{ "id": 4181110, "name": "STATE OF NORTH CAROLINA v. JUSTIN HASTINGS CHILLO", "name_abbreviation": "State v. Chillo", "decision_date": "2010-12-21", "docket_number": "No. COA10-622", "first_page": "541", "last_page": "549", "citations": [ { "type": "official", "cite": "208 N.C. App. 541" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "666 S.E.2d 648", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641904, 12641905, 12641903 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/666/0648-02", "/se2d/666/0648-03", "/se2d/666/0648-01" ] }, { "cite": "362 N.C. 475", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12641905, 12641908, 12641902, 12641903 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/666/0648-03", "/se2d/666/0650-02", "/se2d/666/0647-03", "/se2d/666/0648-01" ] }, { "cite": "660 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640923 ], "pin_cites": [ { "page": "572" } ], "opinion_index": 0, "case_paths": [ "/se2d/660/0566-01" ] }, { "cite": "644 S.E.2d 615", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638420 ], "year": 2007, "pin_cites": [ { "page": "621", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/644/0615-01" ] }, { "cite": "613 S.E.2d 60", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633044 ], "year": 2005, "pin_cites": [ { "page": "62", "parenthetical": "holding that the words \"City of Asheville Transit and Parking Services\" do not indicate a legal entity capable of owning property \"because the additional words after 'City of Asheville' make it questionable what type of organization it is\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/613/0060-01" ] }, { "cite": "661 S.E.2d 890", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641224, 12641222, 12641223 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/661/0890-03", "/se2d/661/0890-01", "/se2d/661/0890-02" ] }, { "cite": "362 N.C. 368", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12641530 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/663/0433-02" ] }, { "cite": "656 S.E.2d 709", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640373 ], "pin_cites": [ { "page": "712" } ], "opinion_index": 0, "case_paths": [ "/se2d/656/0709-01" ] }, { "cite": "190 N.C. App. 102", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4158934 ], "pin_cites": [ { "page": "109-10" } ], "opinion_index": 0, "case_paths": [ "/nc-app/190/0102-01" ] }, { "cite": "348 S.E.2d 605", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "606", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "83 N.C. App. 42", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8357968 ], "year": 1986, "pin_cites": [ { "page": "43", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/83/0042-01" ] }, { "cite": "431 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "334 N.C. 54", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529763 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0054-01" ] }, { "cite": "208 S.E.2d 506", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "508", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "285 N.C. 746", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569924 ], "year": 1974, "pin_cites": [ { "page": "750", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0746-01" ] }, { "cite": "573 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "196", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 686", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251735 ], "year": 2002, "pin_cites": [ { "page": "690", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0686-01" ] }, { "cite": "546 S.E.2d 394", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "353 N.C. 279", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135802, 135759, 135846, 135958 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/353/0279-02", "/nc/353/0279-03", "/nc/353/0279-01", "/nc/353/0279-04" ] }, { "cite": "474 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "388", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "344 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867692 ], "year": 1996, "pin_cites": [ { "page": "222", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0198-01" ] }, { "cite": "402 S.E.2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 96", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2541896, 2540272, 2542224, 2537594, 2541503 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0096-01", "/nc/328/0096-02", "/nc/328/0096-03", "/nc/328/0096-04", "/nc/328/0096-05" ] }, { "cite": "394 S.E.2d 670", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "673" }, { "page": "673" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 149", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526421 