State v. Ellis

• Decision Date: 25 September 2015
• Docket Number: No. 405PA14.,405PA14.
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Dwayne Anthony ELLIS.

368 N.C. 342

776 S.E.2d 675

STATE of North Carolina

v.Dwayne Anthony ELLIS.

No. 405PA14.

Supreme Court of North Carolina.

Sept. 25, 2015.

Roy Cooper, Attorney General, by Teresa M. Postell, Assistant Attorney General, for the State-appellant.

Staples S. Hughes, Appellate Defender, by James R. Grant, Assistant Appellate Defender, for defendant-appellee.

ERVIN, Justice.

Defendant Dwayne Anthony Ellis was convicted of felonious larceny, injury to personal property causing damage in excess of $200.00, first degree trespass, and misdemeanor possession of stolen property. A unanimous panel of the Court of Appeals vacated defendant's injury to personal property conviction and remanded this case to the trial court for resentencing. We now reverse the decision of the Court of Appeals.

At around 4:30 a.m. on 23 April 2011, Sergeant Ian Kendrick of the North Carolina State University Police Department witnessed a vehicle with an attached trailer leaving a parking lot near an electrical substation located on the University's campus. After noting that the vehicle had no visible tail lights and that the trailer was dragging the ground, Sergeant Kendrick stopped the vehicle, which was being driven by defendant. During the course of a pre-impoundment inventory search of the vehicle, investigating officers discovered, among other things, four large rolls of copper wire and a collection of wet, muddy clothing. Subsequently, investigating officers determined that the copper wire had been taken from a fenced-in area associated with the electrical substation. The remaining wire on the spool at the substation had been damaged to such an extent that it was no longer useable.

On 12 July 2011, the Wake County grand jury returned a bill of indictment in File No. 11 CrS 210130 that purported to charge defendant with felonious larceny, injury to personal property causing damage in excess of $200.00, and first degree trespass stemming from the 23 April 2011 incident and a separate bill of indictment in File No. 11 CrS 211154 that purported to charge defendant with felonious possession of stolen property stemming from his possession of a trailer that had allegedly been taken from Shaw University. On 25 July 2013, defendant consented to the filing of a pair of superseding informations that purported to allege the same offenses charged in the original bills of indictment, with the principal difference between the original indictment and the information in File No. 11 CrS 210130 being the manner in which the ownership of the property that defendant allegedly stole, damaged, and trespassed upon was stated. More specifically, the indictment returned against defendant in File No. 11 CrS 210130 alleged that the property in question was owned by "NC State University High Voltage Distribution," while the information filed against defendant in File No. 11 CrS 210130 alleged that the property was owned by "North Carolina State University (NCSU) and NCSU High Voltage Distribution."

On 2 August 2013, the jury returned a verdict convicting defendant of felonious larceny, misdemeanor injury to personal property, first degree trespass, and misdemeanor possession of stolen property. After accepting the jury's verdict and consolidating defendant's convictions in File No. 11 CrS 210130 for judgment, the trial court sentenced defendant to a term of six to eight months imprisonment in File No. 11 CrS 210130 and to a consecutive term of forty-five days imprisonment in File No. 11 CrS 211154. Defendant noted an appeal to the Court of Appeals from the trial court's judgments.

In his sole challenge to the trial court's judgments before the Court of Appeals, defendant argued that "the trial court lacked subject matter jurisdiction over the injury to personal property charge because the information filed" in File No. 11 CrS 210130 "failed to allege that ‘North Carolina State University (NCSU) and NCSU High Voltage Distribution’ were legal entities capable of owning property." State v. Ellis, –––N.C.App. ––––, ––––, 763 S.E.2d 574, 575 (2014). After holding that the information did, in fact, adequately allege that North Carolina State University was an entity capable of owning property, a unanimous panel of the Court of Appeals held that the same could not be said for the ownership allegation relating to "NCSU High Voltage Distribution" given the absence of any indication that "NCSU High Voltage Distribution" was a legal entity capable of owning property. Id. at ––––, 763 S.E.2d at 576–77. Acting in reliance upon its recent decision in State v. Campbell, ––– N.C.App. ––––, 759 S.E.2d 380 (2014), rev'd, 368 N.C. 83, 772 S.E.2d 440 (2015), the Court of Appeals stated that, "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." Ellis, ––– N.C.App. at ––––, 763 S.E.2d at 574. In view of the fact that the second count of the information filed in File No. 11 CrS 210130 failed to allege that "NCSU High Voltage Distribution" was capable of owning property, the Court of Appeals concluded that the trial court lacked jurisdiction over the injury to personal property charge, vacated defendant's conviction for committing that offense, and remanded this case to the trial court for resentencing. Id. at ––––, 763 S.E.2d at 577.

"[A]n [information or] indictment must allege lucidly and accurately all the essential elements of the offense endeavored to be charged." State v. Hunt, 357 N.C. 257, 267, 582 S.E.2d 593, 600 (citation omitted), cert. denied, 539 U.S. 985, 124 S.Ct. 44, 156 L.Ed.2d 702 (2003) ; see also N.C.G.S. § 15A–924(a)(5) (2013) (requiring that a criminal pleading contain a "plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of a criminal offense and the defendant's commission thereof with sufficient precision clearly to apprise the defendant ... of the conduct which is the subject of the accusation"). A criminal pleading, such as an information, is fatally defective if it "fails to state some essential and necessary element of the offense of which the defendant is found guilty." State v. Gregory, 223 N.C. 415, 418, 27 S.E.2d 140, 142 (1943) (citations omitted).

An individual is guilty of injury to personal property in the event that: (1) personal property was injured; (2) the personal property was that "of another"; (3) the injury was inflicted "wantonly and willfully"; and (4) the injury was inflicted by the person or persons accused. N.C.G.S. § 14–160 (2013). The identity of the owner of the property that the defendant allegedly injured is a material element of the offense of injury to personal property. See State v. Eppley, 282 N.C. 249, 259, 192 S.E.2d 441, 448 (1972). For that reason, a criminal pleading seeking to charge the commission of crimes involving theft of or damage to personal property, including injury to personal property, must "allege ownership of the property in a person, corporation, or other legal entity capable of owning property." State v. Thornton, 251 N.C. 658, 661–62, 111 S.E.2d 901, 903 (1960) (citation and quotation marks omitted).

As he candidly concedes, defendant did not challenge the sufficiency of the second count of the information filed against him in File No. 11 CrS 210130 in the trial court. However, since "a valid bill of indictment [or information] is essential to the jurisdiction of the trial court to try an accused," State v. Sturdivant, 304 N.C. 293, 308, 283 S.E.2d 719, 729 (1981) (citations omitted), the facial validity of a criminal pleading may be challenged for the first time on appeal if the appellate court has jurisdiction over the underlying case. State v. Pennell, 367 N.C. 466, 469, 758 S.E.2d 383, 385 (2014) (citation omitted).

As we have already noted, the only issue before the Court in this case is the extent to which the second count in the...