{ "id": 8917151, "name": "STATE OF NORTH CAROLINA v. DONALD RAY CATHEY, Defendant", "name_abbreviation": "State v. Cathey", "decision_date": "2004-01-20", "docket_number": "No. COA03-260", "first_page": "350", "last_page": "355", "citations": [ { "type": "official", "cite": "162 N.C. App. 350" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "340 S.E.2d 75", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "80" } ], "opinion_index": 0 }, { "cite": "316 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4696516 ], "year": 1986, "pin_cites": [ { "page": "161" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0152-01" ] }, { "cite": "393 S.E.2d 771", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "780" } ], "opinion_index": 0 }, { "cite": "327 N.C. 178", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2500222 ], "year": 1990, "pin_cites": [ { "page": "193" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0178-01" ] }, { "cite": "533 S.E.2d 168", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "230" } ], "opinion_index": 0 }, { "cite": "352 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684963 ], "year": 2000, "pin_cites": [ { "page": "460" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0364-01" ] }, { "cite": "111 S.E.2d 901", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "pin_cites": [ { "page": "904" } ], "opinion_index": 0 }, { "cite": "251 N.C. 658", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626903 ], "year": 1960, "pin_cites": [ { "page": "662" } ], "opinion_index": 0, "case_paths": [ "/nc/251/0658-01" ] }, { "cite": "65 N.C. 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1955470 ], "weight": 2, "year": 1871, "pin_cites": [ { "page": "314" } ], "opinion_index": 0, "case_paths": [ "/nc/65/0313-01" ] }, { "cite": "10 S.E. 554", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1889, "pin_cites": [ { "page": "555" } ], "opinion_index": 0 }, { "cite": "104 N.C. 908", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652722 ], "weight": 2, "year": 1889, "pin_cites": [ { "page": "910" } ], "opinion_index": 0, "case_paths": [ "/nc/104/0908-01" ] }, { "cite": "287 S.E.2d 810", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "815", "parenthetical": "stating 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" } ], "opinion_index": 0 }, { "cite": "305 N.C. 225", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567315 ], "year": 1982, "pin_cites": [ { "page": "233", "parenthetical": "stating 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" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0225-01" ] }, { "cite": "584 S.E.2d 740", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 366", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491669 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0366-01" ] }, { "cite": "582 S.E.2d 593", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 257", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491439 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "273" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0257-01" ] }, { "cite": "188 S.E.2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "611-12" } ], "opinion_index": 0 }, { "cite": "14 N.C. App. 648", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552378 ], "year": 1972, "pin_cites": [ { "page": "649" } ], "opinion_index": 0, "case_paths": [ "/nc-app/14/0648-01" ] }, { "cite": "448 S.E.2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "824" } ], "opinion_index": 0 }, { "cite": "337 N.C. 764", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2552042 ], "year": 1994, "pin_cites": [ { "page": "767" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0764-01" ] }, { "cite": "323 S.E.2d 343", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "312 N.C. 432", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4756963 ], "opinion_index": 0, "case_paths": [ "/nc/312/0432-01" ] }, { "cite": "283 S.E.2d 719", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "729" } ], "opinion_index": 0 }, { "cite": "304 N.C. 293", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567490 ], "year": 1981, "pin_cites": [ { "page": "308" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0293-01" ] } ], "analysis": { "cardinality": 623, "char_count": 13180, "ocr_confidence": 0.764, "pagerank": { "raw": 1.6320869180203184e-07, "percentile": 0.6890548445102398 }, "sha256": "674d615ac7098ffd3e835b55a10fb73f17b52a9157eca496e59c59e175957bcb", "simhash": "1:d7ca7a7e62779861", "word_count": 2188 }, "last_updated": "2023-07-14T16:27:54.754463+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TIMMONS-GOODSON and McCULLOUGH concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DONALD RAY CATHEY, Defendant" ], "opinions": [ { "text": "WYNN, Judge.