State v. Phillips, COA03-364.
| Decision Date | 17 February 2004 |
| Docket Number | No. COA03-364.,COA03-364. |
| Citation | 592 S.E.2d 272,162 NC App. 719 |
| Parties | STATE of North Carolina v. Kevin Wayne PHILLIPS. |
| Court | North Carolina Court of Appeals |
Attorney General Roy Cooper, by Assistant Attorney General Grady L. Balentine, Jr., for the State.
Osborn & Tyndall, P.L.L.C., by Amos Granger Tyndall, Chapel Hill, for defendant-appellant.
Kevin Wayne Phillips ("defendant") was arrested and indicted on five counts each of felonious possession of stolen property and felonious larceny based upon his alleged involvement in the theft of five four-wheelers in early December 2001 from Parker's Marine and Outdoors. Defendant was separately indicted for having attained the status of habitual felon. At trial, defendant moved to dismiss the charges at the close of the State's case and specifically argued as to one of the larceny charges that it should be dismissed on the grounds that one of the stolen four-wheelers did not belong to the dealership and there had been no testimony concerning permission by the owner to take it. The trial court denied defendant's motion. Defendant presented no evidence and renewed his motions to dismiss, which the trial court again denied. After the jury returned verdicts of guilty on all charged counts, defendant pled guilty to having attained the status of habitual felon. The trial court arrested judgment on the five counts of felonious possession of stolen property and consolidated four of the five counts of felonious larceny into a single judgment. On the remaining count and the consolidated counts of felonious larceny, the trial court sentenced defendant to two consecutive terms of 167 to 210 months' imprisonment.
On appeal, we consider only defendant's assertion that the trial court erred in failing to dismiss the larceny charges due to defects in the indictments. Specifically, defendant contends the indictments are fatally defective in charging felonious larceny because they lack sufficient indication of the four-wheelers' legal ownership. While defendant failed to contest the sufficiency of the indictments on this ground before the trial court, it is well established that, when a fatal defect is present in the indictment charging the offense, "a motion in arrest of judgment may be made at any time in any court having jurisdiction over the matter, even if raised for the first time on appeal." State v. Wilson, 128 N.C.App. 688, 691, 497 S.E.2d 416, 419 (1998). Accordingly, this issue is properly before the Court.
"To be sufficient, an indictment for larceny must allege the owner or person in lawful possession of the stolen property." 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[.]" 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 and cannot support conviction of either a misdemeanor or a felony." Id. In the instant case, a separate indictment was handed down by...
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...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......
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State v. Jennings
...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, 720-21, 592 S.E.2d 272, 273 (2004) (citation omitted); see also Woody, 132 N.C. App. at 790, 513 S.E.2d at 803 (noting that "a proper [larceny] indi......
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...See, e.g., State v. Price, 170 N.C.App. 672, 673–74, 613 S.E.2d 60, 62 (2005) (injury to personal property); State v. Phillips, 162 N.C.App. 719, 720–21, 592 S.E.2d 272, 273 (2004) (larceny); State v. Woody, 132 N.C.App. 788, 789–90, 513 S.E.2d 801, 802–03 (1999) (conversion); State v. Elli......
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State Carolina v. Chillo
...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), th......