State v. Spera ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-814
Filed 15 August 2023
Union County, Nos. 17 CRS 052227, 052232-33
STATE OF NORTH CAROLINA
v.
JOHN LOUIS SPERA, Defendant.
Appeal by Defendant from judgment entered 10 March 2022 by Judge Nathan
H. Gwyn, III in Union County Superior Court. Heard in the Court of Appeals 23 May
2023.
Attorney General Joshua H. Stein, by Assistant Attorney General Andrew L.
Hayes, for the State.
Thomas, Ferguson & Beskind, LLP, by Kellie Mannette, for Defendant-
Appellant.
RIGGS, Judge.
Defendant John Louis Spera appeals from a judgment following a jury trial,
which found him guilty of misdemeanor larceny of a vehicle and robbery with a
dangerous weapon. On appeal, Mr. Spera argues that the trial court: (1) abused its
discretion by denying his motion for a mistrial after the testifying victim’s
identification of him as the perpetrator was ruled inadmissible; (2) erred in denying
his motion to dismiss the misdemeanor larceny charge for insufficient evidence of
intent to permanently deprive the victim of the property taken; and (3) committed
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plain error by failing to instruct the jury on the concept of temporary deprivation.
After careful review, we hold that the trial court did not err in denying his motion for
mistrial but did err in denying his motion to dismiss the misdemeanor larceny charge.
As a result, we vacate the misdemeanor larceny conviction in File No. 17CRS052233
and remand for entry of judgment on the lesser-included offense of unauthorized use
of a motor vehicle. We leave the remaining conviction undisturbed.
I. FACTUAL AND PROCEDURAL HISTORY
On 4 April 2017, recent high school graduate Dustin Perry was invited by his
friend and drug dealer, Zackary Phifer, to hang out with two women, Hannah
Tarleton and Charity Sharon, at a mobile home in Union County. Mr. Perry picked
up Mr. Phifer at his mother’s house around 10:00 PM and the two drove in Mr. Perry’s
pickup truck to the home where Ms. Tarleton and Ms. Sharon were spending the
evening. On arrival, Mr. Phifer exited the truck, met with someone at the door, and
waved for Mr. Perry to join him. The men headed inside together.
Mr. Perry and Mr. Phifer entered through the living room before heading into
a room at the rear of the home. Ms. Tarleton and Ms. Sharon met Mr. Perry and Mr.
Phifer in that room; a few minutes later, three or four other men burst into the room.
Two of the men were armed, one with a knife and the other with a hammer. Mr.
Perry knew the man with the knife as Luther Weathers, but he did not recognize the
man with the hammer.
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The unknown man with the hammer began shouting “where’s the powder,
where’s the powder,” at Mr. Perry and Mr. Phifer. The men then searched Mr. Perry
and Mr. Phifer, rifling through the former’s wallet and taking his phone and the keys
to his truck. The armed robbers then left the room, and Mr. Perry heard them start
up his truck and drive away for what Mr. Perry presumed was a joyride. The
remaining men, along with Ms. Tarleton and Ms. Sharon, stayed behind with Mr.
Perry and Mr. Phifer to ensure that they did not leave the back room.
Roughly thirty minutes after the robbery, the two armed robbers returned to
the mobile home, escorted Mr. Perry and Mr. Phifer outside, returned the keys to Mr.
Perry, and allowed them to leave unharmed. The man with the hammer did,
however, threaten Mr. Perry with harm if he told the police about what had occurred.
Mr. Perry found that unspecified “documentation” relating to the truck had been
destroyed and a roadside safety kit was missing from the vehicle. Mr. Perry later
reported the incident to law enforcement.
Detective James Maye with the Union County Sheriff’s Office met and
interviewed Mr. Perry about the night in question in May of 2017. Mr. Perry told
Detective Maye that the man with the hammer was Black, about 5 feet tall, and bald.
Roughly four years later, in 2021, the district attorney showed Mr. Perry a picture of
Mr. Spera—who is white, 5’9”, and has long hair—and Mr. Perry affirmatively
identified him as the robber with the hammer.
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Mr. Spera was subsequently indicted on one count of felony larceny of a motor
vehicle and two counts each of second-degree kidnapping, robbery with a dangerous
weapon, and conspiracy to commit robbery with a dangerous weapon. Trial
commenced on 7 March 2022, and Mr. Perry testified to his recollection of the robbery.
