                                    NO. COA13-1404

                         NORTH CAROLINA COURT OF APPEALS

                               Filed: 1 July 2014


STATE OF NORTH CAROLINA

     v.                                           Cleveland County
                                                  No. 12CRS054927-28
THOMAS CRAIG CAMPBELL,
     Defendant.


     Appeal by defendant from Judgment entered on or about 12

June 2013 by Judge Linwood O. Foust in Superior Court, Cleveland

County.   Heard in the Court of Appeals 7 May 2014.


     Attorney General Roy A. Cooper, III, by Assistant Attorney
     General Allison A. Angell, for the State.

     Appellate  Defender   Staples  S.   Hughes,  by  Assistant
     Appellate Defender Jason Christopher Yoder, for defendant-
     appellant.


     STROUD, Judge.


     Thomas   Campbell       (“defendant”)         appeals       from   the    judgment

entered   after     a    Cleveland       County    jury       found    him   guilty    of

larceny and breaking or entering a place of religious worship.

We   vacate   defendant’s          larceny    conviction          and    reverse      his

conviction    for       breaking    or    entering        a    place    of    religious

worship. We remand for entry of judgment and resentencing on

misdemeanor breaking or entering.
                                            -2-
                                      I.   Background

      On 8 October 2012, defendant was indicted for breaking or

entering a place of religious worship and larceny after breaking

or entering. The larceny indictment alleged that on 15 August

2012 defendant “willfully and feloniously did steal, take, and

carry    away     a     music    receiver,      microphones,         and     sounds    [sic]

system wires, the personal property of Andy Stephens and Manna

Baptist Church, pursuant to a breaking or entering in violation

of   N.C.G.S.         14-54.1(a).”          Defendant        pled      not    guilty     and

proceeded to jury trial.

      At trial, the State’s evidence tended to show that Pastor

Andy Stephens of Manna Baptist Church, located on Burke Road in

Shelby, North Carolina, discovered after Sunday services on 19

August     2012    that    a    receiver,       several      microphones,       and    audio

cords were missing.             The cords were usually located at the front

of   the    church,       by    the    sound    system,      or   in    the     baptistery

changing    area.         It    appeared       that   the    sound     system    had    been

opened     up     and    items    inside       had    been    moved     around.       Pastor

Stephens found a wallet in the baptistery changing area that

contained a driver’s license belonging to defendant.

      Pastor Stephens testified that when the church secretary

arrived on Thursday morning earlier that week, she had noticed
                                             -3-
that the door was unlocked. She assumed that it had been left

unlocked after Wednesday night services, which had ended around

9 p.m.        Although the front door is normally locked at night, on

cross-examination, Pastor Stephens admitted that the church door

had been left unlocked overnight before.                         Pastor Stephens said

that the secretary did not notice anything amiss on Thursday

morning.

       After Pastor Stephens realized that the audio equipment was

missing he called the Cleveland County Sheriff’s Office. Deputy

Jordan Bowen responded to the scene. The deputy examined the

premises       but    found   no   signs     of    forced    entry.      He     recovered

defendant’s wallet from the pastor.

       Investigator Jessica Woosley went to speak with defendant

at the Cleveland County Detention Center, where he was being

held     on     an    unrelated       breaking       or     entering     charge.     When

Investigator Woosley introduced herself, defendant said, “this

can’t    possibly       be    good.   What    have    I    done    now   that    I   don’t

remember?”           Investigator        Woosley    read     defendant    his     Miranda

rights and defendant invoked his right to counsel. Investigator

Woosley       tried    to    end   the    interview,       but    defendant     continued

talking.
                                         -4-
      Defendant admitted that he had been to Manna Baptist Church

on the night in question, but stated that he could not remember

what he had done there. He explained that he had mental issues

and blacked out at times. Defendant claimed to be a religious

man who had been “on a spiritual journey.”                       He said that he

remembered the door to the church being open, but that he did

not remember doing anything wrong.

      After      speaking     with      defendant,       Investigator       Woosley

searched      through    a   pawn    shop     database   for    any   transactions

involving items matching those missing from the church but did

not find anything. The missing items were never recovered.

