“Belk’s Department Stores, an entity capable of owning property”

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The court of appeals recently decided that an indictment alleging that a defendant stole some shirts from “Belk’s Department Stores, an entity capable of owning property,” did not sufficiently identify the victim as an entity capable of owning property. State v. Brawley, __ N.C. App. __, __ S.E.2d __, 2017 WL 4632820 (Oct. 17, 2017). This post summarizes the decision, considers the possibility of further review, and explains how other states handle this issue.

The facts. Defendant Dyquaon Brawley and Lamaya Sanders worked together to steal two Polo shirts from a Belk’s department store in Salisbury. They removed inventory control devices from the shirts and left the store, but the theft was captured on video. The store’s loss prevention personnel provided the footage to police, who obtained arrest warrants for Brawley and Sanders. Sanders eventually pled guilty and testified against Brawley.

The charge. Brawley was charged with larceny from a merchant under G.S. 14-72.11. At first he was charged in an arrest warrant, but the offense is a felony so the State eventually procured an indictment. It alleged that Brawley unlawfully, willfully, and feloniously did:

STEAL, TAKE, AND CARRY AWAY TWO POLO BRAND SHIRTS BY REMOVING THE ANTI-THEFT DEVICE ATTACHED TO EACH SHIRT, THE PERSONAL PROPERTY OF BELK’S DEPARTMENT STORES, AN ENTITY CAPABLE OF OWNING PROPERTY, HAVING A VALUE OF $134.50.

Brawley was convicted and appealed.

The issue. On appeal, Brawley argued that the indictment was fatally defective for failing to allege that the victim was an entity legally capable of owning property. Brawley contended that “Belk’s Department Stores” does not specify the type of entity in question, and that appending the phrase “an entity capable of owning property” does not cure the failure to identify the type of entity.

The majority. The majority agreed with Brawley. It noted that “our Supreme Court has consistently held that [a larceny] indictment must . . . clearly specify[] the identity of the victim” and must allege that the victim is a legal entity capable of owning property. Applying that rule, the court of appeals stated that “the name ‘Belk’s Department Stores’ does not itself import that the victim . . . is a corporation or other type of entity capable of owning property.” Nor, in the court’s view, did the inclusion of the phrase “an entity capable of owning property” save the indictment. The majority saw the case as similar to State v. Thornton, 251 N.C. 658 (1960), where the state supreme court deemed an indictment defective even though it alleged that the defendant embezzled property “belonging to . . . The Chuck Wagon,” and therefore implicitly indicated that The Check Wagon was an entity capable of owning property.

Furthermore, the court argued,

Merely stating that the victim named is an entity capable of owning property fails to identify with specificity the identity of the victim. For instance, it is permissible in North Carolina for a limited partnership and a corporation to share the same name, so long as they are different entity types. As such, it is possible for there to be a “Belk’s Department Stores, a corporation” and, at the same time, a “Belk’s Department Stores, a limited partnership.” Allowing the State merely to allege “Belk’s Department Stores” as some entity type capable of owning property would relieve the State of its obligation to identify with sufficient specificity who the victim was.

(Emphasis in original.) For whatever it may be worth, I don’t find this part of the majority’s argument very convincing. After all, when a human being is named as the victim, it is presumably often the case that another human being somewhere shares the victim’s name, yet the name is unquestionably sufficient to identify the victim.

The dissent. The dissent did not deny that older cases support the majority’s view. However, the majority opined that the Supreme Court of North Carolina relaxed the pleading requirements for larceny in State v. Campbell, 368 N.C. 83 (2015) (an indictment identifying a victim as “Manna Baptist Church” was sufficient to “signif[y] an entity capable of owning property” and satisfied the purpose of providing the defendant with enough notice of the charge to enable the defendant to prepare for trial). In the dissent’s view, a less technical approach would also be more feasible: “Given the complexity of corporate structures in today’s society, I think an allegation that the merchant named in the indictment is a legal entity capable of owning property is sufficient to meet the requirements that an indictment apprise the defendant of the conduct which is the subject of the accusation.”

Further review? Because there is a dissent, I would expect the State to seek review in the state supreme court. Indeed, the majority opinion seems to have been written to invite such review, including when it agrees that “[t]he indictment in the present case appears to be sufficient in accomplishing its purpose” of putting the defendant on notice of the charges, and when it observes that the Supreme Court of North Carolina “has recently relaxed the requirement for specifying the victim’s entity type in indictments charging injury to real property,” citing State v. Spivey, 368 N.C. 739 (2016).

