State v. Allen

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA14-105 NORTH CAROLINA COURT OF APPEALS

Filed: 5 August 2014

STATE OF NORTH CAROLINA

v. Henderson County Nos. 12 CRS 53172-73 CLIFFORD GLENN ALLEN 13 CRS 50

Appeal by defendant from judgment entered 7 August 2013 by

Judge Tommy Davis in Henderson County Superior Court. Heard in

the Court of Appeals 21 July 2014.

Attorney General Roy Cooper, by Assistant Attorney General Richard G. Sowerby, for the State.

Leslie C. Rawls for defendant-appellant.

HUNTER, JR., Robert N., Judge.

Defendant Clifford Glenn Allen appeals after a jury found

him guilty of felonious larceny, possession of a stolen motor

vehicle, and having attained habitual felon status. Defendant

contends the trial court erred by denying his request to

instruct the jury on the lesser-included offense of unauthorized

use of a motor vehicle. We find no error. -2- On 27 July 2012, two employees of Pro Build building supply

company in Hendersonville saw defendant drive a flatbed truck

out of the main gate of the business and off of the property.

Neither employee recognized defendant as a Pro Build employee,

so they called 911 to report the truck stolen and told the

dispatcher the direction the truck was traveling. A short time

later, a police officer encountered the truck on the highway.

When the officer pulled his car in behind the truck, the truck

exited the highway and stopped at a truck stop. The officer

approached the truck and defendant, who was the driving the

truck, claimed that he worked for Pro Build. The two Pro Build

employees later identified the truck and confirmed that

defendant was not an employee and had taken the truck without

permission.

The trial court denied defendant’s request for an

instruction on unauthorized use of a motor vehicle as a lesser-

included offense of felony larceny. The jury found defendant

guilty of felony larceny, possession of a stolen motor vehicle,

and having attained habitual felon status. Based on defendant’s

habitual felon status, the trial court sentenced him to 128 to

166 months imprisonment.1 Defendant gave notice of appeal.

1 The trial court arrested judgment on defendant’s conviction for -3- Defendant’s sole argument on appeal is that the trial court

erred by denying his request for an instruction on the lesser-

included offense of unauthorized use of a motor vehicle in the

larceny case because there was evidence he intended to return

the truck to Pro Build. We disagree.

“We review the trial court’s denial of the request for an

instruction on the lesser included offense de novo.” State v.

Laurean, ___ N.C. App. ___, ___, 724 S.E.2d 657, 660, appeal

dismissed, disc. review denied, 366 N.C. 241, 731 S.E.2d 416

(2012). “[A] lesser included offense instruction is required if

the evidence ‘would permit a jury rationally to find [defendant]

guilty of the lesser offense and acquit him of the greater.’”

State v. Millsaps, 356 N.C. 556, 562, 572 S.E.2d 767, 772 (2002)

(citations omitted). “Where the State’s evidence is clear and

positive as to each element of the offense charged and there is

no evidence showing the commission of a lesser included offense,

it is not error for the judge to refuse to instruct on the

lesser offense.” State v. Peacock, 313 N.C. 554, 558, 330

S.E.2d 190, 193 (1985) (citation omitted).

“To convict a defendant of larceny, it must be shown that

he (1) took the property of another; (2) carried it away; (3)

felony larceny. -4- without the owner’s consent, and (4) with the intent to deprive

the owner of the property permanently.” State v. Reeves, 62

N.C. App. 219, 223, 302 S.E.2d 658, 660 (1983) (citations

omitted). Unauthorized use of a motor vehicle is a lesser-

included offense of larceny. State v. McRae, 58 N.C. App. 225,

229, 292 S.E.2d 778, 780 (1982). The difference between the

offenses is that unauthorized use of a motor vehicle does not

require the defendant to have the intent to permanently deprive

the owner of the motor vehicle. See State v. Ross, 46 N.C. App.

338, 340, 264 S.E.2d 742, 743 (1980).

Here, the State’s evidence is clear and positive as to

every element of larceny, and defendant was not entitled to an

instruction on unauthorized use of a motor vehicle. Two

witnesses testified that they saw defendant, who was not a Pro

Build employee or otherwise entitled to drive the truck, drive

it through a gate, off of the Pro Build property, and onto a

highway. Defendant only ceased driving the truck after he

encountered a police officer. When the officer investigated and

questioned defendant, defendant lied and claimed to be a Pro

Build employee. All of this evidence unequivocally supports the

charge that defendant took the truck with the intent to

permanently deprive Pro Build of it. -5- Defendant contends that the testimonial evidence that he

was driving the truck in the general direction of Hendersonville

showed that he intended to return the truck. Contrary to

defendant’s argument, however, this evidence does not support a

rational inference that he intended to return the truck to Pro

Build. Accordingly, we find no error in the trial court’s

decision to decline to instruct the jury on the lesser offense.

No error.

Judges BRYANT and STROUD concur.

Report per Rule 30(e).