IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-289
Filed: 21 March 2017
Randolph County, No. 13 CRS 053152
THE STATE OF NORTH CAROLINA,
v.
DANIEL CHRISTIAN GARNER, Defendant.
Appeal by Defendant from judgment entered 3 September 2015 by Judge
Michael D. Duncan in Randolph County Superior Court. Heard in the Court of
Appeals 9 August 2016.
Attorney General Joshua H. Stein, by Assistant Attorney General Tracy Nayer,
for the State.
Irons & Irons, PA., by Ben G. Irons, II, for Appellant-Defendant.
INMAN, Judge.
An indictment for felonious larceny is fatally defective when it fails to allege
that property was taken from an entity capable of owning property. When the record
indicates that a trial court arrested a judgment of conviction for double jeopardy-
related concerns and no fatal defect of the conviction appears on the face of the record,
the appellate court may treat the judgment as set aside rather than vacated and
remand for the trial court’s further consideration of the conviction.
STATE V. GARNER
Opinion of the Court
Daniel Christian Garner (“Defendant”) appeals from a judgment entered 3
September 2015 following a jury trial and verdicts finding him guilty of felonious
larceny from a local country club and felonious possession of stolen goods. On appeal,
Defendant argues the indictment for felonious larceny was fatally defective because
the indictment failed to allege that the entity from which the property was taken was
capable of owning property and that the trial court violated the Confrontation Clause
of the Sixth Amendment when it admitted testimony related to an anonymous call
received by club employees. Defendant further argues that because the trial court
arrested judgment on his conviction for possession of stolen goods without stating its
reasoning, no court can reinstate that judgment. After careful review, we vacate
Defendant’s larceny charge and remand for resentencing under the possession of
stolen goods charge.
Facts and Procedural History
Defendant was indicted on 4 November 2013 for felonious larceny and
felonious possession of stolen goods. The indictment charged Defendant with having
stolen twelve golf cart batteries and a pole saw from “Pinewood Country Club.”
Defendant was tried before a jury between 31 August 2015 and 3 September 2015.
At trial, the State offered evidence including the testimony of Defendant’s half-
brother Tony Garner, the owner of M.J.’s Recycling in Lexington, North Carolina, a
Davidson County Sheriff’s Office detective, and two employees of the Pinewood
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Opinion of the Court
Country Club, Steven Richau and Farrell Harris. Steven Richau and Farrel Harris
testified about the contents of an anonymous phone call they received following the
vandalism and theft of twelve golf cart batteries from the Pinewood Country Club.
Mr. Richau testified: “[The caller] then proceeded by stating that ‘I don’t want to be
involved. I don’t want anything out of it, but I overheard two guys at the service
station earlier in the morning talking about some batteries and a mower they had
taken from Pinewood.’ ” Mr. Richau further testified that the caller told him “that
the Garner boys said they were taking the batteries to Lexington Recycling . . . .” Mr.
Harris similarly testified as to the contents of the call, stating “[The caller] said he
stopped at the gas station and overheard some guys talking about batteries. [The
caller] kept saying he wanted to remain anonymous. [The caller] then said we[,
Pinewood Country Club,] needed to call and check at Lexington Recycling. [The
caller] said he knew their names, and they were Tony and Dale Garner . . . .”
Defendant’s trial counsel objected to this testimony on the grounds that such
testimony amounted to a violation of the Confrontation Clause of the Sixth
Amendment. The trial court overruled trial counsel’s objection and offered the
following limiting instructions. In regard to Mr. Richau’s statement the trial court
explained:
THE COURT: . . . Ladies and gentlemen of the jury, I need
to give a brief limiting instruction. The Court is not
allowing the statement of any caller or anonymous caller
that this witness may be referring to for the truth of the
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Opinion of the Court
matter as set forth in the statement that is going to be
given to you, but only to show why the officers did what
they did or the course of the investigation based on the
statement of the caller.
So, again, you are not to consider any statement by
an anonymous caller for the truth of the matter asserted in
the statement.
As to Mr. Harris’s statement, the trial court stated:
THE COURT: All right. Ladies and gentlemen, the same
as the other witness, the Court is not allowing the
statement of any anonymous caller for the truth of the
matter that may be set forth in the statement that’s gonna
be testified to, but only to show why the officers did what
they did or the course of the investigation based upon the
statement.
