No. COA10-622 THIRD (A) DISTRICT

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA ))

v. ) From Pitt County)

JUSTIN HASTINGS CHILLO )

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DEFENDANT-APPELLANT’S BRIEF

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INDEX

TABLE OF AUTHORITIES.....................................................ivISSUES PRESENTED...............................................................1STATEMENT OF THE CASE..................................................2STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW.....................................................................................3STATEMENT OF THE FACTS................................................3ARGUMENT..............................................................................4

I. THE INDICTMENT PURPORTING TO CHARGE JUSTIN WAS FATALLY DEFECTIVE BECAUSE IT INSUFFICIENTLY ALLEGED THE IDENTITY OF THE VICTIM AND THE TRIAL COURT DID NOT HAVE JURISDICTION AND COMMITTED ERROR IN NOT DISMISSING THE CHARGE AGAINST JUSTIN IN VIOLATION OF HIS STATE AND FEDERAL RIGHTS.......4

A. Statement of Standard of Review.................................5

B. Analysis........................................................................5

II. JUSTIN’S CONVICTION FOR BREAKING AND ENTERING A MOTOR VEHICLE MUST BE VACATED BECAUSE THE EVIDENCE THERE WAS AN INTENT TO COMMIT LARCENY THEREIN WAS INSUFFICIENT AS A MATTER OF LAW AND FACT AND THE TRIAL COURT COMMITTED ERROR IN NOT GRANTING THE MOTIONS TO DISMISS AND SUBMITTING THE CHARGE TO THE JURY IN VIOLATION OF JUSTIN’S STATE AND FEDERAL RIGHTS..........................................11

A. Statement of Standard of Review...............................11

B. Analysis......................................................................12

CONCLUSION........................................................................17CERTIFICATE OF COMPLIANCE WITH N.C.R. APP. P. 28(j)(2)(A)(2)............................................................................18CERTIFICATE OF FILING AND SERVICE.........................19APPENDIX:

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North Carolina Department of theSecretary of State On-Line Records Search App. 1Direct Examination Testimony ofAnsley Stroud App. 5Cross Examination Testimony ofAnsley Stroud App. 8Direct Examination Testimony ofCameron Moser App. 9Bench Conference App. 12Direct Examination Testimony ofCameron Moser App. 15Direct Examination Testimony ofScott Lascallette App. 17Arguments and Ruling on Motion toDismiss App. 21Closing Arguments by State App. 26Closing Arguments by Defendant App. 30Arguments and Ruling on RenewedMotion to Dismiss App. 32

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TABLE OF AUTHORITIES

CASES

Bowser v. Wescott, 145 N.C. 56, 58 S.E.2d 748 (1907)....9 fn. 1

Cole v. Arkansas, 333 U.S. 196, 92 L. Ed. 644 (1948)..............7

Herring v. United States, 422 U.S. 853, 457 L. Ed. 2d 593 (1975)......................................................................................7

Hodgson v. Vermont, 168 U.S. 262, 42 L. Ed. 461 (1897)........7

N.C. Dep't of Env't & Natural Res. v. Carroll, 358 N.C. 649, 599 S.E.2d 888 (2004)......................................................5, 12

Nickles v. State, 88 Ga. App. 290, 71 S.E.2d 578 (1952)..........8

Stanton v. Railroad, 144 N.C. 135, 56 S.E. 794 (1907).....9 fn. 1

State v. Abraham, 338 N.C. 315, 451 S.E.2d 131 (1994)..........7

State v. Bell, 285 N.C. 746, 208 S.E.2d 506 (1974).................13

State v. Call, 353 N.C. 400, 545 S.E.2d 190 (2001)...................5

State v. Cave, 174 N.C. App. 580, 621 S.E.2d 299 (2005)9 fn. 1

State v. Collins, 334 N.C. 54, 431 S.E.2d 188 (1993)..............13

State v. Cook, 242 N.C. 700, 89 S.E.2d 383 (1955).................13

State v. Jacobs, ____ N.C. App. ___, 688 S.E.2d 112 (No. COA09-762) (filed 2 Feb. 2010).............................................6

State v. Kemmerlin, 356 N.C. 446, 573 S.E.2d 870 (2002)................................................................................11-12

