State v. Brawley , 256 N.C. App. 78 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-287
Filed: 17 October 2017
Rowan County, No. 15 CRS 055547
STATE OF NORTH CAROLINA
v.
DYQUAON KENNER BRAWLEY, Defendant.
Appeal by Defendant from judgment entered 21 September 2016 by Judge
Christopher W. Bragg in Rowan County Superior Court. Heard in the Court of
Appeals 7 September 2017.
Attorney General Joshua H. Stein, by Special Deputy Attorney General
Elizabeth Leonard McKay, for the State.
Appellate Defender G. Glenn Gerding, by Assistant Appellate Defender Amanda
S. Zimmer, for Defendant.
DILLON, Judge.
Dyquaon Kenner Brawley (“Defendant”) appeals from the trial court’s
judgment convicting him of larceny from a merchant. Defendant challenges the trial
court’s jurisdiction stemming from an alleged error in his indictment. After thorough
review, we vacate the judgment on jurisdictional grounds.
I. Background
STATE V. BRAWLEY
Opinion of the Court
In September of 2015, Defendant was caught on surveillance stealing clothing
from a Belk’s department store in Salisbury. Defendant removed the security tags
from multiple shirts before fleeing the premises.
A grand jury indicted Defendant for larceny from a merchant. A jury convicted
him of the charge. Defendant timely appealed.
II. Summary
The charging indictment in this case identifies the victim as “Belk’s
Department Stores, an entity capable of owning property.” On appeal, Defendant
argues that the trial court lacked jurisdiction to render a verdict against him because
the charging indictment failed to adequately identify the victim of the larceny. Based
on jurisprudence from our Supreme Court and our Court as explained below, we are
compelled to agree. We therefore vacate Defendant’s conviction.
III. Analysis
We review the sufficiency of an indictment de novo. See State v. Sturdivant,
304 N.C. 293, 309, 283 S.E.2d 719, 730 (1981). “Under a de novo review, the court
considers the matter anew and freely substitutes its own judgment for that of the
lower tribunal.” State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011).
“It is hornbook law that a valid bill of indictment [returned by a grand jury] is
a condition precedent to the jurisdiction of the Superior Court to determine the guilt
or innocence of the defendant, and to give authority to the court to render a valid
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STATE V. BRAWLEY
Opinion of the Court
judgment.” State v. Ray, 274 N.C. 556, 562, 164 S.E.2d 457, 461 (1968) (emphasis
added).1 “To be sufficient under our Constitution, an indictment must allege lucidly
and accurately all the essential elements of the offense endeavored to be charged.”
State v. Hunt, 357 N.C. 257, 267, 582 S.E.2d 593, 600 (2003) (internal citations and
quotation marks omitted). Therefore, “[a] conviction based on an invalid indictment
must be vacated.” State v. Campbell, 368 N.C. 83, 86, 772 S.E.2d 440, 443 (2015).
In the present case, the jury convicted Defendant of larceny from a merchant
under N.C. Gen. Stat. § 14-72.11(2). One essential element of any larceny is that the
defendant “took the property of another.” State v. Coats, 74 N.C. App. 110, 112, 327
S.E.2d 298, 300 (1985) (emphasis added).
Here, the grand jury returned an indictment alleging that Defendant:
did steal, take and carry away two polo brand shirts by
removing the anti-theft device attached to each shirt, the
personal property of Belk’s Department Stores, an entity
capable of owning property, having a value of $134.50[.]
(Emphasis added.) It certainly could be argued that the indictment sufficiently
alleges that the two polo shirts did not belong to Defendant, and, therefore, were the
property “of another.” However, our Supreme Court has consistently held that the
1 Our Supreme Court has explained that “every [defendant] charged with a criminal offense
has a right to the decision of twenty-four of his fellow-citizens upon the question of guilt [as to every
element of the crime charged:] First, by a grand jury [of twelve]; and, secondly, by a petit jury [of
twelve.]” State v. Barker, 107 N.C. 913, 918, 12 S.E. 115, 117 (1890). Indeed, our state Constitution
recognizes that “no person shall be put to answer any criminal charge [in superior court] but by
indictment, presentment, or impeachment.” N.C. Const. art. I, § 22; see State v. Thomas, 236 N.C.
454, 73 S.E.2d 283 (1952) (explaining the history and purpose of this constitutional requirement).
