Smith's Criminal Case Compendium
Smith's Criminal Case Compendium
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Smith's Criminal Case Compendium
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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.
Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.
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Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Larceny & Related Offenses > Person Who Owned/Possessed the Property
On appeal from the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 807 S.E.2d 159 (2017), the court per curiam reversed for the reasons stated in the dissenting opinion below, thus holding that a larceny from a merchant indictment was not fatally defective. A majority of the panel of the Court of Appeals held that the indictment, which named the victim as “Belk’s Department Stores, an entity capable of owning property,” failed to adequately identify the victim. The court of appeals stated:
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[.]” (quotations omitted).
The court of appeals further clarified: “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.” Here, the name “Belk’s Department Stores” does not itself import that the victim is a corporation or other type of entity capable of owning property. The indictment did however include an allegation that the store was “an entity capable of owning property.” Thus the issue presented was whether alleging that the store is some unnamed type of entity capable of owning property is sufficient or whether the specific type of entity must be pleaded. The Court of Appeals found that precedent “compel[led]” it to conclude that the charging language was insufficient. The Court of Appeals rejected the State’s argument that an indictment which fails to specify the victim’s entity type is sufficient so long as it otherwise alleges that the victim is a legal entity. The dissenting judge believed that the indictment adequately alleged the identity of the owner. The dissenting judge stated: “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.” As noted, the Supreme Court reversed for reasons stated in the dissent.
Invoking its discretion under Rule 2 to reach the merit of the defendant’s argument, the court held, over a dissent, that the trial court erred by failing to dismiss a larceny charge due to a fatal variance between the indictment and the evidence regarding ownership of the property. The indictment alleged that the property belonged to “Andy [Stevens] and Manna Baptist Church.” Andy Stevens was the church’s Pastor. In a prior opinion in the case, the court had held that a fatal variance existed because the evidence showed that the stolen property belonged only to the church. The Supreme Court however granted discretionary review as to whether the Court of Appeals erred in invoking Rule 2 to address that issue. That court remanded to the Court of Appeals for an express determination as to whether the court would exercise its discretion to invoke Rule 2 and consider the merits of the fatal variance claim. Following these instructions, the court determined that in this “unusual and extraordinary case” it would exercise its discretion to employ Rule 2 and consider the merits of the defendant’s fatal variance claim. Turning to the merits, the court adopted its analysis in its earlier decision in the case and held—again—that a fatal variance occurred. Specifically, although the indictment alleged that the property was owned by both Andy Stevens and the church, the evidence established that the property was owned only by the church. The court reiterated the principle that if the State fails to present evidence of a property interest of some sort in both owners alleged in the indictment, a fatal variance occurs. Here, the evidence did not show that Pastor Stevens held title or had any type of ownership interest in the stolen property.
Reversing the decision below, State v. Campbell, 234 N.C. App. 551 (2014), the court held that a larceny indictment was not fatally flawed even though it failed to specifically allege that a church, the co-owner of the property at issue, was an entity capable of owning property. The indictment named the victim as Manna Baptist Church. The court held: “[A]lleging 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, and the line of cases from the Court of Appeals that has held otherwise is overruled.”
In this Graham County case, defendant appealed the denial of his motion for appropriate relief (MAR) due to a flaw in the indictment, arguing that the indictment failed to allege a legal entity capable of owning property. The Court of Appeals affirmed the denial of defendant’s MAR.
The basis of defendant’s argument arose from his conviction for breaking and entering, felony larceny, and felony possession of goods in 1994, after defendant stole a television, VCR, and microwave from what the indictment identified as “Graham County Schools,” with the additional location identified as “Robbinsville Elementary School.” When defendant was subsequently indicted in 2020 for possession of stolen goods or property and safecracking, and attaining habitual felon status, defendant filed a MAR. Defendant argued that “Graham County Schools” was not a legal entity; the trial court denied the MAR, finding that “Graham County Schools” implied the actual ownership of “Graham County Board of Education.” Slip Op. at 2-3.
