                  IN THE SUPREME COURT OF NORTH CAROLINA

                                   No. 252PA14-3

                               Filed 6 December 2019

STATE OF NORTH CAROLINA

             v.

THOMAS CRAIG CAMPBELL


      Appeal pursuant to N.C.G.S. § 7A-30(2) and N.C.G.S. § 7A-31 from the decision

of a divided panel of the Court of Appeals, 810 S.E.2d 803 (N.C. Ct. App. 2018),

vacating and remanding a judgment entered on 12 June 2013 by Judge Linwood O.

Foust in Superior Court, Cleveland County. Heard in the Supreme Court on 2 October

2019 in session in the Forsyth County Hall of Justice in the City of Winston-Salem

pursuant to section 18B.8 of Chapter 57 of the 2017 Session Laws of the State of

North Carolina.

      Joshua H. Stein, Attorney General, by Teresa M. Postell, Assistant Attorney
      General, for the State.

      Glenn Gerding, Appellate Defender, by Hannah Hall Love, Assistant Appellate
      Defender, for defendant-appellee.


      DAVIS, Justice.


      In this case, we consider whether the State met its burden of presenting

sufficient evidence for the jury to convict defendant of felony larceny. Because we

conclude that insufficient evidence existed to support the larceny charge, we modify

and affirm the Court of Appeals’ decision vacating his conviction.

                     Factual and Procedural Background
                                   STATE V. CAMPBELL
                                    Opinion of the Court

       This case is before us for the third time. The relevant facts were set out in our

first opinion in this case as follows:

             On 8 October 2013, the Cleveland County Grand Jury indicted
       defendant for felony breaking or entering a place of worship and felony
       larceny after breaking or entering. The larceny indictment specifically
       alleged that, on 15 August 2012, defendant stole “a music receiver,
       microphones and sounds system wires, the personal property of Andy
       Stevens and Manna Baptist Church, ... in violation of N.C.G.S. [§] 14–
       54.1(a).” Defendant pled not guilty.

              At trial, the State’s evidence showed that at the conclusion of
       Sunday services on 19 August 2012, Pastor Andy Stevens of Manna
       Baptist Church discovered that some audio equipment was missing.
       Pastor Stevens lives on the Manna Baptist Church property. He testified
       that the church doors may have been inadvertently left unlocked on 15
       August, following Wednesday evening services. When the church
       secretary arrived the next morning, she locked the doors, and they
       remained locked until Sunday morning. Although there was no sign of
       forced entry, Pastor Stevens found defendant’s wallet in the baptistry
       changing area at the back of the church close to where some of the
       missing equipment previously had been located.

             A detective testified that she spoke with defendant at the
       Cleveland County Detention Center, where he was being held on an
       unrelated charge. When defendant learned the detective wished to
       speak with him, he said, “[T]his can’t possibly be good. What have I done
       now that I don’t remember?” Defendant then admitted to being at
       Manna Baptist Church the night the doors were left unlocked. He said
       he was on “a spiritual journey” and “had done some things,” but “did not
       remember what he had done” in the church.

              At the close of the State’s evidence, the trial court denied
       defendant’s motion to dismiss the charges based on insufficient
       evidence. Defendant then testified on his own behalf. He stated that on
       the night in question, he was asked to leave the house in which he was
       living, so he packed a duffle bag with his clothes and started walking
       toward a friend’s house. Along the way, he dumped the bag in a ditch
       because it was too heavy to carry. Defendant arrived at his friend’s
       house around midnight. When his friend’s girlfriend asked him to leave,
       he kept walking until he reached Manna Baptist Church. Defendant
       noticed that the door to the church was cracked open. He was thirsty

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                                  STATE V. CAMPBELL
                                   Opinion of the Court

       from walking all night, so he entered the church with the intent to find
       water and sanctuary. Defendant stated that once inside, he prayed,
       slept, “tried to do a lot of soul searching,” and drank a bottle of water,
       although he admitted he was “not really sure exactly what [he] did the
       whole time [he] was” in the church. He also testified that he “did not
       take anything away from the church” when he left at daybreak.