\nBy this appeal, Defendant, Donald Ray Cathey, presents the following issues for our consideration: Whether the trial court (I) erroneously allowed the State to amend a fatally defective larceny indictment; (II) committed plain error in punishing Defendant for exercising his right to a trial by jury in violation of his state and federal constitutional rights; (III) abused its discretion by overruling Defendant\u2019s motion for view of the crime scene; and (IV) committed plain error in failing to intervene ex mero motu in admitting testimony without a proper foundation. After careful review, we conclude the larceny indictment was fatally defective and the trial court erred in allowing an amendment of said indictment; otherwise, we find no error in the proceedings below.\nThe pertinent facts indicate that on 29 April 2001, local police officers responded to an alarm at the Faith Temple Church of God \u2014 High Point, Incorporated in High Point, North Carolina. Upon arrival, Officer Chris Wolanin and Lieutenant Larry Stroud observed a suspect, about ten feet away from the church, carrying a large black bag. The officers were unable to see the suspect\u2019s face. After the officers shined a flashlight on the suspect, the suspect stopped, went into a line of bushes that ran parallel to the church and ran away. Thereafter, Officer Brian McMillan pursued an individual whom Lieutenant Stroud illuminated with a flashlight. After a short pursuit, Defendant was arrested. Later, the officers recovered a black plastic bag and a boxed ceiling fan from the thicket. None of the latent fingerprints matched Defendant.\nFollowing his convictions at a trial by jury, the trial court sentenced Defendant to imprisonment terms of 7 to 9 months for felonious breaking and entering; 7 to 9 months for felonious larceny to be served consecutively; and 30 days for resisting a public officer. Defendant appeals.\nOn appeal, Defendant first contends the trial court erroneously allowed the State to amend a fatally defective larceny indictment as such amendment constituted a substantial alteration in violation of N.C. Gen. Stat. \u00a7 15A-923(e). We agree.\nIt is well established that \u201ca valid bill of indictment is essential to the jurisdiction of the trial court to try an accused for a felony.\u201d State v. Sturdivant, 304 N.C. 293, 308, 283 S.E.2d 719, 729 (1981). The purpose of an indictment is to give a defendant notice of the crime for which he is being charged. State v. Coker, 312 N.C. 432, 323 S.E.2d 343. Our General Statutes state that \u201ca bill of indictment may not be amended.\u201d N.C. Gen. Stat. \u00a7 15A-923(e) (2001), which has been interpreted by our Supreme Court to mean that \u201can indictment may not be amended in a way which \u2018would substantially alter the charge set forth in the indictment.\u2019 \u201d State v. Brinson, 337 N.C. 764, 767, 448 S.E.2d 822, 824 (1994).\nIn this case, the felonious larceny indictment stated:\nAnd the jurors for the State upon their oath present that on or about the date of offense shown and in the county named above the defendant named above unlawfully, willfully and feloniously did steal, take and carry away , one (1) Sharp VCR, one (1) Table Lamp, one (1) Ceiling Fan, and one (1) Fur Coat, the personal property of Faith Temple Church of God, such property having a value of two hundred and thirty five dollars ($235.00), pursuant to the commission of the felonious breaking and entering described in the charges above.\n(Emphasis supplied) (R. p. 4). Defendant contends this indictment was fatally defective because it did not allege ownership of the property in a legal entity capable of owning property. Although commonly known as Faith Temple Church of God, the church is incorporated as \u201cFaith Temple Church \u2014 High Point, Incorporated.\u201d\n\u201cAn indictment for larceny which fails to allege the ownership of the property either in a natural person or a legal entity capable of owning property is fatally defective.\u201d State v. Roberts, 14 N.C. App. 648, 649, 188 S.E.2d 610, 611-12 (1972). As indicated in Roberts, if a bill of indictment does not allege that an incorporated legal entity is a corporation or the name of the legal entity does not import that it is a corporation, the indictment is fatally defective. Thus, the indictment in the case sub judice, was fatally defective.