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IN THE COURT OF APPEALS 08/06/96 OF THE STATE OF MISSISSIPPI
NO. 93-KA-01339 COA

LINDA DIANE MCBROOM A/K/A LINDA DIANNE MCBROOM APPELLANT v. STATE OF MISSISSIPPI APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. ISADORE W. PATRICK, JR. COURT FROM WHICH APPEALED: WARREN COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: W. RICHARD JOHNSON ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE DISTRICT ATTORNEY: JOHN W. BULLARD NATURE OF THE CASE: EMBEZZLEMENT TRIAL COURT DISPOSITION: GUILTY OF EMBEZZLEMENT, SENTENCED TO SERVE 10 YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND ORDERED TO PAY RESTITUTION IN THE AMOUNT OF $7,670.28

BEFORE BRIDGES, P.J., DIAZ, AND SOUTHWICK, JJ. DIAZ, J., FOR THE COURT: Diane McBroom (McBroom) was indicted, tried, and convicted of embezzlement by a jury in the Circuit Court of Warren County. McBroom was sentenced to serve ten (10) years in the custody of the Mississippi Department of Corrections and ordered to pay restitution to the victim in the amount of $7,670.28. McBroom's prison sentence was suspended provided that she complete a program at the Jackson County Restitution Center. Feeling aggrieved, McBroom appeals and cites the following four errors: (1) The court erred in allowing the video deposition of the State's complaining witness; (2) The court erred in failing to grant a directed verdict on the basis that the evidence was completely lacking to support the indictment, which charged Appellant as an employee; (3) The verdict was against the overwhelming weight of the evidence, and (4) Appellant did not receive adequate legal assistance. We reverse. FACTS Mrs. Aura Curtis (Curtis) was an elderly lady living alone and plagued with many medical problems. In January 1992, McBroom began assisting Curtis with her affairs. McBroom, a neighbor, would go to the grocery store for Curtis, collect the mail, and run various errands. These services were performed by McBroom gratuitously, and no employment agreement, written or verbal, existed between the individuals. Normally, Curtis would sign a blank check and give it to McBroom to purchase various grocery or alcoholic items for her. On occasion, Curtis would request that a certain amount of cash be brought back to her from purchases made by McBroom. Curtis claimed that she rarely requested cash back, but McBroom testified that she regularly requested, and received, money from the purchases. Copies of the canceled checks written by McBroom reveal that substantial amounts of cash were received from grocery purchases. Additionally, several checks were written to "cash" or "Diane McBroom" for amounts ranging from $500.00 to $900.00. McBroom testified that Curtis asked her to cash the checks in the amounts written and that she promptly returned all the cash to Curtis. Curtis denies ever requesting or receiving cash from these checks. DISCUSSION McBroom argues that the trial court erred in denying her motion for a directed verdict because the evidence presented did not support the indictment. Specifically, McBroom contends that the State failed to prove that she was an employee of Aura Curtis and, therefore, she cannot be guilty of the indicted offense. The indictment, in pertinent part, reads as follows: The Grand Jurors of the State of Mississippi, . . . upon their oaths present that Linda Dianne McBroom on or about April 14, 1992 . . . within the jurisdiction of this Court did willfully, unlawfully, and feloniously at a time when he/she was an employee of Aura Curtis, embezzle and convert to their own use blank signed checks having a value of $10,631.15, owned by Aura Curtis which had been entrusted to his/her care by virtue of his/her employment in violation of Miss. Code Sec. 97-23-19, contrary to the statute in such cases made and provided, and against the peace and dignity of the state of Mississippi.

Clearly, the indictment reveals that the State proceeded under the theory that McBroom was an employee of Curtis. However, section 97-23-19 does not contain the term "employee" as one who may commit an embezzlement. The statute proceeded under by the State reads as follows:

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