{
  "id": 8523373,
  "name": "STATE OF NORTH CAROLINA v. LEON KEITH GRAY",
  "name_abbreviation": "State v. Gray",
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    "judges": [
      "Judges Webb and Wells concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. LEON KEITH GRAY"
    ],
    "opinions": [
      {
        "text": "WHICHARD, Judge.\nDefendant was indicted for the larceny of four tires. Evidence for the State, in pertinent part, tended to show the following:\nKyle Powers, nephew of C. C. Powers, President of Powers-Swain Chevrolet, Inc., met his uncle at the dealership on 1 March 1981 to discuss a job. When he arrived he saw two men on the lot beside two cars. One of the men drove out the front of the dealership, and the other drove out the back. Kyle identified defendant as the one who drove out the back.\nWhen Kyle\u2019s uncle arrived, he told Kyle someone had been tampering with the cars on the lot. Kyle and his uncle then walked over to two Monte Carlos. These cars \u201cwere sitting on bricks, and the two inside tires were gone.\u201d They also noticed an M-80 Malibu with \u201cthe lug nuts . . . gone and three bricks . . . laying up under the frame of the car.\u201d\nKyle and his uncle went to the garage area of the dealership to get a lug wrench to put the nuts back on. From there Kyle observed defendant walk up, get under the Malibu, and pull on the tires. Kyle\u2019s uncle called the Sheriff, and Kyle went out to talk with defendant. Defendant told him: \u201cI just happened to notice the lug nuts were off and I was just crawling under there to see what was wrong.\u201d Defendant then \u201cdrove off in a hurry.\u201d\nKyle observed defendant\u2019s license plate number. He gave it to his uncle, who in turn relayed it to law enforcement officials.\nFour tires and wheels had been removed from two Monte Carlos in the lot, and these cars were sitting on bricks. All the lug nuts were off the Malibu, and bricks were lying around it. The Malibu tires \u201csat on the side of the hub.\u201d The top hole and bolt had been moved \u201cprobably a half inch\u201d; the bottom, three or four inches. The tire had actually been moved \u201cabout an inch or so.\u201d\nWhen C. C. Powers first drove onto the lot, he noticed the two Monte Carlos parked side by side with the inside tires and wheels missing. He subsequently noticed the Malibu \u201cwith the lug nuts taken off, scattered over the ground.\u201d While he and Kyle were in the showroom he saw someone \u201csitting up a brick under the left front tire of [an] automobile.\u201d The person he saw took hold of two tires, broke them loose, and left the weight of the car \u201con the brick bat.\u201d\nPowers then went to call the Sheriff. While he was calling he saw defendant drive out of the lot. He gave the Sheriff\u2019s office a description of defendant\u2019s car, its license number, and the direction in which it had gone.\nShortly thereafter three deputies returned with defendant. Defendant was wearing coveralls which were wet from the shoulders down. There was dirt and sand under the Malibu on the dealership lot. It had been raining, and the area under the Malibu was wet.\nPowers estimated that the tires and wheels had been moved one inch from the axle of the Malibu. There was no weight on the wheels as they leaned against the hub.\nJoe Herman, the Sheriff\u2019s Department employee who answered the call to stop defendant\u2019s car, also observed that the back of defendant\u2019s coveralls was wet and sandy. Kyle Powers and C. C. Powers both advised Herman when he brought defendant back to the dealership that defendant \u201cwas the one that they had seen . . . trying to remove their tires off of their . . . car there in the lot.\u201d Herman searched defendant\u2019s car and found some tools and \u201ca half of brick ... in the trunk.\u201d He observed \u201cwhere the lug nuts had been taken off . . . and spewed around the tires\u201d of the Malibu and that two tires were \u201ccompletely off of the hub.\u201d He estimated the other two tires had been moved from the hub \u201capproximately a quarter of an inch, an inch \u2014 .\u201d He observed bricks under the four wheels of the Malibu.\nMary Morrow, a crime scene technician with the Cumberland County Identification Bureau, also observed that the tires had been removed from the Malibu and \u201cwere leaning against the wheel area.\u201d She stated that the tires \u201cwere completely off and were leaning against the hub.\u201d She observed that defendant\u2019s car contained a lot of tools and that \u201c[t]here were brick chips laying on the driver\u2019s side of the front seat floorboard.\u201d She also observed that bricks had been placed under the wheels of the two Monte Carlos and that the tires had been removed on the insides of both cars.\nMorrow forwarded to the S.B.I. laboratory brick chips from defendant\u2019s car and bricks she received from Officer Herman. Herman had told her the bricks came from under the Malibu and one of the Monte Carlos on the dealership lot. A forensic chemist for the S.B.I. testified that one of the chips precisely fit into a \u201cchipped away\u201d place on a brick Morrow had received from Officer Herman.\nDefendant offered no evidence.\nDefendant contends the court erred in denying his motions to dismiss, because the evidence was insufficient to establish the \u201ctaking and carrying away\u201d of the property of another required to constitute the crime of larceny. On the authority of State v. Carswell, 296 N.C. 101, 249 S.E. 2d 427 (1978), we find the evidence sufficient to take the larceny charge to the jury.\nIn Carswell some rooms in a motel were broken into. In one of the rooms the window air conditioner was pried away from the base on which it rested, but was not removed. The following night a motel security guard observed defendant Carswell and another man enter that room, take the air conditioner from its stand, and place it on the floor. The unit was moved approximately four to six inches toward the door. The men then left that room and were stopped by the security guard as they appeared to be entering another room.