              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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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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                                   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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                                   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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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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                                  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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                                 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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