State v. Ross10/4/2005
Hardin Eli Ross, III ("defendant") appeals a judgment entered on a jury verdict finding him guilty of embezzlement of State property of a value of $100,000 or more by aiding and abetting. Defendant asserts the trial court erred by denying his motion to dismiss on double jeopardy grounds or, in the alternative, by denying his motion to enforce the terms of a deferred prosecution agreement. We find no error.
Defendant was the registered agent, president, and CEO of OLI Corporation d/b/a Outsource Leasing ("OLI"). As of 31 January 2000, OLI had operated for over two and one-half years with no liability to the North Carolina Department of Revenue ("DOR") foremployee income tax withholding and maintained two operating accounts throughout 2000. Defendant, as CEO, was the only person authorized to withdraw funds from the two accounts. OLI filed all of its 2000 quarterly employee income tax withholding reports late. The first quarterly report was submitted to DOR approximately three months late on 24 July 2000. The second quarterly report was submitted approximately one year late on 17 July 2001. The third quarterly report was submitted approximately three months late on 1 February 2001, and the fourth quarterly report was filed approximately six months late on 17 July 2001. In the four reports, OLI reported withholdings of $27,607.57, $35,649.98, $48,992.48, and $48,992.48, respectively, for a total amount of $161,242.45. However, OLI failed to remit to DOR any portion of the $161,242.45. On 31 January 2000, OLI's two operating accounts contained $11,175.66 and $16,492.66, for a total of $27,668.32. On 31 January 2001, one operating account was overdrawn by negative $4,009.05, while the other had a balance of $4,591.80, for a total balance of $582.55.
During an interview with a Special Agent from DOR, defendant stated the funds OLI withheld from employee wages were deposited into one of OLI's two operating accounts before remitting to DOR. Defendant stated he understood the withheld funds were to be held in trust for DOR and were not available for either OLI's use or his own. However, he was unaware of what happened to the withheld funds. OLI's office manager testified: (1) defendant decided which bills to pay; (2) no bill was paid without his knowledge; (3) allchecks were signed by defendant or with a signature stamp at his direction; and (4) no checks were ever issued with a computer signature.
On 12 March 2001, defendant was charged with five counts of misdemeanor failure to file or failure to pay withholding tax. On 19 July 2001, defendant entered into a deferred prosecution agreement ("the agreement"), in which he acknowledged his guilt in fact to the charges enumerated in the agreement and agreed to comply with the conditions, inter alia, to pay restitution to DOR in the amount of $285,231.65 by paying $12,000 a month beginning 1 August 2001. Specifically, the agreement provided that, if defendant successfully performed the conditions of the agreement, the State would dismiss all charges. However, failure to comply with the conditions of the deferred prosecution agreement would result in termination of the agreement. Defendant failed to comply with the conditions of the agreement, therefore, the State voluntarily dismissed the charges referenced in the agreement in order for the Attorney General's Office to pursue prosecution on other charges.
On 23 September 2003, defendant was indicted for aiding and abetting OLI in the embezzlement of State property in the amount of $161,242.45. The defendant filed a pretrial motion to dismiss based on double jeopardy and included in his motion, an alternative, to enforce the State's deferred prosecution agreement. The trial
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