State v. Marshall 188 N.C. App. 744, 656 S.E.2d 709 (2008).. .5

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State v. McBryde, 97 N.C. 393, 1 S.E. 925 (1887).............16-17

State v. Nettles, 170 N.C. App. 100, 612 S.E.2d 172 (2005)...12

State v. Riggs, 100 N.C. App. 149, 394 S.E.2d 670 (1990)..................................................................................6, 12

State v. Roberts, 14 N.C. App. 648, 188 S.E.2d 610 (1972)......8

State v. Thompkins, 83 N.C. App. 42, 348 S.E.2d 605 (1986)......................................................................................13

State v. Thompson, 6 N.C. App. 64, 169 S.E.2d 241 (1969).....8

State v. Thornton, 251 N.C. 658, 111 S.E.2d 901 (1960).......7-8

State v. Williams, 153 N.C. App. 192, 568 S.E.2d 890 (2002)........................................................................................6

State v. Wilson, 154 N.C. App. 686, 573 S.E.2d 193 (2002)...13

State v. Woody, 132 N.C. App. 788, 513 S.E.2d 801 (1999).....8

Staton v. Brame, 136 N.C. App. 170, 523 S.E.2d 424 (1999)..12

United States v. Davis, 184 F.3d 366 (4th Cir. 1999)................7

W.R. Company v. Property Tax Comm., 48 N.C. App. 245, 269 S.E.2d 636 (1980)...........................................................9 fn. 1

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. VI................................................................7

STATUTES & ADMINISTRATIVE CODES

N.C. Gen. Stat. § 7A-27(b).........................................................3

N.C. Gen. Stat. § 14-54............................................................13

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N.C. Gen. Stat. § 14-56........................................................6, 12

N.C. Gen. Stat. § 15A-924(a)(5).............................................6-7

N.C. Gen. Stat. § 15A-1444(a)...................................................3

N.C. Gen. Stat. § 15A-1446(d)(1)..............................................5

N.C. Gen. Stat. § 15A-1446(d)(4)..............................................5

N.C. Gen. Stat. § 55D-20(a)(1)..................................................8

N.C.R. App. P. 26(a)(2)............................................................18

N.C.R. App. P. 26(c)................................................................18

N.C.R. App. P. 28(j)(2)(A)(2)..................................................17

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No. COA10-622 THIRD (A) DISTRICT

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA ))

v. ) From Pitt County)

JUSTIN HASTINGS CHILLO )

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DEFENDANT-APPELLANT’S BRIEF

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ISSUES PRESENTED

I. WHETHER THE INDICTMENT PURPORTING TO CHARGE JUSTIN WAS FATALLY DEFECTIVE BECAUSE IT INSUFFICIENTLY ALLEGED THE IDENTITY OF THE VICTIM AND THE TRIAL COURT DID NOT HAVE JURISDICTION AND COMMITTED ERROR IN NOT DISMISSING THE CHARGE AGAINST JUSTIN IN VIOLATION OF HIS STATE AND FEDERAL RIGHTS?

II. WHETHER JUSTIN’S CONVICTION FOR BREAKING AND ENTERING A MOTOR VEHICLE MUST BE VACATED BECAUSE THE EVIDENCE THERE WAS AN INTENT TO COMMIT LARCENY THEREIN WAS INSUFFICIENT AS A MATTER OF LAW AND FACT AND THE TRIAL COURT COMMITTED ERROR IN NOT GRANTING THE MOTIONS TO DISMISS AND SUBMITTING THE CHARGE TO THE JURY IN VIOLATION OF JUSTIN’S STATE AND FEDERAL RIGHTS?

STATEMENT OF THE CASE

On 8 June 2009, the Pitt County Grand Jury issued an indictment charging

Defendant-Appellant Justin Hastings Chillo with breaking and entering a motor

vehicle. (R p. 5) On 27 October 2009, this case came for trial before the Honorable

Clifton W. Everett, Jr., Resident Superior Court Judge presiding, during the 26 July

2009 Criminal Session of the Superior Court of Pitt County. (R p. 1) On 28

October 2009, following jury selection and presentation of evidence, the jury

returned a verdict finding Justin guilty of breaking or entering a motor vehicle. (R

p. 29; T p. 110) On that same date, Judge Everett entered judgment. Justin was

sentenced to a term of 6 to 8 months’ imprisonment. (T pp. 121-22) The term was

suspended and Justin was placed on supervised probation for 30 months. (R pp. 34-

37; T pp. 122-24) As a condition of probation, Justin was ordered to serve an

active term of 60 days in the custody of the Sheriff of Pitt County. (R p. 36; T pp.

