State v. Ross

Court of Appeals of North Carolina

State v. Ross

264 S.E.2d 742, 46 N.C. App. 338, 1980 N.C. App. LEXIS 2814

CourtCourt of Appeals of North Carolina

DecidedApril 15, 1980

Docket796SC943

StatusPublished

Cited by10 cases

This text of 264 S.E.2d 742 (State v. Ross) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Ross, 264 S.E.2d 742, 46 N.C. App. 338, 1980 N.C. App. LEXIS 2814 (N.C. Ct. App. 1980).

Pincite

Opinion

MARTIN (Harry C.), Judge.

Defendant’s counsel, in apt time, requested the trial judge to instruct the jury on the crime of unauthorized use of a motor vehicle, N.C.G.S. 14-72.2(a), as a lesser included offense.

The court declined so to do and defendant assigns this as error. We agree with defendant and for this reason a new trial must be ordered.

It is true that the Supreme Court in State v. Wall, 271 N.C. 675, 157 S.E. 2d 363 (1967), held that a violation of former N.C.G.S. 20-105, sometimes referred to as “temporary larceny” of a vehicle, was not a lesser included offense of larceny. See State v. Covington, 267 N.C. 292, 148 S.E. 2d 138 (1966); State v. McCrary, 263 N.C. 490, 139 S.E. 2d 739 (1965); State v. Stinnett, 203 N.C. 829, 167 S.E. 63 (1933). Effective 1 January 1975, N.C.G.S. 20-105 was repealed and N.C.G.S. 14-72.2 was adopted. The legislature thereby removed the offense from the chapter on motor vehicles and placed it in Chapter 14, Criminal Law, immediately following N.C.G.S. 14-72, the statute on larceny. Although the legislature did not expressly so state, we find it intended N.C.G.S. 14-72.2(a) to be a lesser included offense of N.C.G.S. 14-72 where the evidence would support it. This view is also adopted in the North Carolina Pattern Jury Instructions. See N.C.P.I. —Crim. 216.10 (1979).

All of the essential elements of the crime of unauthorized use of a conveyance, N.C.G.S. 14-72.2(a), are included in larceny, N.C.G.S. 14-72, and we hold that it may be a lesser included offense of larceny where there is evidence to support the charge. State v. Reese, 31 N.C. App. 575, 230 S.E. 2d 213 (1976).

*340 Here the evidence does support the charge. There is no eyewitness testimony as to who took the Volkswagen car. Defendant is later found in the car by the officer. He had no consent to take or operate the car. Defendant’s testimony tends to show he had no intent to steal the car. This evidence is sufficient to require the submission of the lesser included offense to the jury.

We note that the state relied upon the doctrine of possession by defendant of recently stolen property. The court, however, failed to instruct the jury upon this theory. We do not pass upon this and defendant’s other assignments of error as they may not occur upon retrial.

New trial.

Judges Parker and Hill concur.

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MARTIN (Harry C.), Judge.

Defendant’s counsel, in apt time, requested the trial judge to instruct the jury on the crime of unauthorized use of a motor vehicle, N.C.G.S. 14-72.2(a), as a lesser included offense.

The court declined so to do and defendant assigns this as error. We agree with defendant and for this reason a new trial must be ordered.

It is true that the Supreme Court in State v. Wall, 271 N.C. 675, 157 S.E. 2d 363 (1967), held that a violation of former N.C.G.S. 20-105, sometimes referred to as “temporary larceny” of a vehicle, was not a lesser included offense of larceny. See State v. Covington, 267 N.C. 292, 148 S.E. 2d 138 (1966); State v. McCrary, 263 N.C. 490, 139 S.E. 2d 739 (1965); State v. Stinnett, 203 N.C. 829, 167 S.E. 63 (1933). Effective 1 January 1975, N.C.G.S. 20-105 was repealed and N.C.G.S. 14-72.2 was adopted. The legislature thereby removed the offense from the chapter on motor vehicles and placed it in Chapter 14, Criminal Law, immediately following N.C.G.S. 14-72, the statute on larceny. Although the legislature did not expressly so state, we find it intended N.C.G.S. 14-72.2(a) to be a lesser included offense of N.C.G.S. 14-72 where the evidence would support it. This view is also adopted in the North Carolina Pattern Jury Instructions. See N.C.P.I. —Crim. 216.10 (1979).

All of the essential elements of the crime of unauthorized use of a conveyance, N.C.G.S. 14-72.2(a), are included in larceny, N.C.G.S. 14-72, and we hold that it may be a lesser included offense of larceny where there is evidence to support the charge. State v. Reese, 31 N.C. App. 575, 230 S.E. 2d 213 (1976).

*340 Here the evidence does support the charge. There is no eyewitness testimony as to who took the Volkswagen car. Defendant is later found in the car by the officer. He had no consent to take or operate the car. Defendant’s testimony tends to show he had no intent to steal the car. This evidence is sufficient to require the submission of the lesser included offense to the jury.

We note that the state relied upon the doctrine of possession by defendant of recently stolen property. The court, however, failed to instruct the jury upon this theory. We do not pass upon this and defendant’s other assignments of error as they may not occur upon retrial.

New trial.

Judges Parker and Hill concur.

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Bluebook (online)

264 S.E.2d 742, 46 N.C. App. 338, 1980 N.C. App. LEXIS 2814, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ross-ncctapp-1980.

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