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.