122, 124-25) On that same date in open court, Justin entered notice of appeal. (T p.

124) On that same date, Justin was taken into custody. (R pp. 46-47; T p. 124) On

10 November 2009, Justin filed a motion for appropriate relief requesting his

immediate release from custody pending the resolution of his appeal. (R pp. 41-43)

On that same date, the Honorable W. Russell Duke, Jr., Senior Resident Superior

Court Judge presiding, granted Justin’s motion for appropriate relief, and ordered

Justin’s release from custody upon the execution of a $5,000 unsecured bond. (R

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pp. 44-49) The record on appeal was filed in the Court of Appeals on 24 May

2010, docketed on 28 May 2010, and mailed to the parties on 2 June 2010.

STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW

Defendant appeals pursuant to N.C. Gen. Stat. §§ 7A-27(b) and 15A-1444(a)

from a final judgment of the Pitt County Superior Court.

STATEMENT OF THE FACTS

The evidence presented at the trial by the State tended to show that on

Ansley Stroud was a Rite-Aid pharmacist. (T p. 42) Rite-Aid provided her with a

2007 Dodge Caravan. (T pp. 42-44) The Caravan was owned by D.L. Peterson

Trust. (T pp. 43, 47) On 6 and 7 December 2008, Ms. Stroud was away, and had

left the Caravan in front of her father-in-law’s house at 606 Queen Annes Road in

Lynndale. (T pp. 42, 44, 46) The Caravan contained the registration card, some

CDs, and property of Rite-Aid. (T pp. 45-46)

On 6 December, about 10:00 p.m., then 20-year-old Defendant-Appellate

Justin Hastings Chillo telephoned then 18-year-old Cameron Moser. (T pp. 50, 52-

53) They made plans to hang out with some girls. (T p. 53) At about 1:00 a.m.,

Justin picked Cameron up in Bethel. (T pp. 53-54) Justin drove them to Greenville

in a red Geo. (T pp. 54-55) About 1:30 a.m., they went to Walmart to get a spark

plug. (T p. 55) Cameron did not see Justin pay for the spark plug he got. (T p. 56)

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They drove to the neighborhood of Lynndale. (T p. 56) Justin got out of the

Geo and used a blunt object to break the spark plug into two pieces. (T p. 57) With

Cameron still in the car, Justin drove the Geo up the street. (T pp. 57-58) Around

1:45 a.m., Justin stopped, got out of the Geo, and hit the passenger side window of

the Caravan with the broken spark plug. (T pp. 57-59) The spark plug bounced off

the window. (T pp. 57-58) Justin hit the window again with the spark plug, and the

window shattered. (T pp. 57-58) Justin and Cameron then drove away. (T p. 59)

The boys later went to a gas station in Grimesland, and parked across the

street. (T p. 63) Justin got gas in gas cans. (T p. 63)

Greenville Police Department Officer Scott Lascallette was dispatched to

meet with someone who had found a van with a broken window at 606 Queen

Annes Road at 2:30 a.m. (T pp.71-73) Officer Lascallette woke up everyone at 606

Queen Annes Road. (T p. 73) Ms. Stroud’s father-in-law called her. (T p. 45)

The Defense presented no evidence.

Additional facts are presented as they are relevant to the arguments below.

ARGUMENT

I. THE INDICTMENT PURPORTING TO CHARGE JUSTIN WAS FATALLY DEFECTIVE BECAUSE IT INSUFFICIENTLY ALLEGED THE IDENTITY OF THE VICTIM AND THE TRIAL COURT DID NOT HAVE JURISDICTION AND COMMITTED ERROR IN NOT DISMISSING THE CHARGE AGAINST JUSTIN IN VIOLATION OF HIS STATE AND FEDERAL RIGHTS.

