State v. Ellis , 236 N.C. App. 602 ( 2014 )

NO. COA14-77
NORTH CAROLINA COURT OF APPEALS
Filed: 7 October 2014
STATE OF NORTH CAROLINA
v. Wake County
Nos. 11 CRS 210130
DWAYNE ANTHONY ELLIS, 11 CRS 211154
Defendant.
Appeal by defendant from judgments entered 2 August 2013 by
Judge W. Osmond Smith in Wake County Superior Court. Heard in
the Court of Appeals 11 September 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Joseph E. Elder, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender James R. Grant, for defendant-appellant.
GEER, Judge.
Defendant Dwayne Anthony Ellis appeals from his convictions
of felony larceny, injury to personal property, first degree
trespass, and possession of stolen property. Defendant's sole
argument on appeal is that the information charging defendant
with injury to personal property was fatally defective because
it failed to allege that the owners of the injured property --
"North Carolina State University (NCSU) and NCSU High Voltage
Distribution" -- are legal entities capable of owning property.
-2-
Under State v. Campbell, ___ N.C. App. ___, 759 S.E.2d 380
(2014), when an indictment alleges that the property at issue
has multiple owners, the indictment must also show that each
owner is capable of owning property. Because the information
fails to allege with respect to the charge of injury to personal
property that "NCSU High Voltage Distribution" is a legal entity
capable of owning property, the information is fatally flawed.
Accordingly, we vacate defendant's injury to personal property
conviction and remand for resentencing on defendant's remaining
convictions.
Facts
The State's evidence tended to show the following facts.
On 23 April 2011 at around 4:30 a.m., Sergeant Ian Kendrick of
the North Carolina State University ("NCSU") Police initiated a
traffic stop of a Chrysler 300 with an attached trailer that had
exited from a parking lot near an electrical substation.
Defendant, the driver of the vehicle, was taken into custody for
an unrelated matter. During a pre-impoundment inventory search
of the Chrysler, law enforcement officers discovered four large
rolls of copper wire and wet, muddy clothing. It was later
discovered that the copper wire had been taken from a fenced in
area of the electrical substation. Because the copper wire had
-3-
been cut, it could no longer be used at the electrical
substation.
On 12 July 2011 defendant was indicted in case file number
11 CRS 210130 for felony larceny, misdemeanor injury to personal
property, and first degree trespass in connection with the 23
April 2011 theft of the stolen copper wire. The same day,
defendant was indicted in case file number 11 CRS 211154 for
felony possession of stolen goods relating to a separate
incident on 14 February 2011. On 23 July 2013, defendant waived
the finding and return of an indictment and consented to being
tried on superseding informations alleging the same offenses.
With respect to each charge in 11 CRS 210130, the State alleged
that the copper wire was the personal property of "North
Carolina State University (NCSU) and NCSU High Voltage
Distribution."
The trial court granted the State's motion to join the two
cases for trial, and on 2 August 2013, a jury found defendant
guilty of felony larceny, misdemeanor injury to personal
property, and first degree trespass in 11 CRS 210130 and of
misdemeanor possession of stolen goods in 11 CRS 211154. The
trial court consolidated the convictions in 11 CRS 210130 into
one judgment and sentenced defendant to a presumptive-range term
of six to eight months imprisonment, followed by a consecutive
-4-
term of 45 days imprisonment for the conviction in 11 CRS
211154. Defendant timely appealed to this Court.
Discussion
Defendant's sole argument on appeal is that the trial court
lacked subject matter jurisdiction over the injury to personal
property charge because the information was fatally defective in
that it failed to allege that "North Carolina State University
(NCSU) and NCSU High Voltage Distribution" are legal entities
capable of owning property.
It is well settled that a valid indictment alleging all of
the essential elements of the offense is required for a trial
court to obtain subject matter jurisdiction over the charge.
State v. Ledwell, 171 N.C. App. 328, 331, 614 S.E.2d 412, 414
(2005). When, as in this case, the defendant properly waives
the indictment, the trial court may proceed on an information,
which must "charge the crime or crimes in the same manner" as an
indictment. N.C. Gen. Stat. § 15A-923(b) (2013). Although
defendant did not challenge the sufficiency of the information
below, "[a] challenge to the facial validity of an indictment
may be brought at any time, and need not be raised at trial for
preservation on appeal." State v. LePage, 204 N.C. App. 37, 49,
693 S.E.2d 157, 165 (2010). This Court reviews the sufficiency
of an indictment -- or, in this case, an information -- de novo.
-5-
State v. Chillo, 208 N.C. App. 541, 543, 705 S.E.2d 394, 396
(2010).
This Court has previously addressed the requirements for
indictments for injury to personal property and the similar
crime of larceny:
To convict a defendant of injury to
personal property, the State must prove that
the personal property was that "of another,"
i.e., someone other than the person or
persons accused. N.C. Gen. Stat. § 14-160
(2004) ("If any person shall wantonly and
willfully injure the personal property of
another he shall be guilty . . . ."); In re
Meaut, 51 N.C. App. 153, 155, 275 S.E.2d
200, 201 (1981). Moreover, "an indictment
for larceny must allege the owner or person
in lawful possession of the stolen
property." State v. Downing, 313 N.C. 164,
166, 326 S.E.2d 256, 258 (1985). Thus, to
be sufficient, an indictment for injury to
personal property or larceny must allege the
owner or person in lawful possession of the
injured or stolen property.
State v. Price, 170 N.C. App. 672, 673-74, 613 S.E.2d 60, 62
(2005). Moreover, "'[i]f the entity named in the indictment is
not a person, it must be alleged that the victim was a legal
entity capable of owning property[.]'" Id. at 674, 613 S.E.2d
at 62 (quoting State v. Phillips, 162 N.C. App. 719, 721, 592
S.E.2d 272, 273 (2004)).
