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State v. Williams

Court of Appeals of North Carolina

June 4, 2019

STATE OF NORTH CAROLINA
v.
TAMORA WILLIAMS

          Heard in the Court of Appeals 7 May 2019.

          Appeal by defendant from judgment entered 12 April 2018 by Judge James K. Roberson in Alamance County Superior Court. No. 16 CRS 51086

          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.

          TYSON, JUDGE.

         Tamora Williams ("Defendant") appeals from a criminal judgment ordering her to pay restitution. We affirm the trial court's order.

         I. Background

         Defendant 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.

         Other than Fogleman, Defendant was the only person with GCF who was authorized to use the business checking account and debit card.

         In 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.

         Fogleman 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 Department.

         Defendant 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 herein.

         On 26 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.

         The 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.

         On 23 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 ...

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