State v. Evans, COA23-1160, ___ N.C. App. ___ (Sept. 17, 2024)

In this Johnston County case, defendant appealed her convictions for three counts of larceny by an employee, arguing error in denying her motion to dismiss for insufficient evidence and calculating her prior record level. The Court of Appeals found no error. 

From May 13 -15, 2021, defendant was responsible for making cash deposits from her Dollar General store to the bank. In the store’s deposit log, defendant recorded that deposits were made on each day; she quit her job at the store on May 17. An audit later determined that defendant never made the deposits and stole over $11,000 from the store. A loss prevention officer tried to contact defendant, but could not reach her, and the matter was reported to the local sheriff’s office. Defendant was finally located and served with arrest warrants in September of 2021. After being served with arrest warrants, defendant made deposits into the Dollar General bank account in March and April of 2022, totaling the missing amount. When the matter came for trial, defendant testified that she left the deposit bags containing the missing amount in her car, and assumed her daughter had made the necessary deposits. When asked where she obtained the money to make the deposits in 2022, defendant said that she scraped together the money from working jobs and borrowing from family members, admitting that it was not the same money that had been taken from the store. 

The Court of Appeals explained the evidence supported a conclusion that defendant intended to take and deprive Dollar General of the money because defendant “quit her job the day after she falsely indicated that she had deposited Dollar General’s money into its bank account and left town.” Slip Op. at 7. The court rejected defendant’s argument that she did not have an intent to permanently deprive Dollar General of the funds, noting that defendant reimbursed the missing funds only after being arrested for larceny.

Moving to the record level calculation, the court noted that defendant pleaded guilty to misdemeanor possession of methamphetamine in 1999, but the same year the General Assembly reclassified the possession of any amount of methamphetamine as a felony. As a result, defendant’s plea agreement to the apparent misdemeanor was properly classified as a felony under G.S. 15A-1340.14(c), adding two points to her prior record level. The court explained that this did not breach defendant’s plea agreement, as “[s]he ‘bargained’ for a conviction to a lesser degree of possession of methamphetamine, dismissal of the possession of drug paraphernalia charge, and a sentence in accordance with that agreement.” Id. at 10.