State v Abbott
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NO. COA11-658 NORTH CAROLINA COURT OF APPEALS Filed: 20 December 2011 STATE OF NORTH CAROLINA v. New Hanover County No. 08 CRS 60837 SELVYN MARTIN ABBOTT Appeal by Defendant from judgment entered 3 September 2009 by Judge Phyllis M. Gorham in New Hanover County Superior Court. Heard in the Court of Appeals 10 November 2011. Attorney General Roy Cooper, by Assistant Attorney General Lisa K. Bradley, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Charlesena Elliot Walker, for Defendant-appellant. HUNTER, JR., Robert. N., Judge. Selvyn Martin Abbott ( Defendant ) appeals his conviction for larceny by employee. On appeal, Defendant contends: (1) the trial court erred by allowing the State to amend the bill of indictment; (2) the trial court erred by entering judgment against Defendant where the amended indictment failed to allege a victim committed capable plain of error owning by property; failing to (3) the instruct trial the court jury on temporary deprivation in its charge to the jury; and (4) the -2trial court erred by denying Defendant s motion to dismiss at the close of the evidence. trial court s judgment After careful review, we vacate the and dismiss the State s indictment against Defendant. I. Factual & Procedural Background The State s evidence at trial tended to show the following. In August 2008, Neil Schulman owned and operated a full service sign shop in Wilmington. and repaired signs. The shop designed, carved, printed, Mr. Schulman operated the shop as a sole proprietorship under the name Cape Fear Carved Signs. shop had a workshop surveillance system. area and was equipped with a The video Mr. Schulman s son, Keith Yow, and Shannon MacKay, a graphic designer, also worked at the shop. On or about 11 August 2008, Mr. Schulman hired Defendant to perform mechanical work on some of the shop s equipment. Defendant was entrusted with some of the tools and had access to the tools in the workshop area of the shop but did not have permission to remove the tools from the shop. That same week, Mr. Schulman left on a trip to Florida. On the afternoon of 14 August 2008, while Mr. Schulman was in Florida, Ms. MacKay observed Defendant leaving rolling like a suitcase kind of thing behind him. the shop Bill Wesley -3Robinson, who worked at a muffler shop across the street from Cape Fear Carved Signs, also observed Defendant remove a black and yellow bag from the shop. behavior scooter Robinson suspicious shop and telephoned immediately observed as Mr. Robinson found Defendant s adjacent James James, to confronted the who sign operated shop. Defendant. Mr. a Mr. Yow arrived at the sign shop around this time and approached James and Defendant. Mr. Yow inspected the bag Defendant had been carrying and discovered the bags contained tools from the sign shop. Defendant explained he was taking the tools home to charge their batteries, which struck Mr. Yow as odd because the tools could have been charged right there at the sign shop. Yow escorted Defendant home, then returned to the Mr. shop to determine if any tools were missing. Upon returning from his trip to Florida, Mr. Schulman was informed of Mr. Yow s encounter with Defendant. Mr. Schulman investigated to see if any tools were missing. He discovered that a nail bag, a brand new nail gun set, a brand new wrench set, and two drills were missing. Mr. Schulman also discovered that several of the shop s security cameras had been disabled. On 11 September 2008, Defendant offense of larceny by employee. was arrested for the On 15 December 2008, a New -4Hanover County Grand Jury returned a true bill of indictment against Defendant on one charge of larceny by employee. The indictment states that Defendant being the employee of Cape Fear Carved Signs, Incorporated, embezzled and converted to his own use certain tools valued at $2,420.00 . . . kept for his employer s use, with the intent to steal and to defraud his employer. This Criminal case came Session on of to New be tried Hanover at the County 31 August Superior 2009 Court, the Honorable Judge Phyllis M. Gorham presiding. When the case was called, of striking the the State word moved to amend Incorporated the from bill its indictment language. by The prosecutor explained, we ve just been apprised that at the time of this business incident, on had yet been The prosecutor not proprietorship. the date of the alleged incorporated. further offense, It was stated the a sole that the essence of the offense is not the holding of the property by the entity, but substantial it s rather, change. the The larceny. trial court So this agreed is and, not a over Defendant s objection, granted the State s motion to amend the indictment. -5Following a two-day trial, the jury returned its verdict finding Defendant guilty as charged. Judge Gorham determined Defendant had a prior record level of IV and sentenced Defendant to imprisonment for a period of ten to twelve months. Defendant entered notice of appeal in open court. II. Jurisdiction Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7A-27(b), as Defendant appeals from the Superior Court s final judgment as a matter of right. III. Analysis Defendant first contends the trial court erred by allowing the State to amend the bill of indictment by deleting the word Incorporated, as this amendment constituted alteration of the charge against him. a substantial We agree. It is well settled that a valid bill of indictment is essential to the jurisdiction accused for a felony. 451 S.E.2d jurisdiction 131, in 143 the of the trial court to try an State v. Abraham, 338 N.C. 315, 339, (1994) trial (citation court due to omitted). a fatally Lack of defective indictment requires the appellate court to arrest judgment or vacate any order entered without authority. State v. Hicks, 148 N.C. App. 203, 205, 557 S.E.2d 594, 596 (2001). The issue of -6subject matter jurisdiction may be raised at any time, even for the first time on appeal. 