In re J.H.

WYNN, Judge, dissenting.

While I agree with the majority that the State failed to present sufficient evidence of the value of the vehicle, after thoroughly reviewing the record I find no substantial evidence that Juvenile possessed the vehicle; therefore, the adjudication and disposition must be reversed. Accordingly, I respectfully dissent.

To convict a defendant of felonious possession of stolen property, the State must present substantial evidence of the following elements: "(i) possession of personal property; (ii) valued at greater than $1,000; (iii) which has been stolen; (iv) the possessor knowing or having reasonable grounds to believe that the property is stolen; and (v) the possessor acts with a dishonest purpose." State v. King, 158 N.C.App. 60, 66, 580 S.E.2d 89, 94, disc. review denied, 357 N.C. 509, 588 S.E.2d 376 (2003); see also N.C. Gen.Stat. § 14-71.1 (2005). "If substantial evidence exists to support each essential element of the crime charged and that defendant was the perpetrator, it is proper for the trial court to deny the motion." State v. Morgan, 359 N.C. 131, 161, 604 S.E.2d 886, 904 (2004) (citing State v. Malloy, 309 N.C. 176, 178, 305 S.E.2d 718, 720 (1983)). 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, the motion to dismiss must be allowed.'" State v. Golphin, 352 N.C. 364, 458, 533 S.E.2d 168, 229-30 (2000) (quoting Malloy, 309 N.C. at 179, 305 S.E.2d at 720).

In this case, Juvenile argues, and I agree, that the State failed to show substantial evidence that he possessed the vehicle. "One has possession of stolen property when one has both the power and intent to control its disposition or use." In re Dulaney, 74 N.C.App. 587, 588, 328 S.E.2d 904, 906 (1985).

In State v. Lofton, 66 N.C.App. 79, 83, 310 S.E.2d 633, 636 (1984), the defendant was found to be in "possession" of a stolen vehicle when he had a key which he used to unlock the vehicle's trunk, clothes, checkbook, and loan agreement in the vehicle, although he was never seen driving the vehicle. This Court held that was substantial evidence that the defendant was in control and possession of the vehicle. Id. at 84, 310 S.E.2d at 636.

Unlike in Lofton, here, the only circumstantial evidence presented by the State was that: Juvenile was a passenger in the vehicle, driven by his mother, the day it was stolen. Juvenile was found inside a house, along with four or five other people, and the vehicle was in the driveway. The State presented no evidence that Juvenile was seen driving the vehicle, had keys to the vehicle, or had personal property in the vehicle. Nor was he alone in the house where the vehicle was found.

Accordingly, as the State failed to present substantial evidence that Juvenile was in possession *460of the vehicle, the trial court erred in denying his motion to dismiss.