                              NO. COA14-77

                   NORTH CAROLINA COURT OF APPEALS

                          Filed: 7 October 2014


STATE OF NORTH CAROLINA

    v.                                Wake County
                                      Nos. 11 CRS 210130
DWAYNE ANTHONY ELLIS,                      11 CRS 211154
          Defendant.


    Appeal by defendant from judgments entered 2 August 2013 by

Judge W. Osmond Smith in Wake County Superior Court.       Heard in

the Court of Appeals 11 September 2014.


    Attorney General Roy Cooper, by Assistant Attorney General
    Joseph E. Elder, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate
    Defender James R. Grant, for defendant-appellant.


    GEER, Judge.


    Defendant Dwayne Anthony Ellis appeals from his convictions

of felony larceny, injury to personal property, first degree

trespass, and possession of stolen property.      Defendant's sole

argument on appeal is that the information charging defendant

with injury to personal property was fatally defective because

it failed to allege that the owners of the injured property --

"North Carolina State University (NCSU) and NCSU High Voltage

Distribution" -- are legal entities capable of owning property.
                                    -2-
    Under State v. Campbell, ___ N.C. App. ___, 759 S.E.2d 380

(2014), when an indictment alleges that the property at issue

has multiple owners, the indictment must also show that each

owner is capable of owning property.             Because the information

fails to allege with respect to the charge of injury to personal

property that "NCSU High Voltage Distribution" is a legal entity

capable of owning property, the information is fatally flawed.

Accordingly, we vacate defendant's injury to personal property

conviction and remand for resentencing on defendant's remaining

convictions.

                                    Facts

    The State's evidence tended to show the following facts.

On 23 April 2011 at around 4:30 a.m., Sergeant Ian Kendrick of

the North Carolina State University ("NCSU") Police initiated a

traffic stop of a Chrysler 300 with an attached trailer that had

exited   from   a   parking   lot    near   an   electrical    substation.

Defendant, the driver of the vehicle, was taken into custody for

an unrelated matter.     During a pre-impoundment inventory search

of the Chrysler, law enforcement officers discovered four large

rolls of copper wire and wet, muddy clothing.                 It was later

discovered that the copper wire had been taken from a fenced in

area of the electrical substation.          Because the copper wire had
                                          -3-
been     cut,    it     could    no   longer    be   used    at    the       electrical

substation.

       On 12 July 2011 defendant was indicted in case file number

11 CRS 210130 for felony larceny, misdemeanor injury to personal

property, and first degree trespass in connection with the 23

April 2011 theft of the stolen copper wire.                          The same day,

defendant was indicted in case file number 11 CRS 211154 for

felony     possession      of    stolen    goods     relating      to    a        separate

incident on 14 February 2011.             On 23 July 2013, defendant waived

the finding and return of an indictment and consented to being

tried on superseding informations alleging the same offenses.

With respect to each charge in 11 CRS 210130, the State alleged

that   the      copper    wire    was   the     personal    property         of    "North

Carolina        State    University       (NCSU)     and    NCSU     High         Voltage

Distribution."

       The trial court granted the State's motion to join the two

cases for trial, and on 2 August 2013, a jury found defendant

guilty     of    felony     larceny,      misdemeanor       injury      to    personal

property, and first degree trespass in 11 CRS 210130 and of

misdemeanor possession of stolen goods in 11 CRS 211154.                               The

trial court consolidated the convictions in 11 CRS 210130 into

one judgment and sentenced defendant to a presumptive-range term

of six to eight months imprisonment, followed by a consecutive
                                   -4-
term   of   45   days   imprisonment   for   the   conviction   in    11   CRS

211154.     Defendant timely appealed to this Court.

                                Discussion

       Defendant's sole argument on appeal is that the trial court

lacked subject matter jurisdiction over the injury to personal

property charge because the information was fatally defective in

that it failed to allege that "North Carolina State University

(NCSU) and NCSU High Voltage Distribution" are legal entities

capable of owning property.

       It is well settled that a valid indictment alleging all of

the essential elements of the offense is required for a trial

court to obtain subject matter jurisdiction over the charge.

