State v. Robinson , 368 N.C. 402 ( 2015 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 398PA14
FILED 6 NOVEMBER 2015
STATE OF NORTH CAROLINA
v.
STILLOAN DEVORAY ROBINSON
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision
of the Court of Appeals, ___ N.C. App. ___, 763 S.E.2d 178 (2014), finding no error
after appeal from a judgment entered on 30 August 2013 by Judge Robert T. Sumner
in Superior Court, Mecklenburg County. Heard in the Supreme Court on 22 April
2015.
Roy Cooper, Attorney General, by Hugh Harris, Assistant Attorney General, for
the State.
Staples S. Hughes, Appellate Defender, by Jon H. Hunt, Assistant Appellate
Defender, for defendant-appellant.
BEASLEY, Justice.
This case asks this Court to consider whether unauthorized use of a motor
vehicle is a lesser-included offense of possession of a stolen vehicle. We hold that
unauthorized use of a motor vehicle is not a lesser-included offense of possession of a
stolen vehicle because the former offense contains an essential element that is not an
essential element of the latter offense. Accordingly, we affirm the decision of the
Court of Appeals, though on different grounds. In so doing, we overrule State v. Oliver
to the extent that it is inconsistent with this opinion.
STATE V. ROBINSON
Opinion of the Court
On 1 December 2011, defendant moved into a halfway house in Charlotte,
North Carolina, after serving five years and two months in federal prison for a
firearms conviction. At the halfway house, defendant shared a room with William
James Markham and two other individuals. The details of the events that transpired
on 10 January 2012 are disputed.
According to defendant, on 10 January 2012, he told Markham about his plan
to leave the halfway house without permission and “take [his] stuff home and get
stuff situated at the house.” In exchange for one and one-half grams of cocaine,
Markham agreed to let defendant use his car, a Lexus ES that the halfway house
permitted Markham to have to drive himself to work. When defendant was unable
to obtain the cocaine, he gave Markham counterfeit crack cocaine. Markham
accepted the counterfeit cocaine, removed his car keys from his shoe, and replaced
the keys with the counterfeit substance. Markham then gave defendant the keys to
his car. Defendant testified that the two men agreed that he would leave Markham’s
car in front of a nearby McDonald’s restaurant the next day.
According to Markham, he never gave defendant permission to use his car.
Markham testified that when he returned to the halfway house after work on 10
January 2012, Markham went to his room, where his roommates, including
defendant, were present. Markham changed clothes and placed his car keys in his
shoe. Markham then left the room to use the telephone and upon returning, found
that his car keys were missing. Defendant was no longer in the room. Markham
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STATE V. ROBINSON
Opinion of the Court
reported his missing keys to staff members at the halfway house. A staff member
testified that she witnessed defendant leaving the halfway house in a car, after which
she completed escaped inmate paperwork and called the police. Later that evening,
Markham’s car was reported stolen to police.
Three days later, on 13 January 2012, defendant returned from Atlanta and
parked the car near his home in Charlotte to unload his clothes.
Officer Bryan Overman was driving in the neighborhood after responding to a call
and observed a gold Lexus parked on the street. Officer Overman ran the license
plate through a database that confirmed that the vehicle had been reported stolen.
While Officer Overman and other officers canvassed the area, Officer William Dotson
saw defendant and arrested him. Markham claimed that the vehicle was damaged
and personal items were missing from the vehicle. Defendant testified that the car
was returned in the condition in which he received it and that he had not taken any
property from the car.
On 6 February 2012, a grand jury indicted defendant for possession of a stolen
vehicle and larceny of a motor vehicle. Then on 2 April 2012, defendant was indicted
for having attained habitual felon status. In three superseding indictments, one
dated 2 April 2012 and two dated 20 May 2013,1 the grand jury indicted defendant
1 The typewritten portion of the superseding indictment charging defendant with
possession of a stolen vehicle is dated 20 March 2013; however, the grand jury foreman signed
and dated the indictment 20 May 2013.
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STATE V. ROBINSON
Opinion of the Court
for possession of a stolen vehicle, breaking and entering a motor vehicle, and larceny
of a motor vehicle.2
Defendant pleaded not guilty and was tried before Judge Robert T. Sumner in
Superior Court, Mecklenburg County, beginning on 28 August 2013. During the
charge conference, defendant requested a jury instruction on the misdemeanor
offense of unauthorized use of a motor vehicle as a lesser-included offense of
possession of a stolen vehicle. The trial court denied the request.
On 30 August 2013, the jury found defendant guilty of possession of a stolen
motor vehicle, but not guilty of breaking or entering a motor vehicle or larceny of a
motor vehicle. Pursuant to a plea agreement, defendant pleaded guilty to having
attained habitual felon status. The trial court sentenced defendant to an active term
of 84 to 113 months of imprisonment, and defendant appealed from the judgment to
the Court of Appeals making two arguments on appeal.