503, 528 S.E.2d 326, See State v. Wallace, 351 N.C. 481, 341 (2000). The subject matter jurisdiction of the trial court is a question of law, which this Court reviews de novo on appeal. Ales v. T.A. Loving Co., 163 N.C. App. 350, 352, 593 S.E.2d 453, 455 (2004). A true bill of indictment represents the grand jury s formal accusation that the defendant has committed the charged offense. Thus, [a] bill of indictment may not be amended. N.C. Gen. Stat. § 15A-923(e) (2009). Our Supreme Court has interpreted prohibited amendments to mean any change in the indictment which would substantially alter the charge set forth in the indictment. Abraham, 338 N.C. at 340, 451 S.E.2d at 144 (quoting State v. Price, 310 N.C. 596, 598, 313 S.E.2d 556, 558 (1984)). In the case sub judice, the indictment states: The jurors for the State upon their oath present that on or about the date of offense shown and in the county named above the defendant named above unlawfully, willfully, and feloniously did, being the employee of Cape Fear Carved Signs, Incorporated located at 418 Kentucky Avenue, Wilmington, North Carolina, go away with, embezzle, and convert to his own use one (1) DeWalt right angle drill, three (3) Senco nail guns, eight (8) assorted DeWalt power tools, one (1) Craftsman wrench set, one (1) Senco nail -7gun bag, and one (1) DeWalt XRP drill, all valued at $2,420.00 in total, which had been delivered to be kept for his employer s use, with the intent to steal and to defraud his employer. This act was done without his employer s consent and contrary to the trust and confidence reposed in him by his employer. The defendant was over 16 years old at the time of this offense. The issue for this Court is whether the striking of the word Incorporated substantially alters the larceny by employee charge against Defendant. In State defendant v. Cathey, unlawfully, the larceny willfully, indictment and alleged feloniously did the steal, take and carry away . . . the personal property of Faith Temple Church of God. (2004). The 162 N.C. App. 350, 352, 590 S.E.2d 408, 410 trial court permitted the State to amend the indictment to replace Faith Temple Church of God with Faith Temple Church High Point, Incorporated. at 410. Id. at 352, 590 S.E.2d Absent this amendment, the trial court was without jurisdiction because [a]n indictment for larceny which fails to allege the ownership of the property either in a natural person or defective. a legal entity capable of owning property is Id. at 352, 590 S.E.2d at 410 (quoting State v. Roberts, 14 N.C. App. 648, 649, 188 S.E.2d 610, 611-12 (1972)). This Court held that the owner of the property in question is -8an essential Faith element of larceny, and, Church of God Faith Temple with therefore, Temple replacing Church High Point, Incorporated constituted a substantial alteration of the charge in the indictment. Here, the Id. at 353-54, 590 S.E.2d at 410-11. original indictment alleged the ownership stolen property in Cape Fear Carved Signs, Incorporated. of This language represents that Cape Fear Carved Signs, as a corporate entity, Although owned a the property corporation is allegedly a legal stolen entity by Defendant. entitled to own property, Cape Fear Carved Signs was not incorporated at the time of the alleged theft; Mr. Schulman operated the sign shop as a sole proprietorship. Thus, Mr. Schulman, not Cape Fear Carved Signs, Incorporated, owned the property in question. As the owner of the property in question is an essential element of larceny, we hold the State s amendment to correct this error was a substantial alteration of the charge in the indictment. We further hold the trial court erred by allowing the amendment and failing to Accordingly, dismiss we vacate the the indictment judgment of against the trial Defendant. court and dismiss the State s indictment against Defendant. We note the State does not contend the amendment was not a substantial alteration of the charge in the indictment. Nor -9does the Instead, State the contend State the argues indictment Defendant was waived not his defective. ability to contest any and all alleged defects in the amended indictment because he did not move to dismiss it at trial. is without merit. position, State This argument The case cited by the State in support of its v. Frogge, involved a defendant who was challenging the indictment on the basis of an irregularity in the array of the grand jury. 351 N.C. 576, 584, 528 S.E.2d 893, 898 (2000). A challenge to the array of the grand jury must be made, by motion, at or before the time of arraignment. Gen. Stat. §§ 15A-952(b)-(c) (2009); 15A-955(1) N.C. (2009) (providing the court may dismiss an indictment on the motion of the defendant if [t]here array. (Emphasis added)). objection. is ground for a challenge to the Otherwise, the defendant waives this N.C. Gen. Stat. § 15A-952(e) (2009). Thus, because the defendant in Frogge failed to raise this challenge before the trial court, our Supreme Court, citing sections 15A-952(e) and 15A-955(1) of our General Statutes, held the defendant had waived his objection to the impropriety of [the] indictment by not making a motion to dismiss the indictment. N.C. at 584, 528 S.E.2d at 898. Frogge, 351 -10Here, Defendant is not challenging the array of the grand jury. Defendant has taken issue with the indictment s failure to correctly recite the owner of property allegedly stolen by Defendant. question As discussed supra, the owner of the property in is an essential element Defendant has been charged. the well-established rule of the offense for which This defect is jurisdictional, and holds true: where an indictment confers subject matter jurisdiction upon the trial court, any defect in the indictment that would deprive the trial court of its jurisdiction over the matter in controversy may be failure to challenged at any time. IV. Conclusion We hold the indictment was defective for accurately set forth the owner of the property in question. The trial court erred in allowing the State to correct this error, as the amendment to the indictment substantially altered the charge against Defendant. For the foregoing reasons, we dismiss the State s indictment against Defendant without prejudice, and the trial court s judgment must be Vacated. Judges THIGPEN and MCCULLOUGH concur.
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