STATE OF NORTH CAROLINA
v
.
Guilford County
No. 03 CRS 99261-62, 64
MONIQUE MARYANN SPENCER
Attorney General Roy Cooper, by Assistant Attorney General
Robert K. Smith, for the State.
Lynne Ann Rupp, for defendant-appellant.
LEVINSON, Judge.
Defendant appeals judgment entered upon her convictions for
larceny by anti-inventory device and misdemeanor conspiracy to
shoplift. We find no error.
The pertinent facts may be summarized as follows: On 27
September 2003, Evelyn Blue was head of the shoe department at
Goody's Family Clothing (Goody's) located in the Oak Hollow Mall in
High Point, North Carolina. Blue noticed defendant and a man later
identified as Robert Sawyer in the Girl's Department. Blue noticed
that “the guy was rolling up something and he stuck it in a bag
[and she] heard the bag rattle.” Blue also noticed a large Goody's
bag on the floor which was filled with clothes. Blue called
Beverly Jo Head, an associate at Goody's, and told her that “we
have people here stealing.” Blue pointed out Sawyer, who wascarrying the Goody's bag, to security officers. When prompted to
stop, Sawyer evaded security and exited the store. Blue further
testified that defendant walked out of the store prior to the
incident with security, and that she did not observe defendant
carrying anything with her when she exited the store.
Blue also explained that Goody's has an inventory control
system. Goody's attaches “logos” to their clothing, and a sensor
attached to the item of clothing triggers an alarm when an
individual carrying an item of clothing exits the store if the logo
has not been removed. Blue could not recall whether the alarm
sounded when Sawyer exited Goody's on 27 September 2003.
Head testified that she was also working at Goody's on the
night in question, and that she received a call from Blue saying
that Blue thought some customers were stealing. After Head called
security, she found Sawyer with a “big bag of clothes” and asked
him to stop, but that he refused and quickly exited Goody's. Head
testified that she could not recall if the security sensors were
triggered when Sawyer exited the door. Head also testified that
she observed Sawyer run towards a vehicle with occupants and enter
the vehicle before it “sped off.”
Dino Mezziouso, a former High Point police officer who was on
patrol 27 September 2003, testified that he received a dispatch
call to the Oak Hollow Mall to investigate potential shoplifiting.
Mezziouso proceeded to the Target store. When Mezziouso arrived,
the defendant and another female, Hargrave, were standing near a
dark older model vehicle. Mezziouso spoke with the females, whodenied involvement in the Goody's shoplifting incident. The
females informed Mezziouso that the person involved was Robert
Sawyer and that Sawyer had left before Mezziouso arrived.
Mezziouso testified that he noticed a Goody's bag with clothing on
the ground near the passenger side of the vehicle. The females
denied any knowledge regarding the clothing contained in this
Goody's bag. While Mezziouso continued his investigation, Shannon
Malphurs, an undercover loss prevention investigator from Target,
arrived and told Mezziouso that Sawyer was inside Target.
Mezziouso subsequently arrested Sawyer.
Malphurs informed Mezziouso and Officer Charlton that he had
a videotape showing defendant and Hargrave moving two bags in the
parking lot where law enforcement made initial contact with the
females. The videotape, which was played for the jury, showed
defendant and Hargrave walking together towards the shopping bags.
Hargrave subsequently picked up the two bags and walked away with
them. The defendant stood by while Hargrave moved the bags another
20 or 30 feet further away. Hargrave then returned to the location
where the defendant was standing and both females walked away.
Based upon the information provided in the videotape, Mezziouso and
Charlton located a Goody's bag and a black trash bag, each
containing several items of clothing, approximately 30 feet from
where Mezziouso initially made contact with the females. The
clothing in the bags had aluminum foil wrapped over the inventory
protection devices. Mezziouso testified that aluminum foil placed
over the inventory logos blocks the signal that would ordinarily betriggered when someone exits the store with clothing that has the
logos.
Defendant was convicted of misdemeanor conspiracy to shoplift,
misdemeanor larceny, and felonious larceny by anti-inventory
device. The trial court arrested judgment on the misdemeanor
larceny conviction and sentenced the defendant on the remaining
charges. From these convictions and judgment defendant now
appeals, contending that the trial court lacked jurisdiction
because the indictments for felonious larceny by anti-inventory
device and conspiracy to shoplift were fatally flawed.
Specifically, defendant argues that the indictments failed to
allege that Goody's was a corporation or other legal entity capable
of owning property which, defendant contends, is an essential
element of these offenses. We disagree.
N.C. Gen. Stat. § 15A-924 (2005) sets forth the requirements
for an indictment:
A criminal pleading must contain . . . [a]
plain and concise factual statement in each
count which, without allegations of an
evidentiary nature, 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.
“It is generally held that the language in a statutorily
prescribed form of criminal pleading is sufficient if the act or
omission is clearly set forth so that a person of common
understanding may know what is intended.” State v. Coker, 312 N.C.
