{ "id": 8920012, "name": "STATE OF NORTH CAROLINA v. KEVIN WAYNE PHILLIPS", "name_abbreviation": "State v. Phillips", "decision_date": "2004-02-17", "docket_number": "No. COA03-364", "first_page": "719", "last_page": "721", "citations": [ { "type": "official", "cite": "162 N.C. App. 719" } ], "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": "357 N.C. 572", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491901 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0572-01" ] }, { "cite": "579 S.E.2d 398", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "399" } ], "opinion_index": 0 }, { "cite": "157 N.C. App. 568", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9188076 ], "year": 2003, "pin_cites": [ { "page": "570" } ], "opinion_index": 0, "case_paths": [ "/nc-app/157/0568-01" ] }, { "cite": "572 S.E.2d 223", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "226-27", "parenthetical": "internal citations and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 332", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249992 ], "year": 2002, "pin_cites": [ { "page": "336", "parenthetical": "internal citations and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0332-01" ] }, { "cite": "562 S.E.2d 453", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "457" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 588", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9130405 ], "year": 2002, "pin_cites": [ { "page": "593" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0588-01" ] }, { "cite": "513 S.E.2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "803" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 788", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240619 ], "year": 1999, "pin_cites": [ { "page": "790" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0788-01" ] }, { "cite": "326 S.E.2d 256", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "258" } ], "opinion_index": 0 }, { "cite": "313 N.C. 164", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4726404 ], "year": 1985, "pin_cites": [ { "page": "166" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0164-01" ] }, { "cite": "497 S.E.2d 416", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "419" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 688", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11656579 ], "year": 1998, "pin_cites": [ { "page": "691" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0688-01" ] } ], "analysis": { "cardinality": 363, "char_count": 5788, "ocr_confidence": 0.774, "pagerank": { "raw": 2.690053897697405e-07, "percentile": 0.8275028775808937 }, "sha256": "c4ee9ae31674e58ebc44741cfd40a862344d735f8029efd7cc0f7bdd67eaabcb", "simhash": "1:c8b5b4e776fcfe5e", "word_count": 930 }, "last_updated": "2023-07-14T16:27:54.754463+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and ELMORE concur." ], "parties": [ "STATE OF NORTH CAROLINA v. KEVIN WAYNE PHILLIPS" ], "opinions": [ { "text": "CALABRIA, Judge.\nKevin Wayne Phillips (\u201cdefendant\u201d) was arrested and indicted on five counts each of felonious possession of stolen property and felonious larceny based upon his alleged involvement in the theft of five four-wheelers in early December \u00bf001 from Parker\u2019s Marine and Outdoors. Defendant was separately indicted for having attained the status of habitual felon. At trial, defendant moved to dismiss the charges at the close of the State\u2019s case and specifically argued as to one of the larceny charges that it should be dismissed on the grounds that one of the stolen four-wheelers did not belong to the dealership and there had been no testimony concerning permission by the owner to take it. The trial court denied defendant\u2019s motion. Defendant presented no evidence and renewed his motions to dismiss, which the trial court again denied. After the jury returned verdicts of guilty on all charged counts, defendant pled guilty to having attained the status of habitual felon. The trial court arrested judgment on the five counts of felonious possession of stolen property and consolidated four of the five counts of felonious larceny into a single judgment. On the remaining count and the consolidated counts of felonious larceny, the trial court sentenced defendant to two consecutive terms of 167 to 210 months\u2019 imprisonment.