              After leaving the church, defendant felt chest pains, so he called
       9-1-1. Defendant testified that he was taking a host of medications at
       the time, including a psychotropic drug, for his heart condition, stress
       disorder, bipolar condition, and diabetes. An Emergency Medical
       Technician (“E.M.T.”) responded to the call around 6:30 a.m. on
       Thursday. The E.M.T. testified that defendant said he had been
       “wandering all night,” that defendant looked “disheveled” and “worn
       out,” and that defendant’s “shoes were actually worn through the soles.”
       The E.M.T. did not see defendant carrying anything.

              At the close of evidence, defendant renewed his motion to dismiss
       for insufficient evidence, which the trial court again denied. The jury
       found defendant guilty of felony larceny and felony breaking or entering
       a place of religious worship, and defendant appealed.

State v. Campbell, 368 N.C. 83, 84–85, 772 S.E.2d 440, 442–43 (2015) (Campbell I)

(alterations in original).

       Defendant appealed his convictions to the Court of Appeals, where he raised

six issues. The Court of Appeals addressed only two of his arguments, holding that

(1) his indictment for larceny was deficient because it failed to allege that Manna

Baptist Church was an entity capable of owning property; and (2) the State had failed

to present sufficient evidence of an essential element of felony breaking or entering—

intent to commit larceny. State v. Campbell, 234 N.C. App. 551, 555–61, 759 S.E.2d

380, 383–87 (2014).

       We allowed the State’s petition for discretionary review and proceeded to

reverse the Court of Appeals’ decision. First, we held that the larceny indictment was,

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                                     STATE V. CAMPBELL
                                       Opinion of the Court

in fact, legally adequate. Campbell I, 368 N.C. at 86–87, 772 S.E.2d at 443–44.

Second, we ruled that sufficient evidence was presented at trial to allow the jury to

convict defendant of felony breaking or entering a place of religious worship. Id. at

87–88, 772 S.E.2d at 444. Accordingly, we reversed the Court of Appeals’ decision and

remanded the case to that court for consideration of the remaining issues defendant

had raised with regard to his conviction for larceny. Id. at 88, 772 S.E.2d at 445.

       On remand, the Court of Appeals focused its analysis on defendant’s argument

that a fatal variance existed between the indictment for larceny and the evidence

presented by the State. The Court of Appeals first determined that although

defendant had not preserved his fatal variance argument at trial due to his failure to

move for the dismissal of the larceny charge on that ground, consideration of

defendant’s fatal variance argument was nevertheless appropriate based upon the

invocation of Rule 2 of the North Carolina Rules of Appellate Procedure. 1 State v.

Campbell, 243 N.C. App. 563, 571, 777 S.E.2d 525, 530 (2015).

       Having decided to invoke Rule 2, the Court of Appeals then addressed the

merits of defendant’s argument and determined that a fatal variance did exist

because although the indictment alleged two owners of the stolen property (Andy

Stevens and Manna Baptist Church), the evidence at trial established that only the

church was the owner of the missing items. Id. at 577–78, 777 S.E.2d at 534. For this


       1 Rule 2 provides that “[t]o prevent manifest injustice to a party, or to expedite decision
in the public interest, either court of the appellate division may, except as otherwise expressly
provided by these rules, suspend or vary the requirements or provisions of any of these rules
in a case pending before it upon application of a party or upon its own initiative, and may
order proceedings in accordance with its directions.” N.C. R. App. P. 2.
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                                   STATE V. CAMPBELL
                                     Opinion of the Court

reason, the Court of Appeals vacated defendant’s larceny conviction. Id.

       The State once again petitioned this Court for discretionary review, which we

allowed. We reversed the Court of Appeals’ second decision and remanded the case

back to that court in order for it to “independently and expressly determine whether,

on the facts and under the circumstances of this specific case, to exercise its discretion

to employ Rule 2 of the North Carolina Rules of Appellate Procedure . . . and consider

the merits of defendant’s fatal variance argument.” State v. Campbell, 369 N.C. 599,

604, 799 S.E.2d 600, 603 (2017) (Campbell II).

       Following our remand, the Court of Appeals issued a third opinion in which it

reaffirmed its decision to invoke Rule 2 in order to review the fatal variance claim

and concluded once again that a fatal variance existed between the indictment and

the evidence at trial. State v. Campbell, 810 S.E.2d 803, 818–20 (N.C. App. 2018).

