State v. Robinson

NO. COA14-224
NORTH CAROLINA COURT OF APPEALS
Filed: 16 September 2014
STATE OF NORTH CAROLINA
v. Mecklenburg County
Nos. 12 CRS 16114, 202039
STILLOAN DEVORAY ROBINSON
Appeal by Defendant from judgment entered 30 August 2013 by
Judge Robert T. Sumner in Mecklenburg County Superior Court.
Heard in the Court of Appeals 13 August 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Hugh Harris, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Jon H. Hunt, for Defendant.
STEPHENS, Judge.
Procedural and Factual Background
On 6 February 2012, Defendant Stilloan Devoray Robinson was
indicted for possession of a stolen motor vehicle, breaking and
entering a motor vehicle, and larceny of a motor vehicle.1 On 2
April 2012, Defendant was indicted for having attained the
1
In two superseding indictments in May 2013, Defendant was
indicted for the same three offenses.
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status of an habitual felon. The evidence at Defendant’s August
2013 trial tended to show the following:
On 13 January 2012, Defendant was arrested just after
parking and exiting a car belonging to William Markham which
Markham had reported stolen. At the time, Markham and Defendant
were roommates at the McCloud Federal Halfway House2 in
Charlotte. Markham testified that, on 10 January 2012, he
returned to the house after work, parking his car in a back
parking lot. Markham checked in with staff and went to his
room. Defendant and Markham’s other roommates were present.
After changing out of his work clothes, Markham hid his car keys
in his shoe and left the room to make a phone call. When
Markham returned, he discovered that Defendant and the car keys
were both gone. Markham checked the parking lot and saw that
his car was missing. Markham testified that he had not given
Defendant permission to take his car. A staff member at the
halfway house testified that she saw Defendant drive away in
Markham’s car and called the Charlotte-Mecklenburg Police
Department.
2
The facility is also referred to as the “McCloud Center” at
certain points in the trial transcript.
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Defendant’s theory of the case was that Markham had given
him permission to use the car on a limited basis. Specifically,
Defendant testified that Markham had agreed to loan Defendant
the car for one day in exchange for crack cocaine.3 After being
unable to obtain actual crack cocaine, Defendant gave Markham
some counterfeit crack cocaine on 10 January 2012. In exchange,
Markham gave Defendant his car keys with the understanding that
Defendant would return the car by leaving it at a local
McDonald’s the following day. However, on direct examination,
Defendant acknowledged that he kept Markham’s car for three
days:
Q. About how long would you have used the
car?
A. He wanted it the next day.
Q. So the understanding was that you were
going to use it one day.
A. Yes, sir.
Q. You were only supposed to only have it
one day.
A. Yes, sir.
Q. And you wound up keeping it longer?
A. Longer than that.
3
Markham testified that he had never used any form of cocaine.
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At the charge conference following completion of the evidence,
Defendant requested that the jury be instructed on the crime of
unauthorized use of a motor vehicle as a lesser-included offense
of possession of a stolen motor vehicle. The trial court denied
the request.
The jury found Defendant guilty of possession of a stolen
motor vehicle, but not guilty of the other two substantive
criminal charges. Defendant admitted to having attained
habitual felon status. The trial court sentenced Defendant to
an active term of 84-113 months in prison. Defendant’s trial
counsel gave notice of appeal in open court following the jury’s
verdict, but failed to give notice of appeal following entry of
the trial court’s final judgment. Instead, trial counsel asked
the court whether the appeal would be assigned to the Office of
the Appellate Defender. The trial court responded by appointing
the Office of the Appellate Defender to represent Defendant in
his appeal, and stated, “I’ll note your appeal for the record.”
By failing to give timely notice of appeal, Defendant has
lost his right of appeal. See N.C. Gen. Stat. §§ 7A-27(b), 15A-
1444(a) (2013). Recognizing this deficiency, Defendant’s
appellate counsel has filed, along with the record on appeal and
Defendant’s brief, a petition for writ of certiorari pursuant to
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Appellate Rule 21. “Rule 21 provides that a writ of certiorari
may be issued to permit review of trial court orders . . .
when[, inter alia] the right to an appeal has been lost by
failure to take timely action . . . .” Bailey v. North Carolina
Dep’t of Revenue, 353 N.C. 142, 157, 540 S.E.2d 313, 322 (2000)
(citing N.C.R. App. P. 21(a)) (italics added). The State did
not oppose Defendant’s petition, and we allowed Defendant’s
petition for writ of certiorari by order entered 23 July 2014.
