Opinion
No. COA10-1240
Filed 19 July 2011 This case not for publication
Appeal by Defendant from judgments entered 31 March 2010 by Judge J. Gentry Caudill in Superior Court, Richmond County. Heard in the Court of Appeals 7 March 2011.
Attorney General Roy Cooper, by Assistant Attorney General Ann W. Matthews, for the State. Robert H. Hale, Jr. Associates, by Daniel M. Blau, for Defendant-Appellant.
Richmond County Nos. 09 CRS 521 and 09 CRS 522.
Lonnie Ray Patterson (Defendant) was convicted of two counts of misdemeanor larceny on 31 March 2010. Defendant was sentenced to two consecutive terms of 120 days in jail, but the trial court suspended those sentences and placed Defendant on supervised probation for twenty-four months. Defendant was also ordered to pay restitution in the amount of $2,481.00. Defendant appeals.
The evidence at trial tended to show that T.V. Kirkley (Mr. Kirkley), a railroad police agent for CSX Transportation, Inc. (CSX), was investigating the theft of copper wire used to transmit signals along rail lines. The copper wire had been affixed to cross-arms and attached to large wooden signal poles similar to telephone poles. The signal poles were sometimes coated in creosote and were sunk up to eight feet into the ground, approximately 150 feet apart. Mr. Kirkley spent two days looking for the missing copper wire at several scrap yards in and around Richmond County. On 29 December 2006, Mr. Kirkley found copper wire at a scrap yard in Raeford, North Carolina that he contended was the stolen copper wire. Mr. Kirkley learned that Defendant had brought the copper wire to the scrap yard earlier that same day.
At the close of the State's evidence, Defendant moved to dismiss the charges of larceny based on a fatal variance between the indictments and the proof offered at trial. Defendant argued that, while he was charged with "taking and carrying away the personal property of" CSX, the proof showed that the wire in question was so affixed to the land as to be real property. The trial court denied Defendant's motion to dismiss.
On appeal, Defendant argues that the trial court erred by denying his motion to dismiss the charges of felony larceny because of a fatal variance between the crime charged in the indictments and the evidence presented at trial. Defendant's argument is based on his assertion that the copper wire stolen from the signal poles was affixed to the ground such that the copper wire was no longer the personal property of CSX, but instead was a fixture. "Larceny at common law was confined to `goods and chattels'; it did not extend to land, because land could not be feloniously taken and carried away, except insignificant parcels thereof." State v. Jackson, 218 N.C. 373, 375, 11 S.E.2d 149, 150 (1940) (citation omitted). "Therefore, it was not larceny, at common law, to steal anything adhering to the soil." Id. at 375, 11 S.E.2d at 150-51 (citation omitted).
Defendant points out that the General Assembly abolished, for larceny purposes, the distinction between personal property and personal property affixed to real property in legislation that became effective 1 December 2008, which was applicable only to offenses committed on or after that date. See N.C. Gen. Stat. § 14-83.1 (2009) ("All common law distinctions providing that personal property that has become affixed to real property is not subject to a charge of larceny are abolished. Any person who shall remove or take and carry away, or shall aid another in removing, taking or carrying away, any property that is affixed to real property, with the intent to steal the property, shall be guilty of larceny and shall be punished as provided by statute."). Because the offenses for which Defendant was convicted occurred prior to 1 December 2008, N.C.G.S. § 14-83.1 is not applicable to this case. See id.; see also 2008 N.C. Sess. Laws 2008-128, § 2. The enactment of this statute, however, is indicative of the General Assembly's recognition of the distinction.
In this case, the indictments charged that Defendant, in violation of N.C. Gen. Stat. § 14-72(a), "did steal, take and carry away four thousand eight hundred (4800) feet of copper signal wire, the personal property of CSX Transportation, Inc., . . . [the] property having a value of $1,344.00." (Emphasis added). The State contends that State v. Schultz, 294 N.C. 281, 240 S.E.2d 451 (1978), is controlling. In Schultz, our Supreme Court addressed whether the theft of urns and vases attached to grave markers was larceny at common law. Id. at 282, 240 S.E.2d at 453. Our Supreme Court ultimately held:
In our opinion, a brass urn or vase, of the type here involved, is not a "monument * * * erected for the purpose of designating the spot where any dead body is interred" and therefore, its removal, under the circumstances of this case, would not constitute a violation of G.S. 14-148. That statute deals with the removal of a monument in its entirety, not with the defacing thereof or the removal of a part thereof, if such urn be deemed a part of the marker upon which it rests. Thus, the enactment of G.S. 14-148 does not show a legislative intent to remove the theft of such urn or vase from the scope of common law larceny.