      At the close of the State’s evidence, defendant moved to

dismiss    the    charges.        The   trial    court       denied   the   motion.

Defendant then elected to present evidence and testify on his

own behalf. Defendant testified that he was a 51 year old man

with a high school education and one semester of college. He

said that on 15 August 2012, he had been asked to leave the home

he was living in, so he packed his possessions in a duffel bag

and   left.      He     started     walking    toward    a   friend’s   house   but

dropped the bag in a ditch because it was too heavy to carry

long-distance.
                                       -5-
      Around midnight, defendant arrived at his friend’s house,

but   his   friend’s     girlfriend   asked    him     to    leave,   so    he   did.

Defendant continued walking down the road until he came upon the

church. He noticed that the door was cracked slightly and a

“sliver     of     light”    was   emanating      from      within.        Defendant

explained that after all his walking, he was thirsty and tired,

so he went into the church looking for water and sanctuary.                        He

said that while he was inside, he got some water, prayed, and

slept. He claimed that he did not intend to take anything and

did not take anything when he left around daybreak.

      After leaving the church, defendant began walking down the

road again.        He soon began having chest pains and called 911.

Defendant explained that he was on a variety of medications at

the   time,      including     powerful    psychotropic        medication.         An

ambulance arrived and took him to Cleveland Memorial Hospital.

      Calvin     Cobb,   the   Emergency     Medical     Technician    (EMT)      who

responded     to   defendant’s     call,   also    testified     on   defendant’s

behalf. Mr. Cobb said that they received a dispatch call around

6:30 a.m. When they arrived at the intersection of Burke Road

and River Hill Road, they saw defendant near an open field,

sitting on the back of a fire truck that had been first to

respond. Defendant told Mr. Cobb that he had been wandering all
                                          -6-
night. Mr. Cobb noticed that defendant looked disheveled and

worn out, and that defendant had worn through the soles of his

shoes. Mr. Cobb did not see defendant carrying anything and did

not find anything in his pockets.

      After defendant rested his case, the State called another

officer in rebuttal. The State wanted to offer his testimony

regarding    defendant’s        prior    breaking     or    entering    arrest.   The

trial court asked the State to explain the relevance of the

prior incident. The State argued that it contradicted part of

defendant’s testimony regarding what happened before he got to

the   church,     but    did    not     elaborate     on    how   it   contradicted

defendant’s       testimony       and    did    not    otherwise       explain    its

relevance. The trial court excluded the rebuttal testimony under

Rule 403. At the close of all the evidence, defendant renewed

his motion to dismiss all charges, which the trial court again

denied.

      The jury found defendant guilty of both charges. The trial

court     consolidated      the    charges      for    judgment      and   sentenced

defendant    to    a    split   sentence       of   13-25   months     imprisonment,

suspended for 24 months of supervised probation, and an active

term of 140 days in jail.               Defendant gave timely written notice

of appeal.
                                        -7-
                           II.    Larceny Indictment

       Defendant first argues that the larceny indictment on which

he was tried was fatally defective because it “failed to allege

that   Manna     Baptist    Church     was    an        entity    capable   of   owning

property.” We agree.

       “It is well settled that a valid bill of indictment is

essential   to    the    jurisdiction        of    the    trial    court    to   try    an

accused for a felony.” State v. Abraham, 338 N.C. 315, 339, 451

S.E.2d 131, 143 (1994) (citation and quotation marks omitted).

“A challenge to the facial validity of an indictment may be

brought   at   any      time,    and   need       not    be   raised   at   trial      for

preservation on appeal.” State v. LePage, 204 N.C. App. 37, 49,

693 S.E.2d 157, 165 (2010).

       “An indictment must allege all of the essential elements of

the crime sought to be charged.” State v. Ledwell, 171 N.C. App.

328, 331, 614 S.E.2d 412, 414 (citation and quotation                             marks

omitted), disc. rev. denied, 360 N.C. 73, 622 S.E.2d 624 (2005).

“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 permanently

deprive the owner of the property.” State v. Justice, ___ N.C.

