IN THE SUPREME COURT OF NORTH CAROLINA
No. 143PA15
Filed 18 March 2016
STATE OF NORTH CAROLINA
v.
JACOB MARK SPIVEY
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision
of the Court of Appeals, ___ N.C. App. ___, 769 S.E.2d 841 (2015), finding no error in
part and vacating in part judgments entered on 9 May 2014 by Judge Phyllis M.
Gorham in Superior Court, New Hanover County, and remanding for resentencing
on defendant’s remaining convictions. Heard in the Supreme Court on 7 December
2015.
Roy Cooper, Attorney General, by Brent D. Kiziah, Assistant Attorney General,
for the State-appellant.
Staples S. Hughes, Appellate Defender, by James R. Grant, Assistant Appellate
Defender, for defendant-appellee.
NEWBY, Justice.
In this case we decide whether an indictment charging defendant with injury
to real property “of Katy’s Great Eats” is fatally flawed because it does not specifically
identify “Katy’s Great Eats” as a corporation or an entity capable of owning property.
An indictment for injury to real property must describe the property in sufficient
detail to identify the parcel of real property the defendant allegedly injured. The
STATE V. SPIVEY
Opinion of the Court
indictment needs to identify the real property itself, not the owner or ownership
interest. By describing the injured real property as “the restaurant, the property of
Katy’s Great Eats,” the indictment sufficiently identifies the crime being charged.
Because it gives defendant reasonable notice of the charge against him and enables
him to prepare his defense and protect against double jeopardy, the indictment is
facially valid. We therefore reverse the decision of the Court of Appeals on that issue.
The State presented evidence at trial that showed that on 11 January 2013,
defendant was at a restaurant called “Katy’s Great Eats” to sing karaoke. When
defendant went outside to the patio to smoke a cigarette, another patron, Christina
Short, made a joke about President Obama and mocked defendant for voting for him.
Defendant did not respond and went back inside the restaurant to eat his food.
Approximately ten minutes later, as defendant was leaving the restaurant and
walking to his car, Ms. Short made another derogatory comment toward him.
Defendant again did not respond. Instead, angered by Ms. Short’s comments,
defendant got into his car, backed it across the parking lot, and drove it straight into
the patio area of the restaurant where Ms. Short and other patrons stood. The car
crashed into the front window and outside wall of the restaurant before stopping.
Defendant attempted to flee in his car, but police stopped him a short distance away.
Defendant admitted to police that he drove his car into the restaurant with the intent
to hurt Ms. Short, but he denied trying to kill her.
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STATE V. SPIVEY
Opinion of the Court
A grand jury returned six bills of indictment for a variety of charges stemming
from the incident, including attempted first-degree murder, assault with a deadly
weapon with intent to kill inflicting serious injury, felony hit and run, injury to real
property, reckless driving to endanger, and eleven counts of assault with a deadly
weapon. The indictment in Case Number 13CRS050341 stated:
I. The jurors for the State upon their oath present
that . . . the defendant . . . unlawfully, willfully, and
feloniously did fail to immediately stop the vehicle
the defendant was driving at the scene of an accident
and collision in which the defendant was involved.
This accident and collision occurred at Katy’s Great
Eats 1054 S. College Rd, Wilmington, North
Carolina and resulted in injury to a person, to wit:
Christina Marie Short. The defendant knew and
reasonably should have known that the vehicle that
the defendant was operating was involved in the
accident and collision and that the accident and the
collision had resulted in injury to a person, to wit:
Christina Marie Short.
II. The jurors for the State upon their oath present
that . . . the defendant . . . unlawfully and willfully
did wantonly damage, injure and destroy real
property, front patio, façade, and porch of the
restaurant, the property of Katy’s Great Eats.
III. The jurors for the State upon their oath present
that . . . the defendant . . . unlawfully and willfully
did operate a motor vehicle on a public vehicular
area without due caution and circumspection and at
a speed or in a manner so as to endanger persons or
property.
At the close of the State’s evidence at trial, defendant moved to dismiss several
charges, including Count II in the above indictment for injury to real property.
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Opinion of the Court
Defendant argued that the indictment failed to allege “Katy’s Great Eats” was a legal
entity capable of owning property and that the proper legal name of the corporate
entity is “Katy’s Great Eats, Inc.” The trial court denied defendant’s motion.
Defendant did not present any evidence.
During closing argument, defense counsel admitted that defendant was at
“Katy’s” on the night in question, that Ms. Short insulted defendant on two separate
occasions, and that defendant subsequently drove his car into “Katy’s bar.”