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ISSUES ON APPEAL Nos. 1, 2, 3R p. 53

A. Statement of Standard of Review.

The insufficiency of an indictment is reviewed de novo. State v. Marshall

188 N.C. App. 744, 748, 656 S.E.2d 709, 712, disc. review denied, 362 N.C. 368,

661 S.E.2d 890 (2008). Under a de novo standard of review, the reviewing court

considers the matter anew and freely substitutes its own judgment for that of the

lower court. N.C. Dep’t of Env’t & Natural Res. v. Carroll, 358 N.C. 649, 660, 599

S.E.2d 888, 895 (2004).

Even though there was no specific objection to the sufficiency of the

indictment at trial, "when an indictment is alleged to be facially invalid, thereby

depriving the trial court of its jurisdiction, it may be challenged at any time,

notwithstanding a defendant's failure to contest its validity in the trial court." State

v. Call, 353 N.C. 400, 429, 545 S.E.2d 190, 208, cert. denied, 534 U.S. 1046, 151

L.Ed.2d 548 (2001); N.C. Gen. Stat. § 15A-1446(d)(1) and (4) (errors based on the

trial court’s lack of jurisdiction or the failure of the pleading to state essential

elements are “subject to appellate review even though no objection, exception or

motion has been made in the trial division”). Therefore, this challenge to the trial

court’s jurisdiction can be properly raised on appeal.

B. Analysis.

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The elements that the State must prove to support a conviction for breaking

into a motor vehicle are that there was “1) a breaking or entering 2) without

consent 3) into any motor vehicle 4) containing goods, freight, or anything of value

5) with the intent to commit any felony or larceny therein.” State v. Riggs, 100

N.C. App. 149, 155, 394 S.E.2d 670, 673 (1990), disc. review denied, 328 N.C. 96,

402 S.E.2d 425 (1991); N.C. Gen. Stat. § 14-56. It is “an essential element of the

felony of breaking or entering a motor vehicle – that the breaking or entering was

without the consent of the owner.” State v. Jacobs, ____ N.C. App. ___, ___, 688

S.E.2d 112, 113 (No. COA09-762) (filed 2 Feb. 2010). Sufficient proof of

ownership and lack of consent are “intertwined.” Id. The owner of the motor

vehicle is the one with the authority to consent.

The indictment charged that Mr. Chillo “did break and enter a motor vehicle,

a 2007 Dodge Caravan, the personal property of D. L. Peterson Trust, which

contained things of value, with the intent to commit larceny therein, in violation of

G.S. 14-56.” (R p. 5) The State had to prove that D.L. Peterson Trust was the

owner of the Dodge Caravan. D.L. Peterson Trust, however, is not a legal entity

capable of owning property.

“A valid indictment is a predicate for jurisdiction.” State v. Williams, 153

N.C. App. 192, 194, 568 S.E.2d 890, 892 (2002), disc. review improv. allowed, 357

N.C. 45, 577 S.E.2d 618 (2003). A criminal pleading must “assert[] facts

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

thereof with sufficient precision clearly to apprise the defendant or defendants of

the conduct which is the subject of the accusation.” N.C. Gen Stat. § 15A-924(a)

(5); see also United States v. Davis, 184 F.3d 366, 371 n.5 (4th Cir. 1999) (“An

indictment [ ] must contain all of the elements of the charged offenses and fairly

inform a defendant of the charges against him.”). This right to notice of the

elements of the offense charged in guaranteed under the due process clause of the

Fourteenth Amendment. “No principle of procedural due process is more clearly

established than [the requirement of] notice of the specific charge” against a

defendant. Cole v. Arkansas, 333 U.S. 196, 201, 92 L. Ed. 644, 647 (1948);

Hodgson v. Vermont, 168 U.S. 262, 269, 42 L. Ed. 461, 463 (1897) (criminal

pleading must satisfy the criminal defendant’s right to notice of the charges against

him). This right to notice is also guaranteed under the Sixth Amendment right of a

criminal defendant to “be informed of the nature and cause of the accusation”

against him. Herring v. United States, 422 U.S. 853, 857 fn.6, 457 L. Ed. 2d 593

(1975).

“Where an indictment charges the defendant with a crime against someone

other than the actual victim, such a variance is fatal.” State v. Abraham, 338 N.C.

