                IN THE SUPREME COURT OF NORTH CAROLINA

                                      No. 143PA15

                                 Filed 18 March 2016

 STATE OF NORTH CAROLINA

               v.
 JACOB MARK SPIVEY



        On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, ___ N.C. App. ___, 769 S.E.2d 841 (2015), finding no error in

part and vacating in part judgments entered on 9 May 2014 by Judge Phyllis M.

Gorham in Superior Court, New Hanover County, and remanding for resentencing

on defendant’s remaining convictions. Heard in the Supreme Court on 7 December

2015.


        Roy Cooper, Attorney General, by Brent D. Kiziah, Assistant Attorney General,
        for the State-appellant.

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


        NEWBY, Justice.


        In this case we decide whether an indictment charging defendant with injury

to real property “of Katy’s Great Eats” is fatally flawed because it does not specifically

identify “Katy’s Great Eats” as a corporation or an entity capable of owning property.

An indictment for injury to real property must describe the property in sufficient

detail to identify the parcel of real property the defendant allegedly injured. The
                                   STATE V. SPIVEY

                                   Opinion of the Court



indictment needs to identify the real property itself, not the owner or ownership

interest. By describing the injured real property as “the restaurant, the property of

Katy’s Great Eats,” the indictment sufficiently identifies the crime being charged.

Because it gives defendant reasonable notice of the charge against him and enables

him to prepare his defense and protect against double jeopardy, the indictment is

facially valid. We therefore reverse the decision of the Court of Appeals on that issue.


      The State presented evidence at trial that showed that on 11 January 2013,

defendant was at a restaurant called “Katy’s Great Eats” to sing karaoke. When

defendant went outside to the patio to smoke a cigarette, another patron, Christina

Short, made a joke about President Obama and mocked defendant for voting for him.

Defendant did not respond and went back inside the restaurant to eat his food.

Approximately ten minutes later, as defendant was leaving the restaurant and

walking to his car, Ms. Short made another derogatory comment toward him.

Defendant again did not respond.        Instead, angered by Ms. Short’s comments,

defendant got into his car, backed it across the parking lot, and drove it straight into

the patio area of the restaurant where Ms. Short and other patrons stood. The car

crashed into the front window and outside wall of the restaurant before stopping.

Defendant attempted to flee in his car, but police stopped him a short distance away.

Defendant admitted to police that he drove his car into the restaurant with the intent

to hurt Ms. Short, but he denied trying to kill her.



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                                    STATE V. SPIVEY

                                   Opinion of the Court



      A grand jury returned six bills of indictment for a variety of charges stemming

from the incident, including attempted first-degree murder, assault with a deadly

weapon with intent to kill inflicting serious injury, felony hit and run, injury to real

property, reckless driving to endanger, and eleven counts of assault with a deadly

weapon. The indictment in Case Number 13CRS050341 stated:

             I.     The jurors for the State upon their oath present
                    that . . . the defendant . . . unlawfully, willfully, and
                    feloniously did fail to immediately stop the vehicle
                    the defendant was driving at the scene of an accident
                    and collision in which the defendant was involved.
                    This accident and collision occurred at Katy’s Great
                    Eats 1054 S. College Rd, Wilmington, North
                    Carolina and resulted in injury to a person, to wit:
                    Christina Marie Short. The defendant knew and
                    reasonably should have known that the vehicle that
                    the defendant was operating was involved in the
                    accident and collision and that the accident and the
                    collision had resulted in injury to a person, to wit:
                    Christina Marie Short.

             II.    The jurors for the State upon their oath present
                    that . . . the defendant . . . unlawfully and willfully
                    did wantonly damage, injure and destroy real
                    property, front patio, façade, and porch of the
                    restaurant, the property of Katy’s Great Eats.

             III.   The jurors for the State upon their oath present
                    that . . . the defendant . . . unlawfully and willfully
                    did operate a motor vehicle on a public vehicular
                    area without due caution and circumspection and at
                    a speed or in a manner so as to endanger persons or
                    property.

      At the close of the State’s evidence at trial, defendant moved to dismiss several

charges, including Count II in the above indictment for injury to real property.


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                                    STATE V. SPIVEY

                                   Opinion of the Court



Defendant argued that the indictment failed to allege “Katy’s Great Eats” was a legal

entity capable of owning property and that the proper legal name of the corporate

entity is “Katy’s Great Eats, Inc.”      The trial court denied defendant’s motion.

Defendant did not present any evidence.


      During closing argument, defense counsel admitted that defendant was at

“Katy’s” on the night in question, that Ms. Short insulted defendant on two separate

occasions, and that defendant subsequently drove his car into “Katy’s bar.”

