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State v. Fink

Court of Appeals of North Carolina

March 21, 2017


          Heard in the Court of Appeals 22 February 2017

         Appeal by defendant from judgment entered 30 March 2016 by Judge Hugh B. Lewis in Mecklenburg County No. 14 CRS 221625 Superior Court.

          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 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 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 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.

         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 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. ...

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