State v. Coward

283 S.E.2d 536 (1981)

STATE of North Carolina v. Calvin Angelo COWARD.

No. 818SC338.

Court of Appeals of North Carolina.

November 3, 1981.

*537 Atty. Gen., Rufus L. Edmisten by Asst. Atty. Gen., Douglas A. Johnston, Raleigh, for the State.

Appellate Defender, Adam Stein by Asst. Appellate Defenders, Marc D. Towler, Raleigh, Malcolm R. Hunter, Jr., Fayetteville, and M. Christopher Kemp, Lumberton, for the defendant-appellant.

ROBERT M. MARTIN, Judge.

Defendant assigns as error the failure of the trial judge to submit to the jury the offense of unauthorized use of a motor vehicle, N.C.Gen.Stat. § 14-72.2(a), as a lesser included offense. We agree with the defendant and for this reason the defendant is entitled to a new trial.

All of the essential elements of the crime of unauthorized use of a motor conveyance, N.C.Gen.Stat. § 14-72.2(a) are included in larceny, N.C.Gen.Stat. 14-72, and this Court has held that it may be a lesser included offense of larceny where there is evidence to support the charge. State v. Ross, 46 N.C.App. 338, 264 S.E.2d 742 (1980); State v. Reese, 31 N.C.App. 575, 230 S.E.2d 213 (1976).

This case is very similar to Ross, supra, in which the defendant offered evidence to show that he had no intent to steal the car involved. Ross was found in possession of a stolen automobile. As an officer approached the car, the defendant tried to drive away, but the car was out of gasoline. The defendant testified that he had been picked up by some other people who left the car when it ran out of gas, that he did not know the car was stolen, and that he had no interest in keeping the car. That defendant was entitled to a new trial because of the failure of the judge to instruct on the lesser included offense of unauthorized use of a motor vehicle.

Here the evidence supports the charge on the lesser included offense. The defendant presented evidence that he did not intend to steal Smith's car. It is reversible error to fail to submit to the jury an instruction on a lesser included offense supported by the evidence, even without a specific request by the defendant for the instruction, and the error is not cured by the conviction of defendant for the greater offense. State v. Riera, 276 N.C. 361, 172 S.E.2d 535 (1970).

We do not pass on defendant's remaining assignments of error because they may not recur on retrial.

New trial.

HARRY C. MARTIN and BECTON, JJ., concur.