Appeal by Defendant from judgment entered 31 July 2003 by
Judge James C. Spencer, Jr., in Superior Court, Alamance County.
Heard in the Court of Appeals 18 October 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Stormie D. Forte, for the State.
Bryan Emery Gates, Jr., for defendant-appellant.
WYNN, Judge.
If a larceny indictment names a corporation as the owner, “the
name of the corporation should be given, and the fact that it is a
corporation stated, unless the name itself imports a corporation.”
State v. Thornton, 251 N.C. 658, 662, 111 S.E.2d 901, 903 (1960)
(citation omitted). In this case, Defendant Stephon Lavarrio Cave
argues the indictment issued in his charge of larceny is defectivebecause the named owner-entity, “N.C. FYE, Inc.”, does not import
a legal entity capable of owning property. Following Thornton, we
hold the larceny indictment was sufficient because the abbreviation
“Inc.” imports the entity's ability to own property. We further
uphold the trial court's denial of Defendant's motion to dismiss
the charges of larceny and possession of stolen goods.
The evidence at trial tended to show that on 21 December 2002,
a customer in a mall observed individuals shoplifting. The
customer reported the incidents to Steve Foust, an off-duty police
officer working as mall security who conducted surveillance of the
individuals, including Defendant. When Defendant and the
individuals left the mall and returned to their vehicle, police
officers detained them. Defendant, seated in the front passenger
seat, responded by exiting the vehicle, using profanity and
questioning the officers about why the vehicle had been stopped.
The officers informed Defendant that the vehicle had been detained
based on reports of shoplifting taking place within the mall.
Thereafter, the officers searched the vehicle and found items,
including clothes, DVDs and CDs, from several stores. When
Defendant and other passengers could not produce receipts or proofs
of purchase for the items found in the vehicle, they were
handcuffed. While detained, Defendant stated to the officers that
the items in the vehicle belonged to him.
At trial, Defendant acknowledged that he initially accepted
responsibility for the larceny because all of his co-defendants had
prior records. Defendant stated at trial, “I said - I was the coolone. You know, I'm cracking jokes and stuff like that. I told
them, I said, 'Well, just put everything on me.' I said, 'It's all
mine'.”
The jury returned a verdict of guilty for felony larceny,
felony possession of stolen goods, and two counts of misdemeanor
larceny. The trial court consolidated the felony larceny charge
with one misdemeanor larceny charge and sentenced Defendant to five
to six months imprisonment. The felony possession of stolen goods
and the other misdemeanor larceny charge were continued on prayers
for judgment.
[1] On appeal to this Court, Defendant first challenges the
sufficiency of the indictment alleging larceny and possession of
stolen items.
(See footnote 1)
He alleges that the named-owner entity, “N.C. FYE,Inc.”, does not import an entity capable of owning property.
(See footnote 2)
We
disagree.
To convict a defendant of injury to personal property or
larceny, the State must prove that the personal property was that
“of another,” i.e., someone other than the person or persons
accused.
See 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.
“If 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[.]'”
State v. Phillips, 162 N.C. App. 719, 721,592 S.E.2d 272, 273 (2004) (citation omitted). Further, “'[i]f the
property alleged to have been stolen . . . is the property of a
corporation, the name of the corporation should be given, and the
fact that it is a corporation stated, unless the name itself
imports a corporation.'”
Thornton, 251 N.C. at 662, 111 S.E.2d at
903 (citation omitted). Our courts have held that the words
“corporation,” “incorporated,” “limited,” and “company,” are
sufficient to import a corporation in an indictment.
See Thornton,
251 N.C. at 662, 111 S.E.2d at 903-04;
see also State v. Ellis, 33
N.C. App. 667, 236 S.E.2d 299 (1977);
State v. Turner, 8 N.C. App.
73, 173 S.E.2d 642 (1970)
. In addition, an abbreviation may be
sufficient to import a corporation if the word for which the
abbreviation stands imports a corporation.
State v. Woody, 132
N.C. App. 788, 791, 513 S.E.2d 801, 803 (1999).
Here, the indictment for larceny named the property owner as
“N.C. FYE, Inc.,” which is not a natural person. Significantly,
the indictment did not allege that it was a legal entity capable of
owning property. However, our Supreme Court has held “that the
fact of incorporation need not be alleged where the corporate name
is correctly set out in the indictment.”
Thornton, 251 N.C.
at
661, 111 S.E.2d at 903
(citation omitted). Moreover, the
abbreviation “Inc.,” in the name “N.C. FYE, Inc.” is sufficient to
import a corporation because the word for which the abbreviation
stands, “Incorporation,” imports a corporation.
Woody, 132 N.C.
App. at 791, 513 S.E.2d at 803. Because the name, “N.C. FYE,
Inc.”, imports a corporation, we find that the indictment wassufficient. This assignment of error is therefore without merit.
