in the Court of Appeals 7 September 2017.
by Defendant from judgment entered 21 September 2016 by Judge
Christopher W. Bragg in Rowan County No. 15 CRS 055547
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Elizabeth Leonard McKay, for the State.
Appellate Defender G. Glenn Gerding, by Assistant Appellate
Defender Amanda S. Zimmer, for Defendant.
Kenner Brawley ("Defendant") appeals from the trial
court's judgment convicting him of larceny from a
merchant. Defendant challenges the trial court's
jurisdiction stemming from an alleged error in his
indictment. After thorough review, we vacate the judgment on
September of 2015, Defendant was caught on surveillance
stealing clothing from a Belk's department store in
Salisbury. Defendant removed the security tags from multiple
shirts before fleeing the premises.
jury indicted Defendant for larceny from a merchant. A jury
convicted him of the charge. Defendant timely appealed.
charging indictment in this case identifies the victim as
"Belk's Department Stores, an entity capable of
owning property." On appeal, Defendant argues that the
trial court lacked jurisdiction to render a verdict against
him because the charging indictment failed to adequately
identify the victim of the larceny. Based on
jurisprudence from our Supreme Court and our Court as
explained below, we are compelled to agree. We therefore
vacate Defendant's conviction.
review the sufficiency of an indictment de novo.
See State v. Sturdivant, 304 N.C. 293, 309, 283
S.E.2d 719, 730 (1981). "Under a de novo
review, the court considers the matter anew and freely
substitutes its own judgment for that of the lower
tribunal." State v. Biber, 365 N.C. 162, 168,
712 S.E.2d 874, 878 (2011).
is hornbook law that a valid bill of indictment [returned by
a grand jury] is a condition precedent to the
jurisdiction of the Superior Court to determine the guilt or
innocence of the defendant, and to give authority to the
court to render a valid judgment." State v.
Ray, 274 N.C. 556, 562, 164 S.E.2d 457, 461 (1968)
(emphasis added). "To be sufficient under our
Constitution, an indictment must allege lucidly and
accurately 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 (2003) (internal citations
and quotation marks omitted). Therefore, "[a] conviction
based on an invalid indictment must be vacated."
State v. Campbell, 368 N.C. 83, 86, 772 S.E.2d 440,
present case, the jury convicted Defendant of larceny from a
merchant under N.C. Gen. Stat. § 14-72.11(2). One
essential element of any larceny is that the defendant
"took the property of another." State
v. Coats, 74 ...