Converted WP file 061618-1

Appeal by defendant from judgment entered 28 July 2006 by Judge Donald M. Jacobs in Beaufort County Superior Court. Heard in the Court of Appeals 23 August 2007.

The Law Office of Bruce T. Cunningham, Jr., by Bruce T. Cunningham, Jr., for defendant.

Attorney General Roy Cooper, by Assistant Attorney General Richard G. Sowerby, for the State.

    ELMORE, Judge.

    Frankie Lemoned Moore (defendant) was convicted by a jury of possession of marijuana, driving while license revoked, and possession of a stolen motor vehicle. The jury also found defendant guilty of being a habitual felon. Defendant's convictions were consolidated for sentencing, and defendant was sentenced within the presumptive range to 108-139 months. Defendant now appeals his convictions and sentence.
    Vicki Harrison testified that her daughter, Melinda Hudson, owned a 1999 Mazda. Hudson kept the car at Harrison's home, and Harrison kept the keys in the house near the door. On or about 7August 2004, Harrison noticed that the keys were missing, but she thought that her roommate, Barry Toler, might have taken them. Harrison testified that Toler occasionally used the car, sometimes without her permission. On or about 10 August 2004, Harrison noticed that the car was missing and called Hudson. Hudson reported the car as stolen. Both women testified that they had never seen defendant before the trial and that they had never given him permission to take the car.
    On 10 August 2007, a Washington police officer observed defendant exchange what appeared to be cash for a clear plastic bag containing a green substance and then drive away in a green Mazda. The officer informed another officer that he suspected that defendant's license was suspended. The second officer confirmed that defendant's license had been suspended, followed defendant, and initiated a stop. Other officers retraced defendant's route and found a leafy substance that appeared to be marijuana in a turn lane. Officers also found a torn, clear plastic bag in the passenger seat of the Mazda. The bag appeared to have marijuana residue in it. A substance that appeared to be marijuana residue was also present on the passenger seat, the passenger door, and inside the passenger window frame. The passenger window was open. The substance was collected and confirmed to be 5.1 grams of marijuana.
    The officers asked defendant whose car he was driving, and defendant replied that it was a “friend's car.” He refused to name the “friend.” After the officers learned that the car belonged toHudson and was reported stolen, they executed a warrant and arrested defendant for possession of a stolen motor vehicle. Defendant then told the officers that a “lady” “gave” him the car. He said that he “ended up at this lady's house” and the lady “needed fifty dollars real bad.” He told the officers that she had offered to loan him the car in exchange for fifty dollars. He said that he did not know the lady's name.
    Defendant first argues that the trial court erred by denying defendant's motion to continue. Defendant was initially appointed counsel, Norma S. Laughton, because he had indicated that he was unable to pay for representation. According to defendant, his mother agreed to pay for a new attorney, who is identified only as Mr. Johnston. Defendant approached Mr. Johnston the day before the trial and asked Mr. Johnston to represent him on the drug charge. Mr. Johnston did not learn of the possession of stolen motor vehicle and driving while license revoked charges until the date of the trial. Mr. Johnston agreed to represent defendant if and only if the trial court granted defendant a continuance. Attorney Laughton and the prosecutor both stated that they were prepared to go forward. Mr. Johnston stated that he needed more preparation time.
    The trial court asked defendant why he wanted a new lawyer, and defendant replied that Attorney Laughton had not issued a subpoena for Barry Toler as he had requested. The trial court denied defendant's motion, stating that defendant had hadsufficient time to sort out his legal representation. The trial court then issued a subpoena for Barry Toler.
    “We review a trial court's resolution of a motion to continue for abuse of discretion.” State v. Morgan, 359 N.C. 131, 143, 604 S.E.2d 886, 894 (2004). “Abuse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988).   (See footnote 1) In this case, the trial court did not abuse its discretion by denying defendant's motion for a continuance. The court addressed defendant's sole reason for the substitution of counsel, that Attorney Laughton had not issued a subpoena for Barry Toler, by issuing the subpoena itself. Toler later appeared and testified on behalf of defendant.
    Defendant next argues that the trial court committed plain error by failing to instruct the jury on the offense of unauthorized use of a motor vehicle. Defendant argues that unauthorized use of a motor vehicle is a lesser included offense of possession of a stolen motor vehicle. We disagree.    “In criminal cases, a question which was not preserved by objection noted at trial . . . may be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error.” N.C.R. App. P. 10(c)(4) (2007). Plain error is error “so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.” State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987) (citations omitted).
    “A trial judge is required to instruct upon a lesser included offense, even absent a special request therefor, if there is some evidence in the record which supports the less serious criminal charge.” State v. Oxendine, 305 N.C. 126, 131, 286 S.E.2d 546, 549 (1982) (citations omitted). “As a lesser included offense, all of the essential elements of the lesser crime must also be essential elements included in the greater crime.” State v. Hinton, 361 N.C. 207, 210, 639 S.E.2d 437, 439 (2007) (citation and quotations omitted). All of the essential elements of unauthorized use of a motor vehicle are not also essential elements of possession of a stolen motor vehicle. Unauthorized use of a motor vehicle requires that the offender “take” or “operate” a motor vehicle without the owner's permission. N.C. Gen. Stat. § 14-72.2 (a) (2005). In contrast, possession of a stolen motor vehicle requires that the offender “receive” or “transfer possession of” a stolen motor vehicle. N.C. Gen. Stat. § 20-106 (2005). The elements of “taking” or “operating” the vehicle are not essential elements ofpossession of a stolen motor vehicle. Accordingly, the trial court did not commit plain error by not instructing the jury on unauthorized use of a motor vehicle.
    Defendant next argues that defense counsel's failure to request an instruction on unauthorized use of a motor vehicle as a lesser included offense of possession of a stolen motor vehicle constitutes ineffective assistance of counsel. To succeed on a claim of ineffective assistance of counsel, a “defendant must first show that his counsel's performance was deficient and then that counsel's deficient performance prejudiced his defense.” State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (2006) (citations and quotations omitted). As stated above, unauthorized use of a motor vehicle is not a lesser included offense of possession of a motor vehicle. Accordingly, Attorney Laughton's performance was not deficient.
    Defendant next argues that the trial judge erred by sentencing defendant before giving him an opportunity to be heard. N.C. Gen. Stat. § 15A-1334(b) provides that a “defendant at [a sentencing] hearing may make a statement in his own behalf.” N.C. Gen. Stat. § 15A-1334(b) (2005). At defendant's sentencing hearing, the trial judge stated,
        I'll sentence him as a level three felon and level three misdemeanor . . . .

