STATE OF NORTH CAROLINA
v
.
JEFFREY SCOTT BARBOUR
Attorney General Roy Cooper, by Assistant Attorney General
Thomas H. Moore, for the State.
Michael J. Reece for defendant-appellant.
THOMAS, Judge.
Defendant, Jeffrey Scott Barbour, was found guilty of
felonious larceny of a motor vehicle and pled guilty to being an
habitual felon. He was sentenced to a term of 168 to 211 months
imprisonment. He now appeals.
Defendant contends the trial court erred in denying his
motions to dismiss the charge of felonious larceny of a motor
vehicle because the evidence shows he initially obtained possession
with the consent of the owner. Defendant also contends the trialcourt erred in instructing the jury on "larceny by trick." We find
no error.
The State's evidence tends to show that on 27 September 2000
defendant went to C&W Auto Sales in Rockingham, North Carolina. He
asked Robert Coble, one of the dealership's owners, if he could
test drive a 1992 Isuzu Pup truck which was for sale. Defendant
told Coble he was the nephew of Wilson and Alice Thomas, who were
acquaintances of Coble. Coble, who thought highly of the Thomases,
allowed defendant to test drive the truck without supervision.
Defendant, however, was only given permission to "drive [the truck]
down the street."
Approximately an hour later, he telephoned Coble. Defendant
claimed he was at the bank inquiring about a loan to purchase the
truck. Coble told defendant it would be too late to close the deal
that day since both C&W Auto Sales and the Division of Motor
Vehicles office closed at 5:00 p.m. Coble also told defendant to
return the truck to C&W Auto Sales by 5:00 p.m.
When defendant failed to return the truck by 5:00 p.m., Coble
contacted Alice Thomas. After Coble's conversation with Thomas,
Coble's business partner called the police and reported the truck
stolen. Two days later, Coble went to the police station andidentified defendant in a photographic lineup as the one who had
taken the Isuzu Pup truck.
On 1 October 2000, Deputy Creed Freeman of the Richmond County
Sheriff's Department spotted defendant driving the truck. Freeman,
knowing the truck was stolen, pursued defendant. By the time
Freeman caught up to the truck, it was pulled over and defendant
was missing. The only person in the truck was a female who was
lying in the seat. Defendant was not found that night but was
subsequently arrested on 19 October 2000.
At the close of the State's evidence, defendant made a motion
to dismiss for insufficiency of the evidence. The trial court
denied the motion. Defendant did not present any evidence and
renewed his motion to dismiss. Again, it was denied. Defendant
appeals.
A motion to dismiss is properly denied if “there is
substantial evidence (1) of each essential element of the offense
charged and (2) that defendant is the perpetrator of the offense.”
State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990).
“Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” State v.
Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990). “When
ruling on a motion to dismiss, all of the evidence should be
considered in the light most favorable to the State, and the Stateis entitled to all reasonable inferences which may be drawn from
the evidence.” State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d
138, 141 (1998).
The essential elements of larceny are: (1) the taking of the
property of another; (2) carrying it away; (3) without the owner's
consent; and (4) with the intent to permanently deprive the owner
of the property. State v. Perry, 305 N.C. 225, 233, 287 S.E.2d
810, 815 (1982). When the property has a value of more than one
thousand dollars ($1,000), the larceny is a Class H felony. N.C.
Gen. Stat. § 14-72(a) (2001).
Defendant concedes there is substantial evidence that he took
the property of another, carried it away and intended to
permanently deprive the owner of its use. It is undisputed that
the truck was valued at more than $1,000. However, since the owner
of the truck gave him the keys and allowed him to drive the truck
off the lot, defendant contends the State has failed to show he
took the truck without the owner's consent.
In support of his argument, defendant relies on this Court's
decision in State v. Kelly, 75 N.C. App. 461, 331 S.E.2d 227
(1985). In Kelly, the Court addressed whether the defendant was
subjected to double jeopardy where an initial indictment for
larceny of an automobile was dismissed and the defendant
subsequently was indicted and convicted of obtaining property byfalse pretenses based on the same set of facts. The Court ruled it
did not constitute double jeopardy because the two crimes are
separate and distinguishable offenses, each having an essential
element that the other does not. Id. at 463-64, 331 S.E.2d at 229-
30. In reaching its decision, the Court stated the following about
the elements of larceny:
[A] key element of larceny is that the
property be wrongfully taken without the
owner's consent. If the property was
initially obtained with the consent of the
owner, then there can be no larceny.
Id. at 464, 331 S.E.2d at 230. Defendant relies on this statement
to support his contention in the instant case that the State failed
to prove the property was taken without the owner's consent. We
find defendant's reliance on Kelly misplaced.
In Kelly, the Court was not asked to address the question
raised here--the sufficiency of the evidence of larceny. The Court
did not address the application of the elements of larceny in a
situation where the property was obtained by trick or fraud;
instead, it merely determined the issue of double jeopardy.
Accordingly, Kelly is not controlling in the instant case.
Larceny involves a trespass, either actual or constructive.
See State v. Bowers, 273 N.C. 652, 655, 161 S.E.2d 11, 14 (1968);
In re Glenn, 73 N.C. App. 302, 304, 326 S.E.2d 646, 647 (1985).
"'The taker must have had the intent to steal at the time heunlawfully takes the property from the owner's possession by an act
of trespass.'" Bowers, 273 N.C. at 655, 161 S.E.2d at 14 (quoting
State v. Griffin, 239 N.C. 41, 45, 79 S.E.2d 230, 232 (1953)).
However, an actual trespass is not a necessary element of larceny
when possession of the property is fraudulently obtained by some
trick or artifice. Id.; see also State v. Harris, 35 N.C. App.
401, 402, 241 S.E.2d 370, 371 (1978). "'Larceny by trick' is not
a crime separate and distinct from common law larceny, but the term
is often used to describe a larceny when possession was obtained by
trick or fraud." Harris, 35 N.C. App. at 402, 241 S.E.2d at 371.
It is not necessary for the State to allege the manner in which the
stolen property was taken and carried away, and the words "by
trick" need not be found in an indictment charging larceny. Id.
(citing State v. Lyerly, 169 N.C. 377, 85 S.E. 302 (1915)).
Here, the evidence shows defendant was given permission to
take the truck for a test drive but was not given permission to
keep the truck. An hour later, defendant was expressly told to
return the truck by 5:00 p.m. He did not, and was discovered
driving the truck several days later.
There was also evidence presented that defendant had been
previously convicted of two similar crimes where he drove vehicles
off dealership lots with permission to take them for a test drive
but then failed to return the vehicles to the owners. Viewed in the light most favorable to the State, we find this
evidence sufficient to support a reasonable inference that
defendant obtained possession of the truck in question by trick or
fraud with the intent to permanently deprive the owner of its use.
Accordingly, the trial court did not err in denying defendant's
motions to dismiss and by instructing the jury on "larceny by
trick."
No error.
Judges MARTIN and TYSON concur.
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