in the Court of Appeals 22 February 2017
by defendant from judgment entered 30 March 2016 by Judge
Hugh B. Lewis in Mecklenburg County No. 14 CRS 221625
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.
Way Fink ("Defendant") appeals from judgment
entered, following his conviction of larceny by employee. We
find no error.
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.
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
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.
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.
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
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."
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
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
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.
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.
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.
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.
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.
gave notice of appeal in open court.
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. §
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.
Motions to Dismiss
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.