Criminal Practice — Embezzlement – PTA Funds – Indictment Allegations – Trust – Sentencing – Restitution

State v. Williams (Lawyers Weekly No. 15-16-0424, 12 pp.) (Linda Stephens, J.) Appealed from Wake County Superior Court (Michael Morgan, J.) N.C. App. Unpub.

Holding: Where the uncontradicted evidence showed that the money defendant embezzled was raised by the PTA explicitly and exclusively for the benefit of the school, the school was properly named in the indictments as the victim of defendant’s embezzlement.

We find no error in defendant’s conviction of two counts of felony embezzlement by a public officer or trustee. However, we reverse in part and remand for resentencing.

Although the indictment named the victim as “Forestville Elementary School-Knightdale”, defendant embezzled from the PTA at “Forestville Road Elementary School” in Knightdale. The omission of the word “Road” from the name of the school was not a fatal variance.

While there was no evidence of an express trust, there was sufficient evidence that the PTA held the money at issue in a constructive trust for the school’s benefit. The indictments alleged that defendant “held the position of PTA President, an officer or trustee of a local board of education or educational institution, and in that capacity had been entrusted to receive” the embezzled funds on behalf of the school. The evidence showed that these funds were donated or raised for the benefit of the school, and the school’s principal testified that defendant told the principal to decide how the money should be spent. We reject defendant’s arguments that there was a fatal variance between the indictments and the evidence at trial.

However, the trial court ordered defendant to pay $2,500 in restitution to cover the cost of an audit of the PTA despite the fact that no documentation, testimony or other evidence supported the prosecutor’s statement that the PTA had spent $2,500 for an audit following the disappearance of the fundraising money. We must reverse on the issue of restitution and remand for resentencing.