[2] Defendant next asserts the trial court erred in denying
his motion to dismiss the two charges of misdemeanor larceny from
the “Racing Edge” and “K.B. Toys,” and the charges of felony
larceny and felony possession of stolen items from “N.C. FYE,
Inc.,” due to insufficient evidence. We disagree.
“When a defendant moves to dismiss a charge against him on the
ground of insufficiency of the evidence, the trial court must
determine 'whether there is substantial evidence of each essential
element of the offense charged and of the defendant being the
perpetrator of the offense.'”
State v. Garcia, 358 N.C. 382, 412,
597 S.E.2d 724, 746 (2004) (quoting
State v. Crawford, 344 N.C. 65,
73, 472 S.E.2d 920, 925 (1996)),
cert. denied, ___ U.S.___, 161 L.
Ed. 2d 122 (2005);
see also State v. Morgan, 359 N.C. 131, 161, 604
S.E.2d 886, 904 (2004);
State v. Butler, 356 N.C. 141, 145, 567
S.E.2d 137, 139 (2002).
“'Substantial evidence' is relevant evidence that a reasonable
person might accept as adequate, or would consider necessary to
support a particular conclusion.”
Garcia, 358 N.C. at 412, 597
S.E.2d at 746 (citations omitted);
see also State v. Williams, 355
N.C. 501, 578-79, 565 S.E.2d 609, 654 (2002). Moreover,
[a]'substantial evidence' inquiry examines the
sufficiency of the evidence presented but not
its weight. The reviewing court considers all
evidence in the light most favorable to the
State, and the State receives the benefit of
every reasonable inference supported by that
evidence. Evidentiary 'contradictions and
discrepancies are for the jury to resolve and
do not warrant dismissal.'
Garcia, 358 N.C. at 412-13, 597 S.E.2d at 746 (citations omitted).
Additionally, “'[i]f there is substantial evidence--whether direct,
circumstantial, or both--to support a finding that the offense
charged has been committed and that the defendant committed it, the
case is for the jury and the motion to dismiss should be denied.'”
Butler, 356 N.C. at 145, 567 S.E.2d at 140 (citation omitted).
Where the evidence presented is circumstantial, on a defendant's
motion to dismiss, “'the question for the court is whether a
reasonable inference of defendant's guilt may be drawn from the
circumstances. If so, it is for the jury to decide whether the
facts,
taken singly or in combination, satisfy them beyond a
reasonable doubt that the defendant is actually guilty.'”
State v.
Thomas, 296 N.C. 236, 244, 250 S.E.2d 204, 209 (1978) (emphasis in
original) (citation omitted).
To convict a defendant of larceny, the State must prove the
following elements: 1) taking personal property belonging to
another; 2) carrying it away; 3) without the consent of the
possessor; 4) with the intent to deprive the possessor of it
permanently; 5) knowing that the taker is not entitled to it. N.C.
Gen. Stat. § 14-72 (2004).
Defendant argues that his mere presence at the scene where the
larceny occurred and being in the vehicle with the stolen items at
the time they were recovered is not sufficient evidence of him
taking the property. However, “the communication or intent to aid,
if needed, does not have to be shown by express words of the
defendant but may be inferred from his actions and from hisrelation to the actual perpetrators.”
State v. Sanders, 288 N.C.
285, 291, 218 S.E.2d 352, 357 (1975).
Here,
one of Defendant's co-defendants testified that he told
an investigating officer that Defendant was acting as a lookout
while the others were stealing items from the stores. Furthermore,
the store clerk at the “Racing Edge” identified Defendant as a
person who entered the store with one or more of his co-defendants
on 21 December 2002, and engaged in “distracting” behavior.
Likewise, the store manager for FYE, Incorporated testified that
Defendant entered the store twice on 21 December 2002, and appeared
to be distracting the store employees' attention while his co-
defendants removed items from the store.
Moreover, officers searched the vehicle in which Defendant was
riding and found items from several stores, including clothes, DVDs
and CDs. Defendant and other passengers in the car were unable to
show receipts or proofs of purchase for the items found in the
vehicle. Store employees identified merchandise from their
respective stores.
Indeed, Defendant's own testimony supports the trial court's
dismissal of his motion to dismiss. When officers stopped
Defendant and his co-defendants and searched their vehicle,
Defendant told the officers that he was the responsible party, and
not the co-defendants. During direct examination, Defendant
testified that he was unaware of his co-defendants taking any items
from the store. However, in later testimony, Defendant
acknowledged when he knew his co-defendants were takingmerchandise, he would leave the store, thus, contradicting his
earlier testimony.
Based on evidence presented by the State, through the
testimony of store employees from where merchandise had been stolen
and investigating officers, as well as evidence presented by
Defendant through his testimony and that of his co-defendant, taken
in light most favorable to the State, there was sufficient evidence
for the trial court to deny Defendant's motion to dismiss and
present the case to the jury.
No error.
Judges MCGEE and GEER concur.
Footnote: 1