{ "id": 4181270, "name": "STATE OF NORTH CAROLINA v. NAKIA NICKERSON, Defendant", "name_abbreviation": "State v. Nickerson", "decision_date": "2010-11-16", "docket_number": "No. COA09-1511", "first_page": "136", "last_page": "141", "citations": [ { "type": "official", "cite": "208 N.C. App. 136" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "264 S.E.2d 742", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "742-43" } ], "opinion_index": 0 }, { "cite": "46 N.C. App. 338", "category": "reporters:state", "reporter": "N.C. 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Gen. Stat. \u00a7 14-72.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 14, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "588 S.E.2d 376", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 509", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491683, 491623, 491914, 491538, 491701, 491477, 491802, 491614 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0509-06", "/nc/357/0509-05", "/nc/357/0509-04", "/nc/357/0509-03", "/nc/357/0509-01", "/nc/357/0509-02", "/nc/357/0509-07", "/nc/357/0509-08" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-71.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "580 S.E.2d 89", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "pin_cites": [ { "page": "94" }, { "page": "94" }, { "page": "94" }, { "page": "94" }, { "page": "94" }, { "page": "94" }, { "page": "94" }, { "page": "94" }, { "page": "94" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 60", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 4166708 ], "pin_cites": [ { "page": "511" } ], "opinion_index": 0, "case_paths": [ "/nc-app/196/0508-01" ] }, { "cite": "566 S.E.2d 81", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "parenthetical": "citations, quotation marks, and brackets omitted" } ], "opinion_index": 0 }, { "cite": "355 N.C. 754", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220066, 220101, 219944, 219955, 219933 ], "year": 2002, "pin_cites": [ { "parenthetical": "citations, quotation marks, and brackets omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0754-03", "/nc/355/0754-01", "/nc/355/0754-02", "/nc/355/0754-04", "/nc/355/0754-05" ] }, { "cite": "563 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "4", "parenthetical": "citations, quotation marks, and brackets omitted" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 713", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9131462 ], "year": 2002, "pin_cites": [ { "page": "717", "parenthetical": "citations, quotation marks, and brackets omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0713-01" ] }, { "cite": "523 S.E.2d 424", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "427", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 170", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11238831 ], "year": 1999, "pin_cites": [ { "page": "174", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0170-01" ] } ], "analysis": { "cardinality": 659, "char_count": 14911, "ocr_confidence": 0.751, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.13737847264454414 }, "sha256": "febb059b520658bcb14fd40ea4376878e6f1d2ac69b3a3bcaf37ffdf2b8b619c", "simhash": "1:837a5d2a5a39f5f3", "word_count": 2502 }, "last_updated": "2023-07-14T21:19:36.775795+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and HUNTER, JR., Robert N. concur." ], "parties": [ "STATE OF NORTH CAROLINA v. NAKIA NICKERSON, Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nDefendant appeals his convictions for possession of stolen goods, obtaining habitual felon status, and driving while license revoked. Defendant contends the trial court erred in denying his request to instruct the jury on a lesser-included offense and denying his motion to dismiss the charge of possession of stolen goods. For the following reasons, we remand for a new trial as to defendant\u2019s convictions for possession of stolen goods and obtaining habitual felon status, and we remand for resentencing as to defendant\u2019s conviction for driving while license revoked.\nI. Background\nThe State\u2019s evidence tended to show that on the evening of 19 November of 2008, Mr. Darrel Haller went to bed and when he woke up, his car, a 1997 gold Crysler Sebring with a black top, was gone. Mr. Haller called the police. The police came to Mr. Haller\u2019s home where he informed them that the car had a gun in it. On 20 November 2008, Steve Lehew, a patrol sergeant with the Chapel Hill Police Department, was patrolling around Sykes and Whitaker Street when he \u201csaw a Gold Crysler Sebring with a black top coming towards me on Nunn. And the stereo coming from the car was very loud. I could hear it from probably over 30 feet away. And that neighborhood, we have a lot of calls of noise complaints.