After so holding, the Court of Appeals proceeded—based on principles of judicial

economy—to also address the additional issues of whether sufficient evidence existed

to support defendant’s larceny conviction and whether the trial court violated his

right to a unanimous verdict in connection with the larceny charge. Id. at 820. The

Court of Appeals determined that the State’s evidence was insufficient to raise a jury

question on the larceny charge. Id. at 820–23.2

       Judge Berger dissented from the majority’s rulings. In his dissent, he stated



       2  The Court of Appeals then provided a brief discussion regarding defendant’s
“unanimous verdict” argument but ultimately declined to definitively rule upon that issue
given its prior determination that the larceny conviction should be vacated on other grounds.
Id. at 823.
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                                 STATE V. CAMPBELL
                                   Opinion of the Court

his belief that the majority had erred in invoking Rule 2 under the circumstances of

this case. Id. at 823–25 (Berger, J., dissenting). He further expressed his belief that

substantial evidence existed to support defendant’s larceny conviction and that

defendant had not been deprived of his right to a unanimous verdict. Id. at 826–27

(Berger, J., dissenting).

      Based on Judge Berger’s dissent, the State appealed as of right to this Court

pursuant to N.C.G.S. § 7A-30(2). In addition, we allowed the State’s petition for

discretionary review as to additional issues pursuant to N.C.G.S. § 7A-31.

                                       Analysis

      The bulk of the parties’ arguments in this latest appeal concern the questions

of whether the Court of Appeals properly invoked Rule 2 in order to reach the fatal

variance issue and, in turn, whether a fatal variance actually existed. We believe,

however, that we need not resolve either of those issues based on our determination

that the Court of Appeals correctly held the State failed to present sufficient evidence

to support the larceny charge.

      When reviewing a defendant’s motion to dismiss for insufficient evidence, a

court must inquire “whether there is substantial evidence of each essential element

of the crime and that the defendant is the perpetrator.” State v. Call, 349 N.C. 382,

417, 508 S.E.2d 496, 518 (1998). Substantial evidence exists when “any rational trier

of fact could have found the essential elements of the crime beyond a reasonable

doubt.” State v. Barnette, 304 N.C. 447, 458, 284 S.E.2d 298, 305 (1981). In other

words, substantial evidence is “such relevant evidence as a reasonable mind might

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                                  STATE V. CAMPBELL
                                   Opinion of the Court

accept as adequate to support a conclusion.” State v. Brown, 310 N.C. 563, 566, 313

S.E.2d 585, 587 (1984).

      However, if the evidence is sufficient “only to raise a suspicion or conjecture as

to either the commission of the offense or the identity of the defendant as the

perpetrator of it, the motion [to dismiss] should be allowed.” State v. Powell, 299 N.C.

95, 98, 261 S.E.2d 114, 117 (1980). This is true even if “the suspicion so aroused by

the evidence is strong.” Id at 98, 261 S.E.2d at 117. When considering such a motion,

a court must view the evidence in the light most favorable to the State and give the

State the benefit of all reasonable inferences. State v. Morgan, 359 N.C. 131, 161, 604

S.E.2d 886, 904 (2004).

      The essential elements of larceny are that the defendant “(1) took the property

of another; (2) carried it away; (3) without the owner’s consent; and (4) with the intent

to deprive the owner of his property permanently.” State v. Reid, 334 N.C. 551, 558,

434 S.E.2d 193, 198 (1993) (quoting State v. Perry, 305 N.C. 225, 233, 287 S.E. 2d

810, 815 (1982)). In order to withstand a defendant’s motion to dismiss, the State

must present substantial evidence of each of these elements and “that the defendant

is the perpetrator” of the larceny. See Call, 349 N.C. at 417, 508 S.E.2d at 518.

      Based on our thorough review of the record in this case, we agree with the

Court of Appeals that the State failed to present sufficient evidence that defendant

took and carried away the missing items. See State v. Campbell, 810 S.E.2d 803, 820–

23 (N.C. Ct. App. 2018). Rather, the evidence simply established that defendant had

an opportunity to steal the equipment at issue while he was in the church. Under

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                                   STATE V. CAMPBELL
                                   Opinion of the Court

well-settled caselaw, evidence of a defendant’s mere opportunity to commit a crime is

not sufficient to send the charge to the jury.