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STATE V. BRAWLEY
Opinion of the Court
indictment must go further by clearly specifying the identity of the victim. Campbell,
368 N.C. at 86, 772 S.E.2d at 443.
In specifying the identity of a victim who is not a natural person, our Supreme
Court provides that a larceny indictment is valid only if either: (1) the victim, as
named, “itself imports an association or a corporation [or other legal entity] capable
of owning property[;]” or, (2) there is an allegation that the victim, as named, “if not
a natural person, is a corporation or otherwise a legal entity capable of owning
property[.]” Id.
A victim’s name imports that the victim is an entity capable of owning property
when the name includes a word like “corporation,” “incorporated,” “limited,” “church,”
or an abbreviated form thereof. Id. Here, however, the name “Belk’s Department
Stores” does not itself import that the victim, as named in the indictment, is a
corporation or other type of entity capable of owning property: “Stores” is not a type
of legal entity recognized in North Carolina. See, e.g., State v. Brown, 184 N.C. App.
539, 542-43, 646 S.E.2d 590, 592 (2007) (holding “Smoker Friendly Store”
insufficient).
The indictment does, though, include an allegation that Belk’s is “an entity
capable of owning property.” The issue presented by this case, therefore, is whether
alleging that Belk’s is some unnamed type of entity capable of owning property is
sufficient or whether the specific type of entity must be pleaded. We hold that the
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STATE V. BRAWLEY
Opinion of the Court
holdings and reasoning in decisions from our Supreme Court and our Court compel
us to conclude that the allegation that Belk’s is some unnamed type of “entity capable
of owning property” is not sufficient.
Our Supreme Court has held on numerous occasions that where the larceny
victim is not a natural person or an entity whose name imports that it is a legal entity,
the indictment must specify that the victim “is a corporation or otherwise a legal entity
capable of owning property.” Campbell, 368 N.C. at 86, 772 S.E.2d at 443 (emphasis
added).2 The State essentially argues that the italicized portion of this quote from
Campbell means that an indictment which fails to specify the victim’s entity type is,
nonetheless, sufficient so long as the indictment otherwise alleges that the victim is
a legal entity. Defendant argues that the italicized language should not be read so
literally, but rather our Supreme Court meant that the indictment must specify the
victim’s entity type, whether a corporation or otherwise. For the following reasons,
we must accept Defendant’s interpretation.
First, the allegations regarding the identity of the victim in the present case
are essentially the same as those which our Supreme Court has consistently held to
be insufficient. For instance, like the indictment in the present case, the indictment
in Thornton – the seminal case from our Supreme Court on the issue – (1) alleged a
2
See also, e.g., State v. Thornton, 251 N.C. 658, 661, 111 S.E.2d 901, 903 (1960); State v. Jessup,
279 N.C. 108, 112, 181 S.E.2d 594, 597 (1971) (holding that a larceny indictment must “allege the
ownership of the property either in a natural person or [in] a legal entity capable of owning” property).
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STATE V. BRAWLEY
Opinion of the Court
victim name which otherwise did not import a natural person or entity capable of
owning property, identifying the victim as “The Chuck Wagon”; (2) failed to specify
the victim’s entity type; and (3) essentially alleged that the victim, otherwise, was
capable of owning property. Thornton, 251 N.C. at 659-60, 111 S.E.2d at 901-02. In
the present case, the indictment alleged that Belk’s was an entity capable of owning
property by expressly stating as such. In Thornton, the indictment alleged that The
Chuck Wagon was an entity capable of owning/possessing property by alleging that
that The Chuck Wagon “entrusted” certain of its property to the defendant, who in
turn converted the property “belonging to said The Chuck Wagon” for his own use.
Id. (emphasis added). In sum, our Supreme Court in Thornton held that an
indictment identifying the victim as “The Chuck Wagon” and alleging that the The
Chuck Wagon could have property “belonging” to it did not satisfy the requirement
that the victim be identified. Id. at 662, 111 S.E.2d at 904. There is no practical
difference between the allegations in Thornton and those in the present case
concerning the victim’s identity. We are bound by the holding in Thornton and
similar holdings.
Second, our Supreme Court has consistently held that it is the State’s burden
to prove the victim’s identity. See, e.g., Campbell, 368 N.C. at 86, 772 S.E.2d at 443.