During his testimony, Mr. Perry repeatedly identified Mr. Spera as the robber with
the hammer; however, after it was revealed that Mr. Perry had initially identified
Mr. Spera through a photograph that had not been previously disclosed to the
defense, Mr. Spera objected to any identification by Mr. Perry and moved for a
mistrial. Following voir dire and argument—which included assertions by the State
that Ms. Tarleton would also be testifying and providing an identification of Mr.
Spera—the trial court sustained Mr. Spera’s objection, struck Mr. Perry’s
identification of Mr. Spera, and denied the motion for mistrial. Consistent with the
State’s argument, Ms. Tarleton did testify and identify Mr. Spera as one of the
robbers while also acknowledging that she knew him socially and had previously
engaged in sexual relations with him.
At the close of the State’s evidence, Mr. Spera moved to dismiss the charges
against him. The trial court dismissed the robbery and kidnapping charges that
related to Mr. Phifer, as well as both conspiracy charges. It also reduced the felony
larceny of a motor vehicle charge to a misdemeanor, as the State had not put in any
evidence as to the truck’s value. The trial court denied Mr. Spera’s motion to dismiss
the remaining charges involving Mr. Perry.
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After the charge conference, the trial court instructed the jury on the
remaining counts. For misdemeanor larceny of a motor vehicle, the trial court
instructed the jury that a conviction required the jury to find “that at the time the
Defendant intended to deprive the victim of its use permanently.” After deliberation,
the jury found Mr. Spera guilty of robbery with a dangerous weapon and
misdemeanor larceny of a motor vehicle, acquitting Mr. Spera of second-degree
kidnapping. The trial court sentenced Mr. Spera to 84 to 113 months’ imprisonment
for robbery with a dangerous weapon, followed by a consecutive sentence of 120 days
for misdemeanor larceny. Mr. Spera gave oral notice of appeal at sentencing.
II. ANALYSIS
Mr. Spera’s three principal arguments identify error in: (1) the denial of his
motion for mistrial; (2) the denial of his motion to dismiss the misdemeanor larceny
charge for insufficient evidence of the requisite intent; and (3) the trial court’s failure
to sua sponte instruct the jury regarding temporary deprivation. We disagree with
Mr. Spera as to his first argument; however, because we hold the evidence was
insufficient to show the requisite intent for misdemeanor larceny, we vacate that
conviction and remand for entry of judgment on the lesser-included offense of
unauthorized use of a motor vehicle. Finally, because our second holding is
dispositive as to the larceny conviction, we decline to address Mr. Spera’s third
argument.
A. Mistrial
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1. Standard of Review
A trial court’s denial of a motion for mistrial is reviewed for abuse of discretion.
State v. Bradley, 279 N.C. App. 389, 406, 864 S.E.2d 850, 864 (2021). This is a highly
deferential standard, as the trial court’s “ruling thereon (without findings of fact) is
not reviewable without a showing of gross abuse of discretion.” State v. Daye, 281
N.C. 592, 596, 189 S.E.2d 481, 483 (1972).
2. Analysis
A mistrial is proper “when there are improprieties in the trial so serious that
they substantially and irreparably prejudice the defendant’s case and make it
impossible for the defendant to receive a fair and impartial verdict.” State v. Bonney,
329 N.C. 61, 73, 405 S.E.2d 145, 152 (1991) (citation and quotation marks omitted).
A motion for mistrial necessitates demonstration of harm “beyond a reasonable
doubt.” State v. Nolen, 144 N.C. App. 172, 178, 550 S.E.2d 783, 787 (2001) (citation
omitted). In many instances, a curative instruction issued promptly by the trial court
can effectively neutralize such prejudice. State v. McDougald, 279 N.C. App. 25, 30,
862 S.E.2d 877, 881 (2021). Additionally, any prejudicial impact can be negated by
the admission of cumulative evidence establishing the same fact. Nolen, 144 N.C.
App. at 179, 550 S.E.2d at 787-88.
Here, Mr. Perry emphatically identified Mr. Spera as one of the armed men
that robbed him, and repeatedly referred to Mr. Spera throughout his testimony.
Partway through that incriminating testimony, Mr. Spera’s counsel learned that Mr.
