{ "id": 12175935, "name": "STATE OF NORTH CAROLINA v. DWAYNE ANTHONY ELLIS, Defendant", "name_abbreviation": "State v. Ellis", "decision_date": "2014-10-07", "docket_number": "No. COA14-77", "first_page": "602", "last_page": "607", "citations": [ { "type": "official", "cite": "236 N.C. App. 602" } ], "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": "673 S.E.2d 718", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642967 ], "year": 2009, "pin_cites": [ { "page": "721-22", "parenthetical": "\"Since this Court has previously held that both larceny and injury to personal property have the same requirement that the indictment allege ownership or lawful possession of the property, we think the Court's reasoning in [State v. ]Liddell, [39 N.C. App. 373, 250 S.E.2d 77 (1979" } ], "opinion_index": 0, "case_paths": [ "/se2d/673/0718-01" ] }, { "cite": "613 S.E.2d 60", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633044 ], "weight": 4, "year": 2005, "pin_cites": [ { "page": "62" }, { "page": "62" }, { "page": "62" } ], "opinion_index": 0, "case_paths": [ "/se2d/613/0060-01" ] }, { "cite": "614 S.E.2d 412", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633144 ], "year": 2005, "pin_cites": [ { "page": "414" } ], "opinion_index": 0, "case_paths": [ "/se2d/614/0412-01" ] }, { "cite": "351 S.E.2d 294", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "297" } ], "opinion_index": 0 }, { "cite": "318 N.C. 669", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4731217 ], "year": 1987, "pin_cites": [ { "page": "674" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0669-01" ] }, { "cite": "294 S.E.2d 403", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "404", "parenthetical": "holding indictment for larceny naming owner as \"Granville County Law Enforcement Association\" was fatally defective" } ], "opinion_index": 0 }, { "cite": "58 N.C. App. 756", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526217 ], "year": 1982, "pin_cites": [ { "page": "757", "parenthetical": "holding indictment for larceny naming owner as \"Granville County Law Enforcement Association\" was fatally defective" } ], "opinion_index": 0, "case_paths": [ "/nc-app/58/0756-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 116-3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2013, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 116-4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2013, "opinion_index": 0 }, { "cite": "173 S.E.2d 642", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1970, "pin_cites": [ { "page": "643" } ], "opinion_index": 0 }, { "cite": "8 N.C. App. 73", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549088 ], "year": 1970, "pin_cites": [ { "page": "75" } ], "opinion_index": 0, "case_paths": [ "/nc-app/8/0073-01" ] }, { "cite": "250 S.E.2d 77", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "39 N.C. App. 373", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552386 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/39/0373-01" ] }, { "cite": "195 N.C. App. 697", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4164270 ], "year": 2009, "pin_cites": [ { "page": "702" } ], "opinion_index": 0, "case_paths": [ "/nc-app/195/0697-01" ] }, { "cite": "79 N.C. 656", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8698408 ], "year": 1878, "pin_cites": [ { "page": "659", "parenthetical": "holding that where an indictment alleges multiple owners, the State must prove that there were in fact multiple owners" } ], "opinion_index": 0, "case_paths": [ "/nc/79/0656-01" ] }, { "cite": "74 N.C. 272", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8682508 ], "year": 1876, "pin_cites": [ { "page": "273", "parenthetical": "\"If one is charged with stealing the property of A, it will not do to prove that he stole the joint property of A and B.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/74/0272-01" ] }, { "cite": "223 S.E.2d 365", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "370", "parenthetical": "\"If the person alleged in the indictment to have a property interest in the stolen property is not the owner or special owner of it, there is a fatal variance entitling defendant to a nonsuit.\"" } ], "opinion_index": 0 }, { "cite": "289 N.C. 578", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571244 ], "year": 1976, "pin_cites": [ { "page": "585", "parenthetical": "\"If the person alleged in the indictment to have a property interest in the stolen property is not the owner or special owner of it, there is a fatal variance entitling defendant to a nonsuit.