App. ___, ___, 723 S.E.2d 798, 801 (2012) (citation, quotation
                                           -8-
marks, and brackets omitted). “[A]n indictment for larceny which

fails    to    allege    the     ownership    of    the     property      either    in   a

natural person or a legal entity capable of owning property is

defective.” State v. Abbott, ___ N.C. App. ___, ___, 720 S.E.2d

437, 440 (2011) (citation and quotation marks omitted).

       Here,    the     indictment      alleged     two     owners   of    the     stolen

property—Andy Stephens and Manna Baptist Church. Andy Stephens

is a natural person, but the indictment does not allege that

Manna    Baptist      Church     is   a    legal    entity     capable      of     owning

property.      Failure    to     include    such    an    allegation      is     normally

fatal to the indictment. See State v. Cathey, 162 N.C. App. 350,

353,    590     S.E.2d    408,    410     (2004).     The    inclusion      of     Pastor

Stephens as co-owner does not cure the omission here.

       Where     an   indictment        alleges     two   owners     of    the     stolen

property, the State must prove that each owner had at least some

property interest in it. See State v. Greene, 289 N.C. 578, 585,

223    S.E.2d    365,    370     (1976)    (“If    the    person     alleged      in   the

indictment to have a property interest in the stolen property is

not the owner or special owner of it, there is a fatal variance

entitling defendant to a nonsuit.”); State v. Burgess, 74 N.C.

272, 273 (1876) (“If one is charged with stealing the property

of A, it will not do to prove that he stole the joint property
                                    -9-
of A and B.”); State v. Hill, 79 N.C. 656, 659 (1878) (holding

that where an indictment alleges multiple owners, the State must

prove that there were in fact multiple owners). If one of the

owners were incapable of owning property, the State necessarily

would be unable to prove that both alleged owners had a property

interest.    Therefore,   where     the    indictment    alleges     multiple

owners, one of whom is not a natural person, failure to allege

that such an owner has the ability to own property is fatal to

the   indictment.   Consequently,    the    indictment   here   is    fatally

flawed and defendant’s conviction for larceny must be vacated.

See Abbott, ___ N.C. App. at ___, 720 S.E.2d at 441.

            III. Breaking or Entering a Place of Worship

      Defendant next argues that the trial court erred in denying

his motion to dismiss the charge of felony breaking or entering

a place of worship because there was insufficient evidence of

his intent to commit larceny therein. We agree.

            When 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’s 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[’s] being the
                                         -10-
            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’s
            guilt, a motion to dismiss is properly
            denied even though the evidence also permits
            a reasonable inference of the defendant’s
            innocence.

State v. Chillo, 208 N.C. App. 541, 545, 705 S.E.2d 394, 397

(2010) (citation and quotation marks omitted).

      A person commits the felony of breaking or entering a place

of   worship   if   he    “[1]     wrongfully    breaks      or   enters      [2]    any

building that is a place of religious worship [3] with intent to

commit any felony or larceny therein.” N.C. Gen. Stat. § 14-

54.1(a) (2011). There are two lesser-included offenses to this

charge: felony breaking or entering under N.C. Gen. Stat. § 14-

54(a)   (2011),     which   lacks     the   “place      of   religious        worship”

element, and misdemeanor breaking or entering under N.C. Gen.

Stat.   §    14-54(b)     (2011),     which     lacks    both     the       “place   of

religious worship” element and the intent element.

      Defendant does not contend that the State failed to present

sufficient     evidence     that    he    wrongfully      entered       a    place   of

religious worship. He argues that the State failed to present

sufficient evidence of intent to commit a larceny therein.
                                            -11-
      “Intent    is     a   mental     attitude     seldom      provable   by   direct

evidence. It must ordinarily be proved by circumstances from

which it may be inferred.” Chillo, 208 N.C. App. at 546, 705

S.E.2d   at    398.   “The        intent    with   which   an    accused   broke   and

entered may be found by the jury from evidence as to what he did

within the [building].” State v. Brewer, 80 N.C. App. 195, 199,

341   S.E.2d     354,       357    (1986)     (citation    and     quotation    marks

omitted).     “For example,          the intent to commit larceny may be

inferred      from    the     fact    that     defendant     committed     larceny.”