The court explained that North Carolina law does require identification of an entity capable of owning property, but “larceny indictments have been upheld where the name of the entity relates back or ‘imports’ an entity that can own property.” Id. at 5. Referencing State v. Ellis, 368 N.C. 342 (2015), the court noted that a larceny indictment listing “North Carolina State University” was upheld although the statute only identifies N.C. State University as a constituent institution of the University of North Carolina. Slip Op. at 6. Here, the court found that “Graham County Schools” similarly imported the Graham County Board of Education.
An indictment charging the defendant with felony larceny was not defective. The indictment alleged that the victim was “Sears Roebuck and Company.” The defendant argued that although the indictment contains the word “company,” it does not identify the victim as a company or other corporate entity. The Court disagreed. Noting prior case law holding defective an embezzlement indictment which alleged the victim’s name as “The Chuck Wagon,” the court noted that in this case the word “company” is part of the name of the property owner, “Sears Roebuck and Company.” It noted that that the words corporation, incorporated, limited, or company, or their abbreviated form sufficiently identify a corporation in an indictment.
The court rejected the defendant’s argument that there was a fatal variance between the indictment for misdemeanor larceny and the evidence at trial. Specifically, the defendant argued that there was a fatal variance between the allegation that he stole a checkbook from Glenn Cox and the evidence at trial, which showed that the checkbook belonged to Cox Auto Salvage. The court noted that a larceny indictment must allege a person who has a property interest in the stolen item, and that the State must prove that person has ownership, meaning title to the property or some special property interest. As to the case at hand, it concluded:
While there is no evidence tending to show Glenn Cox was the actual owner of Cox Auto Salvage, there is ample evidence indicating Cox had a special property interest in the checkbook. Cox testified the checkbook was his, had his name written on it, and contained stubs of checks he had written. Cox always kept a company checkbook, and he realized the checkbook was missing when he needed to pay a customer. We conclude this evidence establishes Cox was in exclusive possession and control of the checkbook, and that he viewed it as being his checkbook. Therefore, Cox had a special property interest in the checkbook.
Although there was a fatal variance between the allegation in a felony larceny indictment as to the owner of the stolen property and the proof of ownership presented at trial, the variance did not warrant dismissal. The indictments alleged that all of the stolen items, a television, gaming system, video games, laptop, camera, and earrings were the personal property of April Faison. The evidence at trial indicated that Faison did not own all of those items. Specifically, her daughter owned the laptop and the camera; the gaming system belonged to a friend. Although the defendant conceded that some of the items listed in the indictment correctly named Faison as property owner, he argued that a fatal variance with respect to the other items required dismissal. The State’s evidence would have been sufficient if it had established that Faison, while not the property owner, had some special interest in the items owned by others, for example, as a bailee. However, the State’s evidence did not establish that. The court also rejected the argument that Faison had a special custody interest in her child’s property because, here, her daughter was an adult who did not live in the home. Thus, while the evidence was sufficient to demonstrate that Faison was the owner of some of the property, there was a fatal variance with respect to ownership of other items. The court however went on to reject the argument that a larceny indictment that properly alleges the owner of certain stolen property, but improperly alleges the owner of additional property, must be dismissed in its entirety. Here, the problematic language was surplusage.
A felonious larceny indictment alleging that the defendant took the property of “Pinewood Country Club” was fatally defective. The State conceded that the indictment was defective because it failed to allege that the named victim was an entity capable of owning property. The court noted however that the indictment’s failure to specify the country club as an entity capable of owning property was not fatal with respect to a separate charge of possession of stolen goods.
Exercising discretion to consider a fatal variance argument with respect to a theft of money and an iPod from a frozen yogurt shop, the court held that a fatal variance existed. The State alleged that the property belonged to Tutti Frutti, LLC, but it actually belonged to Jason Wei, the son of the sole member of that company, and the State failed to show that Tutti Frutti was in lawful custody and possession of Wei’s property when it was stolen. It clarified: “there is no fatal variance between an indictment and the proof at trial if the State establishes that the alleged owner of stolen property had lawful possession and custody of the property, even if it did not actually own the property.”
A juvenile petition alleging felony larceny was fatally defective because it contained no allegation that the alleged victim, the Crossings Golf Club, was a legal entity capable of owning property.