Defendant’s primary defense was that his conduct was not deliberate or

premeditated; rather, he drove his car into the restaurant with the general intent to

hurt, not kill, Ms. Short. In fact, defense counsel not only admitted that defendant

drove his car into “Katy’s bar,” but also asked the jury to find defendant guilty of

assault with a deadly weapon inflicting serious injury, felony hit and run, and,

significant here, injury to real property. Ultimately, the jury found defendant guilty

of assault with a deadly weapon inflicting serious injury, six counts of assault with a

deadly weapon, and one count each of felony hit and run, reckless driving to endanger,

and injury to real property.


      The Court of Appeals vacated defendant’s conviction for injury to real property

and remanded the matter for resentencing. State v. Spivey, ___ N.C. App. ___, ___,

769 S.E.2d 841, 844 (2015). The Court of Appeals concluded that Count II of the

indictment charging injury to real property “is invalid on its face” because it “does not


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                                    STATE V. SPIVEY

                                   Opinion of the Court



contain any allegation that the victim, ‘Katy’s Great Eats,’ is a legal entity capable of

owning property, and the name ‘Katy’s Great Eats’ does not otherwise import a

corporation or other entity capable of owning property.” Id. at ___, 769 S.E.2d at 844.

We allowed the State’s petition for discretionary review.


      It is well settled “that a valid bill of indictment is essential to the jurisdiction

of the trial court to try an accused for a felony.” State v. Sturdivant, 304 N.C. 293,

308, 283 S.E.2d 719, 729 (1981) (citations omitted). The Criminal Procedure Act of

1975 (1975 Act) requires that an indictment contain “[a] plain and concise factual

statement in each count which, without allegations of an evidentiary nature, asserts

facts supporting every element of a criminal offense and the defendant’s commission

thereof with sufficient precision clearly to apprise the defendant . . . of the conduct

which is the subject of the accusation.” N.C.G.S. § 15A-924(a)(5) (2015). The 1975

Act was intended “to simplify criminal proceedings.” State v. Freeman, 314 N.C. 432,

436, 333 S.E.2d 743, 746 (1985). Under this statutory framework,

             it is not the function of an indictment to bind the hands of
             the State with technical rules of pleading; rather, its
             purposes are to identify clearly the crime being charged,
             thereby putting the accused on reasonable notice to defend
             against it and prepare for trial, and to protect the accused
             from being jeopardized by the State more than once for the
             same crime.

Sturdivant, 304 N.C. at 311, 283 S.E.2d at 731 (citation omitted). An indictment

must allege “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 (quoting State v. Greer, 238 N.C. 325,

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                                   Opinion of the Court



327, 77 S.E.2d 917, 919 (1953)), cert. denied, 539 U.S. 985 (2003), but it is generally

sufficient if couched in the language of the statutory offense, State v. Williams, ___

N.C. ___, ___, 781 S.E.2d 268, 272 (2016) (“[T]his Court has acknowledged the general

rule that an indictment using ‘either literally or substantially’ the language found in

the statute defining the offense is facially valid and that ‘the quashing of indictments

is not favored.’ ” (quoting State v. James, 321 N.C. 676, 681, 365 S.E.2d 579, 582

(1988))).


       Here defendant was charged with injury to real property under section 14-127,

which makes it a crime to “willfully and wantonly damage, injure or destroy any real

property whatsoever, either of a public or private nature.” N.C.G.S. § 14-127 (2015).

Count II of defendant’s indictment specifically alleges that he “unlawfully and

willfully did wantonly damage, injure and destroy real property, front patio, façade,

and porch of the restaurant, the property of Katy’s Great Eats.” The indictment

mirrors the language of the controlling statute, and the description of the real

property as “the property of Katy’s Great Eats” clearly identifies the specific parcel of

real property defendant allegedly injured. It is clear from the transcript that there

was no confusion or controversy at trial regarding which establishment defendant

damaged. Consequently, the indictment sufficiently advised defendant of the conduct

that is the subject of the accusation.