Chillo, 208 N.C. App. at 546, 705 S.E.2d at 398 (citation and

quotation marks omitted). “Further, a defendant’s possession of

stolen goods soon after the theft is a circumstance tending to

show him guilty of the larceny.” State v. Baskin, 190 N.C. App.

102, 109, 660 S.E.2d 566, 572 (citation, quotation marks, and

brackets omitted), disc. rev. denied, 362 N.C. 475, 666 S.E.2d

648 (2008). Finally, “[i]n the absence of a showing of a lawful

motive, an intent to commit larceny may be reasonably inferred

from an unlawful entry.” State v. Quilliams, 55 N.C. App. 349,

351, 285 S.E.2d 617, 619, cert. denied, 305 N.C. 590, 292 S.E.2d

11 (1982); see State v. McBryde, 97 N.C. 393, 397, 1 S.E. 925,

927 (1887) (establishing that an inference of felonious intent

may be made where a defendant breaks into a dwelling at night
                                   -12-
with   “no   explanatory   facts   or   circumstances”).   However,   this

inference may be precluded by evidence of facts or circumstances

that reveal an innocent reason for the defendant’s entering into

the building.1

             The presumption, or inference as it is more
             properly called, is one of fact and not of
             law. The inference derived from [an unlawful
             entry] is to be considered by the jury
             merely as an evidential fact, along with the
             other evidence in the case, in determining
             whether the State has carried the burden of
             satisfying the jury beyond a reasonable
             doubt of the defendant’s guilt. Proof of
             [unlawful entry] by the State does not shift
             the burden of proof to the defendant but the
             burden remains with the State to demonstrate
             defendant’s guilt beyond a reasonable doubt.

1
  See, e.g., State v. Cook, 242 N.C. 700, 703, 89 S.E.2d 383, 385
(1955) (evidence sufficient to preclude inference where the
defendant did not flee when discovered, explained that he was
looking for a particular person, and left when requested), State
v. Moore, 62 N.C. App. 431, 434, 303 S.E.2d 230, 232 (1983)
(holding that there was sufficient evidence of innocent intent
where both the State’s and defendant’s evidence showed that the
defendant was coerced at knifepoint to enter), State v.
Humphries, 82 N.C. App. 749, 751, 348 S.E.2d 167, 169 (1986)
(holding that the evidence was sufficient to preclude inference
where defendant believed house to be that of his girlfriend and
nothing in the dwelling had been disturbed), disc. rev.
dismissed, 320 N.C. 165, 357 S.E.2d 359 (1987), State v. Lamson,
75 N.C. App. 132, 133, 135, 330 S.E.2d 68, 68, 70 (holding that
the evidence was sufficient to preclude inference where he tried
to enter the house drunk and was staying at the neighboring
house), disc. rev. denied, 314 N.C. 545, 335 S.E.2d 318 (1985);
see also, State v. Keitt, 153 N.C. App. 671, 675-76, 571 S.E.2d
35, 37-38 (2002) (discussing the rebuttable McBryde inference
and holding that evidence of intoxication alone is insufficient
to rebut it), aff’d per curiam, 357 N.C. 155, 579 S.E.2d 250
(2003).
                                        -13-


State v. Fair, 291 N.C. 171, 173, 229 S.E.2d 189, 191 (1976)

(citations omitted).

      Here,     defendant      admitted    entering      the      church,   but    he

explained that he entered to seek sanctuary, drink water, and

pray.     Defendant      testified      that   the    door   to   the    church   was

unlocked when he arrived there. He stated that he saw that the

door was slightly ajar and that a “sliver of light” was coming

from within.       He testified that he did not enter intending to

steal anything and did not in fact steal anything.                      None of the

State’s   evidence      contradicts       this    testimony.      Pastor    Stephens

testified that when the church secretary arrived on the morning

of 20 August 2012, she found the front door unlocked.                           There

were no signs of forced entry.                 Pastor Stephens admitted that

the   door     could    have   been     left     unlocked    accidentally       after

Wednesday night services, which ended around 9 p.m.