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Perry had given an out-of-court identification to the prosecution, leading counsel to
lodge an immediate objection “based on a highly improper photo” identification and
lack of disclosure to the defense. The trial court—after hearing voir dire testimony,
arguments from the parties, and the forecast from the State of Ms. Tarleton’s
anticipated identification testimony—sustained the objection and provided the
following curative instruction:
For the record the motion to suppress the identification of
the Defendant is granted. I am instructing, ladies and
gentlemen of the jury, that you are to disregard totally and
to give no weight to the last witness’s identification of the
Defendant, that being Mr. Perry. Is that understood? You
are to strike that entirely. Next witness.
Immediately following this instruction, Mr. Spera’s counsel cross-examined Mr. Perry
on the substantial discrepancies between Mr. Spera as he appeared in court and Mr.
Perry’s testimonial description of the perpetrator.
Mr. Spera acknowledges that curative instructions are usually sufficient to
preclude a mistrial, but asserts this case is different based on the specific instruction
given and the evidence presented, noting that the sufficiency of a curative instruction
is a fact-intensive inquiry dependent on the circumstances of each individual trial.
State v. Aldridge, 254 N.C. 297, 300, 118 S.E.2d 766, 768 (1961). He argues—and we
agree—that the trial court’s curative instruction here was likely too vague, standing
alone, to adequately dispel the prejudice of Mr. Perry’s repeated and emphatic
identifications of Mr. Spera. Where we part from Mr. Spera’s logic, however, is in the
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import of Ms. Tarleton’s testimony, and we ultimately hold that her cumulative
testimony, coupled with the curative instruction, albeit inadequate standing alone,
and his counsel’s able cross-examination of Mr. Perry, defeats Mr. Spera’s claim of a
gross abuse of discretion by the trial judge in denying his mistrial motion.
In opposing Mr. Spera’s mistrial motion, the State explicitly directed the trial
court to Ms. Tarleton’s anticipated testimony identifying Mr. Spera as one of the
perpetrators of the alleged larceny. After she took the stand, Ms. Tarleton
affirmatively identified Mr. Spera as such, and testified that “Spera stepped in and
started demanding [the victims’] stuff. . . . He just started demanding their stuff, all
they had. The weed, they had phones, everything. Whatever goods they may have
had on them.” She subsequently confirmed that Mr. Spera left the mobile home with
the other robber, Mr. Weathers, and only recalled seeing Mr. Spera again after Mr.
Perry’s truck returned to the mobile home. As for her familiarity with the alleged
perpetrators, she testified that she knew both Mr. Spera and Mr. Weathers
intimately, which lent credence to her identification. And, though Mr. Spera’s counsel
elicited testimony from Ms. Tarleton that she was testifying pursuant to a plea
arrangement, any evaluation as to her credibility—consistent with the standard
credibility and interested witness instructions given by the trial court—was within
the exclusive province of the jury. State v. Hoff, 224 N.C. App. 155, 160, 736 S.E.2d
204, 208 (2012). We cannot say that the trial court’s decision to leave that credibility
determination to the jury, made in light of those proper instructions, amounts to a
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manifest abuse of discretion.
Beyond Ms. Tarleton’s cumulative testimony, any prejudice resulting from Mr.
Perry’s improper identification was further ameliorated by defense counsel’s cross-
examination. Immediately following the curative instruction, Mr. Spera’s counsel
elicited in testimony Mr. Perry’s initial identification of the second robber, first
described as a five-foot-tall bald Black man with a goatee—a description that clearly
did not match Mr. Spera’s appearance in the courtroom. Such evident discrepancies
were probative to impeach any improper identification by Mr. Perry. See, e.g., State
v. Joyner, 33 N.C. App. 361, 365, 235 S.E.2d 107, 110 (1977) (holding trial counsel’s
cross-examination and impeachment of a witness concerning allegedly improper
testimony negated any prejudice from said testimony). In sum, trial counsel’s cross-
examination, Ms. Tarleton’s cumulative testimony identifying Mr. Spera as the
perpetrator of the alleged crime, and the trial court’s curative instruction—however
insufficient on its own—preclude us from holding that there was “substantial and
irreparable prejudice to the defendant’s case,” N.C. Gen. Stat. § 15A-1061 (2021), such
that the trial court’s denial was “a gross abuse of . . . discretion,” State v. Bidgood,
144 N.C. App. 267, 273, 550 S.E.2d 198, 202 (2001) (citation omitted).
Mr. Spera urges us to reach a different result based on Aldridge, where the
Supreme Court reversed a trial court’s denial of a mistrial for improperly admitted
evidence notwithstanding a curative instruction and cumulative testimony from
additional witnesses. 254 N.C. at 301, 118 S.E.2d at 768. The facts of Aldridge, a
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half-century old criminal child support case, render it inapposite to the case at bench.