432, 435, 323 S.E.2d 343, 346 (1984) (citing 41 Am. Jur. 2d,Indictments and Informations § 68 (1968)). “An indictment charging
a statutory offense must allege all of the essential elements of
the offense.” State v. Snyder, 343 N.C. 61, 65, 468 S.E.2d 221,
224 (1996). The “failure of a criminal pleading to charge the
essential elements of the stated offense is an error of law which
may be corrected upon appellate review even though no corresponding
objection, exception or motion was made in the trial division.”
State v. Sturdivant, 304 N.C. 293, 308, 283 S.E.2d 719, 729 (1981).
N.C. Gen. Stat. § 14-72.1 (2005), provides in pertinent part
that:
(a) Whoever, without authority, willfully
conceals the goods or merchandise of any
store, not theretofore purchased by such
person, while still upon the premises of such
store, shall be guilty of a misdemeanor and,
upon conviction, shall be punished as provided
in subsection (e). Such goods or merchandise
found concealed upon or about the person and
which have not theretofore been purchased by
such person shall be prima facie evidence of a
willful concealment.
. . . .
(d)(1) Notwithstanding subsection (e) of this
section, any person who violates subsection
(a) of this section by using a lead-lined or
aluminum-lined bag, a lead-lined or
aluminum-lined article of clothing, or a
similar device to prevent the activation of
any antishoplifting or inventory control
device is guilty of a Class H felony.
The indictment charging defendant with felonious larceny by
anti-inventory device in violation of G.S. § 14-72.1(d)(1) states
that:
The jurors for the State upon their oath
present that on or about the date of offense
and in the county named above the defendantnamed above unlawfully, willfully and
feloniously did without authority conceal
various items of merchandise, Assorted Men's
and Children's Clothing, the goods and
merchandise of a store, Goody's Family
Clothing, located at Oak Hollow Mall, 921
Eastchester Drive, High Point, NC, while still
upon the premises of the store and not having
theretofore purchased the goods and
merchandise. The defendant committed this
offense by using Tin-Foil to prevent the
activation of any anti-shoplifting of
inventory control device.
An indictment charging the common law offense of larceny “must
allege the ownership of the property either in a natural person or
a legal entity capable of owning property.” State v. Wooten, 18
N.C. App. 652, 655, 197 S.E.2d 614, 615 (1973). Consequently,
“[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.” State v. Thornton, 251 N.C.
658, 662, 111 S.E.2d 901, 903 (1960). The terms “corporation,”
“incorporated,” “limited,” and “company,” are sufficient to import
a corporation in an indictment. See id. at 662, 111 S.E.2d at
903-04.
In addressing the sufficiency of an indictment charging
larceny by anti-inventory device, this Court observed:
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. . . .” Because the victim could only
be a 'store,' this Court concluded that the
shoplifting statute did not require the Stateto include the victim's corporate status in
the warrant.
State v. Woody, 132 N.C. App. 788, 791, 513 S.E.2d 801, 804 (1999)
(quoting Wooten, 18 N.C. App. at 655, 197 S.E.2d at 615).
In the instant case, the indictment for a violation of felony
larceny by anti-inventory device, G.S. § 14-72.1(d)(1), need not
have alleged that Goody's was a corporation or other legal entity
capable of owning property because “the victim could only be a
'store.'” Woody, 132 N.C. App. at 791, 513 S.E.2d at 804.
Similarly, the defendant argues that the indictment for
misdemeanor conspiracy to shoplift was flawed because it failed to
allege that Goody's was a corporation or other legal entity capable
of owning property. We disagree.
A criminal conspiracy consists of “'an agreement between two
or more persons to do an unlawful act or to do a lawful act in an
unlawful way or by unlawful means.'” State v. Jackson, 103 N.C.
App. 239, 244, 405 S.E.2d 354, 357 (1991) (quoting State v.
Lipford, 81 N.C. App. 464, 465, 344 S.E.2d 307, 308 (1986))
.
Therefore, in order to conspire to shoplift in violation of G.S. §
14-72.1(a), one must agree with at least one other person to
“willfully conceal the goods or merchandise of any store, . . . not
theretofore purchased by such person, . . . while still upon the
premises of the store[.]” See Wooten, 18 N.C. App. at 655, 197
S.E.2d at 615; see also G.S. § 14-72.1(a).
The indictment charging defendant with conspiracy to shoplift
provides that: The jurors for the State upon their oath
present that on or about the date of offense
and in the county named above the defendant
named above unlawfully and willfully did
conspire, combine, confederate and agree with
Robert James Sawyer and Carlotta Larae
Hargrave to unlawfully commit the misdemeanor,
to wit: Shoplifting against Goody's Family
Clothing.
Here, the indictment alleged a conspiracy to shoplift from
Goody's, the same entity named in the indictment for felonious
larceny by anti-inventory device. The trial court had jurisdiction
even though the indictment failed to allege that Goody's is a
corporation or other legal entity capable of owning property
because Goody's can only be some type of mercantile establishment.
See Wooten, 18 N.C. App. at 655, 197 S.E.2d at 615. This
assignment of error is overruled.
No error.
Chief Judge MARTIN and Judge JACKSON concur.
Report per rule 30(e).
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