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0578-01" ] }, { "cite": "592 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "273" } ], "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" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0719-01" ] }, { "cite": "170 N.C. App. 672", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9006560 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "673-74" }, { "page": "674" } ], "opinion_index": 0, "case_paths": [ "/nc-app/170/0672-01" ] }, { "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": "705 S.E.2d 394", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "396" } ], "opinion_index": 0 }, { "cite": "208 N.C. App. 541", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4181110 ], "year": 2010, "pin_cites": [ { "page": "543" } ], "opinion_index": 0, "case_paths": [ "/nc-app/208/0541-01" ] }, { "cite": "693 S.E.2d 157", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "165" } ], "opinion_index": 0 }, { "cite": "204 N.C. App. 37", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4177118 ], "year": 2010, "pin_cites": [ { "page": "49" } ], "opinion_index": 0, "case_paths": [ "/nc-app/204/0037-01" ] }, { "cite": "171 N.C. App. 328", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8436763 ], "year": 2005, "pin_cites": [ { "page": "331" } ], "opinion_index": 0, "case_paths": [ "/nc-app/171/0328-01" ] }, { "cite": "759 S.E.2d 380", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 2014, "pin_cites": [ { "page": "384", "parenthetical": "emphasis added" }, { "page": "384" }, { "page": "384" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 589, "char_count": 12996, "ocr_confidence": 0.699, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.24719375531160312 }, "sha256": "10ef51365f38ad0d5175c1c4ad51fce060edb5c6cb6444d8d6c41cc9ba9492ad", "simhash": "1:e9a630f1d26ae418", "word_count": 2101 }, "last_updated": "2023-07-14T22:41:07.458141+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEELMAN and DIETZ concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DWAYNE ANTHONY ELLIS, Defendant" ], "opinions": [ { "text": "GEER, Judge.\nDefendant Dwayne Anthony Ellis appeals from his convictions of felony larceny, injury to personal property, first degree trespass, and possession of stolen property. Defendant\u2019s sole argument on appeal is that the information charging defendant with injury to personal property was fatally defective because it failed to allege that the owners of the injured property - \u201cNorth Carolina State University (NCSU) and NCSU High Voltage Distribution\u201d - are legal entities capable of owning property.\nUnder State v. Campbell, _ N.C. App. _, 759 S.E.2d 380 (2014), when an indictment alleges that the property at issue has multiple owners, the indictment must also show that each owner is capable of owning property. Because the information fails to allege with respect to the charge of injury to personal property that \u201cNCSU High Voltage Distribution\u201d is a legal entity capable of owning property, the information is fatally flawed. Accordingly, we vacate defendant\u2019s injury to personal property conviction and remand for resentencing on defendant\u2019s remaining convictions.\nFacts\nThe State\u2019s evidence tended to show the following facts. On 23 April 2011 at around 4:30 a.m., Sergeant Ian Kendrick of the North Carolina State University (\u201cNCSU\u201d) Police initiated a traffic stop of a Chrysler 300 with an attached trailer that had exited from a parking lot near an electrical substation. Defendant, the driver of the vehicle, was taken into custody for an unrelated matter. During a pre-impoundment inventory search of the Chrysler, law enforcement officers discovered four large rolls of copper wire and wet, muddy clothing. It was later discovered that the copper wire had been taken from a fenced in area of the electrical substation. Because the copper wire had been cut, it could no longer be used at the electrical substation.\nOn 12 July 2011 defendant was indicted in case file number 11 CRS 210130 for felony larceny, misdemeanor injury to personal property, and first degree trespass in connection with the 23 April .2011 theft of the stolen copper wire. The same day, defendant was indicted in case file number 11 CRS 211154 for felony possession of stolen goods relating to a separate incident on 14 February 2011. On 23 July 2013, defendant waived the finding and return of an indictment and consented to being tried on superseding informations alleging the same offenses. With respect to each charge in 11 CRS 210130, the State alleged that the copper wire was the personal property of \u201cNorth Carolina State University (NCSU) and NCSU High Voltage Distribution.\u201d\nThe trial court granted the State\u2019s motion to join the two cases for trial, and on 2 August 2013, a jury found defendant guilty of felony larceny, misdemeanor injury to personal property, and first degree trespass in 11 CRS 210130 and of misdemeanor possession of stolen goods in 11 CRS 211154. The trial court consolidated the convictions in 11 CRS 210130 into one judgment and sentenced defendant to a presumptive-range term of six to eight months imprisonment, followed by a consecutive term of 45 days imprisonment for the conviction in 11 CRS 211154. Defendant timely appealed to this Court.