Defendant’s primary defense was that his conduct was not deliberate or
premeditated; rather, he drove his car into the restaurant with the general intent to
hurt, not kill, Ms. Short. In fact, defense counsel not only admitted that defendant
drove his car into “Katy’s bar,” but also asked the jury to find defendant guilty of
assault with a deadly weapon inflicting serious injury, felony hit and run, and,
significant here, injury to real property. Ultimately, the jury found defendant guilty
of assault with a deadly weapon inflicting serious injury, six counts of assault with a
deadly weapon, and one count each of felony hit and run, reckless driving to endanger,
and injury to real property.
The Court of Appeals vacated defendant’s conviction for injury to real property
and remanded the matter for resentencing. State v. Spivey, ___ N.C. App. ___, ___,
769 S.E.2d 841, 844 (2015). The Court of Appeals concluded that Count II of the
indictment charging injury to real property “is invalid on its face” because it “does not
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Opinion of the Court
contain any allegation that the victim, ‘Katy’s Great Eats,’ is a legal entity capable of
owning property, and the name ‘Katy’s Great Eats’ does not otherwise import a
corporation or other entity capable of owning property.” Id. at ___, 769 S.E.2d at 844.
We allowed the State’s petition for discretionary review.
It is well settled “that a valid bill of indictment is essential to the jurisdiction
of the trial court to try an accused for a felony.” State v. Sturdivant, 304 N.C. 293,
308,
283 S.E.2d 719, 729 (1981) (citations omitted). The Criminal Procedure Act of
1975 (1975 Act) requires that an indictment contain “[a] plain and concise factual
statement in each count which, without allegations of an evidentiary nature, asserts
facts supporting every element of a criminal offense and the defendant’s commission
thereof with sufficient precision clearly to apprise the defendant . . . of the conduct
which is the subject of the accusation.” N.C.G.S. § 15A-924(a)(5) (2015). The 1975
Act was intended “to simplify criminal proceedings.” State v. Freeman,
314 N.C. 432,
436,
333 S.E.2d 743, 746 (1985). Under this statutory framework,
it is not the function of an indictment to bind the hands of
the State with technical rules of pleading; rather, its
purposes are to identify clearly the crime being charged,
thereby putting the accused on reasonable notice to defend
against it and prepare for trial, and to protect the accused
from being jeopardized by the State more than once for the
same crime.
Sturdivant, 304 N.C. at 311,
283 S.E.2d at 731 (citation omitted). An indictment
must allege “all the essential elements of the offense endeavored to be charged,” State
v. Hunt,
357 N.C. 257, 267,
582 S.E.2d 593, 600 (quoting State v. Greer,
238 N.C. 325,
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Opinion of the Court
327, 77 S.E.2d 917, 919 (1953)), cert. denied,
539 U.S. 985 (2003), but it is generally
sufficient if couched in the language of the statutory offense, State v. Williams, ___
N.C. ___, ___,
781 S.E.2d 268, 272 (2016) (“[T]his Court has acknowledged the general
rule that an indictment using ‘either literally or substantially’ the language found in
the statute defining the offense is facially valid and that ‘the quashing of indictments
is not favored.’ ” (quoting State v. James,
321 N.C. 676, 681,
365 S.E.2d 579, 582
(1988))).
Here defendant was charged with injury to real property under section 14-127,
which makes it a crime to “willfully and wantonly damage, injure or destroy any real
property whatsoever, either of a public or private nature.” N.C.G.S. § 14-127 (2015).
Count II of defendant’s indictment specifically alleges that he “unlawfully and
willfully did wantonly damage, injure and destroy real property, front patio, façade,
and porch of the restaurant, the property of Katy’s Great Eats.” The indictment
mirrors the language of the controlling statute, and the description of the real
property as “the property of Katy’s Great Eats” clearly identifies the specific parcel of
real property defendant allegedly injured. It is clear from the transcript that there
was no confusion or controversy at trial regarding which establishment defendant
damaged. Consequently, the indictment sufficiently advised defendant of the conduct
that is the subject of the accusation.