      Several of our prior decisions illustrate the principle that a conviction cannot

be sustained if “[t]he most the State has shown is that defendant had been in an area

where he could have committed the crimes charged.” State v. Minor, 290 N.C. 68, 75,

224 S.E.2d 180, 185 (1976). In Minor, defendant Minor and his co-defendant Ingram

were charged with the possession of marijuana for the purpose of distribution after

marijuana plants were found growing in Ingram’s corn field. Id. at 73, 224 S.E.2d at

184. The two had been initially pulled over and arrested while driving near the field,

and a search of their vehicle revealed several wilted marijuana leaves and some

fertilizer. Id. at 72, 224 S.E.2d at 183–84. It was further determined that the

defendant had previously used the cornfield to raise garden crops, and a bottle with

the name “Minor” on it was found at an old house near the field. Id. We summarized

the State’s evidence as follows:

      About all our evidence shows is (1) that defendant Minor had been a
      visitor at an abandoned house leased or controlled by co-defendant
      Ingram; (2) that the marijuana field was 100 feet away from the house
      but obscured by a wooded area; (3) that the marijuana field was
      accessible by three different routes; (4) that on the date of Minor’s arrest
      he was on the front seat of a Volkswagen automobile owned and
      operated by Ingram, where some wilted marijuana leaves were found on
      the left rear floorboard and one marijuana leaf was found in the trunk.

Id. at 74–75, 224 S.E.2d at 185. We concluded that this evidence was insufficient to

sustain the defendant’s conviction for possession for the purpose of distribution,

because—at most—the State had simply shown that the “defendant had been in an



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                                  STATE V. CAMPBELL
                                   Opinion of the Court

area where he could have committed the crimes charged. Beyond that, we must sail

in a sea of conjecture and surmise.” Id.

      We similarly applied this principle in State v. Murphy, 225 N.C. 115, 33 S.E.2d

588 (1945). In Murphy, the two defendants assaulted a victim and left him

unconscious in the street. Id. at 117, 33 S.E.2d at 589. Two women picked up the

victim and carried him to a nearby porch. Id. at 116, 33 S.E.2d at 588. When he

regained consciousness, he discovered that his wallet was missing, and the two

assailants were subsequently charged with assault and robbery. Id.

      On appeal, this Court determined that the robbery charge could not be

sustained due to insufficient evidence. Id. at 116, 33 S.E.2d at 589. Because there

were multiple persons present and the victim was unconscious when the money was

taken, we reasoned that “[u]nder such circumstances to find that any particular

person took the money is to enter the realm of speculation.” Id. at 117, 33 S.E.2d at

589. We concluded that a charge cannot be sustained “where there is merely a

suspicion or conjecture” of the defendant’s guilt. Id. at 116, 33 S.E.2d at 589.

      In State v. White, 293 N.C. 91, 235 S.E.2d 55 (1977), the defendant was charged

with second-degree murder after a woman was found stabbed to death in her mobile

home outside of a motel where the defendant was staying. Id. at 96–97, 235 S.E.2d at

58–59. There was testimony that a motel clerk heard a woman scream and then saw

a black man run out of the mobile home and head in the direction of defendant’s room.

Id. at 92, 235 S.E.2d at 56. Investigators found some blood specks on the defendant’s

shoes and shirt but were unable to conclusively match the blood to the victim. Id. at

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                                  STATE V. CAMPBELL
                                   Opinion of the Court

96, 235 S.E.2d at 59. The defendant admitted that he knew the victim but denied

entering her mobile home that night. Id. at 93, 235 S.E.2d at 57.