\nDiscussion\nDefendant\u2019s sole argument on appeal is that the trial court lacked subject matter jurisdiction over the injury to personal property charge because the information was fatally defective in that it failed to allege that \u201cNorth Carolina State University (NCSU) and NCSU High Voltage Distribution\u201d are legal entities capable of owning property.\nIt is well settled that a valid indictment alleging all of the essential elements of the offense is required for a trial court to obtain subject matter jurisdiction over the charge. State v. Ledwell, 171 N.C. App. 328, 331, 614 S.E.2d 412, 414 (2005). When, as in this case, the defendant properly waives the indictment, the trial court may proceed on an information, which must \u201ccharge the crime or crimes in the same manner\u201d as an indictment. N.C. Gen. Stat. \u00a7 15A-923(b) (2013). Although defendant did not challenge the sufficiency of the information below, \u201c[a] challenge to the facial validity of an indictment may be brought at any time, and need not be raised at trial for preservation on appeal.\u201d State v. LePage, 204 N.C. App. 37, 49, 693 S.E.2d 157, 165 (2010). This Court reviews the sufficiency of an indictment - or, in this case, an information - de novo. State v. Chillo, 208 N.C. App. 541, 543, 705 S.E.2d 394, 396 (2010).\nThis Court has previously addressed the requirements for indictments for injury to personal property and the similar crime of larceny:\nTo convict a defendant of injury to personal property, the State must prove that the personal property was that \u201cof another,\u201d i.e., someone other than the person or persons accused. 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.\nState v. Price, 170 N.C. App. 672, 673-74, 613 S.E.2d 60, 62 (2005). Moreover, \u201c \u2018[i]f 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[.]\u2019 \u201d Id. at 674, 613 S.E.2d at 62 (quoting State v. Phillips, 162 N.C. App. 719, 721, 592 S.E.2d 272, 273 (2004)).\nCount II of the information in 11 CRS 210130 alleged that defendant\nunlawfully and willfully did wantonly injure and damage personal property, 228 feet of 350 primary copper wire, the personal property of North Carolina State University (NCSU) and NCSU High Voltage Distribution, resulting in damage in excess of $200. This act was done in violation of NCGS \u00a7 14-160.\nWith respect to indictments alleging multiple owners of personal property, as the information did in this case, this Court has recently explained:\nWhere an indictment alleges two owners of the stolen property, the State must prove that each owner had at least some property interest in it. See State v. Greene, 289 N.C. 578, 585, 223 S.E.2d 365, 370 (1976) (\u201cIf the person alleged in the indictment to have a property interest in the stolen property is not the owner or special owner of it, there is a fatal variance entitling defendant to a nonsuit.\u201d); State v. Burgess, 74 N.C. 272, 273 (1876) (\u201cIf one is charged with stealing the property of A, it will not do to prove that he stole the joint property of A and B.\u201d); State v. Hill, 79 N.C. 656, 659 (1878) (holding that where an indictment alleges multiple owners, the State must prove that there were in fact multiple owners). If one of the owners were incapable of owning property, the State necessarily would be unable to prove that both alleged owners had a property interest. Therefore, where the indictment alleges multiple owners, one of whom is not a natural person, failure to allege that such an owner has the ability to own property is fatal to the indictment.\nCampbell, _ N.C. App. at _, 759 S.E.2d at 384 (emphasis added).\nIn Campbell, the indictment for larceny alleged two owners of the stolen property - a natural person and \u201cManna Baptist Church\u201d - but did not allege that the church was a legal entity capable of owning property. Id. at _, 759 S.E.2d at 384. This Court held that the indictment was fatally flawed and vacated the defendant\u2019s conviction for larceny. Id. at _, 759 S.E.2d at 384.\nAlthough Campbell involved an indictment for larceny, the same reasoning applies to the information for injury to personal property in this case. See State v. Lilly, 195 N.C. App. 697, 702, 673 S.E.2d 718, 721-22 (2009) (\u201cSince this Court has previously held that both larceny and injury to personal property have the same requirement that the indictment allege ownership or lawful possession of the property, we think the Court\u2019s reasoning in [State v. ]Liddell, [39 N.C. App. 373, 250 S.E.2d 77 (1979),] addressing a larceny indictment, applies with equal force in the context of a prosecution for injury to personal property.\u201d). Accordingly, we hold that to be sufficient, the information in this case must have shown that both NCSU and \u201cNCSU High Voltage Distribution\u201d are legal entities capable of owning property.