There, a married woman was seeking child support from a man who was not her
husband, alleging he fathered her child. In an attempt to prove that the defendant
was the child’s father, the woman impermissibly (under the common law in effect at
the time) testified before the jury that her husband could not have sired the child
because she had not seen him for two years. Id. at 298, 118 S.E.2d at 767. Though a
curative instruction was given and other witnesses gave “much less probative”
testimony suggesting the woman’s nonaccess to her husband, the Supreme Court
ultimately held that the improper testimony was so prejudicial that a mistrial should
have been declared. Id. at 299, 118 S.E.2d at 767.
But the prejudice identified in Aldridge stemmed from antiquated evidentiary
concepts found in the common law of child support cases involving “illegitimate”
children. Under the common law of that era, “[t]he wife [wa]s not a competent
witness to prove the nonaccess of the husband . . . . Her testimony and declarations
[were] excluded not only as violative of the confidential relations existing between
husband and wife but pursuant to a sound public policy which prohibits the parent
from bastardizing her own issue.” Ray v. Ray, 219 N.C. 217, 219, 13 S.E.2d 224, 226
(1941). Thus, whether a wife had “access” to her husband was presumed to be private
information within the marital relationship. Id. And, lacking DNA evidence, the
testimony of the wife was presumed to be the most probative evidence of her sexual
activities. Cf. id. (“[S]he is permitted to testify as to the illicit relations in actions
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directly involving the parentage of the child, for in such cases, proof thereof
frequently would be an impossibility except through the testimony of the woman.”
(citations omitted)).
We decline to analogize the prejudice stemming from caselaw: (1) grounded in
the patent sexism of the past; and (2) predating the modern rules of evidence on
paternity and DNA testing. See N.C. Gen. Stat. § 8-57.2 (2021) (abrogating the
common law rule discussed in Aldridge and explicitly authorizing the mother in any
action involving paternity of a child born during a marriage to testify to nonaccess);
N.C. Gen. Stat. § 8-50.1(a) (2021) (requiring the trial court to order blood testing to
determine parentage, “regardless of any presumptions with respect to parentage,”
upon motion of the State or defendant). Moreover, Mr. Spera’s identity is not so
intimate a fact as whether a spouse had “nonaccess” to their partner such that Mr.
Perry’s identification was inherently more probative than one from another witness;
Ms. Tarleton was in the room at the time of the robbery, knew both Mr. Spera and
Mr. Weathers well, and could thus provide an identification of equal—if not
altogether greater—probative value.1
The case before us is also different for several additional reasons, namely: (1)
Mr. Spera’s counsel ably cross-examined Mr. Perry on the differences between his
1 Indeed, given that Ms. Tarleton’s description of Mr. Spera’s appearance at the time of the
robbery lacked the glaring inconsistencies between Mr. Spera’s actual appearance and Mr. Perry’s
initial description of the man with the hammer, Ms. Tarleton’s identification could reasonably be
afforded greater weight than Mr. Perry’s.
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initial identification and Mr. Spera’s in-court appearance, substantially undercutting
the improper identification’s probative value;2 (2) Ms. Tarleton’s identification of Mr.
Spera was highly probative given her intimate familiarity with both Mr. Spera and
Mr. Weathers; and (3) Mr. Spera’s identity—unlike the details of the wife’s sexual
activities in Aldridge—was not intimate and private knowledge such that Mr. Perry
was the best and most credible source for that information. Thus, Aldridge’s context
and ruling do not align sufficiently with our case, and we find it inapposite to the
appeal before us.
B. Motion to Dismiss
Mr. Spera next challenges the trial court’s denial of his motion to dismiss the
larceny charge, arguing that the evidence presented does not sufficiently demonstrate
his intention to permanently deprive Mr. Perry of his vehicle. He highlights that the
evidence, at best, implies only an intended temporary deprivation. We agree with
Mr. Spera, vacate his misdemeanor larceny conviction on this basis, and remand for
entry of a judgment convicting him of the lesser-included offense of unauthorized use
of a motor vehicle.
1. Standard of Review
2 Of note, the Supreme Court stated in Aldridge that the defendant’s counsel “undertook, with
indifferent success, to impeach [the woman’s] testimony as to nonaccess.” 254 N.C. at 299, 118 S.E.2d
at 767-68 (emphasis added).