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "155" }, { "page": "155" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0149-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-56", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "opinion_index": 0 }, { "cite": "103 S.E.2d 694", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1958, "pin_cites": [ { "page": "696", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "248 N.C. 342", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623030 ], "year": 1958, "pin_cites": [ { "page": "344-45", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/248/0342-01" ] }, { "cite": "678 S.E.2d 592", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2009, "pin_cites": [ { "page": "594", "parenthetical": "internal citations and quotation marks omitted" }, { "page": "594" } ], "opinion_index": 0 }, { "cite": "363 N.C. 96", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150522 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "98-99", "parenthetical": "internal citations and quotation marks omitted" }, { "page": "98" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0096-01" ] }, { "cite": "183 N.C. App. 514", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8204534 ], "year": 2007, "pin_cites": [ { "page": "523", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/183/0514-01" ] }, { "cite": "170 N.C. App. 672", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9006560 ], "year": 2005, "pin_cites": [ { "page": "674", "parenthetical": "holding that the words \"City of Asheville Transit and Parking Services\" do not indicate a legal entity capable of owning property \"because the additional words after 'City of Asheville' make it questionable what type of organization it is\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/170/0672-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 160-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(4)" }, { "page": "74" } ], "opinion_index": 0 }, { "cite": "173 S.E.2d 642", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1970, "pin_cites": [ { "page": "642" }, { "page": "643" }, { "page": "643", "parenthetical": "citation omitted" }, { "page": "643" } ], "opinion_index": 0 }, { "cite": "8 N.C. App. 73", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549088 ], "weight": 2, "year": 1970, "pin_cites": [ { "page": "74-75" } ], "opinion_index": 0, "case_paths": [ "/nc-app/8/0073-01" ] }, { "cite": "592 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "273", "parenthetical": "quoting Woody, 132 N.C. App. at 790, 513 S.E.2d at 803" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 719", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8920012 ], "year": 2004, "pin_cites": [ { "page": "721", "parenthetical": "quoting Woody, 132 N.C. App. at 790, 513 S.E.2d at 803" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0719-01" ] }, { "cite": "513 S.E.2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1999, "pin_cites": [ { "page": "803" }, { "page": "803" }, { "page": "803" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 788", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240619 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "790" }, { "page": "790" }, { "page": "791" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0788-01" ] }, { "cite": "167 S.E.2d 775", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "777", "parenthetical": "internal citations and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "275 N.C. 378", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558809 ], "year": 1969, "pin_cites": [ { "page": "381-82", "parenthetical": "internal citations and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/275/0378-01" ] }, { "cite": "283 S.E.2d 719", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "729-30" } ], "opinion_index": 0 }, { "cite": "304 N.C. 293", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567490 ], "year": 1981, "pin_cites": [ { "page": "308" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0293-01" ] }, { "cite": "188 N.C. App. 744", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4155277 ], "pin_cites": [ { "page": "748" } ], "opinion_index": 0, "case_paths": [ "/nc-app/188/0744-01" ] } ], "analysis": { "cardinality": 861, "char_count": 18891, "ocr_confidence": 0.726, "pagerank": { "raw": 1.2720309968956914e-07, "percentile": 0.6149951213371899 }, "sha256": "d92bd6e6cf57c9985906ab3240300a2dd98642c0819868b608c2120da243f7fd", "simhash": "1:8b8b6c3e903e0c4a", "word_count": 3099 }, "last_updated": "2023-07-14T21:19:36.775795+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and ELMORE concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JUSTIN HASTINGS CHILLO" ], "opinions": [ { "text": "JACKSON, Judge.\nJustin Hastings Chillo (\u201cdefendant\u201d) appeals his 28 October 2009 conviction of breaking or entering a motor vehicle. For the reasons set forth below, we reverse.