Defendant first argued that he received ineffective assistance of counsel
because the questions defense counsel asked on direct examination required
defendant to admit guilt to possession of a stolen vehicle, the only crime for which he
was found guilty. State v. Robinson, ___ N.C. App. ___, ___, 763 S.E.2d 178, 180
(2014). The Court of Appeals disagreed, concluding that defendant’s ineffective
2 Two superseding indictments charge defendant with “breaking and entering” a
motor vehicle in violation of N.C.G.S. § 14-56. We note that section 14-56 references
“breaking or entering.” See N.C.G.S. § 14-56 (2013) (emphasis added). The trial court
instructed the jury using the statutory language.
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STATE V. ROBINSON
Opinion of the Court
assistance of counsel claim failed because his responses on direct examination only
established that defendant kept the car longer than allegedly agreed; however,
defendant never testified that he knew or had reason to know that the car was stolen,
which is an essential element of possession of a stolen vehicle. Id. at ___, 763 S.E.2d
at 180-81.
Second, defendant argued that the trial court erred in denying his request for
a jury instruction on unauthorized use of a motor vehicle as a lesser-included offense
of possession of a stolen vehicle. Id. at ___, 763 S.E.2d at 181. The Court of Appeals
found no error on the grounds that it was bound by its decision in State v. Oliver, 217
N.C. App. 369, 718 S.E.2d 731 (2011), which held that unauthorized use of a motor
vehicle is not a lesser-included offense of possession of a stolen vehicle. Id. at ___,
763 S.E.2d at 181-82. The Court of Appeals noted that in Oliver the court relied on
this Court’s decision in State v. Nickerson, 365 N.C. 279, 715 S.E.2d 845 (2011). Id.
at ___, 763 S.E.2d at 182. But the court explained that “in Nickerson, ‘the principal
question [wa]s whether the crime of unauthorized use of a motor vehicle is a lesser[-
]included offense of possession of stolen goods.’ ” Id. at ___, 763 S.E.2d at 181
(brackets in original) (quoting Nickerson, 365 N.C. at 281, 715 S.E.2d at 846
(emphasis added)). The Court of Appeals concluded that “[t]hus, in Oliver, this Court
mistakenly relied on Nickerson for a proposition not addressed, nor a holding reached,
in that case.” Id. at ___, 763 S.E.2d at 181 (italics added). The Court of Appeals
further stated:
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Opinion of the Court
However, we hope that by noting the clear discrepancy
between Oliver and Nickerson, the Supreme Court may
take this opportunity to clarify our case law and provide
guidance on the issue of whether unauthorized use of a
motor vehicle is in fact a lesser-included offense of
possession of a stolen motor vehicle.
Id. at ___, 763 S.E.2d at 182 (citation omitted).
On 18 December 2014, this Court allowed defendant’s petition for discretionary
review on the issue of whether unauthorized use of a motor vehicle is a lesser-
included offense of possession of a stolen vehicle.
Defendant maintains that Oliver was wrongly decided because that decision
incorrectly interpreted Nickerson. The State contends that in Oliver the court
properly applied the rule as stated in Nickerson when it concluded that unauthorized
use of a motor vehicle is not a lesser-included offense of possession of a stolen vehicle.
The rule in Nickerson establishes that an offense is not the lesser-included offense of
another if the lesser-included offense contains an essential element not present in the
greater offense. We conclude that the Oliver court misapprehended this Court’s
decision in Nickerson.
In Oliver the defendant argued that the trial court should have instructed the
jury on unauthorized use of a motor vehicle as a lesser-included offense of possession
of a stolen vehicle. 217 N.C. App. at 372, 718 S.E.2d at 733-34. The court in Oliver
reasoned that
[d]uring the pendency of defendant's appeal, our Supreme
Court addressed this very issue of whether unauthorized
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STATE V. ROBINSON
Opinion of the Court
use of a motor vehicle is a lesser included offense of
possession of a stolen vehicle. See State v. Nickerson, 365
N.C. 279, 715 S.E.2d 845 (2011). Due to our Supreme
Court's recent decision, we see no need to further discuss
this issue. Id. Consequently, the trial court did not err in
not instructing the jury on the crime of unauthorized use
of a stolen vehicle as it is not a lesser included offense of
possession of a stolen vehicle.
