               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA18-79

                               Filed: 2 October 2018

Guilford County, No. 14 CRS 077410-11

STATE OF NORTH CAROLINA,

            v.

SHIRLYE CORNELIA GRANDY, Defendant.


      Appeal by defendant from judgment entered 2 October 2017 by Judge Tanya

T. Wallace in Superior Court, Guilford County. Heard in the Court of Appeals 22

August 2018.


      Attorney General Joshua H. Stein, by Assistant Attorney General Torrey D.
      Dixon, for the State.

      Leslie Rawls, for defendant-appellant.


      STROUD, Judge.


      Defendant appeals her two convictions for embezzlement. Defendant’s sole

argument on appeal is that her motion to dismiss the embezzlement charges should

have been granted because her employer had not entrusted her with the funds since

the employer’s bank required two employees jointly to use a security measure

provided by the bank to issue checks. Because the evidence showed that defendant’s

employer had entrusted defendant with both security devices, despite the bank’s
                                      STATE V. GRANDY

                                           Opinion of the Court



intention to require participation by two employees, the trial court did not err in

denying her motion.

                                          I.     Background

      The State’s evidence showed that defendant was the director of accounting for

North Carolina A&T University Foundation, Inc. (“the Foundation”). After a check

did not timely clear, other employees in the Foundation began to investigate financial

discrepancies. During the investigation, defendant admitted both to other employees

and law enforcement that she had transferred money from the Foundation’s account

into her personal account.            The total amount transferred to defendant was

$402,402.99. Defendant was tried by a jury, convicted of two counts of embezzlement

and one count of corporate malfeasance, and sentenced by the trial court. Defendant

appeals.

                                    II.        Motion to Dismiss

      Defendant makes only one argument on appeal,1 contending her motion to

dismiss the embezzlement charges should have been allowed “because embezzlement

requires the accused to have been entrusted with the property taken and the State’s

evidence showed that [defendant] took the funds by using her supervisor’s security

device without permission[.]” (Original in all caps).

                The standard of review for a motion to dismiss is well
                known. A defendant’s motion to dismiss should be denied


      1   Defendant does not contest her conviction for corporate malfeasance.

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                                  Opinion of the Court



             if there is substantial evidence of: (1) each essential
             element of the offense charged, and (2) of defendant’s being
             the perpetrator of the charged offense.         Substantial
             evidence is relevant evidence that a reasonable mind might
             accept as adequate to support a conclusion. The Court
             must consider the evidence in the light most favorable to
             the State and the State is entitled to every reasonable
             inference to be drawn from that evidence. Contradictions
             and discrepancies do not warrant dismissal of the case but
             are for the jury to resolve.

State v. Johnson, 203 N.C. App. 718, 724, 693 S.E.2d 145, 148 (2010) (citations and

quotation marks omitted).

                    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 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); see also N.C. Gen.

Stat. § 14-90 (2017); State v. Robinson, 166 N.C. App. 654, 658, 603 S.E.2d 345, 347

(2004) (“To survive a motion to dismiss a charge of embezzlement, the State must

have presented evidence of the following: (1) Defendant was the agent of the

complainant; (2) pursuant to the terms of his employment he was to receive property

of his principal; (3) he received such property in the course of his employment; and

(4) knowing it was not his, he either converted it to his own use or fraudulently


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                                  Opinion of the Court



misapplied it.” (citation and quotation marks omitted)).

      Defendant’s only argument on appeal is that she was not entrusted with the

funds in the course of her employment. See generally Rupe, 109 N.C. App. at 608,

428 S.E.2d at 485. To access the funds, the employer’s bank required defendant to

use both her own security device, which they referred to as a “key fob,” along with her

supervisor’s key fob. The bank issued the key fobs to each employee individually, so

defendant contends “[n]either the funds nor the key fob was entrusted to [defendant].

Without the property having been entrusted, embezzlement did not occur.”

      Defendant compares her case to State v. Weaver, 359 N.C. 246, 607 S.E.2d 599

(2005). In Weaver, our Supreme Court reversed an embezzlement conviction where

the defendant-employee took a company signature stamp without her employer’s

knowledge or permission and used it to write checks to herself:

                   The dispositive issue presented for review on direct
             appeal is whether the lawful possession or control element
             of the crime of embezzlement was satisfied when an
             administrative employee took a corporate signature stamp
             without permission and wrote unauthorized corporate
             checks, thereby misappropriating funds from her
             employer. That employee’s misappropriation is the basis
             of defendant’s convictions for aiding and abetting
             embezzlement and conspiracy to embezzle. We conclude
             that the employee did not lawfully possess or control the
             misappropriated funds and therefore affirm the decision of
             the Court of Appeals which reversed defendant’s
             convictions.