Count II of the information in 11 CRS 210130 alleged that
defendant
-6-
unlawfully and willfully did wantonly injure
and damage personal property, 228 feet of
350 primary copper wire, the personal
property of North Carolina State University
(NCSU) and NCSU High Voltage Distribution,
resulting in damage in excess of $200. This
act was done in violation of NCGS § 14-160.
With respect to indictments alleging multiple owners of
personal property, as the information did in this case, this
Court has recently explained:
Where an indictment alleges two owners
of the stolen property, the State must prove
that each owner had at least some property
interest in it. See State v. Greene, 289
N.C. 578, 585, 223 S.E.2d 365, 370 (1976)
("If the person alleged in the indictment to
have a property interest in the stolen
property is not the owner or special owner
of it, there is a fatal variance entitling
defendant to a nonsuit."); State v. Burgess,
74 N.C. 272, 273 (1876) ("If one is charged
with stealing the property of A, it will not
do to prove that he stole the joint property
of A and B."); State v. Hill, 79 N.C. 656,
659 (1878) (holding that where an indictment
alleges multiple owners, the State must
prove that there were in fact multiple
owners). If one of the owners were
incapable of owning property, the State
necessarily would be unable to prove that
both alleged owners had a property interest.
Therefore, where the indictment alleges
multiple owners, one of whom is not a
natural person, failure to allege that such
an owner has the ability to own property is
fatal to the indictment.
Campbell, ___ N.C. App. at ___, 759 S.E.2d at 384 (emphasis
added).
-7-
In Campbell, the indictment for larceny alleged two owners
of the stolen property -- a natural person and "Manna Baptist
Church" -- but did not allege that the church was a legal entity
capable of owning property. Id. at ___, 759 S.E.2d at 384.
This Court held that the indictment was fatally flawed and
vacated the defendant's conviction for larceny. Id. at ___, 759
S.E.2d at 384.
Although Campbell involved an indictment for larceny, the
same reasoning applies to the information for injury to personal
property in this case. See State v. Lilly, 195 N.C. App. 697,
702, 673 S.E.2d 718, 721-22 (2009) ("Since this Court has
previously held that both larceny and injury to personal
property have the same requirement that the indictment allege
ownership or lawful possession of the property, we think the
Court's reasoning in [State v. ]Liddell, [39 N.C. App. 373, 250
S.E.2d 77 (1979),] addressing a larceny indictment, applies with
equal force in the context of a prosecution for injury to
personal property."). Accordingly, we hold that to be
sufficient, the information in this case must have shown that
both NCSU and "NCSU High Voltage Distribution" are legal
entities capable of owning property.
With respect to NCSU, the State argues that it is clear
from the information that NCSU is a legal entity capable of
-8-
owning property. We agree. In State v. Turner, 8 N.C. App. 73,
75, 173 S.E.2d 642, 643 (1970), this Court upheld an indictment
for larceny that named the "'City of Hendersonville'" as the
owner of the stolen property. The Court took judicial notice of
the public act establishing Hendersonville as a municipal
corporation and explained that "the words 'City of
Hendersonville' denote a municipal corporate entity. Municipal
corporations are expressly authorized to purchase and hold
personal property." Id.
As with the municipality in Turner, the legislature has
provided, in N.C. Gen. Stat. § 116-4 (2013), that North Carolina
State University is a constituent institution of the University
of North Carolina, "a body politic and corporate" expressly
authorized under N.C. Gen. Stat. § 116-3 (2013) to own property.
Thus, we hold that the words "North Carolina State University"
sufficiently allege a legal entity capable of owning property.
In contrast to Turner, this Court held in Price that an
indictment for larceny and injury to personal property alleging
that the property at issue was owned by "'City of Asheville
Transit and Parking Services,'" without more, was fatally
defective. 170 N.C. App. at 674, 613 S.E.2d at 62. The Court
distinguished Turner "in which 'City of Hendersonville' was
sufficient as it clearly denoted a municipal corporation,
-9-
because the additional words after 'City of Asheville' make it
questionable what type of organization it is." Id.
Similarly, here, the words "NCSU High Voltage Distribution"
do not identify a legal entity necessarily capable of owning
property because the additional words after "NCSU" do not
indicate what type of organization it is. The information is,
therefore, insufficient to show that "NCSU High Voltage
Distribution" is a legal entity capable of owning property. See
also State v. Strange, 58 N.C. App. 756, 757, 294 S.E.2d 403,
404 (1982) (holding indictment for larceny naming owner as
"Granville County Law Enforcement Association" was fatally
defective).
Because the information failed to allege that one of the
owners, "NCSU High Voltage Distribution," is a legal entity
capable of owning property, we hold that the information is
fatally defective and vacate defendant's conviction for injury
to personal property. Defendant does not, however, challenge
any of his remaining convictions on appeal.
We note that the trial court consolidated defendant's
conviction for injury to personal property with the other
offenses in case file number 11 CRS 210130 and sentenced
defendant under the Class H felony of larceny to a presumptive-
range term of six to eight months imprisonment. Our Supreme
-10-
Court has explained that "[s]ince it is probable that a
defendant's conviction for two or more offenses influences
adversely to him the trial court's judgment on the length of the
sentence to be imposed when these offenses are consolidated for
judgment, we think the better procedure is to remand for
resentencing when one or more but not all of the convictions
consolidated for judgment has been vacated." State v. Wortham,
318 N.C. 669, 674, 351 S.E.2d 294, 297 (1987). Accordingly, we
remand for resentencing on defendant's remaining convictions in
case file number 11 CRS 210130.
No error in part; vacated in part; and remanded.
Judges STEELMAN and DIETZ concur.