In the Matter of D.B.
| Decision Date | 16 August 2011 |
| Docket Number | No. COA10–1476.,COA10–1476. |
| Citation | 714 S.E.2d 522 |
| Parties | In The Matter of D.B. |
| Court | North Carolina Court of Appeals |
OPINION TEXT STARTS HERE
Appeal by juvenile from orders entered 13 April 2010 by Judge Marcia H. Morey in Durham County District Court. Heard in the Court of Appeals 25 April 2011.
Attorney General Roy Cooper, by Assistant Attorney General Jay L. Osborne, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defenders Mary Cook, Kristen L. Todd, and S. Hannah Demeritt, for juvenile-appellant.
D.B., a juvenile, appeals from the trial court's orders adjudicating him delinquent for committing the offenses of felony breaking and entering, felony larceny pursuant to breaking and entering, and misdemeanor possession of stolen goods. We agree that the petition alleging felony larceny pursuant to breaking and entering was fatally defective because it contained no allegation that the alleged victim, the Crossings Golf Club, was a legal entity capable of owning property. The petition alleging felony larceny pursuant to breaking and entering should, therefore, have been dismissed by the trial court.
We also agree with the juvenile's contention that the trial court erred in admitting evidence obtained by an officer in a search that unlawfully exceeded the scope of a Terry frisk. Accordingly, we hold that the evidence obtained as a result of that search should have been excluded, and because its admission was not harmless beyond a reasonable doubt, we must reverse as to the misdemeanor possession of stolen property offense.
The State's evidence tended to show the following facts. On 26 December 2009, Officer James Sandoval of the Durham Police Department received a call about an activated burglar alarm at the clubhouse of the Crossings Golf Club in Durham County, North Carolina. Upon arriving at the location, Officers Sandoval and K. Staten observed that a back rear window to the clubhouse was shattered and the door was open. The drawer of the cash register in the pro shop was missing and was later found outside on a grassy area, about 100 feet away from the building. Approximately $12.00 in loose change was missing from that cash register drawer.
The officers had secured the building when Officer Staten received a dispatch regarding a suspicious person running from the golf course area, about two blocks away. The dispatch described the suspicious person as a black male wearing a dark-colored hooded sweatshirt, all black clothes, and blue jeans. In response, Officer Sandoval drove toward the location noted in the dispatch. He saw a black male with a dark hooded sweatshirt and blue jeans run through a yard from Oak Grove Parkway toward Brier Haven Drive.
Officer Sandoval stopped the individual, later identified as the juvenile. The juvenile was out of breath and sweating profusely. Officer Sandoval asked the juvenile to put his hands on Officer Sandoval's car, and Officer Sandoval then frisked the juvenile to make sure he did not have any weapons. At some point, when Officer Sandoval was patting down the juvenile, he felt what he perceived to be an identification card in the front pocket of the juvenile's sweatshirt. He pulled the card out and discovered that it was actually an RBC Centura Visa Card bearing the name Sharon Atkins. Ms. Atkins' card had been stolen earlier that month. After Officer Sandoval determined that the card was stolen, he placed the juvenile under arrest, put him in the vehicle, and drove back to the clubhouse.
In the meantime, Corporal Tammy Schultz had contacted Teresa Easterday, the witness who had made the suspicious person report. Ms. Easterday met Corporal Schultz at the clubhouse and sat in the back of Corporal Schultz's vehicle so she could not be seen by the juvenile. Officer Sandoval had positioned the juvenile beside his vehicle, about 15 to 20 feet away from Corporal Schultz's vehicle. With a spotlight shining on the juvenile, Ms. Easterday was able to make a positive identification, based on the juvenile's clothing, that the juvenile was the person she had seen running away from the golf course.
The positive identification was communicated to Officer Sandoval, who then read the juvenile his Juvenile Miranda Rights. The juvenile followed along with the reading of the Juvenile Miranda Rights and checked on the form that he understood these rights. The juvenile also checked that he wished to answer questions without a lawyer, parent, or guardian present. In response to Officer Sandoval's questions, the juvenile gave his name and birth date, indicating he was 15 years old at the time. The juvenile then told Officer Sandoval that he was having a bad day, that he had left a friend's house and crossed through the golf course, and that he had the “urge to bust out the window with the chair.” After that, the juvenile refused to answer any more questions. Officer Sandoval then retrieved the loose change from the juvenile's pockets, which totaled approximately $7.00.