315, 340, 451 S.E.2d 131, 144 (1994). When the owner of the subject property is a

corporation rather than a natural person, “‘the name of the corporation should be

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given, and the fact that it is a corporation stated, unless the name itself imports

a corporation.’” State v. Thornton, 251 N.C. 658, 662, 111 S.E.2d 901, 903 (1960)

(quoting Nickles v. State, 88 Ga. App. 290, 71 S.E.2d 578 (1952)). “The name of a

corporation must contain the word ‘corporation’, ‘incorporated’, ‘company’, or

‘limited, or the abbreviation ‘corp.’, inc.’, ‘co.’, or ‘ltd.’” N.C. Gen. Stat. § 55D-20

(a)(1).

There is a long line of North Carolina cases holding that an indictment was

defective because the victim’s identity was not properly alleged. E.g., State v.

Thornton, supra, 251 N.C. at 662, 111 S.E.2d at 904 (indictment alleging

defendant embezzled from "The Chuck Wagon" fatally defective for failing to

allege fact victim was corporation since name itself did not import a corporation);

State v. Woody, 132 N.C. App. 788, 791, 513 S.E.2d 801, 803 (1999) (“Unlimited”

is not a term capable of notifying a criminal defendant either directly or by clear

import that the victim is a legal entity capable of holding property); State v.

Roberts, 14 N.C. App. 648, 649, 188 S.E.2d 610, 611-12 (1972) (indictment for

larceny from "Ken's Quickie Mart" insufficient); State v. Thompson, 6 N.C. App.

64, 169 S.E.2d 241 (1969) (indictment alleging defendant committed larceny of

property owned by "Belk's Department Store" fatally defective).

So too, in the instant case, “D.L. Peterson Trust” was not an entity capable

of owning property. “D.L. Peterson Trust” is not the legal name of a company

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registered to do business in North Carolina.1 The indictment did not contain the

word corporation, incorporated, company or limited, nor did it contain the

abbreviation corp., inc., co., or ltd. The indictment did not otherwise allege that

“D.L. Peterson Trust” was an entity capable of owning property. If there is no

entity capable of owning property, there is no entity with the authority to grant or

deny consent. If there is no legal entity capable of owning property, the State

cannot prove lack of consent. If there is no lack of consent, there can be no crime

of breaking and entering into a motor vehicle. Without a proper victim, the

indictment was defective.

At the close of evidence, the trial judge denied Justin’s motion to dismiss the

charge of breaking and entering into a motor vehicle. (T pp. 77-81; see Appendix)

After the jury returned a guilty verdict, Justin’s renewed motion to dismiss was

denied. (T p. 115; see Appendix)The State’s evidence showed that “D.L. Peterson

Trust” provides cars to Rite-Aid, and that Rite-Aid provided the Caravan to Ansley 1 According to an on-line search of the public records of the North Carolina Department of the Secretary of State, there is no past, current or planned entity registered to do business in North Carolina with the corporate name “D.L. Peterson Trust.” http://www.secretary.state.nc.us/corporations/searchresults.aspx?onlyactive=OFF&Words=ANY&searchstr=peterson (see Appendix). This Court can take judicial notice of this readily accessible record. See, e.g., W.R. Company v. Property Tax Comm., 48 N.C. App. 245, 261, 269 S.E.2d 636, 645 (1980) (corporate charter is public document on file with the Secretary of State), disc. review denied, 301 N.C. 727, 276 S.E.2d 287 (1981); Bowser v. Wescott, 145 N.C. 56, 58 S.E.2 748 (1907) (judicial notice taken of reports of Secretary of State); Stanton v. Railroad, 144 N.C. 135, 56 S.E. 794 (1907) (reports of Corporation Commission of North Carolina are matters of public record, of which courts therein will take judicial notice); Cf. State v. Cave, 174 N.C. App. 580, 582 fn2, 621 S.E.2d 299, 301 fn2 (2005) (State’s motion to take judicial notice of Certificate of Existence issued by Secretary of State’s office for company authorized to own property and transact business in North Carolina improvidently granted).