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                                   STATE V. SPIVEY

                                  Opinion of the Court



      Ideally, an indictment for injury to real property should include the street

address or other clear designation, when possible, of the real property alleged to have

been injured; however, under N.C.G.S. § 15A-925, had defendant been confused

regarding which parcel of real property he was accused of injuring or “need[ed] more

information to mount his preferred defense, he [could have] ‘request[ed] a bill of

particulars to obtain information to supplement the facts contained in the

indictment.’ ” State v. Jones, 367 N.C. 299, 310-11, 758 S.E.2d 345, 353 (2014)

(Martin, J., concurring in part and dissenting in part) (quoting State v. Randolph,

312 N.C. 198, 210, 321 S.E.2d 864, 872 (1984)).


      Defendant argues, and the Court of Appeals agreed, that we should treat

indictments charging injury to real property no differently than indictments charging

crimes involving personal property, such as larceny, embezzlement, or injury to

personal property. In so holding, the Court of Appeals relied on its own decision in

State v. Lilly, 195 N.C. App. 697, 673 S.E.2d 718, disc. rev. denied, 363 N.C. 586, 683

S.E.2d 214 (2009). In Lilly the Court of Appeals recognized that N.C.G.S. § 14-127

“does not appear to require that an indictment for injury to real property contain any

allegation at all regarding the owner or possessor of the property,” id. at 702, 673

S.E.2d at 722, but the court nonetheless concluded the indictment was required to

contain an allegation regarding ownership or possession, id. at 702-03, 673 S.E.2d at

722. The statute under which defendant here was charged, N.C.G.S. § 14-127, does

not require that the real property be “of another.” Instead, it criminalizes damaging

                                          -7-
                                    STATE V. SPIVEY

                                   Opinion of the Court



“any real property whatsoever,” making the identity of the owner largely irrelevant

as long as a defendant has adequate notice to prepare a defense. N.C.G.S. § 14-127.


      Moreover, there is a fundamental difference between personal property and

real property. Personal property is often fungible, such that two items can essentially

be indistinguishable.     Because personal property is easily moved, identifying

information is particularly valuable. A description of the owner of personal property

is useful to differentiate between two similar pieces of personal property, thereby

notifying the defendant of “ ‘the particular transaction on which the indictment is

founded’ and giv[ing] the [defendant] ‘the benefit of the first acquittal or conviction if

accused a second time of the same offense.’ ” Jones, 367 N.C. at 308-09, 758 S.E.2d

at 352 (majority) (quoting State v. Tisdale, 145 N.C. 422, 425, 58 S.E. 998, 1000

(1907)); see id. at 311, 758 S.E.2d at 354 (Martin, J., concurring in part and dissenting

in part) (noting it is “nearly impossible” to “[d]ifferentiat[e] between two jugs of malt

liquor, two sacks of tobacco seed, or two baggies of cocaine”).


      Unlike personal property, real property is inherently unique; it cannot be

duplicated, as no two parcels of real estate are the same. Thus, in an indictment

alleging injury to real property, identification of the property itself, not the owner or

ownership interest, is vital to differentiate between two parcels of property, thereby

enabling a defendant to prepare his defense and protect against further prosecution

for the same crime. While the owner or lawful possessor’s name may, as here, be used


                                           -8-
                                     STATE V. SPIVEY

                                     Opinion of the Court



to identify the specific parcel of real estate, it is not an essential element of the offense

that must be alleged in the indictment, so long as the indictment gives defendant

reasonable notice of the specific parcel of real estate he is accused of injuring. To the

extent Lilly is inconsistent with this opinion, it is overruled.


       We therefore conclude that by tracking the language of N.C.G.S. § 14-127 and

clearly identifying the real property onto which defendant drove his car, the

indictment “charges the offense of [injury to real property] in a plain, intelligible, and

explicit manner” and fulfills the purpose of the 1975 Act. Freeman, 314 N.C. at 436,

333 S.E.2d at 746; accord N.C.G.S. § 15-153 (2015). The indictment gives defendant

reasonable notice of the charge against him, including the specific parcel of real

property he is accused of injuring, so that he may prepare his defense and protect

himself against double jeopardy. Accordingly, the indictment charging injury to real

property is valid on its face. The remaining issues addressed by the Court of Appeals

are not before this Court, and its decision as to these matters remains undisturbed.


       REVERSED.




       Justice JACKSON dissenting.


       In concluding that an indictment for injury to real property pursuant to

N.C.G.S. § 14-127 need not identify the owner or lawful possessor of the property, the


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                                       STATE V. SPIVEY

                                   JACKSON, J., dissenting.



majority ignores over one hundred and sixty years of precedent establishing that “[i]n

indictments for injuries to property it is necessary to lay the property truly, and a

variance in that respect is fatal.”1 State v. Hicks, 233 N.C. 31, 34, 62 S.E.2d 497, 499

(1950) (quoting State v. Mason, 35 N.C. (13 Ired.) 341, 342 (1852)), cert. denied, 342

U.S. 831 (1951). I respectfully dissent.