Merely stating that the victim named is an entity capable of owning property fails to
identify with specificity the identity of the victim. For instance, it is permissible in
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STATE V. BRAWLEY
Opinion of the Court
North Carolina for a limited partnership and a corporation to share the same name,
so long as they are different entity types. As such, it is possible for there to be a
“Belk’s Department Stores, a corporation” and, at the same time, a “Belk’s
Department Stores, a limited partnership.” Allowing the State merely to allege
“Belk’s Department Stores” as some entity type capable of owning property would
relieve the State of its obligation to identify with sufficient specificity who the victim
was. Indeed, our Supreme Court once vacated a conviction where the indictment
alleged the victim named was a sole proprietorship but the evidence at trial showed
that the victim named was, in fact, a corporation, confirming that alleging the victim’s
entity type is crucial. State v. Brown, 263 N.C. 786, 787-88, 140 S.E.2d 413, 413-14
(1965) (holding it a fatal variance where indictment alleged victim as “Stroup Sheet
Metal Works, H.B. Stroup, Jr., owner” and the evidence showed that the victim was
“Stroup Sheet Metal Works, Inc.”).
Third, the State does not cite, nor has our research uncovered, any North
Carolina case where an indictment failing to allege a specific form of entity was
deemed sufficient. In every instance, an indictment has been sustained only where
the type of entity is specified.
We are further persuaded by our reasoning in State v. Thompson, 6 N.C. App.
64, 169 S.E.2d 241 (1969). In that case, the defendant was convicted of stealing three
dresses from an entity referred to in the indictment solely as “Belk’s Department
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STATE V. BRAWLEY
Opinion of the Court
Store, 113 E. Trade Street.” Id. at 65, 169 S.E.2d at 242. We vacated the conviction,
essentially explaining that the indictment was fatal because it failed to specify the
type of legal entity “Belk’s Department Store” was:
Here, we cannot say that “Belk's Department Store”
imports a corporation, there is no allegation that it is a
corporation, nor is there any allegation that it is a
proprietorship or a partnership. The name “Belk's
Department Store” certainly does not suggest a natural
person. . . . [W]e are compelled to hold the warrant is
fatally defective.
Id. at 66, 169 S.E.2d at 242.
IV. Conclusion
The purpose of an indictment is to put a defendant on reasonable notice of the
charge against him so that he may prepare for trial and to protect him from double
jeopardy. State v. Spivey, 368 N.C. 739, 742, 782 S.E.2d 872, 874 (2015). The
indictment in the present case appears to be sufficient in accomplishing its purpose:
it alleges the date and location of the crime and the items that he stole. It is also
clear from the indictment that the grand jury found that the items did not belong to
Defendant but were the property “of another.” However, our Supreme Court has
consistently held that the State must allege not only facts sufficient to show that the
property did not belong to Defendant, but also the identity of the actual owner. By
merely alleging that the owner was “Belk’s Department Stores, an entity capable of
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STATE V. BRAWLEY
Opinion of the Court
owning property,” the State has failed to allege with specificity the identity of the
actual owner.
Our Supreme Court has recently relaxed the requirement for specifying the
victim’s entity type in indictments charging injury to real property. See Spivey, 368
N.C. at 744, 782 S.E.2d at 875 (holding an identification of the owner as “Katy’s Eats”
sufficient to identify the real property at issue). However, our Supreme Court has
not relaxed this rule with respect to indictments charging larceny of personal
property. Id.; Campbell, 368 N.C. at 86, 772 S.E.2d at 443. Therefore, we must
conclude that the superior court lacked jurisdiction to try Defendant as charged.
VACATED.
Judge HUNTER, JR., concurs.
Judge ARROWOOD dissents by separate opinion.
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No. COA17-287 – State v. Brawley
ARROWOOD, Judge, dissenting.
I respectfully dissent from the majority’s holding that the State has failed to
allege with specificity the identity of the owner in defendant’s indictment for larceny
against a merchant. As such, I would find no error with respect to the trial. However,
I would find that the restitution ordered by the court was not supported by evidence
in the record, and would vacate that order and remand for a new hearing on
restitution.
On or about 19 September 2015, defendant and Ms. Lamaya Sanders (“Ms.
Sanders”) were driving from Greensboro to Salisbury when defendant suggested to
Ms. Sanders that they go to Belk’s and steal some polo shirts. Ms. Sanders agreed to
help. Defendant selected a black polo shirt and Ms. Sanders removed the tag and
placed it in her bag. She also removed a tag from a red polo shirt and placed it in her
bag. Defendant picked out other shirts, but Ms. Sanders could not remove the tags.