\nThe State argues, however, that our Supreme Court\u2019s recent decisions in State v. Hunt, 357 N.C. 257, 582 S.E.2d 593 (2003) and State v. Watts, 357 N.C. 366, 584 S.E.2d 740 (2003) indicate that defects in an indictment do not deprive a court of its power to adjudicate a case. However, these cases are limited to short-form murder indictments and do not change the indictment requirements delineated in N.C. Gen. Stat. \u00a7 15A-924. Indeed, in Hunt, our Supreme Court stated:\nUnlike a short-form indictment, the indictment in Lucas was not exempt from the statutory requirement, pursuant to N.C.G.S. \u00a7 15A-924, that indictments must state every element of the crime charged.\nHunt, 357 N.C. at 273, 582 S.E.2d at \u2014. As the owner of the property in question is an essential element of larceny, the larceny indictment in this case did not comply with the provisions of N.C. Gen. Stat. \u00a7 15A-924(a)(5). See State v. Perry, 305 N.C. 225, 233, 287 S.E.2d 810, 815 (1982) (stating the essential elements of larceny are: (1) taking of the property of another; (2) carrying it away; (3) without the owner\u2019s consent; and (4) with the intent to permanently deprive the owner of the property).\nThe State also argues that because \u201cFaith Temple Church \u2014 High Point, Incorporated\u201d is commonly known as \u201cFaith Temple Church of God,\u201d the indictment was sufficient to apprise Defendant of the charges against him and to prevent subsequent prosecution of Defendant for the same offense. In support of its argument, the State relies upon State v. Grant, 104 N.C. 908, 10 S.E. 554 (1889) and State v. Bell, 65 N.C. 313 (1871), which stand for the proposition that in a larceny indictment, \u201cif the owner may have a name by reputation, and if it is proved that he is as well known by that name as any other, a charge in the indictment in that name will be sufficient.\u201d Grant, 104 N.C. at 910, 10 S.E. at 555; Bell, 65 N.C. at 314. However, in Grant and Bell, our Supreme Court addressed larceny indictments alleging the property was owned by a natural person, and are, therefore, inapposite to indictments purporting to charge a defendant with larceny of a legal entity. As indicated by our Supreme Court in State v. Thornton, 251 N.C. 658, 662, 111 S.E.2d 901, 904 (1960), a larceny indictment which does not indicate the legal entity is a corporation or the name of the legal entity does not import a corporation is fatally defective.\nIn this case, the trial court allowed the State to amend the larceny indictment to read \u201cFaith Temple Church \u2014 High Point, Incorporated\u201d rather than \u201cFaith Temple Church of God.\u201d Following established case law, we are compelled to hold this amendment constituted a substantial alteration of the indictment and was therefore prohibited by N.C. Gen. Stat. \u00a7 15A-923(e). Accordingly, the trial court should have dismissed the larceny indictment.\nDefendant next contends the trial court committed plain error in punishing Defendant for exercising his right to a trial by jury in violation of his state and federal constitutional rights. \u201cHowever, plain error review is limited to errors in a trial court\u2019s jury instructions or a trial court\u2019s rulings on admissibility of evidence.\u201d State v. Golphin, 352 N.C. 364, 460, 533 S.E.2d 168, 230 (2000). As Defendant did not raise this objection in the proceedings below, this issue is neither properly preserved nor subject to appellate review. See N.C. R. App. P. 10(b)(1).\nNext, Defendant contends the trial court committed error and abused its discretion by overruling Defendant\u2019s motion for view of the crime scene in violation of Defendant\u2019s state and federal rights. Pursuant to N.C. Gen. Stat. \u00a7 15A-1229, whether the trial judge allows a jury to view a crime scene is within the trial judge\u2019s discretion. See also State v. Simpson, 327 N.C. 178, 193, 393 S.E.2d 771, 780 (1990). In this case, the trial court indicated it did not want to allow the viewing of the crime scene because (1) it would slow the trial by several hours and there were other matters on the trial calendar, (2) it was extremely hot outside which would make the jurors uncomfortable, and (3) logistically, it could not be accomplished easily. Therefore, the trial court indicated it would prefer the use of several crime scene photos. The record indicates the jury had an opportunity to see three photographs of the church and its surroundings and a diagram of the crime scene. Under these facts we hold the trial court did not abuse its discretion in denying a viewing of the crime scene. See id. (finding no abuse of discretion occurred in denying a viewing of the crime scene where the jurors were able to see photographs and diagrams and had the aid of witness testimony).