On 28 January 2010, two juvenile petitions were filed against the juvenile, alleging delinquency in that he had committed felony breaking and entering, felony larceny pursuant to breaking and entering, and misdemeanor possession of property stolen from Ms. Atkins. Following the adjudication hearing, the trial court entered orders adjudicating the juvenile delinquent of felony breaking and entering, felony larceny pursuant to breaking and entering, and misdemeanor possession of the property stolen from Ms. Atkins. The trial court entered a disposition order finding the juvenile to be a Level 2 offender and ordering that he be placed on 12 months probation and pay $85.00 in restitution—the cost to repair the broken window at the clubhouse. The juvenile timely appealed to this Court.
The juvenile first contends that the juvenile petition alleging felony larceny pursuant to breaking and entering was fatally defective and should have been dismissed for lack of subject matter jurisdiction. The petition alleged that the juvenile “did unlawfully, willfully and feloniously steal, take and carry away U.S. Currency from a cash register drawer” which was “the personal property of The Crossings Golf Club.” The petition does not allege that the Crossings Golf Club is a corporation or other legal entity capable of owning property.
“ ‘To be sufficient, an indictment for larceny must allege the owner or person in lawful possession of the stolen property.’ ” State v. Phillips, 162 N.C.App. 719, 720, 592 S.E.2d 272, 273 (2004) (quoting 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 ‘that the victim was a legal entity capable of owning property[.]’ ” Id. at 721, 592 S.E.2d at 273 (quoting State v. Woody, 132 N.C.App. 788, 790, 513 S.E.2d 801, 803 (1999)). “ ‘An indictment that insufficiently alleges the identity of the victim is fatally defective ....’ ” Id. (quoting Woody, 132 N.C.App. at 790, 513 S.E.2d at 803). See, e.g., id. at 721, 592 S.E.2d at 274 (); State v. Perkins, 57 N.C.App. 516, 518, 291 S.E.2d 865, 867 (1982) ().
Since the petition in this case does not allege that the Crossings Golf Club is a corporation or other legal entity capable of owning property, we hold—and the State concedes—that the petition was fatally defective. We must, therefore, vacate the adjudication and disposition as to the offense of felony larceny pursuant to breaking and entering. In re M.S., 199 N.C.App. 260, 267, 681 S.E.2d 441, 445–46 (2009).
The juvenile next argues that the trial court erred in overruling his objection to testimony regarding evidence found in his pocket—Ms. Atkins' RBC Centura Visa card—because Officer Sandoval's search exceeded the scope of a Terry frisk and was, therefore, unconstitutional. In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court held that an officer may conduct a pat-down search to determine whether the person is carrying a weapon. “ ‘The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence.’ ” State v. Beveridge, 112 N.C.App. 688, 693, 436 S.E.2d 912, 915 (1993) (quoting Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1922, 32 L.Ed.2d 612, 617 (1972)), aff'd per curiam, 336 N.C. 601, 444 S.E.2d 223 (1994).
“If a search goes beyond the bounds justifiable in determining that the suspect is armed, then any evidence found as a result of such a search will be suppressed as fruit of the poisonous tree.” Id. (internal quotation marks omitted). On the other hand, if, “ ‘in the conduct of the limited weapons search, contraband or evidence of a crime is of necessity exposed, the officer is not required by the Fourth Amendment to disregard such contraband or evidence of crime.’ ” Id. at 694, 436 S.E.2d at 915 (quoting State v. Streeter, 17 N.C.App. 48, 50, 193 S.E.2d 347, 348 (1972), aff'd, 283 N.C. 203, 195 S.E.2d 502 (1973)).
Here, at trial, during a voir dire examination, Officer Sandoval testified that after he stopped the juvenile, he performed a Terry frisk of the juvenile to check for weapons. Once he determined the juvenile had no weapons, he did not consider him to be a threat. The following exchange then occurred between defense counsel and Officer Sandoval:
Q When you patted this individual down and found no weapons, you went through his pockets?
....
THE WITNESS: I asked him if he had any identification.
....
Q Did he indicate whether he did have I.D.?
A He didn't answer me.
Q So you went into his pockets?
A I felt what would be what I perceived to be an identification card in his front left pocket.
Q And when you felt what you thought was an I.D. card despite him not answering your question as to...
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