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A trial court’s ruling on a motion to dismiss is subject to de novo review. State
v. Summey, 228 N.C. App. 730, 733, 746 S.E.2d 403, 406 (2013). When considering
the denial of a motion to dismiss, we assess “whether there is substantial evidence
(1) of each essential element of the offense charged, or of a lesser offense included
therein, and (2) of defendant’s being the perpetrator of such offense.” State v. Fritsch,
351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000) (citation omitted).
Substantial evidence is defined as “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” State v. Vause, 328 N.C.
231, 236, 400 S.E.2d 57, 61 (1991) (citation and quotation marks omitted). In other
words, the State must present “more than a mere scintilla” of evidence to establish
each and every element of the charge. State v. Smith, 40 N.C. App. 72, 77-78, 252
S.E.2d 535, 539 (1979) (citations and quotation marks omitted). We grant “the State
the benefit of every reasonable inference and resolv[e] any contradictions in its favor.”
State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994) (citation omitted). The
presented evidence and inferences must go beyond “rais[ing] suspicion or conjecture.”
State v. Chekanow, 370 N.C. 488, 492, 809 S.E.2d 546, 550 (2018) (citation omitted).
2. Analysis
Larceny is a common law crime with the essential elements “that the
defendant: (1) took the property of another; (2) carried it away; (3) without the owner’s
consent; and (4) with the intent to deprive the owner of his property permanently.”
State v. Sisk, 285 N.C. App. 637, 641, 878 S.E.2d 183, 186 (2022) (citations and
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quotation marks omitted). “The statutory provision upgrading misdemeanor larceny
to felony larceny does not change the nature of the crime; the elements of proof remain
the same.” State v. Smith, 66 N.C. App. 570, 576, 312 S.E.2d 222, 226 (1984).
The final element—intent—is often inferred from circumstantial evidence
rather than direct proof. State v. Harlow, 16 N.C. App. 312, 315, 191 S.E.2d 900, 902
(1972). However, our Supreme Court recognized long ago that “[s]omething more
than the mere act of taking is necessary to be shown before the jury can proceed to
inquire into the [defendant’s] intent.” State v. Foy, 131 N.C. 804, 805, 42 S.E. 934,
935 (1902). This “felonious intent” is multifaceted and includes more than just an
intent of permanent deprivation:
Felonious intent as applied to the crime of larceny is the
intent which exists where a person knowingly takes and
carries away the personal property of another without any
claim or pretense of right with the intent wholly and
permanently to deprive the owner of his property.
State v. Perry, 21 N.C. App. 478, 481-82, 204 S.E.2d 889, 891 (1974) (citation and
quotation marks omitted). Thus, a defendant who takes another’s property on an
honestly mistaken belief that it belongs to them has not committed larceny. See, e.g.,
State v. Gaither, 72 N.C. 458, 460 (1875) (holding, on appeal from a larceny conviction
for taking and eating the alleged victim’s chickens, that “it cannot be maintained,
that if one takes the property of another and eats it, that he is guilty of larceny. It
may be trespass, or mistake, or larceny, according to circumstances; it is not
necessarily larceny.” (emphasis in original)). Similarly, a defendant who knowingly
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and dishonestly takes another’s property for only a temporary purpose lacks
“felonious intent” necessary for larceny and has instead merely committed a trespass.
State v. Rogers, 255 N.C. App. 413, 415, 805 S.E.2d 172, 174 (2017). Thus, proving
felonious intent for larceny requires showing two distinct aspects of intent: (1) an
intentionally wrongful taking of another’s property, State v. Bowers, 273 N.C. 652,
655, 161 S.E.2d 11, 14 (1968); and (2) an intent to permanently deprive the victim of
possession, Rogers, 255 N.C. App. at 415, 805 S.E.2d at 174.