\nWith respect to NCSU,. the State argues that it is clear from the information that NCSU is a legal entity capable of owning property. We agree. In State v. Turner, 8 N.C. App. 73, 75, 173 S.E.2d 642, 643 (1970), this Court upheld an indictment for larceny that named the \u201c \u2018City of Hendersonville\u2019 \u201d as the owner of the stolen property. The Court took judicial notice of the public act establishing Hendersonville as a municipal corporation and explained that \u201cthe words \u2018City of Hendersonville\u2019 denote a municipal corporate entity. Municipal corporations are expressly authorized to purchase and hold personal property.\u201d Id.\nAs with the municipality in Turner, the legislature has provided, in N.C. Gen. Stat. \u00a7 116-4 (2013), that North Carolina State University is a constituent institution of the University of North Carolina, \u201ca body politic and corporate\u201d expressly authorized under N.C. Gen. Stat. \u00a7 116-3 (2013) to own property. Thus, we hold that the words \u201cNorth Carolina State University\u201d sufficiently allege a legal entity capable of owning property.\nIn contrast to Turner, this Court held in Price that an indictment for larceny and injury to personal property alleging that the property at issue was owned by \u201c \u2018City of Asheville Transit and Parking Services,\u2019 \u201d without more, was fatally defective. 170 N.C. App. at 674, 613 S.E.2d at 62. The Court distinguished Turner \u201cin which \u2018City of Hendersonville\u2019 was sufficient as it clearly denoted a municipal corporation, because the additional words after \u2018City of Asheville\u2019 make it questionable what type of organization it is.\u201d Id.\nSimilarly, here, the words \u201cNCSU High Voltage Distribution\u201d do not identify a legal entity necessarily capable of owning property because the additional words after \u201cNCSU\u201d do not indicate what type of organization it is. The information is, therefore, insufficient to show that \u201cNCSU High Voltage Distribution\u201d is a legal entity capable of owning property. See also State v. Strange, 58 N.C. App. 756, 757, 294 S.E.2d 403, 404 (1982) (holding indictment for larceny naming owner as \u201cGranville County Law Enforcement Association\u201d was fatally defective).\nBecause the information failed to allege that one of the owners, \u201cNCSU High Voltage Distribution,\u201d is a legal entity capable of owning property, we hold that the information is fatally defective and vacate defendant\u2019s conviction for injury to personal property. Defendant does not, however, challenge any of his remaining convictions on appeal.\nWe note that the trial court consolidated defendant\u2019s conviction for injury to personal property with the other offenses in case file number 11 CRS 210130 and sentenced defendant under the Class H felony of larceny to a presumptive-range term of six to eight months imprisonment. Our Supreme Court has explained that \u201c [s]ince it is probable that a defendant\u2019s conviction for two or more offenses influences adversely to him the trial court\u2019s judgment on the length of the sentence to be imposed when these offenses are consolidated for judgment, we think the better procedure is to remand for resentencing when one or more but not all of the convictions consolidated for judgment has been vacated.\u201d State v. Wortham, 318 N.C. 669, 674, 351 S.E.2d 294, 297 (1987). Accordingly, we remand for resentencing on defendant\u2019s remaining convictions in case file number 11 CRS 210130.\nNo error in part; vacated in part; and remanded.\nJudges STEELMAN and DIETZ concur.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Joseph E. Elder, for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defender James R. Grant, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DWAYNE ANTHONY ELLIS, Defendant\nNo. COA14-77\nFiled 7 October 2014\nIndictment and Information\u2014fatally defective\u2014injury to personal property\u2014owners legal entities capable of owning property\nThe trial court lacked subject matter jurisdiction over an injury to personal property charge where the information charging defendant with that crime was fatally defective because it failed to allege that the owners of the injured property were legal entities capable of owning property. Defendant\u2019s injury to personal property conviction was vacated and the matter was remanded for resentencing on defendant\u2019s remaining convictions.\nAppeal by defendant from judgments entered 2 August 2013 by Judge W. Osmond Smith in Wake County Superior Court. Heard in the Court of Appeals 11 September 2014.\nAttorney General Roy Cooper, by Assistant Attorney General Joseph E. Elder, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender James R. Grant, for defendant-appellant." }, "file_name": "0602-01", "first_page_order": 610, "last_page_order": 615 }