\nOn 6 December 2008 at approximately 1:00 a.m., defendant picked up his friend, Cameron Moser (\u201cMoser\u201d), from Moser\u2019s mother\u2019s residence in Bethel, North Carolina. Moser understood that they would be \u201changing out\u201d with two girls that night. Defendant drove them to Walmart in Greenville, North Carolina, and, according to Moser, defendant stole a spark plug from Walmart\u2019s hardware department at approximately 1:30 a.m.\nAfter leaving Walmart, defendant drove to the Lynndale neighborhood in Greenville, where defendant \u201cdrove around the neighborhood for a little bit . . . .\u201d While in Lynndale, defendant parked and exited his vehicle and used a blunt object to break the spark plug into two pieces. According to Moser, defendant then drove up the street, stopped, again exited his vehicle, and threw the spark plug at the passenger side window of a 2007 Dodge Caravan parked on the side of the road. The spark plug bounced off the window; however, upon throwing it a second time, defendant broke the Caravan\u2019s window. After the window was broken, defendant got back into his car, and he and Moser \u201cjust left.\u201d\nUpon leaving Lynndale, defendant drove Moser through the Brook Valley neighborhood. Defendant indicated to Moser that he had been in Brook Valley earlier and \u201cwent into a car... or something like that\u201d during his previous trip.\nBefore taking Moser home, defendant stopped at a gas station to get gas. According to Moser, defendant parked across the street and got his gas using gas cans. Moser testified that defendant did this \u201c[s]o he wouldn\u2019t get the car on videotape.\u201d\nThe Caravan at issue was in the possession of Ansley Stroud (\u201cStroud\u201d). Stroud\u2019s employer, Rite-Aid Pharmacy, provided her with this vehicle to use in her job as a pharmacy district manager. The Caravan is owned by and registered to D.L. Peterson Trust. Officer Scott Lascallette (\u201cOfficer Lascallette\u201d) testified that, upon examining the vehicle after the window was broken, \u201cnothing was out of sorts in [the Caravan] .... [Everything looked in order.\u201d\nOn 8 June 2009, the Pitt County Grand Jury issued an indictment charging defendant with felonious breaking and entering a motor vehicle. On 28 October 2009, a jury returned a verdict finding defendant guilty of breaking or entering a motor vehicle. The trial court sentenced defendant to a term of six to eight months imprisonment. However, the term was suspended, and defendant was placed on supervised probation for thirty months. Defendant appeals from his conviction.\nOn appeal, defendant first argues that the trial court erred when it entered judgment on the charge of breaking and entering a motor vehicle because the underlying indictment was fatally defective. In relevant part, the indictment alleged that \u201cthe defendant. . . unlawfully, willfully and feloniously did break and enter a motor vehicle, a 2007 Dodge Caravan, the personal property of D.L. Peterson Trust....\u201d Defendant argues that the indictment was fatally defective because it failed to allege that the victim was a legal entity capable of owning property. We disagree.\nOur review of whether the indictment was fatally defective is de novo. State v. Marshall, 188 N.C. App. 744, 748, 656 S.E.2d 709, 712 (citing State v. Sturdivant, 304 N.C. 293, 308, 283 S.E.2d 719, 729-30 (1981)), disc. rev. denied, 362 N.C. 368, 661 S.E.2d 890 (2008). Furthermore, our Supreme Court has held that\n[a] bill of indictment is insufficient to confer jurisdiction unless it charges all essential elements of a criminal offense. (W)here no crime is charged in the warrant or bill of indictment upon which the defendant has been tried and convicted the judgment must be arrested.\nA charge in a bill of indictment must be complete in itself, and contain all of the material allegations which constitute the offense charged. . . .\nState v. Benton, 275 N.C. 378, 381-82, 167 S.E.2d 775, 777 (1969) (internal citations and quotation marks omitted) (second alteration in original).\n\u201cBecause the State is required to prove ownership, a proper indictment must identify as victim a legal entity capable of owning property. An indictment that insufficiently alleges the identity of the victim is fatally defective and cannot support [the] conviction . . . .\u201d State v. Woody, 132 N.C. App. 788, 790, 513 S.E.2d 801, 803 (1999). \u201cIf the entity named in the indictment is not a person, it must be alleged \u2018that the victim was a legal entity capable of owning property[.]\u2019 \u201d State v. Phillips, 162 N.C. App. 719, 721, 592 S.E.2d 272, 273 (2004) (quoting Woody, 132 N.C. App. at 790, 513 S.E.2d at 803).