Different facts may circumstantially demonstrate an intent to accomplish a
wrongful taking, “inconsistent with an honest purpose, such as when done
clandestinely, or, when charged with, denies, the fact; or secretly, or forcibly; or by
artifice.” Foy, 131 N.C. at 805-06, 42 S.E. at 935 (citations omitted). By contrast,
intent to permanently deprive the owner of possession “may, generally speaking, be
deemed proved if it appears he kept the goods as his own ‘til his apprehension, or that
he gave them away, or sold or exchanged or destroyed them.” State v. Smith, 268
N.C. 167, 173, 150 S.E.2d 194, 200 (1966) (citation and quotation marks omitted). In
summary, apart from the act of taking itself, additional facts must be present to
support an inference of the requisite criminal intent, including both the intent to
wrongfully take and the intent to permanently deprive the owner of possession. And
while force goes to an intent to wrongfully take, Foy, 131 N.C. at 805-06, 42 S.E. at
935, no case cited by the State has held that it also demonstrates an intent to
permanently deprive; to the contrary, courts have looked to other factors besides force
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to show intent to permanently deprive, even in cases where force was used, Smith,
268 N.C. at 172-73, 150 S.E.2d at 200 (holding intent to permanently deprive the
owner of a rifle taken in an armed robbery was shown by the abandonment of the
rifle after the taking rather than the death threats, use of a firearm, and firing of a
warning shot at the victim’s feet in the robbery itself).
Consistent with Smith, intent to permanently deprive the victim of possession
has been shown in a number of factual circumstances, though the use of force does
not appear to be among them. In State v. Osborne, a larceny case involving the theft
of numerous personal articles from the victim’s apartment, we held that the discovery
of the items “in the defendant’s bags and among his own possessions [was] sufficient
evidence from which a reasonable jury could conclude defendant had the necessary
intent to permanently deprive [the victim] of [his] property.” 149 N.C. App. 235, 243,
562 S.E.2d 528, 534 (2002). That is, the stolen materials were kept until discovered,
not voluntarily returned after a short period. Similarly, apprehension of missing
money, in the defendants’ possession and alongside other unrelated stolen items, was
sufficient to show the requisite criminal intent to permanently deprive the rightful
owner of possession in State v. Jones, 57 N.C. App. 460, 464, 291 S.E.2d 869, 872
(1982). In State v. Hager, we held that a jewelry thief’s intent to permanently deprive
the owner of possession was shown from the “defendant’s exchanging the [stolen]
items for cash” at several pawnshops. 203 N.C. App. 704, 708, 692 S.E.2d 404, 407
(2010). We likewise held that intent to permanently deprive was shown in an
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automobile theft in State v. Jackson; because the stolen car in that case was never
recovered, “[t]he fact that the car ha[d] not yet been returned or even located by the
police [was] sufficient to raise an inference in favor of the State that the defendant
did in fact intend to keep the car permanently when he took it.” 75 N.C. App. 294,
297-98, 330 S.E.2d 668, 670 (1985). Finally, abandonment of a car was similarly
deemed sufficient evidence of intent of permanent deprivation in State v. Allen, where
the “[d]efendant’s abandonment of the vehicle . . . placed the vehicle beyond his power
to return it to [the victim] and showed his indifference as to whether [the victim] ever
recovered it.” 193 N.C. App. 375, 381, 667 S.E.2d 295, 299 (2008).
These illustrative cases demonstrate that some additional facts beyond the
taking itself must exist to prove an intent to permanently deprive the owner of
possession. Foy, 131 N.C. at 805, 42 S.E. at 935; Smith, 268 N.C. at 173, 150 S.E.2d
at 200. And, importantly, those decisions did not rely on force to show that particular
form of intent; indeed, courts looked to other factors even in cases where force was
present. See Smith, 268 N.C. at 172-73, 150 S.E.2d at 200; see also Jones, 57 N.C.
App. at 464, 291 S.E.2d at 872 (discovery of missing money stolen in an armed bank
robbery alongside other unrelated stolen goods served to establish intent to
permanently deprive, rather than use of weapons in robbery); State v. Mann, 355 N.C.
294, 304, 560 S.E.2d 776, 783 (2002) (abandonment of vehicle, rather than use of a
weapon in the armed robbery, showed intent to permanently deprive owner of
possession).