Other states. The court of appeals did not address how other states handle this issue. That makes sense given that both the majority and the dissent believe that there is North Carolina authority on point. However, if the state supreme court agrees to review the matter, it will not be bound by its own previous decisions, so it may cast a wider net. As it happens, there are several secondary sources on point. See John Kimpflen, et al., 52B C.J.S. Larceny § 109 (updated Sept. 2017) (stating that in a larceny indictment, “ownership must be alleged in a person, corporation, or other entity capable of owning property,” and noting that some jurisdictions view a failure to so allege as a fatal defect, but also concluding that “[i]n general . . . the failure of an accusation to indicate the character of the owner as a corporation or partnership is not fatal to its validity”); 88 A.L.R. 845 (originally published 1934) (collecting cases and stating that “[u]nder the old rule which prevailed in England, requiring great particularity in the description of persons, it has been held . . . that in a prosecution for larceny . . . it is necessary to allege that the owner of the property, if not a natural person, is a corporation or otherwise a legal entity capable of owning property” but also observing that the rule “has been relaxed in some jurisdictions”).

My impression from a bit of research this afternoon is that there are few, if any, states that continue to adhere as strictly to the old, technical practice as we do. See, e.g., State v. Fulper, 493 P.2d 524 (Ariz. Ct. App. 1972) (finding a criminal information for motor vehicle theft sufficient even though it identified the victim only as “Dana Brothers,” apparently a business of some kind, and stating that “an information is not defective if it describes a group or a corporation by any name or designation sufficient to identify it” and that “no allegation of entity status is necessary”); State v. Jefferson, 446 P.2d 971 (Wash. 1968) (finding a criminal information for larceny sufficient even though it identified the victim only as “Marketime Drugs,” and stating that “[t]he conviction need not be reversed merely because the legal name of this particular business enterprise may be something other than ‘Marketime Drugs’ as alleged in the information”); State v. Stewart, 438 P.2d 387 (Alaska 1968) (affirming a conviction based on an indictment for larceny from a building and concluding: “Concerning appellant’s contention that the indictment was insufficient because of its failure to specify that the Super S Store was an entity capable of owning property, we hold that such an allegation is unnecessary. All that is required to be alleged in this regard in charging the crime of larceny in a building are facts showing that the property taken was not the property of the accused.”).

Especially given the weight of authority in other states, it would not surprise me if the State won Brawley in the end. But that’s just a guess. Stay tuned, and we’ll keep you posted.

12 comments on ““Belk’s Department Stores, an entity capable of owning property”

  1. So would it have been better for the officer to put in the charging documents “Belk Dept Store LLC”? Or something along those lines?

    • I am of the opinion that the officer isn’t the one responsible for getting the wording correct. In this case, we have no idea what the wording was on the magistrate’s order or warrant, but it was wrong on the indictment. This falls on the DA, not the officer. Before the DA gets it, the magistrate should make sure the wording is correct. Officers shouldn’t have to know every nuance of the law.

  2. I understand the need to word things properly on the law, but I kinda feel like we need some common sense in the law as well. Saying that Belks Department Store doesn’t clearly identify a legal victim capable of owning property is just ridiculous. My 7 year old child identify that victim from that description.

  3. it has always been the law that the entity must be properly identified. That is why the law must be studied. it is why a law degree is supposed mean something. if a prosecutor isn’t curious enuf to learn the law they can go and sell shirts at belks.

  4. A department store isn’t a person. It can’t walk into court and say it gave the accused permission to take whatever he took. We created a legal fiction that a corporation can be treated as if it were a person, but that corporation must be strictly identified, otherwise you can’t be sure that the person who appears in court speaks for the corporation. A loss prevention officer doesn’t speak for the corporation by virtue of merely working there, but the loss prevention officer is liable to be the person to testify against the accused. The NC Secretary of State’s office lists 38 corporations with “Belk” in their names. None of them are named “Belk’s Department Stores.” The United States Securities and Exchange website lists “Belk, Inc” as a corporation that last filed with them in 2015. Some stores are not incorporated. The owner of an unincorporated store is the victim. The accused has a due process right to be informed from whom he is accused of stealing. We aren’t allowed to presume the accused is guilty and therefore knows from whom he stole. Even if “Belk’s Department Stores” is identified with an address of the individual store “victim,” that isn’t good enough because that is just the location of the crime. What is the person’s name who is authorized by the correct Belk’s corporation to speak for that corporation?

