{
  "id": 8523595,
  "name": "STATE OF NORTH CAROLINA v. CALVIN ANGELO COWARD",
  "name_abbreviation": "State v. Coward",
  "decision_date": "1981-11-03",
  "docket_number": "No. 818SC338",
  "first_page": "488",
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      "cite": "172 S.E. 2d 535",
      "category": "reporters:state_regional",
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      "category": "reporters:state",
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      "year": 1980,
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      "cite": "46 N.C. App. 338",
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      "reporter": "N.C. App.",
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      "year": 1980,
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    {
      "cite": "N.C. Gen. Stat. \u00a7 14-72",
      "category": "laws:leg_statute",
      "reporter": "N.C. Gen. Stat.",
      "opinion_index": 0
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    {
      "cite": "N.C. Gen. Stat. \u00a7 14-72.2",
      "category": "laws:leg_statute",
      "reporter": "N.C. Gen. Stat.",
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  "last_updated": "2023-07-14T17:12:28.716896+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges MARTIN (Harry C.) and BECTON concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. CALVIN ANGELO COWARD"
    ],
    "opinions": [
      {
        "text": "MARTIN (Robert M.), Judge.\nDefendant 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. \u00a7 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.\nAll of the essential elements of the crime of unauthorized use of a motor conveyance, N.C. Gen. Stat. \u00a7 14-72.2(a) are included in larceny, N.C. Gen. Stat. \u00a7 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).\nThis 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.\nHere the evidence supports the charge on the lesser included offense. The defendant presented evidence that he did not intend to steal Smith\u2019s 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).\nWe do not pass on defendant\u2019s remaining assignments of error because they may not recur on retrial.\nNew trial.\nJudges MARTIN (Harry C.) and BECTON concur.",
        "type": "majority",
        "author": "MARTIN (Robert M.), Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten by Assistant Attorney General Douglas A. Johnston for the State.",
      "Appellate Defender Adam Stein by Assistant Appellate Defenders Marc D. Towler, Malcolm R. Hunter, Jr., and M. Christopher Kemp for the defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. CALVIN ANGELO COWARD\nNo. 818SC338\n(Filed 3 November 1981)\nCriminal Law \u00a7 115.1\u2014 unauthorized use of motor conveyance \u2014 failure to instruct \u2014 error\nIt was reversible error to fail to submit to the jury an instruction on the lesser included offense of unauthorized use of a motor vehicle where defendant was charged with felonious larceny of an automobile as defendant presented evidence that he did not intend to steal the victim\u2019s car.\nAPPEAL by defendant from Bruce, Judge. Judgment entered 4 December 1980 in Superior Court, Lenoir County. Heard in the Court of Appeals 23 September 1981.\nDefendant was charged with and convicted of felonious larceny of an automobile. From a sentence of a minimum of two years and a maximum of five years imprisonment, defendant appeals.\nThe State\u2019s evidence tended to show that Dwayne Smith picked up two hitchhikers, the defendant and Nate Mitchell, on 30 September 1980. They rode around for about 45 minutes at which time Smith drove the two men to a specific address and waited in the car at their request. The defendant and Mitchell went to the back of this house and after a few minutes Smith followed. Smith testified that he was then robbed by the two men and that they stole his car.\nThe defendant presented evidence that he was at home when Mitchell arrived with Smith in Smith\u2019s car. Mitchell said that Smith wanted to buy some marijuana and the defendant agreed to ride with them to help them find some. At one point Smith gave Mitchell money for marijuana and Mitchell and the defendant alone drove Smith\u2019s car to pick up the drugs. As they were driving off, Mitchell told the defendant that he had no intention of returning with the money or marijuana. The defendant rode with Mitchell to a place near the defendant\u2019s home. Mitchell parked the car and the defendant walked home.\nAttorney General Edmisten by Assistant Attorney General Douglas A. Johnston for the State.\nAppellate Defender Adam Stein by Assistant Appellate Defenders Marc D. Towler, Malcolm R. Hunter, Jr., and M. Christopher Kemp for the defendant-appellant."
  },
  "file_name": "0488-01",
  "first_page_order": 516,
  "last_page_order": 518
}