{ "id": 8352689, "name": "STATE OF NORTH CAROLINA v. STEPHON LAVARRIO CAVE, Defendant", "name_abbreviation": "State v. Cave", "decision_date": "2005-11-15", "docket_number": "No. COA05-169", "first_page": "580", "last_page": "585", "citations": [ { "type": "official", "cite": "174 N.C. App. 580" } ], "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": "274 S.E.2d 221", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "223", "parenthetical": "stating that \"a court may take judicial notice of a fact which is either so notoriously true as not to be the subject of reasonable dispute or is capable of demonstration by readily accessible sources of indisputable accuracy.\" (emphasis in original)" } ], "opinion_index": 0 }, { "cite": "302 N.C. 201", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564415 ], "year": 1981, "pin_cites": [ { "page": "203", "parenthetical": "stating that \"a court may take judicial notice of a fact which is either so notoriously true as not to be the subject of reasonable dispute or is capable of demonstration by readily accessible sources of indisputable accuracy.\" (emphasis in original)" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0201-01" ] }, { "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" ] }, { "cite": "218 S.E.2d 352", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "357" } ], "opinion_index": 0 }, { "cite": "288 N.C. 285", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568094 ], "year": 1975, "pin_cites": [ { "page": "291" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0285-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-72", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2004, "opinion_index": 0 }, { "cite": "250 S.E.2d 204", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "209", "parenthetical": "emphasis in original" } ], "opinion_index": 0 }, { "cite": "296 N.C. 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565526 ], "year": 1978, "pin_cites": [ { "page": "244", "parenthetical": "emphasis in original" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0236-01" ] }, { "cite": "565 S.E.2d 609", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "654" } ], "opinion_index": 0 }, { "cite": "355 N.C. 501", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219972 ], "year": 2002, "pin_cites": [ { "page": "578-79" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0501-01" ] }, { "cite": "567 S.E.2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "139" }, { "page": "140", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "356 N.C. 141", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511311 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "145" }, { "page": "145" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0141-01" ] }, { "cite": "604 S.E.2d 886", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "904" } ], "opinion_index": 0 }, { "cite": "359 N.C. 131", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3803286 ], "year": 2004, "pin_cites": [ { "page": "161" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0131-01" ] }, { "cite": "161 L. Ed. 2d 122", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2005, "opinion_index": 0 }, { "cite": "472 S.E.2d 920", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "925" } ], "opinion_index": 0 }, { "cite": "344 N.C. 65", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867565 ], "year": 1996, "pin_cites": [ { "page": "73" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0065-01" ] }, { "cite": "597 S.E.2d 724", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2004, "pin_cites": [ { "page": "746", "parenthetical": "quoting State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996)" }, { "page": "746", "parenthetical": "citations omitted" }, { "page": "746", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "358 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986879 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "412", "parenthetical": "quoting State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996)" }, { "page": "412" }, { "page": "412-13" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0382-01" ] }, { "cite": "513 S.E.2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "803" }, { "page": "803" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 788", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240619 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "791" }, { "page": "791" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0788-01" ] }, { "cite": "173 S.E.2d 642", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "8 N.C. App. 73", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549088 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc-app/8/0073-01" ] }, { "cite": "236 S.E.2d 299", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "33 N.C. App. 667", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551947 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/33/0667-01" ] }, { "cite": "592 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "273", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 719", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8920012 ], "year": 2004, "pin_cites": [ { "page": "721", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0719-01" ] }, { "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": "275 S.E.2d 200", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "201" } ], "opinion_index": 0 }, { "cite": "51 N.C. App. 153", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2645518 ], "year": 1981, "pin_cites": [ { "page": "155" } ], "opinion_index": 0, "case_paths": [ "/nc-app/51/0153-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-160", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2004, "pin_cites": [ { "parenthetical": "\"If any person shall wantonly and willfully injure the personal property of another he shall be guilty ... .