STATE OF NORTH CAROLINA
No. 04 CRS 053077
04 CRS 053059
FRANKIE LEMONED MOORE, 05 CRS 004661
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.
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 . . . .
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