  5. The standard needs to be relaxed as it causes more confusion than clarity. For instance, if you commit a felony larceny from Marshalls, the indictment will say THE TJX COMPANIES, INC .A defendant would think they stole from TJ Maxx. TJ Maxx owns Marshalls. If you steal from Subway and the franchise is set up as a sole proprietorship or LLC, the indictment will make no sense to the defendant. Almost all arrest warrants and district court pleadings fail to name the proper owner. Police officers are not taught this and do not look up Secretary of State records. The DA does it when the indictment is created before Grand Jury. Hopefully the Supreme Court relaxes the standard. In the end, double jeopardy doesn’t prevent a retrial for an improper indictment so it all seems rather pointless.

    • Mr. Defendant is charged with larceny from Subway #3372. He is tried substantively, because the standard has been “relaxed,” and is acquitted on the evidence, not the “technicality” of a name. The manager of Subway #3372 doesn’t like that outcome, because he’s convinced that Mr. Defendant should have been convicted, and being the spiteful sort, returns to the magistrate’s office and swears out a warrant against Mr. Defendant for larceny from JMS, LLC. JMS, LLC happens to own the Subway franchise known as Subway #3372.

      Now, obviously, Mr. Defendant can post another bond, hire another lawyer, and take a few more months out of his life until his lawyer can convince either a DA or a Judge that his new charge has violated the Double Jeopardy Clause.

      Except that this time, Mr. Defendant is broke from the last time he had to post bond and hire a lawyer to defend that same charge, and he lost his job after he was arrested the first time on that charge because his previous employer didn’t want to have an accused thief on the payroll. Oh, and this time, Mr. Defendant ticked off the magistrate by arguing with him that he’s already been found “not guilty” of this (which happens to be true), so he finds himself under a bond that he cannot make. And his first Court date is 45 days away. And he cannot get a lawyer until that first Court date because he cannot afford to hire one.

      Or they can bring him over after a week or so and let him plead guilty in exchange for getting out on time served. Of course, that would violate his Double Jeopardy rights, but that’s small consolation for a man sitting in jail on a charge he’s already been acquitted of once, but must now face again because the Courts “relaxed” the standard.

      The more complicated business entities become, the more important it is to identify the business/victim correctly.

  6. This is all form over substance. The indictment was clearly sufficient to notify the defendant of the crime for which she needed to defend herself.

  7. If the opinion states that there can be 2 legal entities that exist in good-standing on the Secretary of State’s records with identical names with only the legal ending different, then they are wrong on the law. NC law requires that each entity maintained by the Secretary of State must have a name that is “distinguishable on the record” from all other entities in good standing (and some administratively dissolved entities but I’m not trying to get overly technical). Entity endings, such as LLC or corporation, are disregarded when determining if a name is distinguishable upon the record.

  8. […] v. Brawley, ___ N.C. App. ___, 807 S.E.2d 159 (2018). Jeff wrote here about the court of appeals’ decision in State v. Brawley. That court rejected the State’s […]

  9. Eric Eller’s comment is spot-on.
    Barry Hoyle, you are correct for this individual case, but the problem isn’t this case itself; it is the precedence that this case sets now that the NC Supreme Court has overruled the CoA. From now on an indictment need not give the correct name for a corporation victim so long as a judge thinks the name in the indictment is clear enough. Who is authorized to speak for the corporation? Who does the defense counsel subpoena for the video of the alleged theft which proves his client’s innocence? If the correct name is given, defense counsel can look online for the correct person to subpoena. With the incorrect name, counsel cannot do that. Due process requires that the accused be told from whom he is accused of stealing. Under the Supreme Court’s ruling the accused must perform some investigation to discover from whom he is accused of stealing, and even then he might not know. The technically incorrect name means, as Eric Eller explained, that there is no safeguard against the accused being re-charged and re-arrested for the same crime after acquittal.
    Suppose the loss prevention officer has been fired for lying about thefts from the store. The loss prevention officer comes to court to testify, anyway. The accused doesn’t have the proper corporate name for the corporate “victim” so has been unable to identify who legally speaks for the corporation (not the loss prevention officer, although inevitably the loss prevention officer will say he is authorized to speak for the corporation), so the accused doesn’t know that the loss prevention officer has been fired for fabricating thefts. An accused must be given a sufficient description of the crime so that he can conduct his own investigation and properly prepare his defense. Obscuring the real name of the victim either hampers or deprives the accused of his right to his own defense.

    • im trying to understand this if anyone can break it down a little more is it or isnt it required identify the corporation or not …if a arrest warrant in nc states i willingly did wantonly innjure personal property aand did steal and carry away a item the personal property of TRAILS GENERAL STORE …is this incorrect

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