      Defendant testified that he arrived at the church after 12

a.m. and set back out on the road around sunrise, but that

shortly thereafter he began having chest pains and called 911.

Mr. Cobb, the EMT who responded to defendant’s call, testified

that he was dispatched around 6:30 a.m.                 At the time, defendant

was near an open field at the intersection of Burke Road and

River   Hill    Road.    The   church     is   also   located     on    Burke   Road,
                                               -14-
though its distance from the intersection is not clear from the

testimony. When Mr. Cobb arrived, defendant was sitting on the

back   of     a    fire    truck,       which     had   responded    first.     Defendant

looked disheveled and worn out. He had worn through the soles of

his shoes. Defendant explained to Mr. Cobb that he had been

wandering all night. Mr. Cobb testified that defendant was not

carrying anything and did not have anything in his pockets.

       Four       days    later,    after      Sunday    services,    Pastor    Stephens

noticed that an audio receiver, some microphones, and some audio

cords were missing. These items were                       kept at various places

around the church, including by the sound system, in the front

of   the    church,        and     in    the    baptistery   changing     area,      where

defendant’s wallet was found.                     Investigator Woosley checked a

pawn shop database, but found no reports of items matching those

missing from the church. Neither the officers nor any of the

church staff searched the area around the church for the missing

items.      The items were never recovered.

       When       Investigator          Woosley    spoke   with     defendant       at   the

Cleveland County Detention Center, defendant admitted that he

had been to the church, but stated that he could not remember

what   he     had    done    there.        Defendant     explained    that     he    was   a

religious man and that “he had been on a spiritual [journey].”
                                               -15-
He    admitted    having       periodic        blackouts       related      to     his   mental

health    issues        and     medications,           but     never      admitted       taking

anything from the church or entering the church with intent to

steal.2 He said that he remembered going to the church and that

the church door was open when he got there, but that he did not

remember doing anything wrong once inside.

       We conclude that these facts are sufficient “explanatory

facts and circumstances” to preclude the McBryde inference. See

McBryde, 97 N.C. at 397, 1 S.E. at 927; Lamson, 75 N.C. App. at

135, 330 S.E.2d at 70. Unlike in the cases finding the evidence

sufficient to infer intent from the breaking or entering alone,

there    was    evidence       of    innocent         intent    and    no    evidence      that

defendant       was    discovered         in    the     church      and     fled    from    the

building. Cf. State v. Hill, 38 N.C. App. 75, 78, 247 S.E.2d

295, 297 (1978).              Instead, he called 911 from a location near

the    church.        There    was   no    evidence          that     defendant      attacked

occupants of the building. Cf. State v. Accor, 277 N.C. 65, 73,

175    S.E.2d    583,     588-89      (1970).         There    was     no    evidence      that



2
  Defendant did admit that he had previously broken into a
residence, but there was no evidence that this offense had
anything to do with the church, that it was in the same
vicinity, or that it was uniquely similar to the facts here.
Indeed, when the State attempted to elaborate on this other
offense in rebuttal, the trial court excluded this evidence
under Rule 403.
                                            -16-
defendant   entered       the    building         in     a   manner   consistent         with

criminal intent—he entered through an unlocked front door. Cf.

State v. Hedrick, 289 N.C. 232, 236, 221 S.E.2d 350, 353 (1976)

(applying the McBryde presumption where the defendant pushed in

a   windowpane     to     retrieve      a    key,      cut     telephone      wires,      was

familiar    with        the   layout        of     the       house,   and        fled    when

confronted); Quilliams, 55 N.C. App. at 351, 285 S.E.2d at 619

(concluding   that       there    was       sufficient        evidence   to      survive    a

motion to dismiss where the defendant broke through a window,

cut through a screen, and fled when discovered).