So, again, you’re not to consider any statements of
the anonymous caller for the truth of the matter that’s
asserted . . . .
Following each limiting instruction, the trial court verified by asking for a show of
hands that the jury understood the instruction.
The jury found Defendant guilty of both offenses and the trial court sentenced
him to a prison term of seven to eighteen months. The trial court then arrested
judgment on Defendant’s conviction for possession of stolen goods. Defendant gave
notice of appeal in open court.
Analysis
I. The Indictment
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Opinion of the Court
Defendant first argues the indictment is fatally defective because it does not
allege that “Pinewood Country Club” was an entity capable of owning property. The
State concedes this issue and we agree.
A. Larceny
“Larceny of goods of the value of more than one thousand dollars ($1,000) is a
Class H felony.” N.C. Gen. Stat. § 14-72(a) (2015). “ ‘The essential elements of larceny
are: (1) taking the property of another; (2) carrying it away; (3) without the owner’s
consent; and (4) with the intent to deprive the owner of the property permanently.’ ”
State v. Sheppard, 228 N.C. App. 266, 269, 744 S.E.2d 149, 151 (2013) (quoting State
v. Wilson, 154 N.C. App. 686, 690, 573 S.E.2d 193, 196 (2002)). “To be valid a larceny
indictment must allege the ownership of the [stolen] property either in a natural
person or a legal entity capable of owning (or holding) property.” State v. Campbell,
368 N.C. 83, 86, 772 S.E.2d 440, 443 (2015) (alteration in original) (internal quotation
marks and citation omitted).
“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 association or a
corporation capable of owning property.’ ” Id. (quoting State v. Thornton, 251 N.C.
658, 661, 111 S.E.2d 901, 903 (1960)). Our courts have held that terms such as
“church,” “corporation,” “incorporated,” “limited,” or “company,” or their abbreviated
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Opinion of the Court
forms, are sufficient for identifying an entity in an indictment. Id. at 86-87, 772
S.E.2d at 443-44. The term “country club” has not been recognized by statute or by
our courts as sufficient for identifying an entity as being capable of owning property,
and we do not recognize it today. An indictment that fails to sufficiently allege an
entity capable of owning property is “fatally defective.” Thornton, 251 N.C. at 662,
111 S.E.2d at 904.
Here, the indictment charges Defendant with larceny of “the personal property
of Pinewood Country Club . . . .” (emphasis added). The parties agree, and we hold,
that this identification is insufficient and the indictment for felonious larceny is
fatally defective. Accordingly, we vacate Defendant’s larceny conviction.
B. Possession of Stolen Goods
The State contends we should remand Defendant’s conviction for possession of
stolen goods to the trial court for resentencing. Defendant asserts that because the
trial court arrested judgment on this conviction without specifying a reason for doing
so, the conviction is deemed vacated and beyond appellate review. We disagree.
A trial court’s arrest of a judgment has one of two effects: (1) to vacate the
underlying judgment, or (2) to withhold the entry of judgment based on a valid jury
verdict. State v. Pendergraft, 238 N.C. App. 516, 528, 767 S.E.2d 674, 683 (2014)
(citing State v. Reeves, 218 N.C. App. 570, 575, 721 S.E.2d 317, 321 (2012) (citing
State v. Pakulski, 326 N.C. 434, 439, 390 S.E.2d 129, 132 (1990))).
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STATE V. GARNER
Opinion of the Court
If a judgment is arrested because of a fatal flaw which appears on the face of
the record, such as a substantive error on the indictment, the trial court’s decision to
arrest judgment will “vacate the defendant’s conviction and preclude the entry of a
final judgment which is subject to review on appeal.” Id. (quoting Reeves, 218 N.C.
