103.3Larceny and RDO Pleading Defects
- Larceny pleading must allege that the property which was stolen was owned by a person or legal entity capable of owning property and must correctly identify that person or entity.
- Pleading which charges resist/delay/obstruct an officer must allege the lawful duty the officer was performing at the time.
The preceding entry discussed a variety of defects and omissions which may occur in many different types of pleadings for various offenses (omission of an element, failure to identify the defendant, incorrect offense date, etc.).
This entry focuses on particular charging errors that regularly happen with two common offenses.
Allegation of Ownership of Property for Larceny and Related Offenses
The pleading for an offense which directly interferes with the property rights of another (e.g., larceny, burglary, embezzlement, conversion, injury to personal property) must correctly name the owner of the stolen property, and must allege that the owner is either (i) a natural person or (ii) a legal entity capable of owning property. See State v. Greene, 289 N.C. 578 (1976) (indictment in larceny case must allege person who has property interest in property stolen, and state must prove that alleged person is owner); State v. Biller, 252 N.C. 783 (1960) (judgment arrested where superior court judge denied defendants’ motion to quash warrants that did not sufficiently name owner of stolen property) (per curiam); State v. Thompson, 6 N.C. App. 64 (1969) (warrant charging theft from “Belk’s Department Store” was fatally defective for failure to allege owner of property was either a natural person or a legal entity capable of owning property).
What if the larceny victim is deceased?
The correct victim to use for pleading purposes depends on several factors, such as: (i) whether the larceny occurred as part of the same transaction or event as the death; (ii) whether the decedent was still alive at the time the property was taken; or (iii) whether an heir or personal representative has an ownership or possessory interest in the property. For a complete explanation of how to correctly allege the victim for such an offense, see Jeff Welty, "Who is the Victim When a Defendant Steals a Decedent's Personal Property," N.C. Criminal Law Blog, Oct. 28, 2019.
The failure to correctly identify the owner, or a failure to allege that the owner of the property is a person or other legal entity capable of owning property, makes the pleading fatally defective and subject to dismissal. See, e.g., State v. Woody, 132 N.C. App. 788 (1999) (indictment alleging conversion was fatally defective where it failed to allege that victim, P & R Unlimited, was a legal entity capable of owning property); State v. Hughes, 118 N.C. App. 573 (1995) (error to allow amendment to indictment that changed alleged victim of embezzlement from an individual, “Mike Frost, President of Petroleum World, Inc.,” to a corporation, “Petroleum World, Inc.”). But see State v. Campbell, 368 N.C. 83 (2015) (not fatally defective to fail to allege a church was legal entity capable of owning property – name of church necessarily imported ownership capability); State v. Wooten, 18 N.C. App. 652 (1973) (state need not allege corporate status of store in shoplifting prosecution);
By contrast, pleadings that charge various other offenses involving personal property or theft (e.g., robbery, possession of stolen property, obtaining property by false pretenses, shoplifting) do not have to identify the purported owner of the stolen property, either because the gravamen of the offense is the conduct itself, or because the identity of the victim is not a required element under the statute. See, e.g., State v. Seelig, 226 N.C. App. 147 (2013) (indictment for obtaining property by false pretenses "need allege only an intent to defraud and need not allege any person's ownership of the thing of value," thus "when the indictment includes the name of the victim, that allegation is surplusage and any variation between the allegations in the indictment and the evidence at trial as to the name of the victim is not fatal"); State v. Thompson, 359 N.C. 77 (2004) (indictment for armed robbery need not name subject of robbery); State v. Jones, 151 N.C. App. 317 (2002) (not necessary to allege name of owner of goods in prosecution for possession of stolen goods); State v. Burroughs, 147 N.C. App. 693 (2001) (indictment for robbery need not name actual legal owner of property); State v. Wooten, 18 N.C. App. 652 (1973) (under shoplifting statute, warrant on which defendant was tried was not fatally defective because of failure to allege that department store from which belt was allegedly concealed by defendant was a natural person or a legal entity capable of owning property); see also State v. Spivey, 308 N.C. 739 (2016) (indictment for injury to real property valid for naming property injured, regardless of alleged ownership).
Variance Concerning Ownership in Larceny Charges
In addition to alleging ownership in the pleading, the state must also show that the person named in the larceny indictment actually owned or possessed the goods, or at least had a bailment or other special property interest in them. For example, mere ownership of a building from which property was stolen does not create a sufficient property interest in the property stolen from within the building. State v. Downing, 313 N.C. 164 (1985) (fatal variance existed in larceny indictment concerning ownership of property stolen in a break-in, because larceny indictment charged that items stolen were personal property of mother who owned the building, but evidence at trial showed that items were stolen from business owned by daughter that was located in the building).