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In contrast to the above cases, other precedents demonstrate that where the
uncontroverted evidence contradicts the intent of permanent deprivation, dismissal
of the larceny charge is proper. We applied this principle in Matter of Raynor to
reverse the denial of a motion to dismiss a larceny charge, as all the evidence showed
the juvenile defendant picked up a watch with the intention to play with it before
voluntarily returning it when asked by its owner. 64 N.C. App. 376, 378-79, 307
S.E.2d 219, 221 (1983). State v. Watts, 25 N.C. App. 194, 212 S.E.2d 557 (1975), is
even more compelling. There, after being threatened with a hammer and scissors,
the victim gave the defendant his wallet and some credit cards. Id. at 195, 212 S.E.2d
at 557. When the defendant demanded more money, the victim replied that he would
be receiving his $150 paycheck later that morning. Id. The defendant responded by
“agree[ing] that he would take the money but forced [the victim] to get his television
set and place it and other items in a paper bag, which defendant would hold as
security until [the victim] could get the money.” Id. at 195, 212 S.E.2d at 557-58. We
held that these facts were insufficient to show larceny of the television set, as “[a]ll of
the evidence tends to show that [the defendant] took the set for the purpose of
coercing the owner to pay him $150,” rather than with an intent to permanently
deprive the victim of the TV. Id. at 198, 212 S.E.2d at 559. Thus, in Watts, the use
of force and the taking of other items were insufficient to show intent to permanently
deprive the owner of possession of the TV when all the other uncontradicted evidence
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We have not identified—and the State has not provided—any precedent
upholding a denial of a motion to dismiss a larceny charge where: (1) the only alleged
evidence of intent of permanent deprivation was the taking itself; and (2) all
additional evidence disclosed an intent to accomplish only a temporary deprivation. 3
Indeed, such precedent would be at odds with both our longstanding common law,
Foy, 131 N.C. at 805-06, 42 S.E. at 935, and the logical notion that the lone act of
taking does not indicate, one way or the other, whether the deprivation is intended
to be permanent or temporary. The State’s claim that Mr. Spera “took Mr. Perry’s
keys, without his consent, and permanently deprived Mr. Perry of his truck for some
period of time,” is internally inconsistent because “some period of time” essentially
and logically concedes non-permanence. To hold that inferences drawn from the
taking alone, with no other evidence related to the permanence of the taking, would
permit the State to send larceny cases to the jury where only a lesser crime had been
proven, eliminating the State’s burden of proving the elements of the greater larceny
3 The State relies primarily on State v. Walker, where a jewelry thief was caught putting rings
into his pocket on the salesroom floor. 6 N.C. App. 740, 742, 171 S.E.2d 91, 92 (1969). When the thief
was confronted by an owner of the store, the thief dropped the rings, offered to be searched and, when
told the police would be searching him, fled the premises before he was apprehended a few blocks
away. Id. The central issue in Walker was not intent, but “the question of asportation,” id. at 743,
171 S.E.2d at 93, which is an entirely different element than intent. See State v. Carswell, 296 N.C.
101, 103, 249 S.E.2d 427, 428 (1978) (discussing “asportation, or carrying away” as an element of
larceny (citation and quotation marks omitted)). Regardless, the defendant in Walker was initially
apprehended and confronted by the store owner with the stolen goods in his possession, 6 N.C. App.
at 742, 171 S.E.2d at 92, which is a well-recognized means of circumstantially demonstrating an
intended permanent deprivation. Smith, 268 N.C. at 173, 150 S.E.2d at 200. Finally, unlike a truck—
which is useful for innumerable purposes, both temporary and permanent—it is difficult to conceive
of a reason for temporarily and illicitly taking a handful of rings and shoving them in one’s pocket.
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Opinion of the Court
offense. See, e.g., State v. Ross, 46 N.C. App. 338, 339, 264 S.E.2d 742, 743 (1980)
(recognizing unauthorized use of a motor vehicle as a lesser-included offense of
larceny that does not require showing intent of permanent deprivation).
Nor do threats of violence and the taking of some other objects of lesser value—
not alleged in the larceny indictment—amount to sufficient evidence to support such
an inference when the remaining uncontroverted facts show an intent to only
accomplish a temporary deprivation. See Watts, 25 N.C. App. at 198, 212 S.E.2d at
559; Smith, 268 N.C. at 172-73, 150 S.E.2d at 200. Again, consistent with logic and
the absence of any caselaw to the contrary from the State, the use of force to
accomplish a theft reveals an intent to wrongfully take an item, but it says nothing
about the intended duration of the taking. Compare Foy, 131 N.C. at 805-06, 42 S.E.
at 935 (noting use of force as circumstantial evidence showing an intent to wrongfully
take possession of another’s property), with Smith, 268 N.C. at 173, 150 S.E.2d at 200(enumerating, without mention of force, facts that are generally considered sufficient
to circumstantially show intent of permanent deprivation).