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Stroud to drive. (T pp. 43, 46-48; see Appendix) Because Ms. Stroud was not the

owner of the Caravan, the argument for the motion to dismiss alluded to the

insufficiency of evidence of lack of consent. (T p. 78; see Appendix) Similarly,

during closing arguments, defense counsel argued there was no evidence on the

element of consent because: “The owner of that car technically is the leasing

company, maybe even – you can even probably make the argument that it’s the –

it’s Rite-Aid who leases the car. Didn’t hear from Rite-Aid. Didn’t hear from the

trust.” (T p.93; see Appendix)

The trial court ruled that Ms. Stroud had the authority to deny consent

because of her possession of the Caravan. (T p. 78; see Appendix) The State

argued to the jury that Ms. Stroud was the owner of the Caravan. (T p. 89; see

Appendix) In charging the jury, the trial court instructed that the State had to prove

that the owner did not consent. (R p. 25; T p. 106) The trial court did not identify

the owner.

The State was required to present proof that the owner of the Caravan did

not grant consent to break and enter. The indictment alleged that “D.L. Peterson

Trust” was the owner of the Caravan. “D.L. Peterson Trust” is not an entity

capable of owning property. “D.L. Peterson Trust” is not an entity capable of

granting or denying consent.

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Because the indictment did not properly identify the victim, Justin was not

properly charged with committing an offense against that victim. Because the

indictment was defective, the trial court had no jurisdiction to try Justin for

breaking and entering into a motor vehicle. As the trial court did not have

jurisdiction, it was error for the trial court not to grant Justin’s motion to dismiss.

Justin’s conviction and sentence for breaking and entering into a motor vehicle

must be vacated.

II. JUSTIN’S CONVICTION FOR BREAKING AND ENTERING A MOTOR VEHICLE MUST BE VACATED BECAUSE THE EVIDENCE THERE WAS AN INTENT TO COMMIT LARCENY THEREIN WAS INSUFFICIENT AS A MATTER OF LAW AND FACT AND THE TRIAL COURT COMMITTED ERROR IN NOT GRANTING THE MOTIONS TO DISMISS AND SUBMITTING THE CHARGE TO THE JURY IN VIOLATION OF JUSTIN’S STATE AND FEDERAL RIGHTS.

ISSUE ON APPEAL Nos. 2, 3R p. 53

A. Statement of Standard of Review.

In ruling upon a motion to dismiss, the trial court must examine the evidence

in the light most favorable to the State, giving the State the benefit of all

reasonable inferences which may be drawn from the evidence. State v. Kemmerlin,

356 N.C. 446, 573 S.E.2d 870 (2002). The trial court determines whether there is

substantial evidence of each essential element of the offense charged and of the

defendant being the perpetrator of the offense. Id. at 473, 573 S.E.2d at 889.

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Substantial evidence is relevant evidence that a reasonable mind might accept as

adequate to support a conclusion. Id. Whether the evidence presented was

substantial is a matter of law. State v. Nettles, 170 N.C. App. 100, 103, 612 S.E.2d

172, 174, disc. review denied, 359 N.C. 640, 617 S.E.2d 286 (2005). Questions of

law are reviewed de novo. Staton v. Brame, 136 N.C. App. 170, 174, 523 S.E.2d

424, 427 (1999). This Court considers the matter anew and freely substitutes its

own judgment for that of the lower court. N.C. Dep’t of Env’t & Natural Res. v.

Carroll, supra, 358 N.C. at 660, 599 S.E.2d at 895.

B. Analysis.

The elements that the State must prove to support a conviction for breaking

into a motor vehicle are that there was “1) a breaking or entering 2) without

consent 3) into any motor vehicle 4) containing goods, freight, or anything of value

5) with the intent to commit any felony or larceny therein.” State v. Riggs, supra,

100 N.C. App. at 155, 394 S.E.2d at 673; N.C. Gen. Stat. § 14-56. As to the fifth

element, Justin Chillo was specifically charged with the intent to commit larceny.

(R p. 5) Justin’s motion at the close of evidence to dismiss the charge of breaking

and entering into a motor vehicle was denied. (T p. 77-81; see Appendix) After the

jury returned a guilty verdict, Justin’s renewed motion to dismiss was denied. (T p.

115; see Appendix)The motions to dismiss were based in part on there not being

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substantial evidence that Justin intended to commit larceny. (T pp. 78-81) It was

error for these motions to be denied and for the charge to be submitted to the jury.

“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. Wilson, 154 N.C. App. 686, 690,

573 S.E.2d 193, 196 (2002). The State failed to present evidence that Justin

intended to commit larceny. In fact, the State’s evidence tended to negate the intent

to commit larceny. “We know of no decision of this Court upholding a conviction

under G.S. 14-54 for larceny, where all the State's evidence tended to negative the

intent to commit the crime charged, as it does here.” State v. Cook, 242 N.C. 700,

703, 89 S.E.2d 383, 385 (1955).