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Opinion of the Court
Ideally, an indictment for injury to real property should include the street
address or other clear designation, when possible, of the real property alleged to have
been injured; however, under N.C.G.S. § 15A-925, had defendant been confused
regarding which parcel of real property he was accused of injuring or “need[ed] more
information to mount his preferred defense, he [could have] ‘request[ed] a bill of
particulars to obtain information to supplement the facts contained in the
indictment.’ ” State v. Jones, 367 N.C. 299, 310-11,
758 S.E.2d 345, 353 (2014)
(Martin, J., concurring in part and dissenting in part) (quoting State v. Randolph,
312 N.C. 198, 210,
321 S.E.2d 864, 872 (1984)).
Defendant argues, and the Court of Appeals agreed, that we should treat
indictments charging injury to real property no differently than indictments charging
crimes involving personal property, such as larceny, embezzlement, or injury to
personal property. In so holding, the Court of Appeals relied on its own decision in
State v. Lilly, 195 N.C. App. 697,
673 S.E.2d 718, disc. rev. denied,
363 N.C. 586,
683
S.E.2d 214 (2009). In Lilly the Court of Appeals recognized that N.C.G.S. § 14-127
“does not appear to require that an indictment for injury to real property contain any
allegation at all regarding the owner or possessor of the property,” id. at 702,
673
S.E.2d at 722, but the court nonetheless concluded the indictment was required to
contain an allegation regarding ownership or possession,
id. at 702-03,
673 S.E.2d at
722. The statute under which defendant here was charged, N.C.G.S. § 14-127, does
not require that the real property be “of another.” Instead, it criminalizes damaging
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Opinion of the Court
“any real property whatsoever,” making the identity of the owner largely irrelevant
as long as a defendant has adequate notice to prepare a defense. N.C.G.S. § 14-127.
Moreover, there is a fundamental difference between personal property and
real property. Personal property is often fungible, such that two items can essentially
be indistinguishable. Because personal property is easily moved, identifying
information is particularly valuable. A description of the owner of personal property
is useful to differentiate between two similar pieces of personal property, thereby
notifying the defendant of “ ‘the particular transaction on which the indictment is
founded’ and giv[ing] the [defendant] ‘the benefit of the first acquittal or conviction if
accused a second time of the same offense.’ ” Jones, 367 N.C. at 308-09,
758 S.E.2d
at 352 (majority) (quoting State v. Tisdale,
145 N.C. 422, 425,
58 S.E. 998, 1000
(1907)); see id. at 311,
758 S.E.2d at 354 (Martin, J., concurring in part and dissenting
in part) (noting it is “nearly impossible” to “[d]ifferentiat[e] between two jugs of malt
liquor, two sacks of tobacco seed, or two baggies of cocaine”).
Unlike personal property, real property is inherently unique; it cannot be
duplicated, as no two parcels of real estate are the same. Thus, in an indictment
alleging injury to real property, identification of the property itself, not the owner or
ownership interest, is vital to differentiate between two parcels of property, thereby
enabling a defendant to prepare his defense and protect against further prosecution
for the same crime. While the owner or lawful possessor’s name may, as here, be used
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Opinion of the Court
to identify the specific parcel of real estate, it is not an essential element of the offense
that must be alleged in the indictment, so long as the indictment gives defendant
reasonable notice of the specific parcel of real estate he is accused of injuring. To the
extent Lilly is inconsistent with this opinion, it is overruled.
We therefore conclude that by tracking the language of N.C.G.S. § 14-127 and
clearly identifying the real property onto which defendant drove his car, the
indictment “charges the offense of [injury to real property] in a plain, intelligible, and
explicit manner” and fulfills the purpose of the 1975 Act. Freeman, 314 N.C. at 436,
333 S.E.2d at 746; accord N.C.G.S. § 15-153 (2015). The indictment gives defendant
reasonable notice of the charge against him, including the specific parcel of real
property he is accused of injuring, so that he may prepare his defense and protect
himself against double jeopardy. Accordingly, the indictment charging injury to real
property is valid on its face. The remaining issues addressed by the Court of Appeals
are not before this Court, and its decision as to these matters remains undisturbed.
REVERSED.
Justice JACKSON dissenting.
In concluding that an indictment for injury to real property pursuant to
N.C.G.S. § 14-127 need not identify the owner or lawful possessor of the property, the
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STATE V. SPIVEY
JACKSON, J., dissenting.
majority ignores over one hundred and sixty years of precedent establishing that “[i]n
indictments for injuries to property it is necessary to lay the property truly, and a
variance in that respect is fatal.”1 State v. Hicks, 233 N.C. 31, 34,
62 S.E.2d 497, 499
(1950) (quoting State v. Mason,
35 N.C. (13 Ired.) 341, 342 (1852)), cert. denied,
342
U.S. 831 (1951). I respectfully dissent.
Section 14-127 states, “If any person shall willfully and wantonly damage,
injure or destroy any real property whatsoever, either of a public or private nature,
he shall be guilty of a Class 1 misdemeanor.” N.C.G.S. § 14-127 (2015). Interpreting
this language, the majority concludes that the statute “does not require that the real
property be ‘of another’ ” and that “the owner or lawful possessor’s name . . . is not an
essential element of the offense that must be alleged in the indictment, so long as the
indictment gives defendant reasonable notice of the specific parcel of real estate he is
accused of injuring.”