Turning to the specific evidence introduced in this case, there was insufficient
evidence of an intent of permanent deprivation to send the misdemeanor larceny
charge to the jury. Mr. Perry testified that Mr. Spera took the car on a “joy rid[e],”
and Ms. Tarleton testified, without objection, that she “underst[ood] . . . [Mr. Perry
and Mr. Taylor] were waiting until Luther [Weathers] came back with the truck so
they could leave.” And both witnesses testified that Mr. Spera returned the vehicle
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STATE V. SPERA
Opinion of the Court
voluntarily, handed back the keys to Mr. Perry, and released him without harm. Mr.
Perry also testified that Mr. Spera began the robbery by demanding “powder” and
“must have assumed we were selling cocaine or something,” suggesting Mr. Spera
initially intended to steal drugs rather than permanently steal a truck. All of this
uncontroverted evidence supports only an inference of a temporary deprivation. See
Raynor, 64 N.C. App. at 379, 307 S.E.2d at 221 (holding there was “no evidence
whatsoever” of intent of permanent deprivation notwithstanding evidence that the
item was initially recovered in the defendant’s possession, as the defendant’s
testimony disclaimed such intent and uncontradicted evidence showed the item was
voluntarily returned at the request of the purported victim (emphasis in original)).
No other facts support a contrary inference under the caselaw cited to this
Court and reviewed above. While it is true that Mr. Spera threatened force and took
the phone and keys from Mr. Perry, those facts do not overcome other uncontradicted
evidence establishing a temporary deprivation only. Watts, 25 N.C. App. at 195, 212
S.E.2d 557-58; Smith, 268 N.C. at 172-73, 150 S.E.2d at 200; cf. Raynor, 64 N.C. App.
at 379, 307 S.E.2d at 221. Any inference of a permanent deprivation from these facts
amounts to mere conjecture and speculation insufficient to survive a motion to
dismiss.
Having held that the trial court erred in denying Mr. Spera’s motion to dismiss
the larceny charge, we turn to the appropriate remedy. Mr. Spera argues that pure
vacatur without remand is required, asserting that he was charged by indictment
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Opinion of the Court
with larceny of property in excess of $1,000 and that unauthorized use of a motor
vehicle is only a lesser-included offense of “larceny of a motor vehicle.”4 But our
precedents establish that “[a]ll 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.” Ross, 46 N.C. App. at 339, 264 S.E.2d at 743 (emphasis added)
(citation omitted); see also State v. Hole, 240 N.C. App. 537, 540, 770 S.E.2d 760, 763
(2015) (recognizing unauthorized use of a motor vehicle as a lesser-included offense
of larceny but not possession of stolen goods). “Larceny of a motor vehicle” is not a
separate or distinct offense from “larceny” under either our common law or statutes.
See, e.g., State v. Allen, 193 N.C. App. 375, 380, 667 S.E.2d 295, 299 (2008) (applying
the common law elements of larceny and the related offense classification statute for
larceny generally, N.C. Gen. Stat § 14-72, to a conviction for “felonious larceny of a
motor vehicle”).
Nothing in Ross or related precedents limits unauthorized use of a motor
vehicle as a lesser-included offense to indictments for “larceny of a motor vehicle”
alone. Consistent with this caselaw, we vacate Mr. Spera’s conviction for
misdemeanor larceny and remand for entry of a judgment on the lesser-included
4 We note that the indictment in this case did specifically assert “larceny of a motor vehicle,”
alleging Mr. Spera “did steal, take and carry away a motor vehicle, to wit, a 1984 Chevrolet truck . . .
having a value of more than $1,000.00.”
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Opinion of the Court
offense of unauthorized use of a motor vehicle. See State v. Jolly, 297 N.C. 121, 130,
254 S.E.2d 1, 7 (1979) (holding that the proper remedy for an improperly denied
motion to dismiss where the only unproved element was the element elevating the
offense to the greater crime is vacatur of the judgment and remand for entry of
judgment on the lesser-included offense, as “in finding defendant guilty of [the
greater crime], the jury necessarily had to find facts establishing the [lesser] offense”).
III. CONCLUSION
For the foregoing reasons, we vacate Mr. Spera’s conviction for misdemeanor
larceny in 17CRS052233 and remand for entry of a judgment on the lesser-included
offense of unauthorized use of a motor vehicle. Beyond that, we find no error in his
remaining convictions.
VACATED IN PART AND REMANDED.
Judges HAMPSON and FLOOD concur.
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