\nOur Supreme Court held that evidence sufficient to take a larceny charge to the jury. It stated: \u201cA bare removal from the place in which he found the goods, though the thief does not quite make off with them, is a sufficient asportation, or carrying away.\u201d Carswell, 296 N.C. at 103, 249 S.E. 2d at 428, quoting from 4 W. Blackstone, Commentaries 231. Further, \u201cthe accused must not only move the goods, but he must also have them in his possession, or under his control, even if only for an instant.\u201d Carswell, 296 N.C. at 104, 249 S.E. 2d at 429 (emphasis supplied). The Court held that ,the act of picking up the air conditioner and placing it on the floor \u201cwas sufficient to put the object briefly under the control of the defendant, severed from the owner\u2019s possession.\u201d Id.\nIn ruling on the motion to dismiss the evidence must be considered in the light most favorable to the State, giving the State the benefit of all reasonable inferences. State v. Holton, 284 N.C. 391, 394, 200 S.E. 2d 612, 614 (1973); State v. Henderson, 276 N.C. 430, 438, 173 S.E. 2d 291, 296 (1970). So considered, the evidence here permitted a finding that defendant removed tires and wheels from cars belonging to Powers-Swain Chevrolet, Inc. at least a fraction of an inch from their axles. His act in so doing was sufficient to permit a finding that he placed the tires under his control, severed from the owner\u2019s possession, \u201ceven if only for an instant.\u201d Carswell, 296 N.C. at 104, 249 S.E. 2d at 429. Judged by the Carswell standard, such evidence was sufficient to take the larceny charge to the jury. See also State v. King, 299 N.C. 707, 264 S.E. 2d 40 (1980); State v. Speller, 44 N.C. App. 59, 259 S.E. 2d 784 (1979).\nDefendant further contends the court erred in refusing his request to instruct the jury on attempted larceny. We find no error.\nA defendant may be convicted of the crime charged in the bill of indictment, or, inter alia, of an attempt to commit it. G.S. 15-170 (1978). \u201cThe two elements of an attempt to commit a crime are: (1) An intent to commit it, and (2) an overt act done for that purpose, going beyond mere preparation, but falling short of the completed offense.\" State v. Powell, 277 N.C. 672, 678, 178 S.E. 2d 417, 421 (1971) (emphasis supplied). See also State v. Sanders, 280 N.C. 81, 185 S.E. 2d 158 (1971); State v. McNeely, 244 N.C. 737, 94 S.E. 2d 853 (1956); State v. Surles, 230 N.C. 272, 52 S.E. 2d 880 (1949); State v. Hoover, 14 N.C. App. 154, 187 S.E. 2d 453, cert. denied, 281 N.C. 316, 188 S.E. 2d 899 (1972). \u201cWhere there is evidence of defendant\u2019s guilt of a lesser degree of the crime set forth in the bill of indictment, defendant is entitled to have the question submitted to the jury even in the absence of a specific prayer for the instruction.\u201d State v. Green, 298 N.C. 793, 797, 259 S.E. 2d 904, 907 (1979). \u201cHowever, it is not necessary to submit the lesser included offense if the evidence discloses no conflicting evidence relating to the essential elements of the greater crime.\u201d State v. Brown, 300 N.C. 41, 50, 265 S.E. 2d 191, 197 (1980).\nThe trial court is required to submit lesser included degrees of the crime charged in the indictment when and only when there is evidence of guilt of the lesser degrees. [Citations omitted.] The presence of such evidence is the determinative factor. [Citation omitted.] Where all the evidence tends to show that the crime charged in the indictment was committed, and there is no evidence tending to show the commission of a crime of lesser degree, the principle does not apply and.it would be erroneous for the court to charge on the unsupported lesser degree.\nState v. Simpson, 299 N.C. 377, 381, 261 S.E. 2d 661, 663 (1980).\nThe record here contains no evidence tending to show that defendant may have been guilty only of attempted larceny. All the evidence showed that defendant had removed the tires completely and propped them against the hubs. He thus had placed them under his control, severed from the owner\u2019s possession, for at least an instant. This was sufficient, under the Carswell standard, supra, to complete the offense of larceny. Defendant\u2019s acts thus did not \u201cfall short of the completed offense,\u201d Powell, supra; and there was no evidence tending to show the commission of a crime of lesser degree than that charged, Simpson, supra. Consequently, the court properly declined to instruct on attempted larceny.\nWe find in defendant\u2019s contentions relating to the court\u2019s evidentiary rulings and instructions no error warranting a new trial.\nNo error.\nJudges Webb and Wells concur.",
        "type": "majority",
        "author": "WHICHARD, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Associate Attorney Thomas J. Ziko, for the State.",
      "Adam Stein, Appellate Defender, by Marc D. Towler, Assistant Appellate Defender, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. LEON KEITH GRAY\nNo. 8112SC1282\n(Filed 6 July 1982)\n1. Larceny \u00a7 7.6\u2014 removal of tires from car \u2014sufficient evidence of taking and asportation\nEvidence that defendant removed tires and wheels from cars belonging to a car dealer at least a fraction of an inch was sufficient evidence of a taking and asportation to support a conviction of larceny.\n2. Larceny \u00a7 8\u2014 felonious larceny \u2014 failure to submit issue of attempted larceny\nThe trial court in a prosecution for felonious larceny of automobile tires did not err in refusing to instruct the jury on attempted larceny where all the evidence tended to show that defendant was guilty of larceny in that he removed tires from automobiles completely and propped them against the hubs.\nAPPEAL by defendant from Clark, Judge. Judgement entered 4 June 1981 in Superior Court, CUMBERLAND County. Heard in the Court of Appeals 7 May 1982.\nDefendant appeals from a judgment of imprisonment entered upon his conviction of felonious larceny.\nAttorney General Edmisten, by Associate Attorney Thomas J. Ziko, for the State.\nAdam Stein, Appellate Defender, by Marc D. Towler, Assistant Appellate Defender, for defendant appellant."
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  "file_name": "0102-01",
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