      “Inference may not be based on inference. Every inference

must stand upon some clear and direct evidence, and not upon

some other inference or presumption.” Fair, 291 N.C. at 173-74,

229 S.E.2d at 190 (citation and quotation marks omitted).                               Here,

there was no evidence to contradict the innocent “facts and

circumstances” offered by defendant. Therefore, the State was

not   entitled     to    rely    on   the        McBryde     inference      to    meet    its

burden.

      Absent such an inference, we conclude that the evidence was

insufficient, even taken in the light most favorable to the

State, to show that defendant entered the church with intent to

commit larceny. Brewer, 80 N.C. App. at 199, 341 S.E.2d at 357.
                                        -17-
The church was unlocked for over three hours before defendant

arrived. There was no evidence of forced entry. Several hours

later, when Mr. Cobb encountered defendant on the same road as

the church, defendant was not carrying anything. None of the

church staff noticed that the items were missing until four days

later,    after       Sunday   services.       There   was   no    evidence   that

defendant tried to sell the items in local pawn shops. There was

no evidence that defendant touched the audio system. In fact,

the    State   presented       no   evidence    that   showed     defendant   ever

possessed the missing items. Cf. Chillo, 208 N.C. App. at 546,

705 S.E.2d at 398; Baskin, 190 N.C. App. at 109, 660 S.E.2d at

572.

       We hold that the State failed to meet its burden as to the

intent element of felonious breaking or entering a place of

worship. The evidence is insufficient to support a reasonable

inference      that    defendant     entered    the    church     with   intent   to

commit larceny. Taken in the light most favorable to the State,

the evidence here “raises no more than a suspicion of guilt.”

Chillo, 208 N.C. App. at 545, 705 S.E.2d at 397. Therefore, the

trial court erred in denying defendant’s motion to dismiss at

the close of all the evidence. See id.
                                           -18-
      Although        there     was    insufficient         evidence    to     sustain    a

conviction      for      felonious     breaking       or    entering,     as   defendant

concedes, there was ample evidence to support a conviction for

misdemeanor breaking or entering. Therefore, we remand for entry

of   judgment      on    that    offense    and      resentencing.       See    State    v.

Dawkins,     305      N.C.      289,   291,     287       S.E.2d   885,      887   (1982)

(remanding    for       entry    of    judgment      on    misdemeanor       breaking    or

entering where evidence was sufficient to support that offense,

but not felonious intent).

                   IV.    Ineffective Assistance of Counsel

      Defendant          next    argues       that     he     received       ineffective

assistance of counsel because his trial counsel failed to move

in limine to exclude evidence that he had been arrested on an

unrelated breaking or entering charge and initially failed to

object to introduction of that evidence at trial. When his trial

counsel did object to the State’s attempt to call a witness in

rebuttal to testify regarding the other charge, the trial court

sustained the objection under Rule 403.

           To prevail in a claim for [ineffective
           assistance of counsel], a defendant must
           show that his (1) counsel’s performance was
           deficient,   meaning  it   fell   below   an
           objective standard of reasonableness, and
           (2) the deficient performance prejudiced the
           defense, meaning counsel’s errors were so
           serious as to deprive the defendant of a
                                      -19-
            fair   trial,       a    trial      whose     result   is
            reliable.

State v. Smith, ___ N.C. App. ___, ___, 749 S.E.2d 507, 509

(2013) (citation and quotation marks omitted).

       The relevance of the objected-to evidence here relates—at

very   best—to    the    defendant’s      intent    to    commit   larceny     upon

entering the church. Given our disposition of the breaking or

entering    charge,      defendant    cannot       show   prejudice     from    any

failure    of    his    trial   counsel    to    object    to   this    evidence.

Therefore, he is not entitled to a new trial.

                                V.    Conclusion

       For the foregoing reasons, we conclude that the trial court

was without jurisdiction to try defendant on the larceny charge

and that it erred in denying defendant’s motion to dismiss the

felony breaking or entering charge. Because there was sufficient

evidence to sustain a conviction for misdemeanor breaking or

entering, we remand for entry of judgment and resentencing on

that offense.

       VACATED, in part; REVERSED, in part; and REMANDED.

       Judges STEPHENS and MCCULLOUGH concur.