State v. Ledwell, 171 N.C. App. 328, 331, 614 S.E.2d 412, 414

(2005).     When, as in this case, the defendant properly waives

the indictment, the trial court may proceed on an information,

which must "charge the crime or crimes in the same manner" as an

indictment.      N.C. Gen. Stat. § 15A-923(b) (2013).                Although

defendant did not challenge the sufficiency of the information

below, "[a] challenge to the facial validity of an indictment

may be brought at any time, and need not be raised at trial for

preservation on appeal."       State v. LePage, 204 N.C. App. 37, 49,

693 S.E.2d 157, 165 (2010).        This Court reviews the sufficiency

of an indictment -- or, in this case, an information -- de novo.
                                     -5-
State v. Chillo, 208 N.C. App. 541, 543, 705 S.E.2d 394, 396

(2010).

    This Court has previously addressed the requirements for

indictments    for   injury   to   personal   property   and   the   similar

crime of larceny:

                 To convict a defendant of injury to
            personal property, the State must prove that
            the personal property was that "of another,"
            i.e., someone other than the person or
            persons accused.    N.C. Gen. Stat. § 14-160
            (2004) ("If any person shall wantonly and
            willfully injure the personal property of
            another he shall be guilty . . . ."); In re
            Meaut, 51 N.C. App. 153, 155, 275 S.E.2d
            200, 201 (1981). Moreover, "an indictment
            for larceny must allege the owner or person
            in   lawful    possession   of   the   stolen
            property."   State v. Downing, 313 N.C. 164,
            166, 326 S.E.2d 256, 258 (1985).     Thus, to
            be sufficient, an indictment for injury to
            personal property or larceny must allege the
            owner or person in lawful possession of the
            injured or stolen property.

State v. Price, 170 N.C. App. 672, 673-74, 613 S.E.2d 60, 62

(2005).     Moreover, "'[i]f the entity named in the indictment is

not a person, it must be alleged that the victim was a legal

entity capable of owning property[.]'"           Id. at 674, 613 S.E.2d

at 62 (quoting State v. Phillips, 162 N.C. App. 719, 721, 592

S.E.2d 272, 273 (2004)).

    Count II of the information in 11 CRS 210130 alleged that

defendant
                                 -6-
           unlawfully and willfully did wantonly injure
           and damage personal property, 228 feet of
           350   primary  copper   wire,  the   personal
           property of North Carolina State University
           (NCSU) and NCSU High Voltage Distribution,
           resulting in damage in excess of $200. This
           act was done in violation of NCGS § 14-160.

    With   respect   to   indictments   alleging   multiple   owners   of

personal property, as the information did in this case, this

Court has recently explained:

                Where an indictment alleges two owners
           of the stolen property, the State must prove
           that each owner had at least some property
           interest in it.    See State v. Greene, 289
           N.C. 578, 585, 223 S.E.2d 365, 370 (1976)
           ("If the person alleged in the indictment to
           have a property interest in the stolen
           property is not the owner or special owner
           of it, there is a fatal variance entitling
           defendant to a nonsuit."); State v. Burgess,
           74 N.C. 272, 273 (1876) ("If one is charged
           with stealing the property of A, it will not
           do to prove that he stole the joint property
           of A and B."); State v. Hill, 79 N.C. 656,
           659 (1878) (holding that where an indictment
           alleges multiple owners, the State must
           prove that there were in fact multiple
           owners).     If one of the owners were
           incapable of owning property, the State
           necessarily would be unable to prove that
           both alleged owners had a property interest.
           Therefore, where the indictment alleges
           multiple owners, one of whom is not a
           natural person, failure to allege that such
           an owner has the ability to own property is
           fatal to the indictment.

Campbell, ___ N.C. App. at ___, 759 S.E.2d at 384 (emphasis

added).
                                         -7-
       In Campbell, the indictment for larceny alleged two owners

of the stolen property -- a natural person and "Manna Baptist

Church" -- but did not allege that the church was a legal entity

capable of owning property.               Id. at ___, 759 S.E.2d at 384.

This    Court    held   that    the    indictment     was   fatally       flawed     and

vacated the defendant's conviction for larceny.                  Id. at ___, 759

S.E.2d at 384.