      We held that although “the evidence raises a strong suspicion as to defendant’s

guilt” it was “not sufficient to remove the case from the realm of surmise and

conjecture.” Id. at 95, 235 S.E.2d at 58. We acknowledged that the State’s evidence

established that the defendant was in the general vicinity of the victim’s residence at

the time of the murder, the defendant had given contradictory statements to law

enforcement officers, and it could “even reasonably be inferred that the defendant

was at the home of the deceased when the deceased came to her death, or shortly

thereafter.” Id. at 97, 235 S.E.2d at 59. Nevertheless, we were troubled by the key

facts that the State had failed to prove, stating the following:

      (1) [The motel clerk] could not identify the man he saw leaving
      deceased’s mobile home probably because of the distance (200-250 feet)
      and darkness (1 1/2 hours after sunset); (2) other black men were staying
      at the motel; (3) no evidence was presented that the defendant owned
      the murder weapon; (4) no fingerprints were found on the knife; (5) no
      evidence was introduced of any blood found on the defendant’s pants; (6)
      about fifteen percent of the population has the type of blood found on the
      left shoe of the defendant; (7) the type of blood on the right shoe is found
      in thirty percent of the population; (8) the blood specks on the tee shirt,
      and the blood on the carpet were not identified by type or otherwise; (9)
      no motive was established for the crime; (10) no flight was attempted by
      the defendant.

Id. at 96–97, 235 S.E.2d at 59 (citation omitted).

      Thus, because the State’s evidence established no more than the mere

opportunity for the defendant to have committed the crime, we vacated the

defendant’s conviction. Id; see also State v. Moore, 312 N.C. 607, 613, 324 S.E.2d 229,



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                                 STATE V. CAMPBELL
                                  Opinion of the Court

233 (1985) (reversing robbery conviction because the evidence “discloses no more than

an opportunity for defendant, as well as others, to have taken the money”); State v.

Cutler, 271 N.C. 379, 383, 156 S.E.2d 679, 682 (1967) (“It is not enough to defeat the

motion for nonsuit that the evidence establishes that the defendant had an

opportunity to commit the crime charged.”).

                                         ***

      With these principles in mind, we must now apply them to the facts of the

present case. Here, the State offered evidence that (1) defendant entered the church

without permission on the night of 15 August 2012; (2) he stayed at the church for

several hours; (3) he left his wallet at the front of the church near where some of the

missing sound equipment was stored; and (4) he could not remember precisely what

he had done inside the church that night.

       To be sure, this evidence may be fairly characterized as raising a suspicion of

defendant’s guilt of larceny. It is clear, however, that crucial gaps existed in the

State’s evidence. The State failed to actually link defendant to the stolen property or

to prove that he was in the church at the time when the equipment—which was never

recovered—was stolen.

      The evidence at trial suggested that the church doors were left unlocked after

the Wednesday night service, which ended at approximately 8:00 p.m. on 15 August

2012. Defendant testified that he arrived at the church that night sometime after

midnight and left the next morning around “first light.” He was found by Emergency

Medical Technician Calvin Cobb in a nearby field at approximately 6:30 a.m. on

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                                 STATE V. CAMPBELL
                                   Opinion of the Court

Thursday morning. It was not until the following Sunday morning that the absence

of the equipment was noted. Thus, the State’s evidence showed a four-day time span

over which the theft could have occurred. It is undisputed that a number of other

persons had access to the interior of the church during this four-day period.

      Furthermore, the State was unable to show how defendant could have

physically been able to carry away the cumbersome equipment at issue, which

consisted of an audio receiver, sound system wires, four microphones, and a pair of

headphones. While the State attempted to rely upon defendant’s testimony that he

was carrying a duffle bag earlier in the evening, the duffle bag was not located by

officers. Defendant testified that he was holding a black duffle bag filled with clothes

when he initially set out towards his friend’s house at approximately 10:00 p.m. on

Wednesday night and that he discarded the bag shortly after he began walking—

realizing it would be too heavy to carry. There was no evidence suggesting that

defendant had a bag of any kind with him at the time he entered or exited the church.

Moreover, Cobb testified that defendant was empty-handed when Cobb encountered

him early the next morning. No evidence was offered that the duffle bag was ever

actually used to transport the missing items.

      In sum, the State merely proved that defendant was present inside the church

for several hours during the four-day period in which the equipment was taken.

Under our caselaw, this is simply not enough to sustain a conviction for larceny. We

therefore conclude that defendant’s larceny conviction must be vacated and that we

need not decide the remaining issues raised in this case.

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                                STATE V. CAMPBELL
                                 Opinion of the Court

                                   Conclusion

      For the reasons stated above, we modify and affirm the decision of the Court

of Appeals vacating defendant’s larceny conviction.

      MODIFIED AND AFFIRMED.




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