Id. at 372-73, 718 S.E.2d at 734. But contrary to the court’s assessment in Oliver,
Nickerson addressed whether unauthorized use of a motor vehicle is a lesser-included
offense of possession of stolen goods. Nickerson, 365 N.C. at 282-83, 715 S.E.2d at
847 (“Because the offense of unauthorized use of a motor vehicle requires proof of at
least one essential element not required to prove possession of stolen goods,
unauthorized use of a motor vehicle cannot be a lesser included offense of possession
of stolen goods under the definitional test in [State v. Weaver].”). Possession of stolen
goods is an offense distinct from possession of a stolen vehicle, and these offenses are
codified in different chapters of the General Statutes. See N.C.G.S. §§ 14-71.1, 20-
106 (2013). The court’s reliance on Nickerson to support its holding in Oliver was
erroneous. Consequently, to the extent that Oliver holds that the offense of
unauthorized use of a motor vehicle is not a lesser-included offense of possession of a
stolen vehicle for the reasons stated in Nickerson, Oliver is expressly overruled.
As to the issue before this Court, defendant contends that all the essential
elements of unauthorized use of a motor vehicle are covered by the elements of
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STATE V. ROBINSON
Opinion of the Court
possession of a stolen vehicle, and as a result, unauthorized use of a motor vehicle is
a lesser-included offense of possession of a stolen vehicle. We disagree.
This Court has adopted a definitional test for determining whether one offense
is the lesser-included offense of another. In State v. Weaver, 306 N.C. 629, 295 S.E.2d
375 (1982), we stated:
We do not agree with the proposition that the facts
of a particular case should determine whether one crime is
a lesser included offense of another. Rather, the definitions
accorded the crimes determine whether one offense is a
lesser included offense of another crime. In other words, all
of the essential elements of the lesser crime must also be
essential elements included in the greater crime. If the
lesser crime has an essential element which is not
completely covered by the greater crime, it is not a lesser
included offense. The determination is made on a
definitional, not a factual basis.
Id. at 635, 295 S.E.2d at 378-79 (internal citation omitted), overruled in part on other
grounds by State v. Collins, 334 N.C. 54, 61, 431 S.E.2d 188, 193 (1993).
The statute proscribing “unauthorized use of a motor-propelled conveyance”
states that “[a] person is guilty of an offense under this section if, without the express
or implied consent of the owner or person in lawful possession, he takes or operates
an aircraft, motorboat, motor vehicle, or other motor-propelled conveyance of
another.” N.C.G.S. § 14-72.2(a) (2013).
The statute proscribing unlawful possession of a stolen vehicle provides:
Any person who, with intent to procure or pass title
to a vehicle which he knows or has reason to believe has
been stolen or unlawfully taken, receives or transfers
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STATE V. ROBINSON
Opinion of the Court
possession of the same from or to another, or who has in
his possession any vehicle which he knows or has reason to
believe has been stolen or unlawfully taken, and who is not
an officer of the law engaged at the time in the performance
of his duty as such officer shall be punished as a Class H
felon.
Id. § 20-106 (emphasis added).
In applying the definitional test as prescribed in Weaver, this Court considers
the elements of possession of a stolen vehicle and unauthorized use of a motor vehicle.
The elements of possession of a stolen vehicle are: (1) possession; (2) of a vehicle; (3)
while having knowledge or reason to believe that the vehicle has been stolen or
unlawfully taken. See id.; State v. Bailey, 157 N.C. App. 80, 86, 577 S.E.2d 683, 688
(2003) (citation omitted). The elements of unauthorized use of a motor vehicle are:
(1) taking or operating; (2) a motor-propelled conveyance; (3) “without the express or
implied consent of the owner or person in lawful possession.” N.C.G.S. § 14-72.2(a).
It is clear that the crime of unauthorized use of a motor vehicle contains an essential
element that is not an element of possession of a stolen vehicle, namely that the State
must prove that the offender took or operated a motor-propelled conveyance.
Possession of a stolen vehicle requires the State to prove that the offender possessed
a vehicle. While “taking or operating” necessarily infers possession, it does not follow
that possession encompasses “taking or operating.” Therefore, unauthorized use of a
motor vehicle contains an essential element—“taking or operating”—that is not
included in possession of a stolen vehicle. Because we conclude that the lesser offense
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Opinion of the Court
contains at least one essential element that is not an essential element of the greater
offense, we need not analyze the remaining elements. Nickerson, 365 N.C. at 282,
715 S.E.2d at 847 (citing Weaver, 306 N.C. at 635, 295 S.E.2d at 378).
We hold, therefore, that the offense of unauthorized use of a motor vehicle is
not a lesser-included offense of possession of a stolen vehicle. As such, the trial court
did not err in denying defendant’s request to instruct the jury on unauthorized use of
a motor vehicle. For the reasons stated, we affirm the opinion of the Court of Appeals
as modified herein.
MODIFIED AND AFFIRMED.
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