{ "id": 8186817, "name": "STATE OF NORTH CAROLINA v. ANTONIO BROWN, Defendant", "name_abbreviation": "State v. Brown", "decision_date": "2007-07-03", "docket_number": "No. COA06-553", "first_page": "539", "last_page": "543", "citations": [ { "type": "official", "cite": "184 N.C. App. 539" } ], "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": "621 S.E.2d 299", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634312 ], "year": 2005, "pin_cites": [ { "page": "300", "parenthetical": "quoting State v. Thornton, 251 N.C. 658, 662, 111 S.E.2d 901, 903 (I960)" } ], "opinion_index": 0, "case_paths": [ "/se2d/621/0299-01" ] }, { "cite": "183 S.E.2d 785", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "786" } ], "opinion_index": 0 }, { "cite": "12 N.C. App. 558", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551142 ], "year": 1971, "pin_cites": [ { "page": "559" } ], "opinion_index": 0, "case_paths": [ "/nc-app/12/0558-01" ] }, { "cite": "572 S.E.2d 223", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "226", "parenthetical": "quoting State v. Hackney, 12 N.C. App. 558, 559, 183 S.E.2d 785, 786 (1971)" } ], "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": "quoting State v. Hackney, 12 N.C. App. 558, 559, 183 S.E.2d 785, 786 (1971)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0332-01" ] }, { "cite": "114 S.E.2d 659", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "pin_cites": [ { "page": "659-60", "parenthetical": "arresting judgment after holding that the indictment, which described the stolen property's owner as, \"U-Wash-It, in Chapel Hill,\" \"did not sufficiently allege that the owner of the property allegedly stolen was either a natural person or a legal entity capable of owning property\"" } ], "opinion_index": 0 }, { "cite": "252 N.C. 783", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625871 ], "year": 1960, "pin_cites": [ { "page": "783-84" } ], "opinion_index": 0, "case_paths": [ "/nc/252/0783-01" ] }, { "cite": "169 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "242" } ], "opinion_index": 0 }, { "cite": "6 N.C. App. 64", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8546889 ], "year": 1969, "pin_cites": [ { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/nc-app/6/0064-01" ] }, { "cite": "590 S.E.2d 408", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "410" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 350", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8917151 ], "year": 2004, "pin_cites": [ { "page": "353-54" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0350-01" ] }, { "cite": "111 S.E.2d 901", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "903" } ], "opinion_index": 0 }, { "cite": "251 N.C. 658", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626903 ], "pin_cites": [ { "page": "662" } ], "opinion_index": 0, "case_paths": [ "/nc/251/0658-01" ] }, { "cite": "174 N.C. App. 580", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352689 ], "year": 2005, "pin_cites": [ { "page": "581", "parenthetical": "quoting State v. Thornton, 251 N.C. 658, 662, 111 S.E.2d 901, 903 (I960)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/174/0580-01" ] }, { "cite": "592 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "273", "parenthetical": "internal citations and quotations 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": "720-21", "parenthetical": "internal citations and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0719-01" ] } ], "analysis": { "cardinality": 476, "char_count": 8397, "ocr_confidence": 0.739, "pagerank": { "raw": 5.12982294956584e-08, "percentile": 0.32356481014916316 }, "sha256": "00967e2b1d8f0d9e145e8f6e0a0964e17e95b8bb57dd75e733a254fb36ded7d9", "simhash": "1:9d65f0f7ba7b805a", "word_count": 1360 }, "last_updated": "2023-07-14T19:54:59.559545+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and McCULLOUGH concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ANTONIO BROWN, Defendant" ], "opinions": [ { "text": "ELMORE, Judge.\nAntonio Brown (defendant) was convicted by a jury of felony larceny on 16 August 2005 and was sentenced to serve fifteen to eighteen months in prison. It is from this conviction that he appeals.\nDefendant and two other men entered the Smoker Friendly Store in Dunn on 5 December 2004. They immediately began asking the store clerk, Tina Honeycutt, about the prices of cigarettes. Defendant approached Honeycutt, who was standing at the counter and working alone that evening, while the other men went to the back of the store where the cigarettes were kept. Defendant requested a money order for $125.00 and a pack of cigarettes. Honeycutt sold him two packs of Newports for $5.00, after which defendant rejoined his companions. The three men left the store and then returned a few moments later, at which time defendant attempted to sell Honeycutt some jewelry, alleging that she should buy it because she had \u201cbeen wrong to [her] man.\u201d Honeycutt declined the offer, and defendant r\u00e9joined his companions at the back of the store. A videotape of the incident shows the three men taking cartons of cigarettes from the shelves at the back of the store. The three men then walked out and as defendant was leaving, he said \u201cYou\u2019ll be sorry.\u201d Honeycutt testified that, \u201cHe looked at me and smiled and said, \u2018You\u2019ll be sorry.\u2019 I\u2019ll never forget that. That\u2019s implanted-onto my brain.\u201d\nAfter the men left, Honeycutt contacted her manager, who determined that fifty-two cartons of cigarettes, collectively worth approximately $1,400.00, were missing.\nDuring the investigation on 16 February 2005, Honeycutt was shown a photographic lineup, from which she identified defendant. Rather than using a traditional \u201cmug book,\u201d the detective used a computer program that displays individual photos, rather than an array of six or eight, on the screen. When setting up the photo display, the detective chose a broad category of \u201cblack males\u201d for the photo database and then inserted defendant\u2019s photograph into the virtual lineup. The computer then randomly selected and displayed photographs from that database. By clicking the screen, the detective was able to advance from one photograph to the next. Defendant\u2019s photograph had been inserted into the photo array and appeared within the first four to eight photographs. When defendant\u2019s picture appeared on the screen, Honeycutt immediately and without hesitation pointed to him on the screen and said, \u201c \u2018That\u2019s him\u2019 or \u2018That\u2019s the man, right there.