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.
 -2-
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.
 -4-
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
 -5-
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
 -6-
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).
 -7-
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
 -8-
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).
 -9-
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
 -10-
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
 -11-
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,
 -12-
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.