In 1852, faced with a statute that similarly lacked an explicit element stating
that the allegedly injured property must be that of another, this Court rejected the
majority’s interpretation. In State v. Mason the defendant was accused of injury to a
dwelling house in violation of a statute that stated:
[I]f any person or persons . . . shall unlawfully and wilfully
demolish, pull down, deface, or by other ways or means
1 The statute at issue in Hicks, unlike the statutes at issue in other cases cited in
this dissent, required that there be damage to the property “of another” as a precondition
for a finding of liability. See 233 N.C. at 34,
62 S.E.2d at 499.
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STATE V. SPIVEY
JACKSON, J., dissenting.
destroy, injure or damage any dwelling house, or any
uninhabited house, out house, or other building, or shall
unlawfully or wilfully burn, destroy, or remove any fence,
wall, or other inclosure or any part thereof, surrounding or
about any yard, garden, or cultivated grounds, he, she, or
they shall be deemed guilty of a misdemeanor . . . .
Act of Jan. 14, 1847, ch. 70, 1846-47 N.C. Sess. Laws 137; see also Mason, 35 N.C. (13
Ired.) at 342 (referencing this statute). Like section 14-127, this statute did not
specify that the dwelling house must belong to someone other than the defendant.
Nevertheless, this Court stated that “[i]n indictments for injuries to property it is
necessary to lay the property truly, and a variance in that respect is fatal.” Mason,
35 N.C. (13 Ired.) at 342. This Court explained that “although [the statute] protects
houses and inclosures from destruction or injury, yet necessarily an exception is to be
implied when the destruction or damage is by the owner.”
Id. at 343. The Court
determined that if the statute “had been intended to embrace the acts of willful waste
by a tenant, there would have been express words to take in the case where the
premises are in the possession of the offender.”
Id. As established in Mason, even if
a statute prohibiting injury to some property does not state that the property must
be that of another, such a requirement is implied, and an indictment for violation of
that statute must identify the owner or lawful possessor.
Although Mason “was decided in 1852 when great particularity in criminal
pleading was required,” State v. Taylor, 172 N.C. 892, 893,
90 S.E. 294, 295 (1916),
this Court has reaffirmed and applied its holding in multiple different contexts, see,
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JACKSON, J., dissenting.
e.g., State v. Watson, 272 N.C. 526, 527,
158 S.E.2d 334, 335 (1968) (per curiam)
(indictment for safecracking); State v. Cooke,
246 N.C. 518, 520,
98 S.E.2d 885, 887
(1957) (indictment for trespassing). In Taylor, after implicitly suggesting that the
level of particularity required in indictments may have diminished since Mason was
decided, this Court concluded that an indictment for unlawfully removing a fence
“sufficiently charges that the property was in the possession of the [prosecuting
witness] H. F. Otten” in part because the indictment stated that Otten “owned the
property.”
172 N.C. at 893,
90 S.E. at 295. Thus, even as we acknowledged that
pleading requirements should be viewed more liberally than in the past, we still
retained the requirement of identifying the owner or lawful possessor.
Our more recent decision in Hicks relied upon Mason. The defendant and a
codefendant allegedly engaged in a conspiracy, part of which involved a plan to
destroy an electrical transformer “by the use of dynamite or other high explosive.”
233 N.C. at 31,
62 S.E.2d at 497. He was charged, inter alia, with both conspiracy to
commit injury to real property and conspiracy to injure personal property, but the
latter charge was dismissed. The jury found him “[g]uilty of conspiracy to damage
real property.”
Id. at 33,
62 S.E.2d at 499. We noted that “[t]he indictment charge[d]
the defendants with conspiring to maliciously commit damage and injury to and upon
the real property of the Jefferson Standard Broadcasting Company,” while the
evidence showed that the property actually belonged to the Duke Power Company.
Id. at 34,
62 S.E.2d at 499. Relying upon Mason and subsequent cases cited in Hicks,
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JACKSON, J., dissenting.
we concluded that there was a fatal variance. Id. at 34,
62 S.E.2d at 499. Hicks
confirms the vitality of our long-standing rule that indictments for injury to real
property must identify the owner or lawful possessor of the property. In a later case
we cited Hicks to establish that for the offense of “malicious injury to property,” “it is
necessary to allege in the warrant or bill of indictment the rightful owner or possessor
of the property, and the proof must correspond with the charge.” Cooke,
246 N.C. at
520,
98 S.E.2d at 887. Similarly, the North Carolina Court of Appeals has relied upon
Hicks, Cooke, and Mason in concluding that an indictment for injury to real property
must name either the owner or lawful possessor of the property. State v. Lilly,
195
N.C. App. 697, 702-03,
673 S.E.2d 718, 722, disc. rev. denied,
363 N.C. 586,
683 S.E.2d
214 (2009).
