State v. Ross , 46 N.C. App. 338 ( 1980 )

264 S.E.2d 742 (1980)

STATE of North Carolina
v.
Reginald Alex ROSS.

No. 796SC943.

Court of Appeals of North Carolina.

April 15, 1980.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Charles M. Hensey, Raleigh, for the State.

Rosbon D. B. Whedbee, Ahoskie, for defendant-appellant.

HARRY C. MARTIN, 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 Effective 1 January 1975, N.C.G.S. 20-105 was repealed and N.C.G.S. 14-72.2 was adopted.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).

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.

PARKER and HILL, JJ., concur.