State v. Garner
| Decision Date | 21 March 2017 |
| Docket Number | No. COA16-289,COA16-289 |
| Citation | 798 S.E.2d 755,252 N.C.App. 393 |
| Court | North Carolina Court of Appeals |
| Parties | The STATE of North Carolina, v. Daniel Christian GARNER, Defendant. |
Attorney General Joshua H. Stein, by Assistant Attorney General Tracy Nayer, for the State.
Irons & Irons, PA., Greenville, by Ben G. Irons, II, for Appellant-Defendant.
An indictment for felonious larceny is fatally defective when it fails to allege that property was taken from an entity capable of owning property. When the record indicates that a trial court arrested a judgment of conviction for double jeopardy-related concerns and no fatal defect of the conviction appears on the face of the record, the appellate court may treat the judgment as set aside rather than vacated and remand for the trial court's further consideration of the conviction.
Daniel Christian Garner ("Defendant") appeals from a judgment entered 3 September 2015 following a jury trial and verdicts finding him guilty of felonious larceny from a local country club and felonious possession of stolen goods. On appeal, Defendant argues the indictment for felonious larceny was fatally defective because the indictment failed to allege that the entity from which the property was taken was capable of owning property and that the trial court violated the Confrontation Clause of the Sixth Amendment when it admitted testimony related to an anonymous call received by club employees. Defendant further argues that because the trial court arrested judgment on his conviction for possession of stolen goods without stating its reasoning, no court can reinstate that judgment. After careful review, we vacate Defendant's larceny charge and remand for resentencing under the possession of stolen goods charge.
Defendant was indicted on 4 November 2013 for felonious larceny and felonious possession of stolen goods. The indictment charged Defendant with having stolen twelve golf cart batteries and a pole saw from "Pinewood Country Club." Defendant was tried before a jury between 31 August 2015 and 3 September 2015.
At trial, the State offered evidence including the testimony of Defendant's half-brother Tony Garner, the owner of M.J.’s Recycling in Lexington, North Carolina, a Davidson County Sheriff's Office detective, and two employees of the Pinewood Country Club, Steven Richau and Farrell Harris. Steven Richau and Farrel Harris testified about the contents of an anonymous phone call they received following the vandalism and theft of twelve golf cart batteries from the Pinewood Country Club. Mr. Richau testified: " Mr. Richau further testified that the caller told him "that the Garner boys said they were taking the batteries to Lexington Recycling...." Mr. Harris similarly testified as to the contents of the call, stating
Defendant's trial counsel objected to this testimony on the grounds that such testimony amounted to a violation of the Confrontation Clause of the Sixth Amendment. The trial court overruled trial counsel's objection and offered the following limiting instructions. In regard to Mr. Richau's statement the trial court explained:
As to Mr. Harris's statement, the trial court stated:
Following each limiting instruction, the trial court verified by asking for a show of hands that the jury understood the instruction.
The jury found Defendant guilty of both offenses and the trial court sentenced him to a prison term of seven to eighteen months. The trial court then arrested judgment on Defendant's conviction for possession of stolen goods. Defendant gave notice of appeal in open court.
Defendant first argues the indictment is fatally defective because it does not allege that "Pinewood Country Club" was an entity capable of owning property. The State concedes this issue and we agree.
"Larceny of goods of the value of more than one thousand dollars ($1,000) is a Class H felony." N.C. Gen. Stat. § 14-72(a) (2015). " ‘The essential elements of larceny are: (1) taking the property of another; (2) carrying it away; (3) without the owner's consent; and (4) with the intent to deprive the owner of the property permanently.’ " State v. Sheppard , 228 N.C.App. 266, 269, 744 S.E.2d 149, 151 (2013) (quoting State v. Wilson , 154 N.C.App. 686, 690, 573 S.E.2d 193, 196 (2002) ). "To be valid a larceny indictment must allege the ownership of the [stolen] property either in a natural person or a legal entity capable of owning (or holding) property." State v. Campbell , 368 N.C. 83, 86, 772 S.E.2d 440, 443 (2015) (alteration in original) (internal quotation marks and citation omitted).
"When alleging ownership in an entity, an indictment must specify that the owner, ‘if not a natural person, is a corporation or otherwise a legal entity capable of owning property,’ unless the entity's name itself ‘imports an association or a corporation capable of owning property.’ " Id. (quoting State v. Thornton , 251 N.C. 658, 661, 111 S.E.2d 901, 903 (1960) ). Our courts have held that terms such as "church," "corporation," "incorporated," "limited," or "company," or their abbreviated forms, are sufficient for identifying an entity in an indictment. Id. at 86-87, 772 S.E.2d at 443-44. The term "country club" has not been recognized by statute or by our courts as sufficient for identifying an entity as being capable of owning property, and we do not recognize it today. An indictment that fails to sufficiently allege an entity capable of owning property is "fatally defective." Thornton , 251 N.C. at 662, 111 S.E.2d at 904.
Here, the indictment charges Defendant with larceny of "the personal property of Pinewood Country Club ...." (emphasis added). The parties agree, and we hold, that this identification is insufficient and the indictment for felonious larceny is fatally defective.
Accordingly, we vacate Defendant's larceny conviction.
The State contends we should remand Defendant's conviction for possession of stolen goods to the trial court for resentencing. Defendant asserts that because the trial court arrested judgment on this conviction without specifying a reason for doing so, the conviction is deemed vacated and beyond appellate review. We disagree.
A trial court's arrest of a judgment has one of two effects: (1) to vacate the underlying judgment, or (2) to withhold the entry of judgment based on a valid jury verdict. State v. Pendergraft , 238 N.C.App. 516, 528, 767 S.E.2d 674, 683 (2014) (citing State v. Reeves , 218 N.C.App. 570, 575, 721 S.E.2d 317, 321 (2012) (citing State v. Pakulski , 326 N.C. 434, 439, 390 S.E.2d 129, 132 (1990) )).
If a judgment is arrested because of a fatal flaw which appears on the face of the record, such as a substantive error on the indictment, the trial court's decision to arrest judgment will "vacate the defendant's conviction and preclude the entry of a final judgment which is subject to review on appeal." Id. (quoting Reeves , 218 N.C.App. at 575-76, 721 S.E.2d at 321-22 (citations omitted)). On the other hand, if a trial court arrests judgment "for the purpose of addressing double jeopardy or other concerns, such as a situation in which the defendant has been convicted of committing a predicate felony in a case in which he or she has also been convicted of first degree murder on the basis of the felony murder rule, or convicted of a charge used to enhance punishment for a related offense," the conviction is not vacated. Id. at 528-29, 767 S.E.2d at 683 (citations omitted). "In the event that the trial court arrests judgment for the first of these two reasons, we lack the authority to review any challenge that efendant might seek to lodge against the underlying conviction on appeal given that the underlying conviction has been vacated." Id. at 529, 767 S.E.2d at 683-84 (citing Reeves , 218 N.C.App. at 576, 721 S.E.2d at 322 ). When a judgment is arrested for the second reason, "the underlying guilty verdict remains intact so that judgment can be entered based on that verdict in the event that (1) the conviction for the murder or related charge is overturned in subsequent proceedings and (2) the verdict with respect to which judgment has been arrested is not disturbed on appeal." Id. at 529, 767 S.E.2d at 683 (citing Pakulski , 326 N.C. at 439-40, 390 S.E.2d at 132 ).
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