Contrary to the majority’s suggestion, this principle was not affected by the
enactment of the Criminal Procedure Act “to simplify criminal proceedings.” State v.
Freeman, 314 N.C. 432, 436,
333 S.E.2d 743, 746 (1985). The Criminal Procedure Act
confirms that “every element of a criminal offense” must be alleged by the indictment.
N.C.G.S. § 15A-924(a)(5) (2015). Although section 14-127 does not state that the
injured property must be that of another, common sense dictates that this element is
implied. See Mason,
35 N.C. (13 Ired.) at 343 (making a similar implication with
respect to a similar statute). In addition, section 14-127 requires that the defendant
have acted “willfully and wantonly.” N.C.G.S. § 14-127. Willfulness refers to “the
wrongful doing of an act without justification or excuse, or the commission of an act
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STATE V. SPIVEY
JACKSON, J., dissenting.
purposely and deliberately in violation of law.” State v. Arnold, 264 N.C. 348, 349,
141 S.E.2d 473, 474 (1965) (per curiam) (citation omitted). “Conduct is wanton when
in conscious and intentional disregard of and indifference to the rights and safety of
others.” Hinson v. Dawson,
244 N.C. 23, 28,
92 S.E.2d 393, 397 (1956) (citations
omitted). In the context of injury to real property, the elements of willfulness and
wantonness cannot be shown when a person injures his or her own property. This
Court’s established definition of wantonness explicitly provides the reference to “the
rights . . . of others” that section 14-127 omitted. Furthermore, ownership of real
property provides a complete justification for causing damage to it—including total
demolition and replacement of buildings and fixtures. As a result, even though
section 14-127 does not set out the element explicitly, the statute implicitly requires
the State to show that the property belonged to another. See State v. Chamberlain,
232 N.C. App. 246, 253,
753 S.E.2d 725, 730 (2014) (“[I]t was for the jury to determine
whether the shrubs [belonging to a neighbor] were planted on [the neighbor’s]
property or Defendant’s and whether Defendant was legally justified in cutting them
down.”). As this Court’s jurisprudence establishes, this element must be alleged in
the indictment.
Applying this long-standing rule in the case sub judice, it is clear that the
indictment is fatally defective. “When alleging ownership in an entity, an indictment
must specify that the owner, ‘if not a natural person, is a corporation or otherwise a
legal entity capable of owning property,’ unless the entity’s name itself ‘imports an
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STATE V. SPIVEY
JACKSON, J., dissenting.
association or a corporation capable of owning property.’ ” State v. Campbell, 368
N.C. 83, 86,
772 S.E.2d 440, 443 (2015) (quoting State v. Thornton,
251 N.C. 658, 661,
111 S.E.2d 901, 903 (1960)). In Campbell we held that a larceny indictment
identifying the property owner as “Manna Baptist Church” was sufficient because
“alleging ownership of property in an entity identified as a church or other place of
religious worship, like identifying an entity as a ‘company’ or ‘incorporated,’ signifies
an entity capable of owning property.” Id. at 87, 772 S.E.2d at 444. At the same time,
we distinguished Thornton, in which “an indictment alleging the defendant
embezzled money belonging to ‘The Chuck Wagon’ was ‘fatally defective’ because it
failed to allege ‘that “The Chuck Wagon” is a corporation, and the words “The Chuck
Wagon” do not import a corporation.’ ” Id. at 86, 772 S.E.2d at 443 (quoting Thornton,
251 N.C. at 662,
111 S.E.2d at 904). Here the indictment alleges that defendant
damaged real property belonging to “Katy’s Great Eats,” a name which—like The
Chuck Wagon—does not import a corporation or other legal entity capable of owning
property.
Today the majority disposes of a well-established requirement without
acknowledging over a century of precedent supporting the existence of that
requirement. Even as the majority overturns the decision of the Court of Appeals in
Lilly, it ignores that decision’s reliance upon Cooke, Hicks, and Mason. Therefore, I
respectfully dissent.
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STATE V. SPIVEY
JACKSON, J., dissenting.
Justice ERVIN joins in this dissenting opinion.
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