During a home invasion, defendant used force to take the keys to victim Perry’s truck; however, Perry testified that defendant took the truck on a “joy ride,” and another eyewitness testified she understood that, when defendant left, his accomplices waited in the home for defendant to return so they could leave. The robbery began with defendant demanding “powder,” which Perry took to mean the robbers thought the victims “were selling cocaine or something.” Finally, defendant returned voluntarily, handed the keys back to Perry, and released him without harm. This uncontroverted evidence supports only an inference of a temporary deprivation. Since the state failed to show that defendant intended to permanently deprive Perry of his truck, the state failed to prove larceny of a motor vehicle.
We vacate defendant’s conviction for larceny of a motor vehicle and remand for entry of a judgment on the lesser-included offense of unauthorized use of a motor vehicle. We find no error in defendant’s conviction for armed robbery.
During his testimony on direct examination, Perry emphatically identified defendant as the hammer-wielding robber who took his truck, among other items. During Perry’s testimony, the defense learned that Perry had made an out-of-court identification of defendant from a photograph, something the state failed to tell defendant prior to trial. On defendant’s motion, the trial court struck Perry’s identification testimony and instructed the jury to disregard it.
In the face of Perry’s repeated and emphatic identification of defendant, the trial court’s jury instruction was likely too vague, standing alone, to dispel the prejudice of Perry’s testimony. However, defense counsel then ably cross-examined Perry about his initial description of the robber as a five-foot tall bald black man (defendant is a five-foot nine-inch white man with long hair). Furthermore, the state presented the identification testimony of another victim, who knew defendant intimately. Taken together, the instruction, Perry’s cross-examination and the second witness’s identification of defendant convince us that the trial court did not abuse its discretion in denying defendant’s motion for a mistrial.
State v. Spera (Lawyers Weekly No. 011-150-23, 23 pp.) (Allison Riggs, J.) Appealed from Union County Superior Court (Nathan Gwyn, J.) Andrew Hayes for the state; Kellie Mannette for defendant. North Carolina Court of Appeals