\u201d Sergeant Lehew pulled behind the car and ran the license plate which \u201ccame back to a Chevy Lumina, so the license plate didn\u2019t match the type of vehicle they [sic] were on.\u201d Sergeant Lehew stopped the Sebring, which defendant was driving. Sergeant Lehew had defendant get out of the car and asked defendant if there were weapons in the car. Defendant responded, \u201c[N]o; not my,car; you can go ahead and search it.\u201d Sergeant Lehew found a gun in the car. Defendant told Sergeant Lehew \u201cit wasn\u2019t his car. It was somebody\u2019s car, a friend. And the friend was too drunk\u2014 that he was in a condition that he couldn\u2019t walk. So he said he dropped his Mend off at a place called Baldwin Park[.]\u201d Defendant did not inform Sergeant Lehew of his friend\u2019s full name. Officer Curt Farrell, also of the Chapel Hill Police Department, was called \u201cto cover\u201d Sergeant Lehew. Officer Farrell went and checked Baldwin Park and Hargrave Center, a local park, but did not find defendant\u2019s friend.\nOn or about 5 January 2009, defendant was indicted for driving while license revoked, possession of stolen goods, and obtaining habitual felon status. On 7-8 July 2009, defendant was tried by a juiy. Defendant was convicted on all charges. Defendant was determined to have a prior felony record level of IV and sentenced to 80 months to 105 months imprisonment for all of the convictions. Defendant appeals.\nII. Lesser-included Offense Jury Instruction\nDefendant first contends that \u201cthe trial court erred in denying the defendant\u2019s request for a jury instruction on the lesser-included offense of unauthorized use of a motor vehicle where the evidence supported such an instruction.\u201d (Original in all caps.) Defendant argues that unauthorized use of a motor vehicle is a lesser-included offense of possession of stolen goods. In order to determine if the trial court should have instructed the jury on the \u201clesser-included offense\u201d we must first determine if unauthorized use of a motor vehicle is in fact a lesser-included offense of possession of stolen goods.\nWhether one crime is a lesser-included offense of another is a question of law. \u201cWe review questions of law de novo.\u201d Staton v. Brame, 136 N.C. App. 170, 174, 523 S.E.2d 424, 427 (1999) (citation omitted).\nThis Court has long held that the definitions accorded the crimes determine whether one offense is a lesser included offense of another crime. If the lesser crime has an essential element which is not completely covered by the greater offense, it is not a lesser-included offense. Our Supreme Court rejected the argument that an offehse which was not ordinarily a lesser-included offense could become a lesser-included offense under specific factual circumstances.\nState v. Hannah, 149 N.C. App. 713, 717, 563 S.E.2d 1, 4, disc. review denied, 355 N.C. 754, 566 S.E.2d 81 (2002) (citations, quotation marks, and brackets omitted); see State v. Corbett, 196 N.C. App. 508, 511, 675 S.E.2d 150, 152 (\u201cThe definitions accorded the crimes determine whether one offense is a lesser included offense of another crime. In other words, all of the essential elements of the lesser crime must also be essential elements included in the greater crime. If the lesser crime has an essential element which is not completely covered by the greater crime, it is not a lesser included offense. The determination is made on a definitional, not a factual basis. State v. Weaver, 306 N.C. 629, 635, 295 S.E.2d 375, 378-79 (1982) (internal citations omitted), overruled in part on other grounds by State v. Collins, 334 N.C. 54, 61, 431 S.E.2d 188, 193 (1993).\u201d), disc. review denied and appeal dismissed, 363 N.C. 584, 682 S.E.2d 705 (2009).\n\u201cFelonious possession of stolen goods requires evidence of: (i) possession of personal property; (ii) valued at greater than $1,000; (iii) which has been stolen; (iv) the possessor knowing or having reasonable grounds to believe that the property is stolen; and (v) the possessor acts with a dishonest purpose.\u201d State v. King, 158 N.C. App. 60, 66, 580 S.E.2d 89, 94 (citing N.C. Gen. Stat. \u00a7 14-71.1), disc. review denied and appeal dismissed, 357 N.C. 509, 588 S.E.2d 376 (2003). The crime of \u201c[unauthorized use of a motor-propelled conveyance\u201d is defined in N.C. Gen. Stat. \u00a7 14-72.2(a): \u201c[a] person is guilty of an offense under this section 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.