\nOn appeal, we consider only defendant\u2019s assertion that the trial court erred in failing to dismiss the larceny charges due to defects in the indictments. Specifically, defendant contends the indictments are fatally defective in charging felonious larceny because they lack sufficient indication of the four-wheelers\u2019 legal ownership. While defendant failed to contest the sufficiency of the indictments on this ground before the trial court, it is well established that, when a fatal defect is present in the indictment charging the offense, \u201ca motion in arrest of judgment may be made at any time in any court having jurisdiction over the matter, even if raised for the first time on appeal.\u201d State v. Wilson, 128 N.C. App. 688, 691, 497 S.E.2d 416, 419 (1998). Accordingly, this issue is properly before the Court.\n\u201cTo be sufficient, an indictment for larceny must allege the owner or person in lawful possession of the stolen property.\u201d State v. Downing, 313 N.C. 164, 166, 326 S.E.2d 256, 258 (1985). If the entity named in the indictment is not a person, it must be alleged \u201cthat the victim was a legal entity capable of owning property[.]\u201d State v. Woody, 132 N.C. App. 788, 790, 513 S.E.2d 801, 803 (1999). \u201cAn indictment that insufficiently alleges the identity of the victim is fatally defective and cannot support conviction of either a misdemeanor or a felony.\u201d Id.\nIn the instant case, a separate indictment was handed down by the Richmond County Grand Jury for each of the five four-wheelers stolen. Count I of each indictment involved the larceny of a four-wheeler and identified it as \u201cthe personal property of Parker\u2019s Maxine.\u201d Parker\u2019s Marine is not an individual. Moreover, count I fails to allege that Parker\u2019s Marine was a legal entity capable of ownership. As we have previously held, \u201c[b]ecause the indictment lacks any indication of the legal ownership status of the victim (such as identifying the victim as a natural person or a corporation), it is fatally defective and cannot support defendant\u2019s conviction.\u201d State v. Norman, 149 N.C. App. 588, 593, 562 S.E.2d 453, 457 (2002). Accordingly, we must vacate the judgments entered on the counts of felonious larceny.\n. The State contends count II in each indictment states Parker\u2019s Marine is a \u201cperson, corporation, and other legal entity,\u201d and the two counts should be read together. We disagree. \u201c[I]t is settled law that each count of an indictment containing several counts should be complete in itself. It is also settled that allegations in one count may be incorporated by reference in another count.\u201d State v. Moses, 154 N.C. App. 332, 336, 572 S.E.2d 223, 226-27 (2002) (internal citations and quotation marks omitted). In the instant case, count I in the indictment is neither complete in itself for failure to identify the victim as a legal entity capable of ownership, nor does count I incorporate by reference information contained in count II.\nThe State asserts, for preservation of the issue, that the appropriate analysis for a fatally defective indictment is to determine whether the error was harmless. We have previously rejected this analysis in favor of our standing precedent. State v. Partridge, 157 N.C. App. 568, 570, 579 S.E.2d 398, 399, disc. rev. improvidently allowed, 357 N.C. 572, \u2014 S.E.2d \u2014 (2003). We hold accordingly.\nVacated.\nJudges BRYANT and ELMORE concur.", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "Attorney General Roy Cooper; by Assistant Attorney General Grady L. Balentine, Jr., for the State.", "Osborn & Tyndall, P.L.L.C., by Amos Granger Tyndall, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KEVIN WAYNE PHILLIPS\nNo. COA03-364\n(Filed 17 February 2004)\n1. Indictment and Information\u2014 fatal defect \u2014 raised at any time\nThe question of a fatal defect in an indictment was properly before the Court of Appeals even though it was raised for the first time on appeal.\n2. Larceny\u2014 indictment \u2014 allegation of ownership \u2014 insufficient\nIndictments were fatally defective where Count I of each alleged larceny from \u201cParker\u2019s Marine,\u201d did not allege that Parker\u2019s Marine was a legal entity capable of ownership, and did not incorporate by reference information about Parker\u2019s Marine in Count II. Each count should be complete in itself, although allegations in another count may be incorporated by reference.\nAppeal by defendant from judgments entered 20 September 2002 by Judge Michael E. Beale in Richmond County Superior Court. Heard in the Court of Appeals 14 January 2004.\nAttorney General Roy Cooper; by Assistant Attorney General Grady L. Balentine, Jr., for the State.\nOsborn & Tyndall, P.L.L.C., by Amos Granger Tyndall, for defendant-appellant." }, "file_name": "0719-01", "first_page_order": 747, "last_page_order": 749 }