\"" } ], "opinion_index": 0 }, { "cite": "111 S.E.2d 901", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1960, "pin_cites": [ { "page": "903", "parenthetical": "citation omitted" }, { "page": "903", "parenthetical": "citation omitted" }, { "page": "903-04" }, { "page": "903", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "251 N.C. 658", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626903 ], "weight": 4, "year": 1960, "pin_cites": [ { "page": "662", "parenthetical": "citation omitted" }, { "page": "662" }, { "page": "662" }, { "page": "661" } ], "opinion_index": 0, "case_paths": [ "/nc/251/0658-01" ] } ], "analysis": { "cardinality": 676, "char_count": 13911, "ocr_confidence": 0.743, "pagerank": { "raw": 1.326481894460391e-07, "percentile": 0.6278829383489153 }, "sha256": "fc7c93b082aee7d361d8cec55cc81ca7f469170f9159f47a70ab4eb0c21a1666", "simhash": "1:8ba47532523ecc7a", "word_count": 2250 }, "last_updated": "2023-07-14T21:19:44.302822+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and GEER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. STEPHON LAVARRIO CAVE, Defendant" ], "opinions": [ { "text": "WYNN, Judge.\nIf a larceny indictment names a corporation as the owner, \u201cthe name of the corporation should be given, and the fact that it is a corporation stated, unless the name itself imports a corporation.\u201d 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 defective because the named owner-entity, \u201cN.C. FYE, Inc.\u201d, does not import a legal entity capable of owning property. Following Thornton, we hold the larceny indictment was sufficient because the abbreviation \u201cInc.\u201d imports the entity\u2019s ability to own property. We further uphold the trial court\u2019s denial of Defendant\u2019s motion to dismiss the charges of larceny and possession of stolen goods.\nThe 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.\nThereafter, 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.\nAt trial, Defendant acknowledged that he initially accepted responsibility for the larceny because all of his co-defendants had prior records. Defendant stated at trial, \u201cI said \u2014 I was the cool one. You know, I\u2019m cracking jokes and stuff like that. I told them, I said, \u2018Well, just put everything on me.\u2019 I said, \u2018It\u2019s all mine\u2019.\u201d\nThe 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.\nOn appeal to this Court, Defendant first challenges the sufficiency of the indictment alleging larceny and possession of stolen items. He alleges that the named-owner entity, \u201cN.C. FYE, Inc.\u201d, does not import an entity capable of owning property. We disagree.\nTo convict a defendant of injury to personal property or larceny, the State must prove that the personal property was that \u201cof another,\u201d i.e., someone other than the person or persons accused. See N.C. Gen. Stat. \u00a7 14-160 (2004) (\u201cIf any person shall wantonly and willfully injure the personal property of another he shall be guilty ... .\u201d); In re Meaut, 51 N.C. App. 153, 155, 275 S.E.2d 200, 201 (1981). Moreover, \u201can 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). 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.\n\u201cIf the entity named in the indictment is not a person, it must be alleged \u2018that the victim was a legal entity capable of owning property[.]\u2019 \u201d State v. Phillips, 162 N.C. App. 719, 721, 592 S.E.2d 272, 273 (2004) (citation omitted). Further, \u201c \u2018[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.\u2019 \u201d Thornton, 251 N.C. at 662, 111 S.E.2d at 903 (citation omitted). Our courts have held that the words \u201ccorporation,\u201d \u201cincorporated,\u201d \u201climited,\u201d and \u201ccompany,\u201d 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).\nHere, the indictment for larceny named the property owner as \u201cN.C. FYE, Inc.,\u201d 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 \u201cthat the fact of incorporation need not be alleged where the corporate name is correctly set out in the indictment.\u201d Thornton, 251 N.C. at 661, 111 S.E.2d at 903 (citation omitted). Moreover, the abbreviation \u201cInc.,\u201d in the name \u201cN.C. FYE, Inc.\u201d is sufficient to import a corporation because the word for which the abbreviation stands, \u201cIncorporation,\u201d imports a corporation. Woody, 132 N.C. App. at 791, 513 S.E.2d at 803. Because the name, \u201cN.C. FYE, Inc.\u201d, imports a corporation, we find that the indictment was sufficient. This assignment of error is therefore without merit.\nDefendant next asserts the trial court erred in denying his motion to dismiss the two charges of misdemeanor larceny from the \u201cRacing Edge\u201d and \u201cK.B. Toys,\u201d and the charges of felony larceny and felony possession of stolen items from \u201cN.C. FYE, Inc.,\u201d due to insufficient evidence. We disagree.