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State v. Garner

Court of Appeals of North Carolina

March 21, 2017

THE STATE OF NORTH CAROLINA,
v.
DANIEL CHRISTIAN GARNER, Defendant.

          Heard in the Court of Appeals 9 August 2016.

         Appeal by Defendant from judgment entered 3 September 2015 by Judge Michael D. Duncan in Randolph County Superior Court. Randolph County, No. 13 CRS 053152

          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.

         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 Pinewoo 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 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 ...

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