However, a minor variance that does not hamper the defendant’s ability to present a defense need not be fatal. See State v. Fink, 798 S.E. 2d 537 (2017) (finding no fatal variance in a larceny by employee indictment where the indictment alleged that the defendant’s employer was “Precision Auto Care, Inc. (PACI), a corporation” but the evidence at trial showed the actual name of the corporation to be “Precision Franchising, Inc.,” doing business as “Precision Tune Auto Care.” The court noted in part: “Our courts have repeatedly held that minor variations between the name of the corporate entity alleged in the indictment and the evidence presented at trial are immaterial, so long as [t]he defendant was adequately informed of the corporation which was the accuser and victim. A variance will not be deemed fatal where there is no controversy as to who in fact was the true owner of the property.” The court noted that the variation in names in this case did not impair the defendant’s ability to defend against the charges.); State v. Christopher, 58 N.C. App. 788 (1982) (defendant failed to show that he was hampered in presenting his defense or was misled by a variance between the ownership of stolen property charged in indictments for larceny and receiving stolen goods and as shown at trial—evidence at trial sufficiently identified the property owner “Mom & Pop’s Incorporated” or “Mom & Pops Smoke House” to be the same entity referred to in the indictments “Mom (n) Pops Smokehouse, Inc., a corporation”), rev’d on other grounds, 307 N.C. 645 (1983); State v. Chillo, 208 N.C. App. 541 (2010) (indictment for breaking or entering a motor vehicle alleging that the vehicle was the personal property of “D.L. Peterson Trust” was not defective for failing to allege that the victim was a legal entity capable of owning property as the indictment alleged ownership in a trust, a legal entity capable of owning property).
As noted above, since the identity of the victim is not an essential element for the charge of possessing or receiving stolen goods, the variance doctrine likewise does not apply to that offense. See State v. Medlin, 86 N.C. App. 114 (1987) (variance between allegations of ownership in possession-of-stolen-goods indictment and proof of ownership at trial is not fatal).
Misidentification of the rightful owner may also be grounds for dismissal if the state’s evidence on ownership varies from the allegations in the pleading, but the variance should not be fatal if the state can show that the owner named in the pleading also has an interest in the property. Compare State v. Eppley, 282 N.C. 249 (1972) (fatal variance when person named in indictment as owner of shotgun testified that gun was property of his father) with State v. Warren, 225 N.C. App. 791 (2013) (no fatal variance in embezzlement case where indictment named Smokey Park Hospitality, Inc., d/b/a Comfort Inn; while evidence showed Smokey Park Hospitality never owned the hotel, but it acted as a management company and ran the business and therefore still had a special property interest in the embezzled money); State v. Holley, 35 N.C. App. 64 (1978) (no fatal variance where larceny indictment named owner of gun and lawful possessor while evidence was presented only as to identity of lawful possessor); State v. Robinette, 33 N.C. App. 42 (1977) (no fatal variance where indictment alleged ownership of stolen property in father, but evidence showed that it belonged to his minor child and was kept in the father’s residence where father had custody and control of minor child’s property).
Note that a statutory exception allows the state to amend a warrant in superior court to change the name of the rightful owner of property, as long as the amendment does not prejudice the defendant. See G.S. 15-24.1; State v. Reeves, 62 N.C. App. 219 (1983). See also the next entry, “Amending and Correcting Pleadings.”
Resist, Delay, or Obstruct an Officer
A pleading charging a violation of G.S. 14-223 must identify the officer by name and indicate the official duty he was discharging or attempting to discharge. See State v. Smith, 262 N.C. 472, 474 (1964). The pleading also must state the manner in which the defendant resisted, delayed, or obstructed the officer. State v. Smith, 262 N.C. 472, 474 (1964); see also State v. Wells, 59 N.C. App. 682 (1982) (citation that charged resisting arrest was fatally defective for omission of duty officer was performing); State v. Powell, 10 N.C. App. 443 (1971) (the words “resist arrest” in citation were insufficient to charge offense).
On the other hand, when prosecuting an assault on an officer under G.S. 14-33(c)(4) it is not necessary to allege the specific duty being performed by the officer at the time of the assault. See State v. Noel, 202 N.C. App. 715 (2010) (indictments alleging malicious conduct by a prisoner and assault on a governmental official do not have to allege the duty officer was performing; where the duty was alleged it was surplusage and variance between allegations and proof was not material); State v. Bethea, 71 N.C. App. 125 (1984) (sufficient to state that officer was performing a duty of his or her office when the assault occurred; not necessary to allege the particular duty in the indictment).
As in other assault cases, however, the victim still must be identified correctly. See State v. Powell, 10 N.C. App. 443 (1971) (the words “assault on an officer” were insufficient because the victim—that is, the officer allegedly assaulted—was not identified); see also State v. Thomas, 153 N.C. App. 326 (2002) (indictment did not need to allege that defendant knew or had reasonable grounds to believe that named victim was officer where indictment alleged defendant “willfully” committed assault on law enforcement officer).