       Section 14-127 states, “If any person shall willfully and wantonly damage,

injure or destroy any real property whatsoever, either of a public or private nature,

he shall be guilty of a Class 1 misdemeanor.” N.C.G.S. § 14-127 (2015). Interpreting

this language, the majority concludes that the statute “does not require that the real

property be ‘of another’ ” and that “the owner or lawful possessor’s name . . . is not an

essential element of the offense that must be alleged in the indictment, so long as the

indictment gives defendant reasonable notice of the specific parcel of real estate he is

accused of injuring.”


       In 1852, faced with a statute that similarly lacked an explicit element stating

that the allegedly injured property must be that of another, this Court rejected the

majority’s interpretation. In State v. Mason the defendant was accused of injury to a

dwelling house in violation of a statute that stated:

              [I]f any person or persons . . . shall unlawfully and wilfully
              demolish, pull down, deface, or by other ways or means

       1  The statute at issue in Hicks, unlike the statutes at issue in other cases cited in
this dissent, required that there be damage to the property “of another” as a precondition
for a finding of liability. See 233 N.C. at 34, 62 S.E.2d at 499.

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                                   STATE V. SPIVEY

                                JACKSON, J., dissenting.



             destroy, injure or damage any dwelling house, or any
             uninhabited house, out house, or other building, or shall
             unlawfully or wilfully burn, destroy, or remove any fence,
             wall, or other inclosure or any part thereof, surrounding or
             about any yard, garden, or cultivated grounds, he, she, or
             they shall be deemed guilty of a misdemeanor . . . .

Act of Jan. 14, 1847, ch. 70, 1846-47 N.C. Sess. Laws 137; see also Mason, 35 N.C. (13

Ired.) at 342 (referencing this statute). Like section 14-127, this statute did not

specify that the dwelling house must belong to someone other than the defendant.

Nevertheless, this Court stated that “[i]n indictments for injuries to property it is

necessary to lay the property truly, and a variance in that respect is fatal.” Mason,

35 N.C. (13 Ired.) at 342. This Court explained that “although [the statute] protects

houses and inclosures from destruction or injury, yet necessarily an exception is to be

implied when the destruction or damage is by the owner.” Id. at 343. The Court

determined that if the statute “had been intended to embrace the acts of willful waste

by a tenant, there would have been express words to take in the case where the

premises are in the possession of the offender.” Id. As established in Mason, even if

a statute prohibiting injury to some property does not state that the property must

be that of another, such a requirement is implied, and an indictment for violation of

that statute must identify the owner or lawful possessor.


      Although Mason “was decided in 1852 when great particularity in criminal

pleading was required,” State v. Taylor, 172 N.C. 892, 893, 90 S.E. 294, 295 (1916),

this Court has reaffirmed and applied its holding in multiple different contexts, see,


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                                  STATE V. SPIVEY

                               JACKSON, J., dissenting.



e.g., State v. Watson, 272 N.C. 526, 527, 158 S.E.2d 334, 335 (1968) (per curiam)

(indictment for safecracking); State v. Cooke, 246 N.C. 518, 520, 98 S.E.2d 885, 887

(1957) (indictment for trespassing). In Taylor, after implicitly suggesting that the

level of particularity required in indictments may have diminished since Mason was

decided, this Court concluded that an indictment for unlawfully removing a fence

“sufficiently charges that the property was in the possession of the [prosecuting

witness] H. F. Otten” in part because the indictment stated that Otten “owned the

property.” 172 N.C. at 893, 90 S.E. at 295. Thus, even as we acknowledged that

pleading requirements should be viewed more liberally than in the past, we still

retained the requirement of identifying the owner or lawful possessor.


      Our more recent decision in Hicks relied upon Mason. The defendant and a

codefendant allegedly engaged in a conspiracy, part of which involved a plan to

destroy an electrical transformer “by the use of dynamite or other high explosive.”

233 N.C. at 31, 62 S.E.2d at 497. He was charged, inter alia, with both conspiracy to

commit injury to real property and conspiracy to injure personal property, but the

latter charge was dismissed. The jury found him “[g]uilty of conspiracy to damage

real property.” Id. at 33, 62 S.E.2d at 499. We noted that “[t]he indictment charge[d]

the defendants with conspiring to maliciously commit damage and injury to and upon

the real property of the Jefferson Standard Broadcasting Company,” while the

evidence showed that the property actually belonged to the Duke Power Company.