\n\u201cWhen a defendant moves to dismiss a charge against him on the ground of insufficiency of the evidence, the trial court must determine \u2018whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.\u2019 \u201d 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).\n\u201c \u2018Substantial evidence\u2019 is relevant evidence that a reasonable person might accept as adequate, or would consider necessary to support a particular conclusion.\u201d 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,\n[a] \u2018substantial evidence\u2019 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 \u2018contradictions and discrepancies are for the jury to resolve and do not warrant dismissal.\u2019\nGarcia, 358 N.C. at 412-13, 597 S.E.2d at 746 (citations omitted). Additionally, \u201c \u2018[i]f there is substantial evidence \u2014 -whether direct, circumstantial, or both \u2014 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.\u2019 \u201d Butler, 356 N.C. at 145, 567 S.E.2d at 140 (citation omitted). Where the evidence presented is circumstantial, on a defendant\u2019s motion to dismiss, \u201c \u2018the question for the court is whether a reasonable inference of defendant\u2019s 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.\u2019 \u201d State v. Thomas, 296 N.C. 236, 244, 250 S.E.2d 204, 209 (1978) (emphasis in original) (citation omitted).\nTo 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. \u00a7 14-72 (2004).\nDefendant 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, \u201cthe 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 his relation to the actual perpetrators.\u201d State v. Sanders, 288 N.C. 285, 291, 218 S.E.2d 352, 357 (1975).\nHere, one of Defendant\u2019s 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 \u201cRacing Edge\u201d identified Defendant as a person who entered the store with one or more of his co-defendants on 21 December 2002, and engaged in \u201cdistracting\u201d 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\u2019 attention while his co-defendants removed items from the store.\nMoreover, 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.\nIndeed, Defendant\u2019s own testimony supports the trial court\u2019s 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 taking merchandise, he would leave the store, thus, contradicting his earlier testimony.\nBased 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\u2019s motion to dismiss and present the case to the jury.\nNo error.\nJudges McGEE and GEER concur.\n. We note that Defendant failed to contest the sufficiency of the indictment before the trial court. However, 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. Before this matter came on for hearing on 18 October 2005, the State moved this Court to \u201ctake judicial notice of the Certificate of Existence issued by the North Carolina Secretary of State\u2019s office showing there is a record for FYE, Incorporated and that it is recognized as a company authorized to own property and transact business in the State of North Carolina.\u201d This Court granted that motion by Order dated 2 June 2005. Upon further consideration of that motion, we hold that the motion was improvidently granted as we deem the taking of judicial notice of this fact to be improper under Rule 201(b) of the North Carolina Rules of Evidence. N.C. Gen. Stat. \u00a7 8C-1, Rule 201(b) (2004). See also West v. G.D. Reddick, Inc., 302 N.C. 201, 203, 274 S.E.2d 221, 223 (1981) (stating that \u201ca court may take judicial notice of a fact which is either so notoriously true as not to be the subject of reasonable dispute or is capable of demonstration by readily accessible sources of indisputable accuracy.\" (emphasis in original)).", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Stormie D. Forte, for the State.", "Bryan Emery Gates, Jr., for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. STEPHON LAVARRIO CAVE, Defendant\nNo. COA05-169\n(Filed 15 November 2005)\n1. Larceny\u2014 indictment \u2014 corporation\u2014entity capable of owning property\nAn indictment was sufficient to charge defendant with larceny and possession of stolen items even though defendant contends the named owner-entity \u201cN.C. FYE, Inc.\u201d does not import an entity capable of owning property, because: (1) the fact of incorporation need not be alleged where the corporate name is correctly set out in the indictment; and (2) the abbreviation \u201cInc.\u201d imports the entity\u2019s ability to own property.\n2. Larceny\u2014 possession of stolen goods \u2014 motion to dismiss\u2014 sufficiency of evidence\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charges of larceny and possession of stolen goods, because: (1) defendant\u2019s own testimony supports the trial court\u2019s denial of his motion to dismiss when defendant told the officers that he was the responsible party and not the codefendants; and (2) there was sufficient evidence taken in the light most favorable to the State based on evidence presented by the State, the testimony of store employees where merchandise had been stolen, the testimony of investigating officers, and evidence presented by defendant through his testimony and that of his codefendant.\nAppeal 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.\nAttorney General Roy Cooper, by Assistant Attorney General Stormie D. Forte, for the State.\nBryan Emery Gates, Jr., for defendant-appellant." }, "file_name": "0580-01", "first_page_order": 610, "last_page_order": 615 }