App. at 575-76, 721 S.E.2d at 321-22 (citations omitted)). On the other hand, if a trial
court arrests judgment “for the purpose of addressing double jeopardy or other
concerns, such as a situation in which the defendant has been convicted of committing
a predicate felony in a case in which he or she has also been convicted of first degree
murder on the basis of the felony murder rule, or convicted of a charge used to
enhance punishment for a related offense,” the conviction is not vacated. Id. at 528-
29, 767 S.E.2d at 683 (citations omitted). “In the event that the trial court arrests
judgment for the first of these two reasons, we lack the authority to review any
challenge that [a d]efendant might seek to lodge against the underlying conviction on
appeal given that the underlying conviction has been vacated.” Id. at 529, 767 S.E.2d
at 683-84 (citing Reeves, 218 N.C. App. at 576, 721 S.E.2d at 322). When a judgment
is arrested for the second reason, “the underlying guilty verdict remains intact so that
judgment can be entered based on that verdict in the event that (1) the conviction for
the murder or related charge is overturned in subsequent proceedings and (2) the
verdict with respect to which judgment has been arrested is not disturbed on appeal.”
Id. at 529, 767 S.E.2d at 683 (citing Pakulski, 326 N.C. at 439-40, 390 S.E.2d at 132).
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STATE V. GARNER
Opinion of the Court
Our initial task is to determine the reason the trial court arrested judgment
on Defendant’s conviction for possession of stolen goods.
A careful review of the record indicates the trial court failed to expressly
explain the underlying reason for its decision. “[I]n the absence of some indication
that the trial court’s decision to arrest judgment stemmed from double jeopardy-
related concerns, the effect of the decision to arrest judgement is to vacate the
underlying conviction and preclude subsequent appellate review.” Pendergraft, 238
N.C. App. at 530, 767 S.E.2d at 684 (citing State v. Stafford, 45 N.C. App. 297, 300,
262 S.E.2d 695, 697 (1980)). Whether some indication of double jeopardy-related
concerns exists requires this Court to conduct a careful review of the record. See, e.g.,
Pakulski, 326 N.C. at 442, 390 S.E.2d at 133 (“Our own close examination of the
record reveals no error on the face of the record which would justify an arrest of
judgment. We therefore conclude that Judge Fountain arrested judgment on this
charge out of the mistaken belief that he was compelled by law to do so.”); cf.
Pendergraft, 238 N.C. App. at 530, 767 S.E.2d at 684 (“After carefully reviewing the
record, we see no indication that the trial court’s decision to vacate the judgment in
the felonious breaking or entering case rested upon double jeopardy-related
considerations.”).
Here, the record provides some indication that the trial court’s decision to
arrest judgment on the possession of stolen goods conviction was predicated on double
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Opinion of the Court
jeopardy concerns. The transcript indicates that following the jury verdicts and the
trial court’s pronouncement of a prison sentence, counsel for the parties approached
the bench to confer with the trial court. Following this conference, the trial court
stated:
All right. With regard to the second sentence, with regard
to the felony possession of stolen goods worth more than a
thousand dollars, the Court will arrest judgment. Strike
any judgment the Court entered on that. The Court’s just
entering the sentence on the felonious larceny, and that
was an active sentence.
Trial courts are required to arrest judgments of convictions for either possession of
stolen goods or larceny when a defendant is convicted of those charges in relation to
the same incident. See, e.g., State v. Szucs, 207 N.C. App. 694, 702-03, 701 S.E.2d
362, 368 (2010) (citations omitted) (arresting a defendant’s conviction for felonious
possession of stolen goods when he was convicted of larceny and possession of stolen
goods for the same property, noting: “[o]ur Supreme Court has held that the
legislature did not intend to punish a defendant for possession of the same goods that
he stole”). Defendant did not argue before the trial court, nor does he argue on appeal,
nor have we discovered in our review, any error on the face of the record related to
the possession of stolen goods charge that would justify vacating the judgment.1
1While the indictment’s failure to specify Pinewood Country Club as an entity capable of
owning property is fatal to the charge of larceny, it is not fatal to the charge of possession of stolen
goods. State v. Patterson, 194 N.C. App. 608, 614-15, 671 S.E.2d 357, 361 (2009), overruled on other
grounds by State v. Campbell, 368 N.C. 83, 772 S.E.2d 440 (2015) (“Because the crime of possession of
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Opinion of the Court
Accordingly, we conclude that the trial court arrested judgment to avoid double
jeopardy and the underlying guilty verdict remains intact. We therefore remand for
resentencing on the possession of stolen goods conviction.
II. Anonymous Phone Call
Defendant argues that the trial court violated the Confrontation Clause of the
Sixth Amendment when it admitted testimony about the anonymous phone call
identifying Defendant as a perpetrator of the crimes charged. We disagree.