       Although Campbell involved an indictment for larceny, the

same reasoning applies to the information for injury to personal

property in this case.           See State v. Lilly, 195 N.C. App. 697,

702,    673    S.E.2d    718,   721-22     (2009)    ("Since     this      Court     has

previously       held   that    both     larceny     and    injury    to    personal

property have the same requirement that the indictment allege

ownership or lawful possession of the property, we think the

Court's reasoning in [State v. ]Liddell, [39 N.C. App. 373, 250

S.E.2d 77 (1979),] addressing a larceny indictment, applies with

equal    force    in    the   context    of    a   prosecution      for    injury    to

personal       property.").           Accordingly,    we     hold    that       to   be

sufficient, the information in this case must have shown that

both    NCSU     and    "NCSU   High     Voltage     Distribution"        are    legal

entities capable of owning property.

       With respect to NCSU, the State argues that it is clear

from the information that NCSU is a legal entity capable of
                                                -8-
owning property.            We agree.          In State v. Turner, 8 N.C. App. 73,

75, 173 S.E.2d 642, 643 (1970), this Court upheld an indictment

for larceny that named the "'City of Hendersonville'" as the

owner of the stolen property.                    The Court took judicial notice of

the    public        act       establishing       Hendersonville         as    a     municipal

corporation           and       explained        that         "the     words       'City     of

Hendersonville' denote a municipal corporate entity.                                 Municipal

corporations         are       expressly       authorized       to    purchase       and   hold

personal property."               Id.

       As with the municipality in Turner, the legislature has

provided, in N.C. Gen. Stat. § 116-4 (2013), that North Carolina

State University is a constituent institution of the University

of    North    Carolina,          "a    body    politic       and    corporate"      expressly

authorized under N.C. Gen. Stat. § 116-3 (2013) to own property.

Thus, we hold that the words "North Carolina State University"

sufficiently allege a legal entity capable of owning property.

       In contrast to Turner, this Court held in Price that an

indictment for larceny and injury to personal property alleging

that the property at issue was owned by "'City of Asheville

Transit       and        Parking       Services,'"       without      more,    was     fatally

defective.          170 N.C. App. at 674, 613 S.E.2d at 62.                        The Court

distinguished            Turner    "in     which      'City    of    Hendersonville'        was

sufficient          as    it     clearly       denoted     a    municipal      corporation,
                                            -9-
because the additional words after 'City of Asheville' make it

questionable what type of organization it is."                         Id.

      Similarly, here, the words "NCSU High Voltage Distribution"

do not identify a legal entity necessarily capable of owning

property    because       the      additional      words       after    "NCSU"       do     not

indicate what type of organization it is.                        The information is,

therefore,       insufficient        to     show        that    "NCSU        High       Voltage

Distribution" is a legal entity capable of owning property.                                 See

also State v. Strange, 58 N.C. App. 756, 757, 294 S.E.2d 403,

404   (1982)     (holding       indictment        for    larceny       naming       owner   as

"Granville       County     Law     Enforcement         Association"          was       fatally

defective).

      Because the information failed to allege that one of the

owners,    "NCSU     High    Voltage      Distribution,"         is     a    legal      entity

capable of owning           property, we hold that the information is

fatally defective and vacate defendant's conviction for injury

to personal property.              Defendant does not, however, challenge

any of his remaining convictions on appeal.

      We   note     that     the    trial     court       consolidated            defendant's

conviction     for    injury       to     personal       property       with      the     other

offenses    in     case     file    number    11        CRS    210130       and     sentenced

defendant under the Class H felony of larceny to a presumptive-

range term of six to eight months imprisonment.                                Our Supreme
                                         -10-
Court   has    explained        that    "[s]ince     it     is    probable    that     a

defendant's        conviction     for   two     or   more    offenses       influences

adversely to him the trial court's judgment on the length of the

sentence to be imposed when these offenses are consolidated for

judgment,     we    think   the    better       procedure        is   to   remand    for

resentencing when one or more but not all of the convictions

consolidated for judgment has been vacated." State v. Wortham,

318 N.C. 669, 674, 351 S.E.2d 294, 297 (1987).                        Accordingly, we

remand for resentencing on defendant's remaining convictions in

case file number 11 CRS 210130.


    No error in part; vacated in part; and remanded.

    Judges STEELMAN and DIETZ concur.