\nIn State v. Turner, 8 N.C. App. 73, 173 S.E.2d 642 (1970), the defendant alleged that an indictment for larceny, listing \u201cCity of Hendersonville\u201d as the owner of stolen property, was fatally defective because \u201cit fail[ed] to allege that the owner of the property allegedly stolen is either a natural person or a legal entity capable of owning property.\u201d Id. at 74, 173 S.E.2d at 642. We held that the \u201cCity of Hendersonville\u201d denotes a \u201cmunicipal corporate entity],]\u201d capable of owning personal property. Id. at 75, 173 S.E.2d at 643. To support our holding, we noted that North Carolina General Statutes, section 160-2(4) provides that \u201c[municipal corporations are expressly authorized to purchase and hold personal property.\u201d Id. at 75, 173 S.E.2d at 643 (citing N.C. Gen. Stat. \u00a7 160-2(4)). As such, we held that the indictment was proper because \u201c]i]t is well established that judicial notice will be taken of [the] laws of this State].]\u201d Id. at 74, 173 S.E.2d at 643 (citation omitted).\nIn the case sub judice, the indictment states that \u201cthe defendant . . . unlawfully, willfully and feloniously did break and enter a motor vehicle . . . the personal property of D.L. Peterson Trust . . . .\u201d The express language of the indictment clearly indicates that the entity in question is a trust. But cf. State v. Price, 170 N.C. App. 672, 674, 613 S.E.2d 60, 62 (2005) (holding that the words \u201cCity of Asheville Transit and Parking Services\u201d do not indicate a legal entity capable of owning property \u201cbecause the additional words after \u2018City of Asheville\u2019 make it questionable what type of organization it is\u201d). Unlike the indictment in Price, the indictment in the instant case leaves no question that a trust is the legal entity charged with owning the Caravan.\nAs a trust, \u201cD.L. Peterson Trust,\u201d is a legal entity capable of owning property. See, e.g., N.C. Gen. Stat. \u00a7 36C-4-401 (2009) (setting forth a property requirement for the creation of a trust); 2 James B. McLaughlin, Jr. & Richard T. Bowser, Wiggins: Wills and Administration of Estates in North Carolina \u00a7 23:2 (rev. 4th ed. 2005) (explaining that property, the trust res, is a necessary requirement for the creation of a trust). Like \u201cCity of Hendersonville\u201d in Turner, a trust is capable of holding property pursuant to applicable state law. Turner, 8 N.C. App. at 74-75, 173 S.E.2d at 643. The indictment names D.L. Peterson Trust as the owner of the Caravan, and, pursuant to North Carolina law, the word \u201ctrust\u201d is a \u201cterm capable of notifying a criminal defendant either directly or by clear import that the victim is a legal entity capable of holding property.\u201d Woody, 132 N.C. App. at 791, 513 S.E.2d at 803. As such, we hold that the indictment was not fatally defective and that defendant\u2019s argument is without merit.\nNext, defendant argues that his conviction for breaking or entering a motor vehicle must be vacated because there was insufficient evidence to establish his intent to commit larceny. We agree.\nWe review the denial of a motion to dismiss de novo. See State v. Bagley, 183 N.C. App. 514, 523, 644 S.E.2d 615, 621 (2007) (citations omitted). Our Supreme Court has set forth the standards governing our review of motions to dismiss:\nWhen ruling on a motion to dismiss for insufficient evidence, the trial court must consider the evidence in the light most favorable to the State, drawing all reasonable inferences in the State\u2019s favor. Any contradictions or conflicts in the evidence are resolved in favor of the State, and evidence unfavorable to the State is not considered. The trial court must decide only whether there is substantial evidence of each essential element of the offense charged and of the defendant[\u2019s] being the perpetrator of the offense. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. When the evidence raises no more than a suspicion of guilt, a motion to dismiss should be granted. However, so long as the evidence supports a reasonable inference of the defendant\u2019s guilt, a motion to dismiss is properly denied even though the evidence also permits a reasonable inference of the defendant\u2019s innocence.\nState v. Miller, 363 N.C. 96, 98-99, 678 S.E.2d 592, 594 (2009) (internal citations and quotation marks omitted). Therefore, \u201c[i]f there is more than a scintilla of competent evidence to support the allegations in the warrant or indictment, it is the court\u2019s duty to submit the case to the jury.\u201d State v. Horner, 248 N.C. 342, 344-45, 103 S.E.2d 694, 696 (1958) (citations omitted).