Defendant and Ms. Sanders then left the store.
The thefts were filmed on the Belk’s’ security system. The loss prevention
officer called the Salisbury police and obtained the tag number for defendant’s vehicle
as he and Ms. Sanders fled the parking lot. Based upon the information provided by
the Belk’s’ loss prevention officer, the Salisbury police obtained warrants for
defendant and Ms. Sanders. Ms. Sanders pleaded guilty in District Court in
November 2018 and had completed her active sentence when she was subpoenaed
and testified against defendant.
STATE V. BRAWLEY
Arrowood, J., dissenting
On 16 May 2016, the grand jury indicted defendant alleging that he:
unlawfully, willfully and feloniously did: steal, take and
carry away two polo brand shirts by removing the anti-
theft device attached to each shirt, the personal property of
Belk’s Department Stores, an entity capable of owning
property, having a value of $134.50.
(emphasis added).
The issue presented by defendant’s appeal is whether it is sufficient to allege
a store name, together with the allegation that the store is a legal entity capable of
owning property, to meet the requirements of N.C. Gen. Stat. § 15A-924(5). The
statute states that a criminal pleading must contain “[a] plain and concise factual
statement in each count which . . . asserts facts supporting every element of a
criminal offense and the defendant’s commission thereof with sufficient precision
clearly to apprise the defendant or defendants of the conduct which is the subject of
the accusation.” N.C. Gen. Stat. § 15A-924(5) (2015).
Contrary to the holding of the majority’s opinion, I believe this indictment
adequately identified the victim of the larceny and was sufficient to convey
jurisdiction on the Superior Court to determine the guilt or innocence of defendant.
Defendant was charged with violating N.C. Gen. Stat. § 14-72.11(2) which in
pertinent part provides:
A person is guilty of a Class H felony if the person commits
larceny against a merchant . . .
(2) By removing, destroying, or deactivating a
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STATE V. BRAWLEY
Arrowood, J., dissenting
component of an antishoplifting or inventory control
device to prevent the activation of any
antishoplifting or inventory control device.
N.C. Gen. Stat. § 14-72.11(2) (2015).
In State v. Campbell, 368 N.C. 83, 772 S.E.2d 440 (2015), the larceny
indictment alleged that the defendant stole the personal property of “Andy Stevens
and Manna Baptist Church.” Id. at 86, 772 S.E.2d at 443. The issue before the North
Carolina Supreme Court was whether the larceny indictment was fatally flawed
because it did not specifically state that the church was an entity capable of owning
property. Id. at 84, 772 S.E.2d at 442. Our Supreme Court held:
The purpose of the indictment is to give a defendant
reasonable notice of the charge against him so that he may
prepare for trial. . . . To be valid a larceny indictment must
allege the ownership of the [stolen] property either in a
natural person or a legal entity capable of owning (or
holding) property.
Id. at 86, 772 S.E.2d at 443 (internal quotation marks and citations omitted). The
North Carolina Supreme Court, overruling the line of the Court of Appeals cases
deciding otherwise, further held that “alleging ownership of property in an entity
identified as a church or other place of religious worship, like identifying an entity as
a ‘company’ or ‘incorporated,’ signifies an entity capable of owning property[.]” Id. at
87, 772 S.E.2d at 444. Accordingly, the larceny indictment was upheld as valid on its
face and the decision of the Court of Appeals was reversed and remanded.
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STATE V. BRAWLEY
Arrowood, J., dissenting
Given the complexity of corporate structures in today’s society, I think an
allegation that the merchant named in the indictment is a legal entity capable of
owning property is sufficient to meet the requirements that an indictment apprise
the defendant of the conduct which is the subject of the accusation. Contrary to the
majority’s belief that our Supreme Court has not relaxed the rule with respect to
indictments charging larceny, I believe that our Supreme Court has refined its earlier
holding in State v. Thornton, 251 N.C. 658, 111 S.E.2d 901 (1960), through its ruling
in Campbell. I also believe that State v. Thompson, 6 N.C. App. 64, 169 S.E.2d 241
(1969), which merely identified the victim as “Belk’s Department Store, 113 E. Trade
Street[,]” is distinguishable from the present case as there was no allegation that the
victim was a legal entity capable of owning property.
Therefore, I vote to find no error in defendant’s conviction. However, I do not
believe that the State presented sufficient evidence to support the award of
restitution in the Judgment. Thus, I would vacate and remand the matter for a new
hearing on restitution.
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