It is true that: “Intent is a mental attitude seldom provable by direct

evidence. It must ordinarily be proved by circumstances from which it may be

inferred.” State v. Bell, 285 N.C. 746, 750, 208 S.E.2d 506, 508 (1974), overruled

in part on other grounds by State v. Collins, 334 N.C. 54, 431 S.E.2d 188 (1993).

For example, “the intent to commit larceny may be inferred from the fact that

defendant committed larceny." State v. Thompkins, 83 N.C. App. 42, 43, 348

S.E.2d 605, 606 (1986).

In the case sub judice, there was no larceny. There was no evidence of any

intent to take the property of another, let alone to permanently deprive anyone of

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their property. According to the State’s witness Cameron Moser, the only intent

was “to break glass.” (T p. 55; see Appendix) After the Caravan window was

broken, the objective had been achieved, and the two boys “just left.” (T p. 59; see

Appendix) According to Officer Lascallette “nothing was out of sorts [in the

Caravan]. Usually when a car’s been broke into, the glove compartments are pulled

open and they don’t take the time to put anything back together. So – but

everything looked in order.” (T p. 74; see Appendix) According to Ansley Stroud,

nothing was taken out of the Caravan. (T p. 47; see Appendix)

After Cameron’s testimony that the only intent had been to break glass, the

State knew it had not presented substantial evidence of an intent to commit

larceny. The State therefore attempted to admit evidence of other wrongs. The

evidence was ruled irrelevant and rejected. (T pp. 59-62; see Appendix) Still

lacking substantial evidence of an intent to commit larceny, the State argued to the

jury that:

The issue you’re going to have to decide is why was the defendant there at 2:00 a.m. in that neighborhood breaking out windows. You’re going have to decide what he was trying to do, what was his intent.

* * * *

At 2:00 a.m. after busting out a window on Queen Annes, what do you intend that he was going to do? He was going to take something out of it. That’s what people do. That’s the fifth element of this crime.

* * * *

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At 2:00 a.m. in a neighborhood where you don’t live after busting out a window to a car you do not own, what was he going to do? There were things in there.

* * * *

Think about what was going on – if a dog barked, if a light flicked on, they saw some headlights. That’s why they didn’t go in there.

(T pp. 89, 91; see Appendix)

There were things in the Caravan, but there is no evidence that Justin could

see any of those things. Cameron testified there were no streetlights on Queen

Annes Road and it was dark. (T p. 59; see Appendix) There is no evidence that

something external stopped Justin from taking anything from the Caravan. There

was no dog bark. There was no light flicked on. There were no headlights. There

was no notice taken by anyone that the window was broken until about 45 minutes

after the window was broken. (T pp. 59, 73; see Appendix) No one other than the

man who reported seeing the broken window 45 minutes later was around. (T p.

75; see Appendix) No one at 606 Queen Annes Road was aware the window was

broken until Officer Lascallette “woke everybody up.” (T p. 73; see Appendix)

What stopped Justin from taking anything from the Caravan was the lack of intent

to take anything from the Caravan. The intent was to break a window. The window

was broken. The intent was achieved, and the boys left.

The State also argued to the jury that intent the intent to commit larceny

could be inferred from later parking the Geo across the street from the gas station.

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(T p. 91; see Appendix) Some unknown time after breaking the Caravan window,

the boys went to a gas station in Grimesland. (T p. 63; see Appendix) Justin got

gas in gas cans. (T p. 63; see Appendix) Justin did not give Cameron a reason for

parking across the street. (T pp. 63-64; see Appendix) Cameron testified that it was

his opinion that Justin did not want the car on videotape. (T pp. 63-64; see

Appendix) There was no evidence that there was a reason to conceal the Geo.

There was no evidence that the police or anyone else was looking for the Geo.

Other than Cameron’s opinion, there was no evidence of an attempt to conceal the

Geo. Indeed, according to Cameron, the Geo was being driven all around and not

hidden. There was no allegation that it was illegal to get gas in gas cans. There was

no allegation that the gas was stolen. If there were videotapes could have captured

the Geo, they would have captured Justin buying the gas. There is nothing evasive

about going to the gas station on foot versus in a car. Intent to commit larceny at

1:45 a.m. cannot be inferred because sometime later in the night gas was

purchased.

