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NO. COA11-28 NORTH CAROLINA COURT OF APPEALS Filed: 20 December 2011 STATE OF NORTH CAROLINA v. OMAR SHARIFF MCDOWELL, Defendant. Cleveland County Nos. 08 CRS 54215 08 CRS 3542

Appeal by defendant from judgment entered 14 July 2010 by Judge Forrest D. Bridges in Cleveland County Superior Court. Heard in the Court of Appeals 17 August 2011. Attorney General Roy Cooper, by Assistant Attorney General David Efird, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Kathleen M. Joyce, for defendant-appellant. GEER, Judge. Defendant Omar Shariff McDowell appeals from his conviction of breaking or entering a motor vehicle. Because we agree with

defendant that the State failed to present evidence that the vehicle contained any items of value apart from objects State v.

installed in the vehicle,

this Court's decision in

Jackson, 162 N.C. App. 695, 592 S.E.2d 575 (2004), requires that we reverse.

-2Facts The evidence presented at trial tended to show the

following facts. Thompson was

On the night of 27 July 2008, Christopher his security camera when he noticed

monitoring

someone come over the fence around his yard. outside driveway to check he the and locked his Ford F-150 truck

Thompson went parked Thomas in his

that

next-door

neighbor,

Moton,

jointly owned and used.

Thompson found defendant, whom he knew,

inside the truck although neither Thompson nor Moton had given defendant permission to use the truck. When Thompson ordered defendant out of the truck, defendant replied, "[I]t's me, Omar. I'm running from the police. why I'm in your truck." That's

Defendant then fled the scene, and

Thompson called the police, who quickly apprehended defendant. Thompson immediately identified defendant as the individual in the truck and informed the police "that it appeared that there was nothing missing" because "[h]e didn't have time. him too quick." Defendant was indicted for and found guilty of felony I was on

breaking or entering a motor vehicle and for being a habitual felon. The trial court sentenced defendant to a presumptive-

range term of 121 to 155 months imprisonment. Defendant timely appealed to this Court.

-3Discussion Defendant denying his first argues to that the In trial court on a erred in

motion

dismiss.

ruling

defendant's

motion to dismiss, the trial court must determine whether the State presented of the substantial offense and evidence (2) of (1) of each essential being the

element

defendant's

perpetrator. 245, 255

State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d "Substantial mind evidence is such as relevant to

(2002). as a

evidence

reasonable

might

accept

adequate

support a conclusion." S.E.2d 585, 587 (1984).

State v. Brown, 310 N.C. 563, 566, 313

The evidence, when viewed in the light most favorable to the State, must be sufficient to "give rise to a reasonable inference of guilt." S.E.2d 430, 433 (1988). State v. Stone, 323 N.C. 447, 452, 373 A motion to dismiss should be granted,

however, when "'the facts and circumstances warranted by the evidence do no more than raise a suspicion of guilt or

conjecture since there would still remain a reasonable doubt as to defendant's guilt.'" State v. Turnage, 362 N.C. 491, 494,

666 S.E.2d 753, 755 (2008) (quoting Stone, 323 N.C. at 452, 373 S.E.2d at 433). Defendant was charged with breaking or entering a motor vehicle in violation of N.C. Gen. Stat.

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