Discussion
Defendant argues that he received ineffective assistance of
counsel (“IAC”) in that “his trial attorney, on direct
examination, asked him questions to which the answers conceded
his guilt to the only crime for which he was convicted[,]” to
wit, possession of a stolen motor vehicle.
“An IAC claim must establish both that the professional
assistance [the] defendant received was unreasonable and that
the trial would have had a different outcome in the absence of
such assistance.” State v. Fair, 354 N.C. 131, 167, 557 S.E.2d
500, 525 (2001) (citation omitted), cert. denied, 535 U.S. 1114,
153 L. Ed. 2d 162 (2002).
IAC claims brought on direct review will be
decided on the merits when the cold record
reveals that no further investigation is
required, i.e., claims that may be developed
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and argued without such ancillary procedures
as the appointment of investigators or an
evidentiary hearing. This rule is
consistent with the general principle that,
on direct appeal, the reviewing court
ordinarily limits its review to material
included in the record on appeal and the
verbatim transcript of proceedings, if one
is designated.
Id. at 166, 557 S.E.2d at 524-25 (citations and internal
quotation marks omitted). Defendant contends that the record
before us is sufficient for this matter to be resolved without
further investigation, and we agree. Accordingly, we address
the merits of his argument.
The only elements of the offense of possession of a stolen
motor vehicle under N.C. Gen. Stat. § 20-106 are that (1) the
defendant possessed a motor vehicle which (2) he knew or had
reason to believe was stolen. State v. Baker, 65 N.C. App. 430,
437, 310 S.E.2d 101, 108 (1983), cert. denied, 312 N.C. 85, 321
S.E.2d 900 (1984). Property is stolen when it has been carried
away without the owner’s consent and with the intent to
permanently deprive the owner of the property. See, e.g., State
v. Perry, 305 N.C. 225, 233, 287 S.E.2d 810, 815 (1982),
overruled in part on other grounds by State v. Mumford, 364 N.C.
394, 699 S.E.2d 911 (2010).
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As noted supra in the recap of the evidence presented at
trial, Defendant never disputed that he possessed Markham’s car.
Rather, Defendant contended that he possessed the car with
Markham’s permission and that he intended to return it to
Markham per their alleged agreement. On direct examination,
defense counsel’s questions only induced Defendant to admit that
he had kept the car longer than the alleged agreement with
Markham had permitted. Defense counsel’s questions did not
require Defendant to admit to believing the car was stolen, and
indeed, Defendant never gave any testimony indicating that he
knew or had reason to know that the car was stolen. To the
contrary, Defendant’s testimony was that he knew the car was not
stolen at the time he possessed it, in that Markham had given
Defendant permission to use it. Although Defendant did admit to
keeping Markham’s car longer than permitted by the alleged
agreement, he never suggested that he had the intent to
permanently deprive Markham of the car. In sum, defense counsel
did not elicit testimony from Defendant which conceded his guilt
of any crime for which he was charged,4 and thus, Defendant
4
Defendant’s testimony would have supported his conviction of a
charge of unauthorized use of a motor vehicle (the current
version of statute is titled “[u]nauthorized use of a motor-
propelled conveyance”). “A person is guilty of [unauthorized
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cannot show that he received ineffective assistance in this
regard. Accordingly, Defendant’s IAC argument is overruled.
Defendant’s Motion to File Supplemental Brief
On 30 June 2014, Defendant filed with this Court a “motion
to file supplemental brief.” In the motion, appellate counsel
for Defendant states the following: That he intended to argue
on direct appeal that the trial court committed reversible error
in denying the defense request to instruct the jury on
unauthorized use of a motor vehicle as a lesser-included offense
of possession of a stolen motor vehicle. While researching the
issue, however, appellate counsel reviewed this Court’s opinion
in State v. Oliver, __ N.C. App. __, 718 S.E.2d 731 (2011). In
Oliver, the defendant had alleged error in the trial court’s
refusal to instruct on unauthorized use of a motor vehicle,
use of a motor vehicle] 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. Gen. Stat. § 14-72.2(a)
(2013). “One of the essential elements of unauthorized use of a
motor vehicle is the taking or operating of a motor vehicle
without having formed an intent to permanently deprive the owner
thereof.” State v. McCullough, 76 N.C. App. 516, 518, 333
S.E.2d 537, 538 (1985) (contrasting this offense with that of
common law robbery). This offense occurs, inter alia, where one
initially has permission for the use of a vehicle, but keeps the
vehicle after its owner has withdrawn his permission or
requested that the vehicle be returned. See, e.g., State v.
