State v. Justice, COA11–1232.

• Decision Date: 03 April 2012
• Docket Number: No. COA11–1232.,COA11–1232.
• Citation: 723 S.E.2d 798
• Parties: STATE of North Carolina v. Tonya Brigett JUSTICE.
• Court: North Carolina Court of Appeals

723 S.E.2d 798

STATE of North Carolina

v.Tonya Brigett JUSTICE.

No. COA11–1232.

Court of Appeals of North Carolina.

April 3, 2012.

Appeal by Defendant from judgment dated 16 May 2011 by Judge James U. Downs in Henderson County Superior Court. Heard in the Court of Appeals 20 February 2012.

Attorney General Roy Cooper, by Deputy Director Caroline Farmer, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender David W. Andrews, for Defendant.

STEPHENS, Judge.

Defendant Tonya Justice appeals from judgment entered upon her conviction of larceny from a merchant by removal of anti-theft device. For the reasons which follow, we arrest judgment in part, and reverse and remand in part.

At trial, the evidence tended to show the following: In December 2009, Defendant and a male friend went to a Belk department store. Defendant took several garments into a fitting room. She then handed some items out of the fitting room to her friend, who put the clothes back on hangers. The store's loss prevention manager, who recognized Defendant from a prior shoplifting incident, observed that the sensors were removed from several shirts that had been returned to hangers. The store's assistant manager called the police. As Defendant left the fitting room and walked toward the exit, the loss prevention manager stopped her and asked her to remove the merchandise she had under her clothes. Defendant admitted that she had removed the sensors from the clothing because she had a drug problem.

Defendant was indicted for larceny from a merchant by removal of anti-theft device and for having attained the status of habitual felon. A jury found Defendant guilty of the larceny offense and Defendant pled guilty to the habitual felon charge. Defendant appeals.

Discussion

Defendant argues that the trial court (1) lacked subject matter jurisdiction because the indictment for the larceny charge was fatally flawed, (2) erred by allowing the State to amend the larceny indictment because the amendment involved a substantial alteration to the charge, and (3) erred by entering judgment on a fatally defective verdict for the larceny charge. Because we agree that the indictment was fatally flawed, we arrest the judgment entered upon Defendant's conviction of larceny from a merchant.

This Court reviews the sufficiency of an indictment de novo. State v. Marshall, 188 N.C.App. 744, 748, 656 S.E.2d 709, 712 (2008). “Under a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the lower tribunal.” State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011) (citations omitted). If an indictment is fatally defective, then the superior court lacks subject matter jurisdiction over the case. See State v. Bell, 121 N.C.App. 700, 702, 468 S.E.2d 484, 486 (1996). An indictment is fatally defective when it fails to charge an essential element of the offense. State v. Bartley, 156 N.C.App. 490, 499, 577 S.E.2d 319, 324 (2003) (citation omitted).

Defendant was indicted under N.C. Gen.Stat. § 14–72.11 which makes larceny from a merchant a felony when the offense occurs under certain specific circumstances, including “[b]y removing, destroying, or deactivating a component of an antishoplifting or inventory control device to prevent the activation of any antishoplifting or inventory control device.” N.C. Gen.Stat. § 14–72.11(2) (2011). “The essential elements of larceny are that [the] defendant (1) took the property of another; (2) carried it away; (3) without the owner's consent; and (4) with the intent to permanently deprive the owner of the property.” State v. Coats, 74 N.C.App. 110, 112, 327 S.E.2d 298, 300 (1985) (citation omitted). Thus, an indictment under section 14–72.11(2) must allege the four elements of larceny and also removal of an antishoplifting or inventory control device.

In addition, our case law on larceny indictments makes clear that the property alleged to have been taken must be identified “with certainty sufficient to enable the jury to say that the article proved to be stolen is the same, and to enable the court to see that it is the subject of larceny and also to protect the defendant ... in the event of future prosecution for the offense....” State v. Ingram, 271 N.C. 538, 542, 157 S.E.2d 119, 122 (1967) (quotation marks and citation omitted). In Ingram, the Supreme Court held that an indictment's description of the property taken as “merchandise, chattels, money, valuable securities and other personal property” was too general and therefore insufficient. Id. at 543, 157 S.E.2d at 123; compare State v. Monk, 36 N.C.App. 337, 340, 244 S.E.2d 186, 188–89 (1978) (holding that “assorted items of clothing, having a value of $504.99 the property of Payne's, Inc.” was a sufficiently particular description of the property taken to support a larceny charge).

Here, the indictment states:

The jurors for the State upon their oath present that on or about the date of offense shown and in Henderson County the defendant named above unlawfully, willfully and feloniously did remove a component of an anti-theft or inventory control device to prevent the activation of the anti-theft or inventory control device. This act was committed in an effort to steal merchandise from Belks [sic] of Hendersonville, NC.

(Emphasis added). As in Ingram, the description “merchandise” is too general to identify the property allegedly taken by Defendant. As such, the indictment is fatally defective, and deprives the superior court of subject matter jurisdiction over the case. Bell, 121 N.C.App. at 702, 468 S.E.2d at 486.

While the insufficient description of the property allegedly taken, standing alone, dooms the indictment here, we note that the indictment is also fatally flawed in that it alleges only an attempted rather than a completed larceny. See State v. Chandler, 342 N.C. 742, 753, 467 S.E.2d 636, 642 (1996) (“The offense of attempted larceny is complete where there is a general intent to steal and an act in furtherance thereof[.]”). The indictment here alleges that Defendant “did remove a component of an anti-theft or inventory control device.... in an effort to steal” property.

We reject the State's contentions that the indictment's mention of Defendant's removal of an antishoplifting device or the use of the...