The State’s attempt to turning breaking a window at 1:45 a.m. into an intent

to commit larceny is analogous to the argument “that people do not usually enter

the dwellings of others in the night time, when the inmates are asleep, with

innocent intent. The most usual intent is to steal, and when there is no explanation

or evidence of a different intent, the ordinary mind will infer this also.” State v.

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McBryde, 97 N.C. 393, 396, 1 S.E. 925, 927 (1887). This inference of an intent to

steal applies only when there is no explanation or evidence of a different intent.

In the case sub judice, there was no need to make presumptions or divine

intent. There was actual evidence of an intent different from one to commit

larceny. The State’s witness Cameron testified that the intent was to break glass.

Cameron further testified that they moved on once the goal of break glass had been

achieved.

It was error for the motions to dismiss the charge of breaking and entering

into a motor vehicle to be denied. There was not substantial evidence of the

essential element of an intent to commit larceny. Justin’s conviction and sentence

for breaking and entering a motor vehicle should be vacated.

CONCLUSION

For all the foregoing reasons, Justin respectfully contends his conviction and

sentence must be vacated.

Respectfully submitted this the 2nd day of July 2010.

By electronic submissionAnne BleymanAttorney for Defendant-Appellant1818 Martin Luther King, Jr. Blvd.,Suite 146Chapel Hill, North Carolina 27514-7415(919) 593-0782N.C. State Bar No. 20860ABTigerLaw@earthlink.net

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CERTIFICATE OF COMPLIANCE WITH N.C.R. APP. P. 28(j)(2)(A)(2)

The undersigned hereby certifies that this Defendant-Appellant’s Brief is in compliance with Rule 28(j)(2)(A)(2) of the North Carolina Rules of Appellate Procedure in that it is printed in 14 point Times New Roman font and contains no more than 8,750 words in the body of the Brief, footnotes and citations included, as indicated by the word-processing program used to prepare the Brief.

This the 2nd day of July 2010.

By electronic submissionAnne BleymanAttorney for Defendant-Appellant

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CERTIFICATE OF FILING AND SERVICE

The undersigned hereby certifies that the original Defendant-Appellant’s Brief has been filed pursuant to Rule 26(a)(2) of the North Carolina Rules of Appellate Procedure by electronic means with the Clerk of the North Carolina Court of Appeals.

The undersigned further certifies that the foregoing Defendant-Appellant’s Brief has been served pursuant to Rule 26(c) of the North Carolina Rules of Appellate Procedure by electronic means upon the following parties:

Ms. Kimberly D. PotterAssistant Attorney GeneralNorth Carolina Department of JusticeEducation SectionPost Office Box 629Raleigh, North Carolina 27602-0629919-716-6920N.C. State Bar No. 24314kpotter@ncdoj.gov

This the 2nd day of July 2010.

By electronic submissionAnne BleymanAttorney for Defendant-Appellant

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Table of Contents for Appendix

Appendix Pages Appearing in brief at

1-4 North Carolina Department of theSecretary of StateOn-line Records Searchhttp://www.secretary.state.nc.us/corporations/searchresults.aspx?onlyactive=OFF&Words=ANY&searchstr=peterson 9 fn. 1

5-7 Direct Examination Testimony ofAnsley Stroud(T pp. 43, 46-47) 9-10, 14

8 Cross Examination Testimony ofAnsley Stroud(T p. 48) 8-10

9-11 Direct Examination Testimony ofCameron Moser(T pp. 55, 58-59) 14-15

12-14 Bench Conference (T pp. 60-62) 14

15-16 Direct Examination Testimony ofCameron Moser(T pp. 63-64) 16

17-20 Direct Examination Testimony ofScott Lascallette(T pp. 72-75) 14-15

21-25 Arguments and Ruling onMotion to Dismiss (T pp. 77-81) 9-10, 12-13

26-29 Closing Arguments by State (T pp. 88-91) 10, 14-16

30-31 Closing Arguments by Defendant (T pp. 92-93) 10

32 Arguments and Ruling onRenewed Motion to Dismiss (T p. 115) 9, 12

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1