In re Glenn

WHICHARD, Judge.

Respondent contends the court erred in denying her motion to dismiss for insufficiency of the evidence to sustain an adjudication of delinquency. We agree.

The juvenile petition charged respondent with violation of G.S. 14-72(a), misdemeanor larceny. To sustain an adjudication of delinquency under this section the State must show a wrongful taking and carrying away of the personal property of another without her consent and with intent to permanently deprive the owner. State v. Bowers, 273 N.C. 652, 655, 161 S.E. 2d 11, 14 (1968). Larceny involves a trespass, either actual or constructive. Id. Custody is not a bar to the elements of trespass or intent to deprive. One with custody may commit larceny where she subsequently forms the intent to, and does, convert such property. 50 Am. Jur. 2d Larceny Sec. 89 at 264 (1970). See State v. Tilley, 239 N.C. 245, 249, 79 S.E. 2d 473, 476 (1954). The trespass in that case is at the time of conversion. 50 Am. Jur. 2d Larceny Sec. 89 at 263.

With certain exceptions the North Carolina Juvenile Code gives respondent “all rights afforded adult offenders.” G.S. 7A-631; In re Meant, 51 N.C. App. 153, 155, 275 S.E. 2d 200, 201 (1981). Respondent thus is entitled to have the evidence evaluated by the same standard that governs a criminal proceeding against an adult. Id., 275 S.E. 2d at 201-02.

When a defendant moves for dismissal, the court is to determine whether there is substantial evidence of each element of the offense charged and of the identity of defendant as the perpetrator. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E. 2d 649, 651 (1982). Substantial evidence is evidence a reasonable person might accept as adequate to support a conclusion. Id. at 66, 296 S.E. 2d at 652. “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. (Citation omitted.) This is true even though the suspicion so aroused by the evidence is strong.” Id.

Applying these principles to the evidence, viewed in the light most favorable to the State, we conclude that the evidence raises a suspicion of respondent’s guilt, but nothing more. Goforth testified that she “didn’t see [respondent] put [the ring] in her pocket or anything like that.” Rather, she stated,

I had [the ring] in my hand and [respondent] was saying she had a ring something like it. She started looking at it and the bell rang and we all left. ... I just didn’t think of [the ring]; I was in a hurry when I left. I didn’t go back into the room and look for the ring. ... I didn’t go back during teacher’s workday to look for it. ... I never saw [respondent] wear a ring like mine.

This evidence shows only that Goforth removed the ring to wash her hands in shop class on a Thursday, respondent had momentary custody of the ring, and the ring was not in respondent’s possession or in the shop class on the following Tuesday. While custody does not bar a finding of the wrongful taking and carrying away necessary to prove larceny, see 50 Am. Jur. 2d Larceny Sec. 89 at 263, custody is not in itself evidence of any element of the crime. It is not enough to defeat the motion for dismissal for the evidence to establish that respondent had an opportunity to commit the crime charged. State v. Cutler, 271 N.C. 379, 383, 156 S.E. 2d 679, 682 (1967); State v. White, 293 N.C. 91, 96, 235 S.E. 2d 55, 59 (1977). The evidence here shows only that respondent had an opportunity to commit the crime. It is thus inadequate to withstand the motion to dismiss.

The adjudication and disposition orders are therefore vacated and the cause is remanded for entry of a judgment of dismissal.

Vacated and remanded.

Judges BECTON and EAGLES concur.