An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA14-105
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 5 August 2014


STATE OF NORTH CAROLINA

      v.                                      Henderson County
                                              Nos. 12 CRS 53172-73
CLIFFORD GLENN ALLEN                               13 CRS 50



      Appeal by defendant from judgment entered 7 August 2013 by

Judge Tommy Davis in Henderson County Superior Court.                     Heard in

the Court of Appeals 21 July 2014.


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

      Leslie C. Rawls for defendant-appellant.


      HUNTER, JR., Robert N., Judge.


      Defendant Clifford Glenn Allen appeals after a jury found

him guilty of felonious larceny, possession of a stolen motor

vehicle, and having attained habitual felon status.                     Defendant

contends     the   trial    court    erred    by    denying    his    request     to

instruct the jury on the lesser-included offense of unauthorized

use of a motor vehicle.         We find no error.
                                   -2-
       On 27 July 2012, two employees of Pro Build building supply

company in Hendersonville saw defendant drive a flatbed truck

out of the main gate of the business and off of the property.

Neither employee recognized defendant as a Pro Build employee,

so they called 911 to report the truck stolen and told the

dispatcher the direction the truck was traveling.            A short time

later, a police officer encountered the truck on the highway.

When the officer pulled his car in behind the truck, the truck

exited the highway and stopped at a truck stop.               The officer

approached the truck      and defendant, who was the          driving the

truck, claimed that he worked for Pro Build.             The two Pro Build

employees     later   identified   the     truck   and    confirmed      that

defendant was not an employee and had taken the truck without

permission.

       The   trial    court   denied     defendant’s     request   for     an

instruction on unauthorized use of a motor vehicle as a lesser-

included offense of felony larceny.           The jury found defendant

guilty of felony larceny, possession of a stolen motor vehicle,

and having attained habitual felon status.         Based on defendant’s

habitual felon status, the trial court sentenced him to 128 to

166 months imprisonment.1     Defendant gave notice of appeal.



1
    The trial court arrested judgment on defendant’s conviction for
                                   -3-
    Defendant’s sole argument on appeal is that the trial court

erred by denying his request for an instruction on the lesser-

included offense of unauthorized use of a motor vehicle in the

larceny case because there was evidence he intended to return

the truck to Pro Build.   We disagree.

    “We review the trial court’s denial of the request for an

instruction on the lesser included offense de novo.”              State v.

Laurean, ___ N.C. App. ___, ___, 724 S.E.2d 657, 660, appeal

dismissed, disc. review denied, 366 N.C. 241, 731 S.E.2d 416

(2012).    “[A] lesser included offense instruction is required if

the evidence ‘would permit a jury rationally to find [defendant]

guilty of the lesser offense and acquit him of the greater.’”

State v. Millsaps, 356 N.C. 556, 562, 572 S.E.2d 767, 772 (2002)

(citations omitted).    “Where the State’s evidence is clear and

positive as to each element of the offense charged and there is

no evidence showing the commission of a lesser included offense,

it is not error for the judge to refuse to instruct on the

lesser    offense.”   State   v.   Peacock,   313   N.C.   554,   558,   330

S.E.2d 190, 193 (1985) (citation omitted).

    “To convict a defendant of larceny, it must be shown that

he (1) took the property of another; (2) carried it away; (3)



felony larceny.
                                       -4-
without the owner’s consent, and (4) with the intent to deprive

the owner of the property permanently.”                  State v. Reeves, 62

N.C.   App.   219,     223,    302   S.E.2d   658,     660   (1983)     (citations

omitted).         Unauthorized use of a motor vehicle is a lesser-

included offense of larceny.           State v. McRae, 58 N.C. App. 225,

229, 292 S.E.2d 778, 780 (1982).               The difference between the

offenses is that unauthorized use of a motor vehicle does not

require the defendant to have the intent to permanently deprive

the owner of the motor vehicle.           See State v. Ross, 46 N.C. App.

338, 340, 264 S.E.2d 742, 743 (1980).

       Here, the State’s evidence is clear and positive as to

every element of larceny, and defendant was not entitled to an

instruction       on   unauthorized    use    of   a    motor   vehicle.         Two

witnesses testified that they saw defendant, who was not a Pro

Build employee or otherwise entitled to drive the truck, drive

it through a gate, off of the Pro Build property, and onto a

highway.      Defendant       only   ceased   driving    the    truck    after   he

encountered a police officer.           When the officer investigated and

questioned defendant, defendant lied and claimed to be a Pro

Build employee.        All of this evidence unequivocally supports the

charge     that    defendant    took    the   truck     with    the     intent   to

permanently deprive Pro Build of it.
                                       -5-
    Defendant contends that the testimonial evidence that he

was driving the truck in the general direction of Hendersonville

showed   that   he   intended   to     return   the   truck.      Contrary    to

defendant’s argument, however, this evidence does not support a

rational inference that he intended to return the truck to Pro

Build.    Accordingly,    we    find    no   error    in   the   trial   court’s

decision to decline to instruct the jury on the lesser offense.

    No error.

    Judges BRYANT and STROUD concur.

    Report per Rule 30(e).