“It is well-settled that de novo review is ordinarily appropriate in cases where
constitutional rights are implicated.” State v. Tate, 187 N.C. App. 593, 599, 653
S.E.2d 892, 897 (2007) (internal quotation marks and citations omitted). “A violation
of the defendant’s rights under the Constitution of the United States is prejudicial
unless the appellate court finds that it was harmless beyond a reasonable doubt. The
burden is upon the State to demonstrate, beyond a reasonable doubt, that the error
was harmless.” N.C. Gen. Stat. § 15A-1443(b) (2015). “[B]efore a federal
constitutional error can be held harmless, the court must be able to declare a belief
that it was harmless beyond a reasonable doubt.” State v. Lawrence, 365 N.C. 506,
513, 723 S.E.2d 326, 331 (2012) (alteration in original) (citations omitted). Our
stolen goods does not require the taking of personal property from another, an indictment for this
crime is not required to signify that the entity who is allegedly wronged is capable of owning
property.”).
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STATE V. GARNER
Opinion of the Court
question becomes whether there was a violation of the Sixth Amendment, and if so,
whether that error was harmless beyond a reasonable doubt.
A violation of the Confrontation Clause occurs when a “testimonial” statement
from an unavailable witness is introduced against a defendant who did not have a
prior opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S>
36, 68, 158 L. Ed.2d 177, 203 (2004) (“Where testimonial evidence is at issue . . . the
Sixth Amendment demands what the common law required: unavailability and a
prior opportunity for cross-examination.”). The Supreme Court has provided some
guidance as to whether evidence is “testimonial,” including the following description:
“ex parte in-court testimony or its functional equivalent—that is, material such as
affidavits, custodial examinations, prior testimony that the defendant was unable to
cross-examine, or similar pretrial statements that declarants would reasonably
expect to be used prosecutorially[.]” Id. at 58, 158 L. Ed. at 193 (internal quotation
marks and citations omitted). This Court has held that “where evidence is admitted
for a purpose other than the truth of the matter asserted, the protection afforded by
the Confrontation Clause against testimonial statements is not at issue.” State v.
Hayes, __ N.C. App. __, __, 768 S.E.2d 636, 640-41 (2015) (internal quotation marks
and citation omitted).
Here, the trial court admitted the statements concerning the anonymous call
for a purpose other than the truth of the matter asserted and identified this limited
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Opinion of the Court
purpose for the jury. The trial court also noted the jurors’ recognition and
understanding of the limiting instructions. Because the testimony was admitted for
a purpose other than the truth of the matter asserted, it falls outside the protections
afforded by the Confrontation Clause of the Sixth Amendment.
In any event, assuming arguendo that the statements were testimonial, we are
satisfied that any error that may have occurred was harmless beyond a reasonable
doubt. Tony Garner’s girlfriend testified that Defendant conveyed to her several
different versions of the story of his involvement with the batteries, including one in
which “Tony had went and stole [the batteries] from Pinewood” and another in which
Defendant and Tony “went together.” Tony Garner testified that he “had an idea
[that the batteries] might be stolen” when Defendant drove up with the batteries in
his truck and that Defendant said he “ground the numbers off” of the batteries.
Martin Lyon, the owner of the recycling business, testified that he witnessed
Defendant “ripping stickers off the top of the batteries[,]” and acting in a manner that
resulted in Mr. Lyon calling Detective Barnes to ask if “there [had] been any report
of golf cart batteries stolen? ‘Cause [he had] two gentlemen here that’s ripping
stickers off, and this doesn’t add up.” When Detective Barnes contacted Mr. Lyon a
few days later to inform him there was a report of stolen batteries from Asheboro,
Mr. Lyon testified that he told Detective Barnes “remember when I was telling you
about the batter—the guys down there stripping off—things off—stickers off the
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STATE V. GARNER
Opinion of the Court
batteries? I think this may be them.” This testimony along with the surveillance
footage of Defendant at the recycling center provided such overwhelming evidence of
Defendant’s guilt of possession of stolen goods any error in admitting the content of
the anonymous phone call was harmless beyond a reasonable doubt.
Conclusion
For the forgoing reasons, we vacate Defendant’s conviction for felonious
larceny and remand for sentencing on the possession of stolen goods conviction.
VACATED AND REMANDED.
Judges BRYANT and TYSON concur.
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