NO. COA02-715
Appeal by defendant from judgments dated 7 November 2001 by
Judge Howard E. Manning, Jr. in Durham County Superior Court.
Heard in the Court of Appeals 30 December 2002.
Attorney General Roy Cooper, by Special Deputy Attorney
General Judith Robb Bullock, for the State.
Russell J. Hollers, III for defendant appellant.
GREENE, Judge.
Tremayne Markeesa Stoval (Defendant) appeals judgments dated
7 November 2001 entered consistent with a jury verdict finding him
guilty of felonious breaking or entering and felonious larceny.
On 30 April 2001, Defendant was indicted for felonious
breaking and entering and felonious larceny. The indictment for
the felonious larceny charge stated “[D]efendant . . . unlawfully,
willfully, and feloniously did steal, take and carry away assorted
grocery items, the personal property of Winn-Dixie Supermarket
having a value of approximately $3,799.00.” At trial, the State's
evidence revealed that in the early morning hours of 13 February
2001, Officer David Brennan Ference (Officer Ference) of the DurhamCity Police Department was on patrol in the Highway 55 area.
Officer Ference observed a gray sedan drive to the rear of the
Winn-Dixie in the Triangle Square Shopping Center, which had been
closed for several hours. After waiting a few minutes, Officer
Ference proceeded to the rear of the Winn-Dixie and observed
approximately three shopping carts full of merchandise positioned
next to the gray sedan with its trunk open. Officer Ference
noticed Defendant and another male loading merchandise into the
sedan. The Winn-Dixie loading dock door was propped open, with
more shopping carts containing merchandise located inside. When
Officer Ference confronted the men, Defendant told Officer Ference
he was a store employee who had purchased the merchandise and the
people present were helping him take it home. Defendant, however,
was unable to produce a receipt for the merchandise. The Winn-
Dixie store manager testified Defendant was employed by the store
as a stocker but had not been given consent to take the merchandise
or to be in the store after hours on February 13.
At the close of the State's evidence and again at the close of
all the evidence, Defendant moved to dismiss the charges against
him. The trial court denied both motions.
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The issue is whether the indictment properly identified Winn-
Dixie as a legal entity capable of owning property.
Defendant contends the trial court erred by failing to dismiss
the charge of felonious larceny because the indictment does not
sufficiently specify the ownership of the stolen property. Weagree.
The essential elements of larceny are: (1) taking of the
property of another; (2) carrying it away; (3) without the owner's
consent; and (4) with the intent to permanently deprive the owner
of the property.
State v. Perry, 305 N.C. 225, 233, 287 S.E.2d
810, 815 (1982). To convict a person of larceny, the State must
prove ownership, and therefore, “a proper indictment must identify
as victim a legal entity capable of owning property.”
State v.
Woody, 132 N.C. App. 788, 790, 513 S.E.2d 801, 803 (1999). If the
victim is not an individual and the indictment does not allege that
the victim was “a legal entity capable of owning property, the bill
of indictment is fatally defective.”
Id.
As Defendant notes, these principles were recently applied by
this Court in
State v. Norman, 149 N.C. App. 588, 562 S.E.2d 453
(2002). In
Norman, the indictment charging the defendant with
felonious larceny alleged the defendant “did 'steal, take and carry
away 2 electric lamps, the personal property of Quail Run Homes
Ross Dotson, Agent, such property having a value of $40.00.'” This
Court held that the indictment was fatally defective because it
failed to indicate the legal ownership status of the victim as a
person or a corporation capable of owning property.
Id. at 593,
562 S.E.2d at 457.
In this case, the indictment alleged Defendant “did steal,
take and carry away assorted grocery items, the personal property
of Winn-Dixie Supermarket having a value of approximately
$3,799.00.” As this language fails to identify the victim as anatural person or a corporation, it is fatally defective and cannot
support Defendant's larceny conviction. Accordingly, the judgment
on the charge of felonious larceny must be vacated. The State,
however, may re-indict Defendant for larceny.
See State v.
Pakulski, 326 N.C. 434, 439, 390 S.E.2d 129, 132 (1990) (“[w]hen
judgment is arrested because of a fatal flaw which appears on the
face of the record, such as a substantive error on the indictment,
the verdict itself is vacated and the [S]tate must seek a new
indictment if it elects to proceed again against the defendant”).
Vacated in part.
Judges TIMMONS-GOODSON and TYSON concur.
Report per Rule 30(e).
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