Id. at 287, 240 S.E.2d at 455-56. In the present case, the State points to the relative ease involved in removing the copper wire from the signal poles and asserts that the copper wire is analogous to the urns involved in Schultz. However, we note that in Schultz, our Supreme Court arrived at its conclusion not simply because the urns were easily removed from the grave markers. Rather, the Court conducted the following analysis:
"The thought underlying the erection of a tombstone or marker at the grave of a deceased person is that of permanency. Its purpose is to designate the spot where the deceased was buried, to perpetuate his name and to record biographical data as to birth, death, etc. When so erected it becomes a chattel real and is not the subject of the common law crime of larceny."
. . . .
It seems clear that the bronze grave markers, upon which the urns or vases here in question rested at the time of the removal by the defendant, were so affixed to the soil as to make them parts of the realty and not subject to common law larceny. While the evidence in the present case is to the effect that such urns or vases are, habitually, sold to the owner of the cemetery lot at the same time as the grave marker, as part of a "package deal," and although they are fastened to the marker by a slight twist so as to make grooves and projections upon the urn or vase fit into prepared slots in the receptacle which is part of the marker, the urn or vase, itself, is not a part of such marker. The marker serves its contemplated purpose whether or not the urn or vase is so affixed. The urn or vase serves its contemplated purpose as a container for flowers or other decorations, whether or not it is so affixed to the marker. The sole purpose of the attachment to the marker appears to be to prevent a casual overturning of the urn or vase by wind or accident. The evidence makes it quite clear that on their several visits to the respective cemeteries, the defendant and his associates removed, within a short space of time, large numbers of these urns or vases. Thus, it is clear that they were quite easily separated from the grave markers. Obviously, when originally put in place, the owner contemplated their remaining so in place. Nevertheless, under all the circumstances, we are constrained to hold that the urns or vases did not become so attached to the grave markers, upon which they rested, as to make them integral parts of such markers and, therefore, real property or chattels real. We think they are clearly distinguishable from the tombstone involved in State v. Jackson, supra, it having been erected at the grave, presumably in the customary manner of a burying of the base thereof in the soil so that the soil, itself, held the stone erect.
Id. at 286-88, 240 S.E.2d at 455-56 (citations omitted).
Applying the logic and analysis used in Schultz to our present case, we are compelled to conclude that the copper wire involved was not personal property. As to the signal poles to which the copper wire was attached, the State concedes that "it would be reasonable to argue that the creosote covered signal poles which were embedded up to eight feet into the ground and meant to stay in the ground for a long time would be deemed a fixture appurtenant to the land and thus real property in nature," and we agree. A review of relevant authority suggests that the signal poles used by CSX were, in fact, fixtures appurtenant to the land. See Jackson, 218 N.C. at 375, 11 S.E.2d at 152 (noting that "chattels real, such as growing trees, plants, minerals, metals and fences, connected in some way with the land" were not the subject of common law larceny); see also Moore's Ferry Dev. Corp. v. City of Hickory, 166 N.C. App. 441, 445, 601 S.E.2d 900, 903 (2004) (citation omitted) ("A `fixture' is `personal property that is attached to land or a building and that is regarded as an irremovable part of the real property.'").
Thus, the question before us is whether the copper wire attached to the signal poles was affixed such that it, too, became "`an irremovable part of the real property.'" Moore's Ferry, 166 N.C. App. at 445, 601 S.E.2d at 903 (citation omitted). The evidence presented at trial tended to show that the copper wire was used to transmit signals along the railroad. The copper wire was affixed to cross-arms and attached to large wooden signal poles similar to telephone poles. There was no evidence that the copper wire was attached to the signal poles by "a slight twist" as was the case with the urns involved in Schultz. Rather, the evidence at trial suggested that the wire removal required that it be "cut and removed" as the State observes in its brief.
Further, the "contemplated purpose[,]" as discussed in Schultz, for CSX's signal poles is to support the signal-carrying copper wire; thus, without the copper wire attached, the signal poles do not serve their "contemplated purpose[.]" Schultz, 294 N.C. at 287, 240 S.E.2d at 456. Likewise, the copper wire's "contemplated purpose" is to be strung on the signal poles in order to carry electronic signals along the train tracks. Unlike the urns involved in Schultz, the attachment of copper wire to a signal pole is a crucial part of the contemplated purpose of both objects. We must therefore hold that the copper wire was attached to the signal poles, "as to make [it an] integral part[] of such [signal poles] and, therefore, real property or chattels real." Id. at 288, 240 S.E.2d at 456.
Thus, there was a fatal variance between the indictments, which charged Defendant with the "taking and carrying away of personal property," and the evidence at trial, which showed that the items stolen were not personal property. Therefore, the trial court erred in denying Defendant's motion to dismiss and we must reverse. In light of our holding, we need not address Defendant's remaining arguments.
Reversed.
Chief Judge MARTIN and Judge McCULLOUGH concur.
Report per Rule 30(e).