Criminal Practice – Possession of Stolen Property – Lesser Included Offense – Unauthorized Use of a Motor Vehicle

State v. Nickerson. (Lawyers Weekly No. 10-07-1099, 9 pp.) (Donna S. Stroud, J.) Appealed from Orange County Superior Court. (Orlando F. Hudson, J.) N.C. App. Click here for the full text of the opinion.

Holding: Where defendant presented evidence that a friend, who was too drunk to drive, asked defendant to drive the car – which, unbeknownst to defendant, was in fact stolen – the trial court should have instructed the jury on the lesser included offense of unauthorized use of a motor vehicle.

Defendant is entitled to a new trial as to his convictions for possession of stolen property and obtaining habitual felon status.

Felonious possession of stolen goods requires evidence of: (1) possession of personal property; (2) valued at greater than $1,000; (3) which has been stolen; (4) the possessor knowing or having reasonable grounds to believe that the property is stolen; and (5) the possessor acts with a dishonest purpose.

The elements of unauthorized use of a motor vehicle include (1) taking or operating, (2) a motor vehicle of another, (3) without the express or implied consent of the owner or person in lawful possession.

In order to operate a motor vehicle one must possess it, as operating a motor vehicle requires having or holding the motor vehicle in one’s power and controlling the motor vehicle. Thus, operation of a motor vehicle is a form of possession, which is an element of possession of stolen goods.

A motor vehicle of another is a type of personal property, which is an element of possession of stolen goods.

Something which has been stolen has been taken “without the express or implied consent of the owner or person in lawful possession. …” See G.S. § 14-72.2(a). Therefore, unauthorized use of a motor vehicle is a lesser-included offense of possession of stolen goods, as all of the essential elements of unauthorized use of a motor vehicle are essential elements of possession of stolen goods.

The evidence at trial showed that defendant told the police he was in the area for a funeral and that the car was not his, but belonged to his friend, whom he had left at a park because he was too drunk to drive. Furthermore, defendant’s mother testified that defendant had gone to a funeral, and the police confirmed a funeral in the area.

The evidence amounts to more than a mere denial by defendant that he knew the vehicle was stolen; instead, there was contradictory evidence as to two of the elements of possession of stolen goods. Accordingly, the trial court should have instructed the jury on the lesser-included offense of unauthorized use of a motor vehicle.

The burden is on the state to prove that the error was harmless. Where the state argued only that there was no error in the failure to instruct on the lesser-included offense, the state failed to meet its burden.

New trial.