State Carolina v. Chillo

• Decision Date: 21 December 2010
• Docket Number: No. COA10–622.,COA10–622.
• Citation: 705 S.E.2d 394
• Parties: STATE of North Carolinav.Justin Hastings CHILLO.
• Court: North Carolina Court of Appeals

705 S.E.2d 394

STATE of North Carolina
v.
Justin Hastings CHILLO.

No. COA10–622.

Court of Appeals of North Carolina.

Dec. 21, 2010.

[705 S.E.2d 395]

Appeal by defendant from judgment entered 28 October 2009 by Judge Clifton W. Everett, Jr. in Pitt County Superior Court. Heard in the Court of Appeals 3 November 2010.

Attorney General Roy A. Cooper, III, by Assistant Attorney General Kimberly D. Potter, for the State.

Anne Bleyman, Chapel Hill, for defendant-appellant.

JACKSON, Judge.

Justin Hastings Chillo (“defendant”) appeals his 28 October 2009 conviction of breaking or entering a motor vehicle. For the reasons set forth below, we reverse.

On 6 December 2008 at approximately 1:00 a.m., defendant picked up his friend, Cameron Moser (“Moser”), from Moser's mother's residence in Bethel, North Carolina. Moser understood that they would be “hanging out” with two girls that night. Defendant drove them to Walmart in Greenville, North Carolina, and, according to Moser, defendant stole a spark plug from Walmart's hardware department at approximately 1:30 a.m.

After leaving Walmart, defendant drove to the Lynndale neighborhood in Greenville, where defendant “drove around the neighborhood for a little bit....” While in Lynndale, defendant parked and exited his vehicle and used a blunt object to break the spark plug into two pieces. According to Moser, defendant then drove up the street, stopped, again exited his vehicle, and threw the spark plug at the passenger side window of a 2007 Dodge Caravan parked on the side of the road. The spark plug bounced off the window; however, upon throwing it a second time, defendant broke the Caravan's window. After the window was broken, defendant got back into his car, and he and Moser “just left.”

Upon leaving Lynndale, defendant drove Moser through the Brook Valley neighborhood. Defendant indicated to Moser that he had been in Brook Valley earlier and “went into a car ... or something like that” during his previous trip.

Before taking Moser home, defendant stopped at a gas station to get gas. According to Moser, defendant parked across the street and got his gas using gas cans. Moser

[705 S.E.2d 396]

testified that defendant did this “[s]o he wouldn't get the car on videotape.”

The Caravan at issue was in the possession of Ansley Stroud (“Stroud”). Stroud's employer, Rite–Aid Pharmacy, provided her with this vehicle to use in her job as a pharmacy district manager. The Caravan is owned by and registered to D.L. Peterson Trust. Officer Scott Lascallette (“Officer Lascallette”) testified that, upon examining the vehicle after the window was broken, “nothing was out of sorts in [the Caravan].... [E]verything looked in order.”

On 8 June 2009, the Pitt County Grand Jury issued an indictment charging defendant with felonious breaking and entering a motor vehicle. On 28 October 2009, a jury returned a verdict finding defendant guilty of breaking or entering a motor vehicle. The trial court sentenced defendant to a term of six to eight months imprisonment. However, the term was suspended, and defendant was placed on supervised probation for thirty months. Defendant appeals from his conviction.

On appeal, defendant first argues that the trial court erred when it entered judgment on the charge of breaking and entering a motor vehicle because the underlying indictment was fatally defective. In relevant part, the indictment alleged that “the defendant ... unlawfully, willfully and feloniously did break and enter a motor vehicle, a 2007 Dodge Caravan, the personal property of D.L. Peterson Trust....” Defendant argues that the indictment was fatally defective because it failed to allege that the victim was a legal entity capable of owning property. We disagree.

Our review of whether the indictment was fatally defective is de novo. State v. Marshall, 188 N.C.App. 744, 748, 656 S.E.2d 709, 712 (citing State v. Sturdivant, 304 N.C. 293, 308, 283 S.E.2d 719, 729–30 (1981)), disc. rev. denied, 362 N.C. 368, 661 S.E.2d 890 (2008). Furthermore, our Supreme Court has held that

[a] bill of indictment is insufficient to confer jurisdiction unless it charges all essential elements of a criminal offense. (W)here no crime is charged in the warrant or bill of indictment upon which the defendant has been tried and convicted the judgment must be arrested.

A charge in a bill of indictment must be complete in itself, and contain all of the material allegations which constitute the offense charged....

State v. Benton, 275 N.C. 378, 381–82, 167 S.E.2d 775, 777 (1969) (internal citations and quotation marks omitted) (second alteration in original).

“Because the State is required to prove ownership, a proper indictment must identify as victim a legal entity capable of owning property. An indictment that insufficiently alleges the identity of the victim is fatally defective and cannot support [the] conviction....” State v. Woody, 132 N.C.App. 788, 790, 513 S.E.2d 801, 803 (1999). “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[.]’ ” State v. Phillips, 162 N.C.App. 719, 721, 592 S.E.2d 272, 273 (2004) (quoting Woody, 132 N.C.App. at 790, 513 S.E.2d at 803).

In State v. Turner, 8 N.C.App. 73, 173 S.E.2d 642 (1970), the defendant alleged that an indictment for larceny, listing “City of Hendersonville” as the owner of stolen property, was fatally defective because “it fail [ed] to allege that the owner of the property allegedly stolen is either a natural person or a legal entity capable of owning property.” Id. at 74, 173 S.E.2d at 642. We held that the “City of Hendersonville” denotes a “municipal corporate entity [,]” capable of owning personal property. Id. at 75, 173 S.E.2d at 643. To support our holding, we noted that North Carolina General Statutes, section 160–2(4) provides that “[m]unicipal corporations are expressly authorized to purchase and hold personal property.” Id. at 75, 173 S.E.2d at 643 (citing N.C. Gen.Stat. § 160–2(4)). As such, we held that the indictment was proper because “[i]t is well established that judicial notice will be taken of [the] laws of this State[.]” Id. at 74, 173 S.E.2d at 643 (citation omitted).

In the case sub judice, the indictment states that “the defendant ... unlawfully,

[705 S.E.2d 397]

willfully and feloniously did break and enter a motor vehicle ... the personal property of D.L. Peterson Trust....” The express language of the indictment clearly indicates that the entity in question is a trust. But cf. State v. Price, 170 N.C.App. 672, 674, 613 S.E.2d 60, 62 (2005) (holding that the words “City of Asheville Transit and Parking Services” do not indicate a legal entity capable of owning property “because the additional words after ‘City of Asheville’ make it questionable what type of organization it is”). Unlike the indictment in Price, the indictment in the instant case leaves no question that a trust is the legal entity charged with owning the Caravan.

As a trust, “D.L. Peterson Trust,”...