\nNorth Carolina General Statutes, section 14-56 provides:\nIf any person, with intent to commit any felony or larceny therein, breaks or enters any railroad car, motor vehicle, trailer, aircraft, boat, or other watercraft of any kind, containing any goods, wares, freight, or other thing of value, or, after having committed any felony or larceny therein, breaks out of any railroad car, motor vehicle, trailer, aircraft, boat, or other watercraft of any kind containing any goods, wares, freight, or other thing of value, that person is guilty of a Class I felony. It is prima facie evidence that a person entered in violation of this section if he is found unlawfully in such a railroad car, motor vehicle, trailer, aircraft, boat, or other watercraft.\nN.C. Gen. Stat. \u00a7 14-56 (2009). The offense proscribed by the statute contains five essential elements: \u201c1) 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.\u201d State v. Riggs, 100 N.C. App. 149, 155, 394 S.E.2d 670, 673 (1990), disc. rev. denied, 328 N.C. 96, 402 S.E.2d 425 (1991).\nIn the instant case, defendant\u2019s indictment specified that he \u201cfeloniously did break and enter a motor vehicle ... with the intent to commit larceny therein, in violation of G.S. 14-56.\u201d Our Supreme Court has held that \u201cwhen the indictment alleges an intent to commit a particular felony, the State must prove the particular felonious intent alleged.\u201d State v. Wilkinson, 344 N.C. 198, 222, 474 S.E.2d 375, 388 (1996) (citation omitted), cert. denied, 353 N.C. 279, 546 S.E.2d 394 (2000). Therefore, since the State indicted defendant for breaking and entering a motor vehicle based upon the intent to commit larceny therein, the State was required to prove defendant intended to commit larceny upon breaking and entering into the vehicle.\n\u201cThe essential elements of larceny are: (1) taking the property of another; (2) carrying it away; (3) without the property owner\u2019s consent; and (4) with the intent to deprive the owner of the property permanently.\u201d State v. Wilson, 154 N.C. App. 686, 690, 573 S.E.2d 193, 196 (2002) (citations omitted). \u201cIntent is a mental attitude seldom provable by direct evidence. It must ordinarily be proved by circumstances from which it may be inferred.\u201d State v. Bell, 285 N.C. 746, 750, 208 S.E.2d 506, 508 (1974) (citations omitted), overruled in part on other grounds by State v. Collins, 334 N.C. 54, 431 S.E.2d 188 (1993). For example, \u201cthe intent to commit larceny may be inferred from the fact that defendant committed larceny.\u201d State v. Thompkins, 83 N.C. App. 42, 43, 348 S.E.2d 605, 606 (1986) (citation omitted).\nTo prove defendant\u2019s intent to commit larceny, the State relies upon Moser\u2019s testimony that (1) defendant had stolen a spark plug from Walmart; (2) defendant told Moser that \u201che went into a car\u201d in the Brook Valley neighborhood earlier; and (3) defendant parked across the street from a gas station and refueled his vehicle with gas cans \u201c[s]o he wouldn\u2019t get the car on videotape.\u201d However, the State acknowledges that defendant\u2019s stated purpose for obtaining the spark plug was \u201cto show [Moser] how to break glass.\u201d Furthermore, the State acknowledges that once defendant and Moser heard the Caravan\u2019s glass shatter, they \u201cleft the scene.\u201d Once they left, defendant drove through the Brook Valley neighborhood and told Moser that he previously \u201cwent into a car there.\u201d Later, defendant parked across the street from the gas station and used gas cans to refuel his vehicle. Moser testified that, although defendant did not say so, it was Moser\u2019s opinion that defendant did this because he did not want his car to be recorded on videotape. The State contends that defendant\u2019s intent to commit a larceny inside the Caravan properly can be inferred by the foregoing circumstantial evidence.\nAlthough we are bound to review the facts in the light most favorable to the State, see Miller, 363 N.C. at 98, 678 S.E.2d at 594, we do not think defendant\u2019s intent to commit the crime charged can be inferred from the evidence presented. The State\u2019s evidence adduced on direct examination of its witnesses limits the purpose of stealing the spark plug simply to show Moser \u201chow to break glass,\u201d and Moser\u2019s testimony establishes that he and defendant left once they heard the Caravan\u2019s glass break. Furthermore, Officer Lascallette testified that he observed a hole in the middle of the Caravan\u2019s front passenger window, which was perhaps large enough to fit his arm through, but he \u201cdetermined that entrance into the van was probably not made\u201d because he observed that \u201cthe glass had collected on the inside of the door.\u201d He explained that \u201cif the door had been opened, the glass would have spilled out, but that was not the case.\u201d Additionally, Officer Lascallette explained that \u201cnothing was out of sorts in [the Caravan.] Usually, when a car\u2019s been broke [sic] into, the glove compartments are pulled open and they don\u2019t take the time to put anything back together. So--but everything looked in order.