         The
             Court[,] based on the testimony specifically
             of the pastor and the accountant, Mr. Helms,
             would find that there is sufficient evidence
             to show that Ms. Parker embezzled from
             Centerview Baptist Church as her -- in her
             duties as the bookkeeper.

The trial court went on to find that the probative value of the

evidence outweighed the danger of unfair prejudice, and admitted

the Rule 404(b) evidence.

       Defendant contends the trial court erred in admitting the

Rule     404(b)       evidence      because         defendant’s          acts       of

misappropriating       Centerview     Baptist        Church      funds        and   of

embezzling from the school system are “sufficiently distinct”

and, thus, are not permissible under Rule 404(b).                     Specifically,

while defendant concedes that these two acts are “overlapping in

time” (and thus, satisfy the requirement of temporal proximity),

she contends they are not similar because misappropriation of

the church funds was for personal purposes while the school

system   embezzlement     involved        “large    or   bulk      quantity     items

suitable for use at various school events.”

       The   record    supports     the     trial    court’s       conclusion       of

similarity    and     temporal    proximity.         Here,      the    Rule    404(b)

evidence     showed    that   the   misappropriation          of      church    funds
                                   -12-
occurred   about   the   same   time   as    the   embezzlement    of   school

funds; that defendant held a similar position of trust in each

setting which allowed her access to funds — checking account for

the church, credit cards for the school; and that defendant

abused that position of trust through the unauthorized use of

funds and property.        The only distinction is that defendant

admitted to the misappropriation of the church funds and was

allowed to repay the money.            In the instant case, defendant

exercised her right to a jury trial, requiring the State to set

forth proof — substantial evidence by which a jury could find

beyond a reasonable doubt that her misappropriation of school

funds was intentional and constituted the crime of embezzlement.

“Where specific mental intent or state of mind is an essential

element of the offense charged, evidence of similar acts are

admissible to prove defendant's intent or state of mind.”                State

v. Whitted, 99 N.C. App. 502, 506, 393 S.E.2d 590, 593 (1990)

(citation omitted).      Accordingly, where, as here, the findings

of fact support the trial court’s conclusions of law, evidence

of   defendant’s   misappropriation     of    funds   from   the   Centerview

Baptist Church was properly admitted under Rule 404(b).

      Defendant further argues that the admission of the Rule

404(b) evidence was unfairly prejudicial to her as “[e]vidence
                                          -13-
of the Centerview events was prejudicial [on the] jury and not

probative on any issue in the case at bar.”                   We disagree.

       Rule 404(b) is "a clear general rule of inclusion."                          State

v. Coffey, 326 N.C. 268, 278—79, 389 S.E.2d 48, 54 (1990).                           Rule

404(b)      evidence    must     meet     Rule    403’s     balancing     test      which

requires      the    exclusion     of    relevant      evidence    only      where   its

probative value “is substantially outweighed by the danger of

unfair prejudice.”           State v. Jacobs, 363 N.C. 815, 823, 689

S.E.2d 859, 864 (2010) (citing N.C. Gen. Stat. § 8C-1, Rule

403).       However, any potential prejudicial effect caused by the

admission of 404(b) evidence can be constrained by a limiting

instruction to the jury.           See Beckelheimer, 366 N.C. at 133, 726

S.E.2d at 160—61.

       As    previously        discussed,        the    admission       of     evidence

concerning the Centerview Baptist Church was proper under Rule

404(b).      The trial court conducted a Rule 403 balancing test and

gave an appropriate limiting instruction to the jury.                            We see

nothing in the record indicating that the trial court abused its

discretion      in     admitting        the    Rule    404(b)     evidence     against

defendant.      See id. (finding no abuse of discretion where the

trial court conducted a hearing out of the presence of the jury,

made     findings      of   fact   and        conclusions    of   law     as   to    the
                                  -14-
admissibility of the evidence and its potential probative vs.

prejudicial effect, and gave the jury a limiting instruction as

to this evidence); see also State v. Jones, ___ N.C. App. ___,

___, 734 S.E.2d 617, 621—22 (2012) (State’s use of Rule 404(b)

evidence was proper to show element of intent in a charge of

embezzlement against the defendant, and the defendant was not

overly     prejudiced   where   the   trial   court   gave   a   limiting

instruction to the jury); State v. McDowell, No. COA05-424, 2006

N.C. App. LEXIS 1871 (Sept. 5, 2006) (the defendant failed to

show prejudice where the admission of Rule 404(b) evidence which

tended to show the defendant’s intent and knowledge for the

charge of embezzlement was proper pursuant to Rules 403 and

404(b)).    Accordingly, defendant’s argument is overruled.

    No error.

    Judges STEPHENS and DILLON concur.
