Indictment and Information--conversion--corporate victim--
identity not sufficiently alleged
An indictment for conversion by a bailee was fatally
defective and could not support either a felony or misdemeanor
conviction where the indictment alleged that the property
belonged to “P&R Unlimited.” While “ltd.” or “limited” are
proper corporate identifiers, “unlimited” is not a term capable
of notifying a criminal defendant either directly or by clear
import that the victim is a legal entity capable of holding
property. The indictment also fails to name the persons
composing a partnership. The exception in State v. Wooten, 18
N.C.App. 652, for the shoplifting statute does not apply to this
statute. Appeal by defendant from judgment entered 10 February 1998
by Judge Forrest Bridges in Mitchell County Superior Court.
Heard in the Court of Appeals 22 February 1999.
Michael F. Easley, Attorney General, by Daniel D. Addison,
Assistant Attorney General, for the State.
The Law Offices of Wesley E. Starnes, by Wesley E. Starnes,
for defendant-appellant.
EDMUNDS, Judge.
During 1990, defendant worked for Tandy Computers and was
responsible for leasing a Tandy 3000 computer and movie-rental
inventory software to P&R Unlimited, Incorporated (P&R, Inc.).
P&R, Inc. was formed with two shareholders, Patrick Phillips and
Mark Robinson for the purpose of operating “P&R Unlimited,” a
convenience store. Defendant subsequently began working
elsewhere, but she continued to service the computer that P&R,
Inc. had leased from Tandy. Phillips later purchased Robinson's
shares in P&R, Inc., and at trial he referred to the resulting
business as a partnership.
Prior to 15 May 1994, defendant picked up the computer from
Phillips' store for service. Phillips has not since seen the
computer. Phillips made several unavailing attempts to contact
defendant and inquire about the computer. On one occasion whenhe spoke with defendant, she told him she had taken his computer
to Radio Shack in Asheville; however, the records at that store
did not show delivery of a computer by defendant.
On 21 April 1997, the grand jury returned a true bill of
indictment against defendant for conversion by a bailee, pursuant
to N.C. Gen. Stat. § 14-168.1 (1993). The indictment alleged the
converted property belonged to “P& R unlimited.” When the matter
was called for trial on 10 February 1998, the State noted a
problem with the indictment and proposed that defendant sign a
bill of information. After consulting with her attorney,
defendant declined to sign, and the State proceeded to trial on
the original indictment. The trial court instructed the jury on
both felony and misdemeanor conversion, and the jury found
defendant guilty of the felony. Upon defendant's motion to set
aside the verdict, the trial court arrested judgment as to the
felony charge and entered judgment for misdemeanor conversion by
a bailee. Defendant received a two-year suspended sentence and
was placed on supervised probation for three years. As a
condition of probation, defendant was ordered to serve six months
in county jail and pay the victim $3,500 restitution. From this
judgment, defendant appeals. We vacate the judgment.
Defendant was charged and tried pursuant to section 14-
168.1, which states in relevant part: Every person entrusted with any property
as bailee, lessee, tenant or lodger, or with
any power of attorney for the sale or
transfer thereof, who fraudulently converts
the same, or the proceeds thereof, to his own
use, or secretes it with a fraudulent intent
to convert it to his own use, shall be guilty
of a misdemeanor.
N.C. Gen. Stat. § 14-168.1 (1993). This crime, like larceny and
embezzlement, occurs when a defendant offends the ownership
rights of another. The statute applies to certain specified
relationships involving an owner of property and a non-owner,
e.g., bailee, lessee, and tenant. Moreover, an essential
component of the crime is the intent to convert or the act of
conversion, which by definition requires proof that someone other
than a defendant owned the relevant property. Because the State
is required to prove ownership, a proper indictment must identify
as victim a legal entity capable of owning property. An
indictment that insufficiently alleges the identity of the victim
is fatally defective and cannot support conviction of either a
misdemeanor or a felony.
Defendant argues that the indictment in this case was
fatally defective because it improperly alleged ownership of
property converted. We agree. Our Supreme Court has stated,
“Where an indictment charges the defendant with a crime against
someone other than the actual victim, such a variance is fatal.” State v. Abraham, 338 N.C. 315, 340, 451 S.E.2d 131, 144 (1994)
(citing State v. Bell, 270 N.C. 25, 153 S.E.2d 741 (1967)). The
Abraham Court also stated that misidentifying the victim in the
indictment “required the State to prove injury to someone other
than the true victim.” Id. (citing State v. Overman, 257 N.C.
