An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1126
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Filed: 6 May 2003


         v.                        Buncombe County
                                No. 01 CRS 58200
                                    01 CRS 6383

    Appeal by defendant from judgment entered 8 May 2002 by Judge James L. Baker, Jr., in Buncombe County Superior Court. Heard in the Court of Appeals 14 April 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Douglas W. Corkhill, for the State.

    Robert W. Ewing for defendant-appellant.

    MARTIN, Judge.

    Defendant was found guilty of felonious breaking or entering and felonious larceny. He pled guilty to habitual felon status. The court consolidated the convictions for judgment and sentenced defendant to a minimum term of 80 months and a maximum term of 105 months.
    The State presented evidence tending to show that Lloyd Goehring Hensley died 19 April 2001; his sister, Julia Ann Hawkins, was appointed administrator of his estate. On 7 July 2001, Ms. Hawkins discovered that a lawn mower was missing from an outbuilding of Mr. Hensley's unoccupied residence located at 399 Emma Road in Asheville. She had not given anybody permission to take the mower. Ms. Hawkins reported the matter to law enforcementofficers.
    On 6 July 2001 Deputy John Joseph Miller, III, of the Buncombe County Sheriff's Department was called to investigate a complaint that a person was living at 12 Goodwill Street in Asheville without the homeowner's permission. Defendant and the homeowner were present at the residence. Among other things, defendant was in possession of a lawn mower defendant stated he had taken “from up the road.” The following day, Deputy Miller was dispatched to investigate Ms. Hawkins' complaint concerning the lawn mower missing from her deceased brother's residence. Deputy Miller examined the outbuilding and observed that the lock had been broken. Defendant confessed to Deputy Miller that he had taken the lawn mower from the outbuilding.
    Defendant first contends the court erred by denying his motion to dismiss the charge of felonious larceny because the indictment is fatally defective. The indictment charged that the purloined lawn mower was “the personal property of The Estate of Lloyd Goehring Hensley.” In State v. Jessup, 279 N.C. 108, 111, 181 S.E.2d 594, 596 (1971), the indictment charged the defendant with larceny of personal property “of the estate of W.M. Jessup, deceased . . . .” The Supreme Court held that the indictment was fatally defective because it failed to allege ownership of the property in an entity capable of possessing or holding title to personal property. Id. at 114, 181 S.E.2d at 598. Based upon the precedent established in Jessup, this Court held in State v. Linney, 138 N.C. App. 169, 173, 531 S.E.2d 245, 250, disc. reviewdismissed and appeal dismissed, 352 N.C. 595, 545 S.E.2d 214 (2000), that an indictment charging the defendant with embezzling money belonging to “the estate of Georgiana Alexander” was fatally defective. The State concedes that these cases are indistinguishable and that defendant's conviction of felonious larceny must be vacated.
    Defendant's remaining contention is that the court erred by denying his motion to dismiss the charge of felonious breaking and entering. He argues the evidence fails to show that the breaking or entering of the building was without the owner's consent.
    A motion to dismiss requires the court to determine whether the State has presented substantial evidence of each element of the offense charged and to identify the defendant as the perpetrator. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651-52 (1982). Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion. Id. at 66, 296 S.E.2d at 652. The court must consider the evidence in the light most favorable to the State, giving it the benefit of every reasonable inference that may be drawn. Id. at 67, 296 S.E.2d at 652-53.
    A person is guilty of felonious breaking and entering in violation of G.S. § 14-54(a) if he unlawfully, without consent of the owner or one empowered to give effective consent, breaks or enters any building with the intent to commit a felony or larceny therein. State v. Locklear, 320 N.C. 754, 758, 360 S.E.2d 682, 684 (1987). Viewed in the light most favorable to the State, the evidence shows that Ms. Hawkins was responsible for her deceasedbrother's property. She posted “no trespassing” signs on the property. She testified that she did not give defendant her consent to enter the outbuilding and to take the lawn mower. Defendant himself testified that he entered the outbuilding without anyone's consent and took the lawn mower. Based upon the foregoing evidence, a jury could find defendant guilty of the offense.
    Felonious Larceny: Vacated.
    Felonious Breaking or Entering: No error; remanded for resentencing.
    Judges McCULLOUGH and CALABRIA concur.
    Report per Rule 30(e).

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