\u201d N.C. Gen. Stat. \u00a7 14-72.2(a) (2007). Thus, the elements of unauthorized use of a motor vehicle include (1) taking or operating, (2) a motor vehicle of another, (3) \u201cwithout the express or implied consent of the owner or person in lawful possession[.[\u201d Id\nThe first element of felonious possession of stolen goods is \u201cpossession of personal property;\u201d King at 66, 580 S.E.2d at 94, the first element of unauthorized use of a motor vehicle requires the offender to take or operate the motor vehicle. See N.C. Gen. Stat. \u00a7 14-72.2(a). Possession has been defined as \u201c[t]he fact of having or holding property in one\u2019s power; the exercise of dominion over property. . . . [or] [something that a person owns or controls[.]\u201d Black\u2019s Law Dictionary 1281 (9th ed. 2009). In order to operate a motor vehicle one must possess it, as operating a motor vehicle requires \u201chaving or holding [the motor vehicle] in one\u2019s power\u201d and \u201ccontrol[ling]\u201d the motor vehicle. Id. Thus, we conclude that operation of a motor vehicle is a form of possession, see id., which is an element of possession of stolen goods. See King at 66, 580 S.E.2d at 94.\nThe second element of unauthorized use of a motor vehicle requires the taking or operation of a motor vehicle of another. See N.C. Gen. Stat. \u00a7 14-72.2(a). A motor vehicle of another is a type of personal property, which is an element of possession of stolen goods. See King at 66, 580 S.E.2d at 94.\nLastly, unauthorized use of a motor vehicle requires taking or operating the motor vehicle \u201cwithout the express or implied consent of the owner or person in lawful possession^]\u201d See N.C. Gen. Stat. \u00a7 14-72.2(a). Possession of stolen goods requires that the personal property be stolen. See King at 66, 580 S.E.2d at 94. Something which has been stolen has been taken \u201cwithout the express or implied consent of the owner or person in lawful possession[.]\u201d See N.C. Gen. Stat. \u00a7 14-72.2(a). We therefore conclude that 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. See N.C. Gen. Stat. \u00a7 14-72.2(a); King at 66, 580 S.E.2d at 94.\nWe now turn to the trial court\u2019s denial of defendant\u2019s request for a jury instruction on the lesser-included offense of unauthorized use of a motor vehicle.\nDue process requires that a lesser included offense instruction be given when the evidence warrants such an instruction. But due process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction. The jury\u2019s discretion is thus channelled so that it may convict a defendant of any crime fairly supported by the evidence.\nState v. Arnold, 329 N.C. 128, 139, 404 S.E.2d 822, 829 (1991) (citation and brackets omitted). \u201cA violation of the defendant\u2019s rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt. The burden is upon the State to demonstrate, beyond a reasonable doubt, that the error was harmless.\u201d N.C. Gen. Stat. \u00a7 15A-1443(b) (2007).\nUnder North Carolina and federal law a lesser included offense instruction is required if the evidence would permit a jury rationally to find defendant guilty of the lesser offense and acquit him of the greater. The test is whether there is the presence, or absence, of any evidence in the record which might convince a rational trier of fact to convict the defendant of a less grievous offense. Where the State\u2019s evidence is positive as to each element of the offense charged and there is no contradictory evidence relating to any element, no instruction on a lesser included offense is required.\nState v. Millsaps, 356 N.C. 556, 562, 572 S.E.2d 767, 772 (2002) (citations, quotation marks, and brackets omitted); see also State v. Mangum, 158 N.C. App. 187, 197, 580 S.E.2d 750, 757 (\u201cWhere the State presents evidence of every element of the offense, and there is no evidence to negate these elements other than the defendant\u2019s denial that he committed the offense, then no lesser-included offense need be submitted.\u201d (citation omitted)), disc. review denied, 357 N.C. 510, 588 S.E.2d 378 (2003). Here, the State\u2019s evidence established that defendant (1) possessed personal property (2) that was valued at more than $1,000 (3) and was stolen. See King at 66, 580 S.E.2d at 94. The remaining two elements of felonious possession of stolen goods are based upon the defendant\u2019s state of mind, whether defendant knew or had \u201creasonable grounds to believe that the property [wa]s stolen\u201d and \u201cact[ed] with a dishonest purpose.