464, 125 S.E.2d 920 (1962)). The Abraham Court relied in part on
State v. Harper, 64 N.C. 129, 131 (1870), which stated, “[a]
variance or omission in the name of the person injured, is more
serious than a variance in the name of the defendant . . . .”
Where the victim is not an individual, our Supreme Court has
additionally held that if there was no allegation that the victim
was a legal entity capable of owning property, the bill of
indictment is fatally defective. See State v. Thornton, 251 N.C.
658, 662, 111 S.E.2d 901, 904 (1960). In Thornton, the defendant
was charged with embezzlement from “The Chuck Wagon.” In
arresting judgment, our Supreme Court held that the victim's namemust be given, along with “the fact that it is a corporation
. . . unless the name itself imports a corporation.” Id. at 662,
111 S.E.2d at 903 (citing Nickles v. State, 86 Ga. App. 290, 71
S.E.2d 578 (1952)); see also State v. Strange, 58 N.C. App. 756,
294 S.E.2d 403, disc. review denied, 307 N.C. 128, 297 S.E.2d 403
(1982) (holding an indictment for larceny from “Granville County
Law Enforcement Association” insufficient); State v. Perkins, 57
N.C. App. 516, 291 S.E.2d 865 (1982) (indictment for larceny from
“Metropolitan YMCA t/d/b/a Hayes-Taylor YMCA Branch”
insufficient); State v. Ellis, 33 N.C. App. 667, 236 S.E.2d 299
(holding an indictment for embezzlement adequate by naming
“Providence Finance Company,” which clearly imported a
corporation), disc. review denied, 293 N.C. 255, 236 S.E.2d 708
(1977); State v. Roberts, 14 N.C. App. 648, 188 S.E.2d 610 (1972)
(indictment for larceny from “Ken's Quickie Mart” insufficient);
State v. Thompson, 6 N.C. App. 64, 169 S.E.2d 241 (1969)
(indictment for larceny from “Belk's Department Store”
insufficient). A variant of the same rule applies for
partnerships. “If the property alleged to have been stolen
. . . is the property of a partnership, or other quasi artificial
person, the names of the persons composing the partnership, or
quasi artificial person, should be given.” Thornton, 251 N.C. at
662, 111 S.E.2d at 903. The State argues that in the indictment, the word
“unlimited” sufficiently connotes the proper legal status of the
victim. We disagree. While the abbreviation “ltd.” or the word
“limited” is a proper corporate identifier, see N.C. Gen. Stat. §
55-4-01 (Cum. Supp. 1997), “unlimited” enjoys no such status. It
is not a term capable of notifying a criminal defendant either
directly or by clear import that the victim is a legal entity
capable of holding property. “Unlimited” is of no more
significance than was the term “association,” found in Strange.
The indictment also fails to name persons composing a
partnership. In short, the indictment lacks any indication of
the legal ownership status of the victim. An exception to the
general rule may be found in State v. Wooten, 18 N.C. App. 652,
197 S.E.2d 614, cert. denied, 283 N.C. 758, 198 S.E.2d 728
(1973), a shoplifting case brought under N.C. Gen. Stat. § 14-
72.1 (1971). We held in Wooten that the trial court did not err
where the warrant alleged merchandise had been concealed on the
premises of “Kings Dept. Store.” The Court reasoned that, under
the shoplifting statute, the only victim could be a store, and
that the statute did not “cover property in a residence, bank,
school or church . . . .” Id. at 655, 197 S.E.2d at 615.
Because the victim could only be a “store,” this Court concluded
that the shoplifting statute did not require the State to includethe victim's corporate status in the warrant. We find that
Wooten does not apply to the offenses covered by N.C. Gen. Stat.
§ 14.168.1 (1993). In comparison with the narrow scope of the
concealment statute, the General Assembly drafted section 14-
168.1 with broad and sweeping language covering many classes of
victims. Therefore, as with larceny and embezzlement, applying
the policy of strictly construing indictments is appropriate
here. By insufficiently alleging the identity of the victim, the
indictment was fatally defective, and could not support either a
felony or misdemeanor conviction. Accordingly, the judgment of
the trial court is vacated.
In light of this result, we need not address the other
issues raised by the parties.
Judgment vacated
Chief Judge EAGLES and Judge WYNN concur.
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