\u201d Finally, Stroud testified that, although she had CDs and other personal items in the Caravan, nothing had been taken.\nAlthough Moser testified that defendant claimed that he previously \u201cwent into a car\u201d in the Brook Valley neighborhood, defendant\u2019s assertion with respect to the alleged commission of a different potential violation of North Carolina General Statutes, section 14-56 serves as a point of distinction from the charge at issue in light of (1) Moser\u2019s testimony that defendant\u2019s sole intent with respect to the Caravan was \u201cto show [Moser] how to break glass\u201d with a spark plug, (2) Moser\u2019s testimony that he and defendant left the Caravan upon hearing the glass break, and (3) testimony from Officer Lascallette and Stroud that \u201cnothing was out of sorts\u201d or taken from the Caravan at issue.\nFinally, with respect to Moser\u2019s opinion that defendant parked his car across the street from the gas station to avoid his car\u2019s being recorded by surveillance cameras, we note this action may indicate some acknowledgment of culpability on the part of defendant, but we do not believe that our standard of review contemplates such a liberal reading of the facts so as to divine defendant\u2019s intent to commit a larceny in the Caravan rather than to avoid detection for simply breaking the window.\nThe circumstantial evidence upon which the State relies does not align with instances where such evidence has supported an intent to commit larceny. Cf. e.g., State v. Baskin, 190 N.C. App. 102, 109-10, 660 S.E.2d 566, 572 (holding that the State had presented sufficient evidence to overcome a motion to dismiss upon showing that the defendant shared a common purpose to commit a larceny after breaking and entering a motor vehicle when another man was seen taking a satchel from a truck to the defendant\u2019s vehicle, the defendant hastily drove away, and the satchel soon was thrown from the defendant\u2019s vehicle), disc. rev. denied, 362 N.C. 475, 666 S.E.2d 648 (2008); Riggs, 100 N.C. App. at 155, 394 S.E.2d at 673 (holding that the State had presented evidence sufficient to overcome a motion to dismiss when testimony established that the defendant and his accomplices had been seen walking toward a truck, and, after a loud noise, they emerged carrying boxes of wine, and that the truck\u2019s padlock was discovered to have been broken and the wine to have been taken without authority). As distinguished from those cases in which we held that there was intent to commit larceny, there is no evidence in the instant case showing that defendant fled the scene before being able to complete the crime, and, furthermore, there was nothing missing or \u201cout of sorts in [the Caravan].\u201d\nAs the State failed to meet its burden of proving defendant\u2019s intent to commit the crime of larceny based upon its failure to show that defendant intended to deprive the owner of property permanently, we hold that the trial court erred in denying defendant\u2019s motion to dismiss.\nFor the foregoing reasons, we reverse the conviction for breaking or entering a motor vehicle with intent to commit a larceny.\nReversed.\nJudges HUNTER and ELMORE concur.", "type": "majority", "author": "JACKSON, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Assistant Attorney General Kimberly D. Potter, for the State.", "Anne Bleyman, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JUSTIN HASTINGS CHILLO\nNo. COA10-622\n(Filed 21 December 2010)\n1. Indictment and Information\u2014 sufficiency of indictment\u2014 legal entity capable of owning property \u2014 trusts\nA de novo review revealed that the trial court did not err when it entered judgment on the charge of breaking and entering a motor vehicle even though defendant contended the underlying indictment was fatally defective. The language of the indictment indicated that the victim was a trust, and a trust is a legal entity capable of owning property.\n2. Burglary and Unlawful Breaking or Entering\u2014 breaking and entering motor vehicle \u2014 insufficient evidence of intent to commit larceny\nA de novo review revealed that the trial court erred when it entered judgment on the charge of breaking and entering a motor vehicle. There was insufficient evidence to establish defendant\u2019s intent to commit larceny based upon the State\u2019s failure to show that defendant intended to permanently deprive the owner of property.\nAppeal by defendant from judgment entered 28 October 2009 by Judge Clifton W. Everett, Jr. in Pitt County Superior Court. Heard in the Court of Appeals 3 November 2010.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General Kimberly D. Potter, for the State.\nAnne Bleyman, for defendant-appellant." }, "file_name": "0541-01", "first_page_order": 565, "last_page_order": 573 }