In Re Db

714 S.E.2d 522, 214 N.C. App. 489, 2011 N.C. App. LEXIS 1745
CourtCourt of Appeals of North Carolina
DecidedAugust 16, 2011
DocketCOA10-1476
StatusPublished
Cited by5 cases

This text of 714 S.E.2d 522 (In Re Db) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Db, 714 S.E.2d 522, 214 N.C. App. 489, 2011 N.C. App. LEXIS 1745 (N.C. Ct. App. 2011).

Opinion

714 S.E.2d 522 (2011)

In The Matter of D.B.

No. COA10-1476.

Court of Appeals of North Carolina.

August 16, 2011.

*523 Attorney General Roy Cooper, by Assistant Attorney General Jay L. Osborne, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defenders Mary Cook, Kristen L. Todd, and S. Hannah Demeritt, for juvenile-appellant.

GEER, Judge.

D.B., a juvenile, appeals from the trial court's orders adjudicating him delinquent for committing the offenses of felony breaking and entering, felony larceny pursuant to breaking and entering, and misdemeanor possession of stolen goods. We agree that the petition alleging felony larceny pursuant to breaking and entering was fatally defective because it contained no allegation that the alleged victim, the Crossings Golf Club, was a legal entity capable of owning property. The petition alleging felony larceny pursuant to breaking and entering should, therefore, have been dismissed by the trial court.

We also agree with the juvenile's contention that the trial court erred in admitting evidence obtained by an officer in a search that unlawfully exceeded the scope of a Terry frisk. Accordingly, we hold that the evidence obtained as a result of that search should have been excluded, and because its admission was not harmless beyond a reasonable doubt, we must reverse as to the misdemeanor possession of stolen property offense.

Facts

The State's evidence tended to show the following facts. On 26 December 2009, Officer James Sandoval of the Durham Police Department received a call about an activated *524 burglar alarm at the clubhouse of the Crossings Golf Club in Durham County, North Carolina. Upon arriving at the location, Officers Sandoval and K. Staten observed that a back rear window to the clubhouse was shattered and the door was open. The drawer of the cash register in the pro shop was missing and was later found outside on a grassy area, about 100 feet away from the building. Approximately $12.00 in loose change was missing from that cash register drawer.

The officers had secured the building when Officer Staten received a dispatch regarding a suspicious person running from the golf course area, about two blocks away. The dispatch described the suspicious person as a black male wearing a dark-colored hooded sweatshirt, all black clothes, and blue jeans. In response, Officer Sandoval drove toward the location noted in the dispatch. He saw a black male with a dark hooded sweatshirt and blue jeans run through a yard from Oak Grove Parkway toward Brier Haven Drive.

Officer Sandoval stopped the individual, later identified as the juvenile. The juvenile was out of breath and sweating profusely. Officer Sandoval asked the juvenile to put his hands on Officer Sandoval's car, and Officer Sandoval then frisked the juvenile to make sure he did not have any weapons. At some point, when Officer Sandoval was patting down the juvenile, he felt what he perceived to be an identification card in the front pocket of the juvenile's sweatshirt. He pulled the card out and discovered that it was actually an RBC Centura Visa Card bearing the name Sharon Atkins. Ms. Atkins' card had been stolen earlier that month. After Officer Sandoval determined that the card was stolen, he placed the juvenile under arrest, put him in the vehicle, and drove back to the clubhouse.

In the meantime, Corporal Tammy Schultz had contacted Teresa Easterday, the witness who had made the suspicious person report. Ms. Easterday met Corporal Schultz at the clubhouse and sat in the back of Corporal Schultz's vehicle so she could not be seen by the juvenile. Officer Sandoval had positioned the juvenile beside his vehicle, about 15 to 20 feet away from Corporal Schultz's vehicle. With a spotlight shining on the juvenile, Ms. Easterday was able to make a positive identification, based on the juvenile's clothing, that the juvenile was the person she had seen running away from the golf course.

The positive identification was communicated to Officer Sandoval, who then read the juvenile his Juvenile Miranda Rights. The juvenile followed along with the reading of the Juvenile Miranda Rights and checked on the form that he understood these rights. The juvenile also checked that he wished to answer questions without a lawyer, parent, or guardian present. In response to Officer Sandoval's questions, the juvenile gave his name and birth date, indicating he was 15 years old at the time. The juvenile then told Officer Sandoval that he was having a bad day, that he had left a friend's house and crossed through the golf course, and that he had the "urge to bust out the window with the chair." After that, the juvenile refused to answer any more questions. Officer Sandoval then retrieved the loose change from the juvenile's pockets, which totaled approximately $7.00.

On 28 January 2010, two juvenile petitions were filed against the juvenile, alleging delinquency in that he had committed felony breaking and entering, felony larceny pursuant to breaking and entering, and misdemeanor possession of property stolen from Ms. Atkins. Following the adjudication hearing, the trial court entered orders adjudicating the juvenile delinquent of felony breaking and entering, felony larceny pursuant to breaking and entering, and misdemeanor possession of the property stolen from Ms. Atkins. The trial court entered a disposition order finding the juvenile to be a Level 2 offender and ordering that he be placed on 12 months probation and pay $85.00 in restitution—the cost to repair the broken window at the clubhouse. The juvenile timely appealed to this Court.

I

The juvenile first contends that the juvenile petition alleging felony larceny pursuant to breaking and entering was fatally defective and should have been dismissed for lack of subject matter jurisdiction. The petition *525 alleged that the juvenile "did unlawfully, willfully and feloniously steal, take and carry away U.S. Currency from a cash register drawer" which was "the personal property of The Crossings Golf Club." The petition does not allege that the Crossings Golf Club is a corporation or other legal entity capable of owning property.

"`To be sufficient, 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 not a person, it must be alleged `that the victim was a legal entity capable of owning property[.]'" Id. at 721, 592 S.E.2d at 273 (quoting 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. . . .'" Id. (quoting Woody, 132 N.C.App. at 790, 513 S.E.2d at 803). See, e.g., id. at 721, 592 S.E.2d at 274 (indictment for larceny from "Parker's Marine" insufficient); State v. Perkins, 57 N.C.App. 516, 518, 291 S.E.2d 865, 867 (1982) (indictment for larceny from "Metropolitan YMCA t/d/b/a Hayes-Taylor YMCA Branch" insufficient).

Since the petition in this case does not allege that the Crossings Golf Club is a corporation or other legal entity capable of owning property, we hold—and the State concedes—that the petition was fatally defective.

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Cite This Page — Counsel Stack

Bluebook (online)
714 S.E.2d 522, 214 N.C. App. 489, 2011 N.C. App. LEXIS 1745, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-db-ncctapp-2011.