\nFinally, Defendant argues the trial court committed plain error in failing to intervene ex mero motu in admitting testimony of Officer Terrance Garrison without a proper foundation in violation of Defendant\u2019s state and federal rights. Officer Terrance Garrison testified regarding an article search performed by him and his K-9 partner. Defendant contends that as a proper foundation, the officer was required to testify about the canine\u2019s ability to perform the tasks in question, i.e., locate articles.\nUnder plain error analysis, \u201cthe appellate court must be convinced that absent the error the jury probably would have reached a different verdict.\u201d State v. Riddle, 316 N.C. 152, 161, 340 S.E.2d 75, 80 (1986). In this case, even assuming it was error to admit Officer Garrison\u2019s testimony, we conclude the absence of the error would not have resulted in a different verdict. In this case, the police officers and the pastor of the church testified the items identified by the pastor of the church were inside of the church prior to the larceny and were found outside of the church soon after Defendant\u2019s apprehension. Accordingly, we conclude plain error was not committed in admitting Officer Garrison\u2019s testimony.\nIn sum, we vacate Defendant\u2019s conviction on the charge of larceny but find no error in his convictions on the charges of felonious breaking and entering, and resisting a public officer.\nVacated in part, no error in part.\nJudges TIMMONS-GOODSON and McCULLOUGH concur.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Joyce S. Rutledge, for the State.", "Anne Bleyman for the defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DONALD RAY CATHEY, Defendant\nNo. COA03-260\n(Filed 20 January 2004)\n1. Larceny\u2014 indictment \u2014 owner of property \u2014 substantial alteration\nThe trial court erred by allowing the State to amend a fatally defective larceny indictment that listed the owner of the property as \u201cFaith Temple Church of God\u201d instead of \u201cFaith Temple Church \u2014 High Point, Incorporated,\u201d because: (1) a bill of indictment is fatally defective if it does not allege that an incorporated legal entity is a corporation or the name of the legal entity does not import that it is a corporation; and (2) the owner of the property in question is an essential element of larceny.\n2. Appeal and Error\u2014 preservation of issues \u2014 plain error analysis\nAlthough defendant contends the trial court committed plain error in a larceny, felonious breaking and entering, and resisting a public officer case by allegedly punishing defendant for exercising his right to a trial by jury, this issue is dismissed because: (1) plain error review is limited to errors in a trial court\u2019s jury instructions or a trial court\u2019s rulings on admissibility of evidence; and (2) defendant failed to raise an objection to properly preserve this issue for appeal.\n3. Criminal Law\u2014 motion to view crime scene \u2014 photographs \u2014 diagram\nThe trial court did not abuse its discretion in a larceny, felonious breaking and entering, and resisting a public officer case by overruling defendant\u2019s motion for view of the crime scene, because the jury had an opportunity to see three photographs of the pertinent church and its surroundings as well as a diagram of the crime scene.\n4. Evidence\u2014 article search \u2014 foundation\u2014plain error analysis\nThe trial court did not commit plain error in a larceny, felonious breaking and entering, and resisting a public officer case by failing to intervene ex mero motu when testimony of an officer regarding an article search performed by him and his K-9 partner was admitted allegedly without a proper foundation because even assuming it was error to admit the testimony, the absence of the error would not have resulted in a different verdict when the police officers and the pastor of the church testified the items identified by the pastor of the church were inside the church prior to the larceny and were found outside of the church soon after defendant\u2019s apprehension.\nAppeal by defendant from judgment entered 1 August 2002 by Judge John O. Craig, III, in Superior Court, Guilford County. Heard in the Court of Appeals 2 December 2003.\nAttorney General Roy Cooper, by Assistant Attorney General Joyce S. Rutledge, for the State.\nAnne Bleyman for the defendant-appellant." }, "file_name": "0350-01", "first_page_order": 378, "last_page_order": 383 }