in the Court of Appeals 7 May 2019.
by defendant from judgment entered 12 April 2018 by Judge
James K. Roberson in Alamance County Superior Court. No. 16
Attorney General Joshua H. Stein, by Assistant Attorney
General Madeline G. Lea, for the State
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender Katherine Jane Allen, for defendant-appellant.
Williams ("Defendant") appeals from a criminal
judgment ordering her to pay restitution. We affirm the trial
was employed as an office manager at GCF, Incorporated
("GCF") from March 2014 to February 2016. GCF is a
general construction company located in Burlington and owned
by Charles Clifton Fogleman ("Fogleman").
Defendant's duties with GCF included managing billing,
collections, bids, quotes, bank accounts, and payroll.
than Fogleman, Defendant was the only person with GCF who was
authorized to use the business checking account and debit
January 2016, Fogleman asked Defendant to collect documents
relating to the business checking account so that he could
prepare GCF's corporate tax filing. In response to
Fogleman's request, Defendant allegedly admitted that she
had been misappropriating funds from GCF's business
account. Fogleman discovered that the GCF debit card had been
used for personal purchases at various retail establishments
over the previous seventeen months. Fogleman terminated
Defendant's employment with GCF.
prepared a spreadsheet listing 354 unauthorized expenditures
and misappropriations by Defendant. The spreadsheet included
the amount, date, and nature of each allegedly improper
expenditure. Fogleman reported Defendant's actions and
turned over the itemized spreadsheet to the Burlington Police
was arrested for embezzlement on 5 March 2016. On 25 May
2016, Defendant filed a civil complaint against Fogleman for
claims of slander and defamation. On 10 August 2016, Fogleman
filed an answer and asserted counterclaims for embezzlement
and employee theft.
Defendant and Fogleman mediated their claims. On 13 February
2017, the parties entered into a settlement agreement.
Defendant agreed to pay Fogleman $13, 500.00 as part of the
settlement agreement resolving the civil claims. The
settlement agreement contained the following release clause:
The parties hereby release and fully discharge each other of
and from any and all claims, causes of actions, demands and
damages, known and unknown, asserted and unasserted, from the
beginning of time to the date hereof, except as set forth
February 2018, the State charged Defendant by information for
embezzlement. That same day, Defendant entered an
Alford plea to one count of embezzlement. As part of
Defendant's plea arrangement, the State agreed to dismiss
four counts of forgery, four counts of uttering a forged
instrument, and two counts of embezzlement. The State also
consented to a probationary sentence to allow Defendant to
make restitution payments. Both Defendant and the State
expressly agreed to the trial court holding a hearing to
determine the amount of restitution.
restitution hearing was held on 27 February 2018. Fogleman
contended he had signed the settlement agreement with the
understanding that the civil settlement had "nothing to
do with the criminal matter." The State sought
restitution of $41, 204.85. Defendant asserted she did not
owe any restitution because her settlement payment of $13,
500.00 to Fogleman in the civil action was payment in full
under the terms of the settlement agreement and no further
restitution was due.
March 2018, the trial court entered a written order
containing findings of fact and conclusions of law. The trial
court's order concluded, in relevant part:
2.The Settlement Agreement entered in the Civil action does
not prohibit the Court in the Criminal action from
determining an amount of restitution to be paid from the
Defendant to the victim in this Criminal action.
3.The Defendant is entitled to a credit against the gross
amount of restitution determined by this Order in the amount
of $13, 500.00, representing the amount paid by the Defendant
in connection with ...