\u2019 \u201d She then commented, \u201c \u2018I\u2019ll never forget that smile . . . I\u2019ll never forget it.\u2019 \u201d\nThe detective testified that he did not suggest to Honeycutt who she should choose, or who was a suspect. He did not reveal any of the men\u2019s identities, including defendant\u2019s. He purposefully selected only black men to display alongside defendant\u2019s photograph because defendant is a black man. Defense counsel objected to the use of this identification because the State could not show the trial court which photographs were used in the virtual lineup. The judge conducted voir dire, and eventually overruled the objection, but asked that the State lay additional foundation in front of the jury.\nAt the close of the State\u2019s case-in-chief, defense counsel moved to suppress evidence generated by the virtual lineup. The trial judge denied this motion without making any findings of fact or conclusions of law.\nDefendant first argues that the trial court erred\nby denying defendant\u2019s motion to dismiss at the close of evidence on the grounds that the State failed to adequately allege ownership of the property subject to the alleged larceny both in the indictment and during the presentation of evidence.\nThe indictment states that the missing cartons of cigarettes were the personal property of \u201cSmoker Friendly Store, Dunn, North Carolina.\u201d\n\u201cTo be sufficient, an indictment for larceny must allege the owner or person in lawful possession of the stolen property. If the entity named in the indictment is not a person, it must be alleged that the victim was a legal entity capable of owning property!)]\u201d State v. Phillips, 162 N.C. App. 719, 720-21, 592 S.E.2d 272, 273 (2004) (internal citations and quotations omitted) (alteration in original). \u201cIf a larceny indictment names a corporation as the owner, \u2018the 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 State v. Cave, 174 N.C. App. 580, 581, 621 S.E.2d 299, 300 (2005) (quoting State v. Thornton, 251 N.C. 658, 662, 111 S.E.2d 901, 903 (I960)). \u201c[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.\u201d State v. Cathey, 162 N.C. App. 350, 353-54, 590 S.E.2d 408, 410 (2004); see, e.g., State v. Thompson, 6 N.C. App. 64, 66, 169 S.E.2d 241, 242 (1969) (arresting judgment after holding that the words, \u201cBelk\u2019s Department Store,\u201d in the indictment do not import a corporation, that the indictment does not allege that \u201cBelk\u2019s Department Store\u201d is a corporation, proprietorship, or partnership, and that \u201c \u2018Belk\u2019s Department Store\u2019 certainly does not suggest a natural person\u201d); State v. Biller, 252 N.C. 783, 783-84, 114 S.E.2d 659, 659-60 (1960) (arresting judgment after holding that the indictment, which described the stolen property\u2019s owner as, \u201cU-Wash-It, in Chapel Hill,\u201d \u201cdid not sufficiently allege that the owner of the property allegedly stolen was either a natural person or a legal entity capable of owning property\u201d).\nThe indictment at issue here does not specify that \u201cSmoker Friendly Store, Dunn, North Carolina\u201d is a legal entity capable of owning property, nor does the name suggest a natural person. As in Thompson, the indictment merely states that the entity is a store. The State argues that when both counts of the indictment are read together, the indictment does specify that Smoker Friendly Store is a legal entity capable of owning property. However, \u201c [i]t is settled law that each count of an indictment containing several counts should be complete in itself.\u201d State v. Moses, 154 N.C. App. 332, 336, 572 S.E.2d 223, 226 (2002) (quoting State v. Hackney, 12 N.C. App. 558, 559, 183 S.E.2d 785, 786 (1971)). It is also settled that \u201callegations in one count may be incorporated by reference in another count.\u201d N.C. Gen. Stat. \u00a7 15A-924(a)(2) (2005).\nThe second count of the indictment, which the State urges us to consider in tandem with the defective first count, states that the property stolen was \u201cthe personal property of the person, corporation, and other legal entity described in Count I above . . . The second count incorporates by reference the description used in the first count, but we cannot agree that the first count is saved by the additional language used in the second count; the first count does not incorporate by reference any language used in the second count, and without this incorporation by reference, we must read the first count without consideration of the second.\nAccordingly, the judgment below is vacated.\nVacated.\nJudges HUNTER and McCULLOUGH concur.", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General John W. Congleton, for the State.", "John T Hall for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ANTONIO BROWN, Defendant\nNo. COA06-553\n(Filed 3 July 2007)\nLarceny\u2014 indictment \u2014 entity capable of owning property\nThe trial court erred by denying defendant\u2019s motion to dismiss the charge of felony larceny at the close of evidence on the grounds that the State failed to adequately allege ownership of the property, because: (1) the indictment did not specify that \u201cSmoker Friendly Store, Dunn, North Carolina\u201d was a legal entity capable of owning property, nor did the name suggest a natural person; (2) although the State contends that both counts of the indictment read together show the store was a legal entity capable of owning property, each count of an indictment containing several counts , should be complete in itself; and (3) although allegations in one count may be incorporated by reference in another count, the defective first count does not incorporate by reference any language used in the second count.\nAppeal by defendant from judgment entered 16 August 2005 by Judge John R. Jolly in. Harnett County Superior Court. Heard in the Court of Appeals 6 December 2006.\nAttorney General Roy Cooper, by Assistant Attorney General John W. Congleton, for the State.\nJohn T Hall for defendant-appellant." }, "file_name": "0539-01", "first_page_order": 571, "last_page_order": 575 }