Id. at 34, 62 S.E.2d at 499. Relying upon Mason and subsequent cases cited in Hicks,

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                                    STATE V. SPIVEY

                                 JACKSON, J., dissenting.



we concluded that there was a fatal variance. Id. at 34, 62 S.E.2d at 499. Hicks

confirms the vitality of our long-standing rule that indictments for injury to real

property must identify the owner or lawful possessor of the property. In a later case

we cited Hicks to establish that for the offense of “malicious injury to property,” “it is

necessary to allege in the warrant or bill of indictment the rightful owner or possessor

of the property, and the proof must correspond with the charge.” Cooke, 246 N.C. at

520, 98 S.E.2d at 887. Similarly, the North Carolina Court of Appeals has relied upon

Hicks, Cooke, and Mason in concluding that an indictment for injury to real property

must name either the owner or lawful possessor of the property. State v. Lilly, 195

N.C. App. 697, 702-03, 673 S.E.2d 718, 722, disc. rev. denied, 363 N.C. 586, 683 S.E.2d

214 (2009).


      Contrary to the majority’s suggestion, this principle was not affected by the

enactment of the Criminal Procedure Act “to simplify criminal proceedings.” State v.

Freeman, 314 N.C. 432, 436, 333 S.E.2d 743, 746 (1985). The Criminal Procedure Act

confirms that “every element of a criminal offense” must be alleged by the indictment.

N.C.G.S. § 15A-924(a)(5) (2015). Although section 14-127 does not state that the

injured property must be that of another, common sense dictates that this element is

implied. See Mason, 35 N.C. (13 Ired.) at 343 (making a similar implication with

respect to a similar statute). In addition, section 14-127 requires that the defendant

have acted “willfully and wantonly.” N.C.G.S. § 14-127. Willfulness refers to “the

wrongful doing of an act without justification or excuse, or the commission of an act

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                                   STATE V. SPIVEY

                                JACKSON, J., dissenting.



purposely and deliberately in violation of law.” State v. Arnold, 264 N.C. 348, 349,

141 S.E.2d 473, 474 (1965) (per curiam) (citation omitted). “Conduct is wanton when

in conscious and intentional disregard of and indifference to the rights and safety of

others.” Hinson v. Dawson, 244 N.C. 23, 28, 92 S.E.2d 393, 397 (1956) (citations

omitted). In the context of injury to real property, the elements of willfulness and

wantonness cannot be shown when a person injures his or her own property. This

Court’s established definition of wantonness explicitly provides the reference to “the

rights . . . of others” that section 14-127 omitted. Furthermore, ownership of real

property provides a complete justification for causing damage to it—including total

demolition and replacement of buildings and fixtures. As a result, even though

section 14-127 does not set out the element explicitly, the statute implicitly requires

the State to show that the property belonged to another. See State v. Chamberlain,

232 N.C. App. 246, 253, 753 S.E.2d 725, 730 (2014) (“[I]t was for the jury to determine

whether the shrubs [belonging to a neighbor] were planted on [the neighbor’s]

property or Defendant’s and whether Defendant was legally justified in cutting them

down.”). As this Court’s jurisprudence establishes, this element must be alleged in

the indictment.


      Applying this long-standing rule in the case sub judice, it is clear that the

indictment is fatally defective. “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

                                         -14-
                                    STATE V. SPIVEY

                                 JACKSON, J., dissenting.



association or a corporation capable of owning property.’ ” State v. Campbell, 368

N.C. 83, 86, 772 S.E.2d 440, 443 (2015) (quoting State v. Thornton, 251 N.C. 658, 661,

111 S.E.2d 901, 903 (1960)).      In Campbell we held that a larceny indictment

identifying the property owner as “Manna Baptist Church” was sufficient because

“alleging ownership of property in an entity identified as a church or other place of

religious worship, like identifying an entity as a ‘company’ or ‘incorporated,’ signifies

an entity capable of owning property.” Id. at 87, 772 S.E.2d at 444. At the same time,

we distinguished Thornton, in which “an indictment alleging the defendant

embezzled money belonging to ‘The Chuck Wagon’ was ‘fatally defective’ because it

failed to allege ‘that “The Chuck Wagon” is a corporation, and the words “The Chuck

Wagon” do not import a corporation.’ ” Id. at 86, 772 S.E.2d at 443 (quoting Thornton,

251 N.C. at 662, 111 S.E.2d at 904). Here the indictment alleges that defendant

damaged real property belonging to “Katy’s Great Eats,” a name which—like The

Chuck Wagon—does not import a corporation or other legal entity capable of owning

property.


      Today the majority disposes of a well-established requirement without

acknowledging over a century of precedent supporting the existence of that

requirement. Even as the majority overturns the decision of the Court of Appeals in

Lilly, it ignores that decision’s reliance upon Cooke, Hicks, and Mason. Therefore, I

respectfully dissent.



                                          -15-
                           STATE V. SPIVEY

                        JACKSON, J., dissenting.



Justice ERVIN joins in this dissenting opinion.




                                 -16-