An indictment for felonious larceny that failed to allege ownership in the stolen handgun was fatally defective.
Fatal variance in larceny indictment alleging that the stolen gun belonged to an individual named Minear and the evidence showing that it belonged to and was stolen from a home owned by an individual named Leggett. Minear had no special property interest in the gun even though the gun was kept in a bedroom occupied by both women.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Larceny & Related Offenses > Description of Property Taken
The trial court lacked jurisdiction to sentence the defendant for larceny of goods worth more than $1,000 when the indictment charged that the defendant stole “property having a value of $1,000.”
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Larceny & Related Offenses > Larceny from Merchant
On appeal from the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 807 S.E.2d 159 (2017), the court per curiam reversed for the reasons stated in the dissenting opinion below, thus holding that a larceny from a merchant indictment was not fatally defective. A majority of the panel of the Court of Appeals held that the indictment, which named the victim as “Belk’s Department Stores, an entity capable of owning property,” failed to adequately identify the victim. The court of appeals stated:
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[.]” (quotations omitted).
The court of appeals further clarified: “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.” Here, the name “Belk’s Department Stores” does not itself import that the victim is a corporation or other type of entity capable of owning property. The indictment did however include an allegation that the store was “an entity capable of owning property.” Thus the issue presented was whether alleging that the store is some unnamed type of entity capable of owning property is sufficient or whether the specific type of entity must be pleaded. The Court of Appeals found that precedent “compel[led]” it to conclude that the charging language was insufficient. The Court of Appeals rejected the State’s argument that an indictment which fails to specify the victim’s entity type is sufficient so long as it otherwise alleges that the victim is a legal entity. The dissenting judge believed that the indictment adequately alleged the identity of the owner. The dissenting judge stated: “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.” As noted, the Supreme Court reversed for reasons stated in the dissent.
An indictment charging the defendant with larceny from a merchant by removal of antitheft device in violation of G.S. 14-72.11 was defective in two respects. The elements of this offense include a larceny (taking the property of another, carrying it away, without the consent of the possessor, and with the intent to permanently deprive) and removal of an antishoplifting or inventory control device. In this case, the defendant was alleged to have taken clothing from a department store. The court determined that the indictment’s description of the property taken as “merchandise” was “too general to identify the property allegedly taken.” Additionally, the indictment alleged that the defendant “did remove a component of an anti-theft or inventory control device . . . . in an effort to steal” property. This language, the court determined, alleged only an attempted larceny not the completed offense.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Larceny & Related Offenses > Habitual Larceny
In this habitual larceny case where the defendant was sentenced as a habitual felon, the court held that the habitual larceny indictment was not facially invalid for failure to allege all essential elements of the offense. The defendant argued that the habitual larceny indictment was facially invalid because it did not specifically allege that he was represented by counsel or had waived counsel in the proceedings underlying each of his prior larceny convictions. G.S. 14-72(b)(6) provides that a conviction for a larceny offense may not be used as a prior conviction for purposes of elevating misdemeanor larceny to felony habitual larceny unless the defendant was represented by counsel or waived counsel. Reviewing the structure of G.S. 14-72(b)(6), the North Carolina Supreme Court’s definition of the elements of the offense in a prior case, and the availability to defendants of information regarding their counsel when they obtained prior convictions, the court held that representation by or waiver of counsel in connection with prior larceny convictions is not an essential element of felony habitual larceny and thus need not be alleged in an indictment for that offense. Because representation by or waiver of counsel is not an essential element of the offense, the court also rejected the defendant’s related sufficiency of the evidence argument.
Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Larceny & Related Offenses > Possession of Stolen Property
A felonious larceny indictment alleging that the defendant took the property of “Pinewood Country Club” was fatally defective. The State conceded that the indictment was defective because it failed to allege that the named victim was an entity capable of owning property. The court noted however that the indictment’s failure to specify the country club as an entity capable of owning property was not fatal with respect to a separate charge of possession of stolen goods.
An indictment alleging possession of stolen property was defective where it failed to allege that the property was stolen or that the defendant knew or had reason to believe that it was stolen.