359 N.C. at 247, 607 S.E.2d at 599. Defendant argues a key fob is the modern-day



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                                 Opinion of the Court



equivalent of a signature stamp, so the State did not meet the elements of

embezzlement. See id.

      However, the facts of Weaver are different from this case, because the employer

in Weaver had not authorized the defendant to write checks or to use the signature

stamp. Id. The Court in Weaver explained,

            In the instant case, it is undisputed that [defendant] had
            no independent authority to write checks from R & D
            accounts or to use Shirley Weaver’s signature stamp. In
            fact, both [defendant] and Shirley Weaver testified that
            direct authorization from Shirley was required before
            [defendant] wrote each individual check. Although the
            record is unclear as to the exact location of each check used
            to misappropriate the company funds, the record indicates
            that the signature stamp was kept in a desk drawer in
            Shirley Weaver’s office and that [defendant] could not
            access this stamp without Shirley Weaver’s direct
            permission. While [defendant] had access to the checks
            and signature stamp by virtue of her status as an employee
            at R & D and International Color, we cannot say, based on
            these facts, that [defendant’s] possession of this property
            was lawful nor are we persuaded that this property was
            under [defendant’s] care and control as required by
            N.C.G.S. § 14-90. Because [defendant] never lawfully
            “possessed” the misappropriated funds and because the
            funds were not “under [her] care” we conclude that
            [defendant] did not commit the crime of embezzlement as
            defined in N.C.G.S. § 14-90.

Weaver, 359 N.C. at 256, 607 S.E.2d at 605 (emphasis omitted); see also State v.

Palmer, 175 N.C. App. 208, 213, 622 S.E.2d 676, 680 (2005) (“In this case, like in

Keyes and Weaver, Defendant never took lawful possession of the incoming checks,

nor was she entrusted with the checks by virtue of a fiduciary capacity.” (emphasis


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                                       Opinion of the Court



omitted)).

       Defendant ignores the fact that here, unlike in Weaver, Palmer, and Keyes –all

cases she cited–her employer, the Foundation, entrusted her with both its funds and

both key fobs, even if the bank intended otherwise. Cf. Weaver, 359 N.C. at 256, 607

S.E.2d at 605; Palmer, 175 N.C. App. at 213; 622 S.E.2d at 680; State v. Keyes, 64

N.C. App. 529, 532, 307 S.E.2d 820, 823 (1983) (“Here, [neither defendant] received,

took lawful possession of, or were entrusted with components by virtue of a fiduciary

capacity.”). Defendant had “lawful possession or control” of both her own key fob and

her supervisor’s key fob.         Defendant kept both fobs during the course of her

employment as the director of accounting from approximately 2008 to 2014 and she

routinely wrote checks using both fobs.2             Although the bank intended for two

employees to participate in each transaction as a security measure, the Foundation

did not require its employees to use the key fobs as the bank intended. Instead, the

Foundation “entrusted” the entire process to defendant.                 The former executive

director of the Foundation testified that defendant’s duties included “[p]rocessing

checks and depositing them and overseeing finances and payroll and things like that.”

Defendant’s supervisor was also entrusted with the funds and there was a dual

security measure in place, but the evidence showed that the Foundation had


       2 The evidence does not show the exact dates the Foundation opened the relevant bank
accounts or when the bank issued the key fobs, but it does tend to show the Foundation allowed
defendant to handle financial transactions in this manner for an extended time period prior to 2011
and 2014, when transactions for which defendant was charged with embezzlement occurred.

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                                STATE V. GRANDY

                                 Opinion of the Court



entrusted defendant with such funds; exclusivity of the entrustment is not an element

of the crime. See N.C. Gen. Stat. § 14-90. Therefore, the trial court did not err in

denying defendant’s motion to dismiss. This argument is overruled.

                                 III.   Conclusion

      We conclude there was no error.

      NO ERROR.

      Judges ZACHARY and MURPHY concur.




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