\u201d Id.) see State v. Brown, 85 N.C. App. 583, 586, 355 S.E.2d 225, 228 (\u201cWe agree with defendant that whether someone is acting with a dishonest purpose is a question of intent.\u201d), disc. review denied, 320 N.C. 172, 358 S.E.2d 57 (1987).\nThe 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\u2019s 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, but instead establishes contradictory evidence as to two of the elements of possession of stolen goods. See King at 66, 580 S.E.2d at 94; Mangum at 197, 580 S.E.2d at 757. Accordingly, the trial court should have instructed the jury on the lesser-included offense of unauthorized use of a motor vehicle. See generally State v. Ross, 46 N.C. App. 338, 339-40, 264 S.E.2d 742, 742-43 (1980) (determining the jury should have been' instructed on unauthorized use of a motor vehicle as a lesser-included offense of larceny because \u201c[tjhere is no eyewitness testimony as to who took the Volkswagen car. Defendant is later found in the car by the officer. He had no consent to take or operate the car. Defendant\u2019s testimony tends to show he had no intent to steal the car. This evidence is sufficient to require the submission of the lesser included offense to the jury.\u201d). As the trial court erred in not instructing 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. See N.C. Gen. Stat. \u00a7 15A-1443(b). The State argues only that the failure to provide the lesser-included offense instruction was not error, but as we have already concluded that it was error, the State has failed to meet its burden. Accordingly, we grant defendant a new trial as to the charges of possession of stolen goods and obtaining habitual felon status. As we are granting defendant a new trial we need not address his remaining issue on appeal.\nIII. Conclusion\nBecause the trial court erred in failing to instruct the jury on a lesser-included offense, we reverse the judgment as to the charges of possession of stolen goods and obtaining habitual felon status and remand for a new trial. Because defendant\u2019s conviction for driving while license revoked was not challenged on appeal but was consolidated with the other charges for sentencing, we also remand for resentencing on the driving while license revoked conviction.\nNEW TRIAL.\nJudges McGEE and HUNTER, JR., Robert N. concur.\n. We note that the actual crime name pursuant to N.C. Gen. Stat. \u00a7 14-72.2 is \u201c[unauthorized use of a motor-propelled conveyance[.]\u201d See N.C. Gen. Stat. \u00a7 14-72.2. N.C. Gen. Stat. \u00a7 14-72.2(a) covers \u201caircraft, motorboat, motor vehicle, [and] other motor-propelled conveyance!.]\u201d All of the instruments listed in N.C. Gen. Stat. \u00a7 14-72.2(a) are items of personal property, and thus any type of conveyance at issue pursuant to N.C. Gen. Stat. \u00a7 14-72.2(a) would be \u201ccompletely covered by the greater crime,\u201d Corbett at 511, 675 S.E.2d at 152[,] of possession of stolen goods. See King at 66, 580 S.E.2d at 94.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Assistant Attorney General Ann W. Matthews, for the State.", "Ryan McKaig, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. NAKIA NICKERSON, Defendant\nNo. COA09-1511\n(Filed 16 November 2010)\nPossession of Stolen Property\u2014 lesser-included offense\u2014 unauthorized use of motor vehicle\nDefendant\u2019s convictions for possession of stolen goods, obtaining habitual felon status, and driving while license revoked were reversed or remanded where defendant\u2019s request for an instruction on the lesser-included offense of unauthorized use of a motor vehicle was erroneously denied. All of the essential elements of unauthorized use of a motor vehicle are essential elements of possession of stolen goods and the evidence at trial contradicted two of the elements of possession of stolen goods. The State did not meet its burden of showing that the error was harmless.\nAppeal by defendant from judgment entered on or about 8 July 2009 by Judge Orlando F. Hudson in Superior Court, Orange County. Heard in the Court of Appeals 14 April 2010.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General Ann W. Matthews, for the State.\nRyan McKaig, for defendant-appellant." }, "file_name": "0136-01", "first_page_order": 160, "last_page_order": 165 }