Milligan, 192 N.C. App. 677, 666 S.E.2d 183 (2008).
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contending that “all the essential elements of unauthorized use
of a stolen vehicle are essential elements of possession of a
stolen vehicle.” Id. at __, 718 S.E.2d at 734. This Court
rejected the defendant’s contention on the following basis:
During the pendency of [the] defendant’s
appeal, our Supreme Court addressed this
very issue of whether unauthorized 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. However, as appellate counsel now notes, 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.” Nickerson, 365 N.C. at 281, 715 S.E.2d at 846
(emphasis added). The Supreme Court reasoned that
[b]oth offenses concern personal property.
However, the specific definitional
requirement that the property be a “motor-
propelled conveyance” is an essential
element unique to the offense of
unauthorized use of a motor vehicle. For
the offense of possession of stolen goods,
the State need not prove that [the]
defendant had a “motor-propelled conveyance”
but rather that the property in [the]
defendant’s possession is any type of
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personal property. As such, unauthorized
use of a motor vehicle has an essential
element not found in the definition of
possession of stolen goods. Because we
conclude that this element of the lesser
crime is not an essential element of the
greater crime, we need not address the other
elements.
Id. at 282, 715 S.E.2d at 847 (citation omitted). Thus, in
Oliver, this Court mistakenly relied on Nickerson for a
proposition not addressed, nor a holding reached, in that case.
To compound that error, appellate counsel concedes that he
relied solely on our opinion in Oliver in determining that the
law on whether unauthorized use of a stolen vehicle is a lesser-
included offense of possession of a stolen vehicle was settled
contrary to Defendant’s prospective argument on this issue.
Appellate counsel did not read Nickerson at that time, and thus
did not discover the discrepancy in the opinions. Instead,
appellate counsel filed Defendant’s brief and petition for writ
of certiorari with this Court without including the jury
instruction issue.
In June 2014, appellate counsel read Nickerson and realized
the discrepancy between that opinion’s actual holding and the
holding as described in and relied upon by this Court in Oliver.
In Defendant’s “motion to file supplemental brief[,]” he asks
this Court to exercise our discretion under Rule 2 of our Rules
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of Appellate Procedure to prevent manifest injustice to
Defendant. See N.C.R. App. P. 2. In its response filed 8 July
2014, the State did not object to Defendant’s motion. By order
entered 24 July 2014, we allowed Defendant’s motion and
instructed the State to file its own supplemental brief on the
jury instruction issue no later than 8 August 2014. The
following day, the State filed a motion for an extension of time
until and including 20 August 2014 to file its supplemental
brief which we allowed by order entered 1 August 2014.
As for the merits of this argument, as Defendant concedes
in his supplemental brief, we are bound by this Court’s decision
in Oliver. See In re Appeal from Civil Penalty, 324 N.C. 373,
384, 379 S.E.2d 30, 37 (1989) (“Where a panel of the Court of
Appeals has decided the same issue, albeit in a different case,
a subsequent panel of the same court is bound by that precedent,
unless it has been overturned by a higher court.”) (citations
omitted). 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. See State v. Jones, 358 N.C. 473, 487, 598 S.E.2d 125,
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134 (2004) (“While we recognize that a panel of the Court of
Appeals may disagree with, or even find error in, an opinion by
a prior panel and may duly note its disagreement or point out
that error in its opinion, the panel is bound by that prior
decision until it is overturned by a higher court.”). In light
of Oliver, we must conclude that the trial court did not err in
denying Defendant’s request for an instruction on unauthorized
use of a motor vehicle.
NO ERROR.
Judges CALABRIA and ELMORE concur.