majority">MARTIN (Robert M.), Judge.

The defendant by her second assignment of error contends that the trial court erred in denying defendant’s motion for dismissal at the close of the State’s evidence and at the close of all the evidence. We agree.

Upon defendant’s motion for dismissal, the question for the court is whether there is substantial evidence (1) of each essential element of the offense charged and (2) of defendant being the perpetrator of such offense. If so, the motion is properly denied. State v. Powell, 299 N.C. 95, 261 S.E. 2d 114 (1980). State v. Roseman, 279 N.C. 573, 184 S.E. 2d 289 (1971); State v. Mason, 279 N.C. 435, 183 S.E. 2d 661 (1971). We must, therefore, examine the essential elements of the offense with which defendant was charged.

Defendant was charged in the fourth count of the indictment with wilfully failing to perform her duty as finance officer to preaudit an obligation of the Town of Carolina Beach. The essential elements of the offense of failing to preaudit are set forth by N.C. Gen. Stat. §§ 159-25(a)(2), 159-28(a) and 159-181. Section 159-25(a)(2) imposes on a finance officer in local government the duty to preaudit obligations and disbursements as required by this Chapter 159. Although the term preaudit is not defined, § 159-28(a) contains a description of what the finance officer must do in order to fulfill his duty to preaudit obligations.

§ 159-28. Budgetary accounting for appropriations.—

(a) Incurring obligations. — No obligation may be incurred . . . unless the budget ordinance includes an appropriation authorizing the obligation and an unencumbered balance re*75mains in the appropriation sufficient to pay in the current fiscal year the sums obligated. . .

Simply stated, the finance officer, in order to fulfill his duty to preaudit, must determine whether there are sufficient unencumbered funds in an appropriation to pay for an obligation before the obligation is incurred. Section 159-181 governing enforcement of Chapter 159 makes the wilfull failure or refusal of a finance officer to perform any duty imposed on him by this Chapter a misdemeanor. A conviction under this statute would require the State to prove that defendant wilfully failed to determine that there were sufficient unencumbered funds to pay an obligation of the Town of Carolina Beach prior to incurring that obligation.

In applying the foregoing principles, it is obvious that the State does not have sufficient evidence on the essential element that the obligation in issue is an obligation of the Town of Carolina Beach. Throughout the trial, the State has based its theory of embezzlement, felonious approval of an invalid bill and wilfull failure to preaudit on the assumption that the obligation was defendant’s personal obligation. This position is inconsistent with the duty to preaudit which does not arise until there is a valid obligation of the Town of Carolina Beach. All of the State’s testimony indicates that the fence was purchased for defendant’s own use and was never intended to be an obligation of the town. Defendant’s motion to dismiss at the close of the State’s evidence should have been allowed.

Reversed.

Judges Hedrick and Wells concur.

Citation profile

Relationships

How this case has been treated — in progress