        Six points, level three, I'm going to sentence him within the presumptive range.

        Did he want to say something?
Attorney Laughton replied, “Yes, your Honor. He's been dying to say something.” The court then allowed defendant to make a statement.
    We note first that a defendant has no appeal of right from a sentence in the presumptive range and must petition this Court for review of the issue by writ of certiorari. N.C. Gen. Stat. § 15A- 1444(a1) (2005). Defendant's sentence was within the presumptive range and he did not petition for a writ of certiorari, and is therefore not entitled to appellate review of his sentence. Even assuming arguendo that defendant's appeal of this issue were properly before us, the trial court did not err. The court did not pronounce defendant's sentence until after defendant made his statement; the court merely noted that defendant would be sentenced as a level three offender and within the presumptive range. Furthermore, defendant did not offer evidence to support any mitigating factor that would have allowed the trial court to impose a sentence below the presumptive range.
    In his final argument, defendant contends that the trial court erred by denying defendant's motion to dismiss the charge of possession of a stolen motor vehicle. Defendant specifically argues that the State presented insufficient evidence that defendant knew or had reason to believe that the car was stolen. See N.C. Gen. Stat. § 20-106 (2005) (defining the elements of possession of a stolen motor vehicle). Defendant reasons that because defendant was found with the car before Hudson reported it missing and because there was no evidence showing that defendantwas in possession of the sole set of keys, the State's evidence of knowledge was insufficient. Again, we disagree.
    When ruling on a motion to dismiss for insufficiency of the evidence, the trial court must view the evidence “in the light most favorable to the State and give the State the benefit of every reasonable inference to be drawn therefrom.” In re J.H., 177 N.C. App. 776, 777-78, 630 S.E.2d 457, 458 (2006). “If the State has offered substantial evidence against defendant of every essential element of the crime charged, a defendant's motion to dismiss must be denied.” Id. at 778, 630 S.E.2d at 458 (quoting State v. Porter, 303 N.C. 680, 685, 281 S.E.2d 377, 381 (1981)) (internal quotations omitted). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quoting State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)).
    Viewing the evidence in the light most favorable to the State, we hold that the following evidence is sufficient to support a conclusion that defendant knew or had reason to believe that the vehicle was stolen: Defendant was found in possession of the car on 10 August 2004, the same day that Harrison noticed that the car was missing and that Hudson reported the missing car to the police. Both women testified that they did not know defendant or give him permission to use the car. The keys were kept hanging by the door, presumably in plain view. Defendant initially told the police that he had borrowed the car from an unnamed “friend.” After being charged with possession of a stolen motor vehicle, defendantchanged his story and told the police that a “lady” had loaned him the car in exchange for fifty dollars. Defendant could not name the “lady” from whom he acquired the car. Accordingly, the trial court committed no error by denying defendant's motion to dismiss.
    We hold that defendant received a trial free from error.
    No error.
    Judges STEELMAN and STROUD concur.
    Report per Rule 30(e).

Footnote: 1