                IN THE SUPREME COURT OF NORTH CAROLINA

                                     No. 398PA14

                             FILED 6 NOVEMBER 2015

 STATE OF NORTH CAROLINA

               v.
 STILLOAN DEVORAY ROBINSON



        On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, ___ N.C. App. ___, 763 S.E.2d 178 (2014), finding no error

after appeal from a judgment entered on 30 August 2013 by Judge Robert T. Sumner

in Superior Court, Mecklenburg County. Heard in the Supreme Court on 22 April

2015.


        Roy Cooper, Attorney General, by Hugh Harris, Assistant Attorney General, for
        the State.

        Staples S. Hughes, Appellate Defender, by Jon H. Hunt, Assistant Appellate
        Defender, for defendant-appellant.

        BEASLEY, Justice.

        This case asks this Court to consider whether unauthorized use of a motor

vehicle is a lesser-included offense of possession of a stolen vehicle. We hold that

unauthorized use of a motor vehicle is not a lesser-included offense of possession of a

stolen vehicle because the former offense contains an essential element that is not an

essential element of the latter offense. Accordingly, we affirm the decision of the

Court of Appeals, though on different grounds. In so doing, we overrule State v. Oliver

to the extent that it is inconsistent with this opinion.
                                STATE V. ROBINSON

                                   Opinion of the Court



      On 1 December 2011, defendant moved into a halfway house in Charlotte,

North Carolina, after serving five years and two months in federal prison for a

firearms conviction. At the halfway house, defendant shared a room with William

James Markham and two other individuals. The details of the events that transpired

on 10 January 2012 are disputed.

      According to defendant, on 10 January 2012, he told Markham about his plan

to leave the halfway house without permission and “take [his] stuff home and get

stuff situated at the house.” In exchange for one and one-half grams of cocaine,

Markham agreed to let defendant use his car, a Lexus ES that the halfway house

permitted Markham to have to drive himself to work. When defendant was unable

to obtain the cocaine, he gave Markham counterfeit crack cocaine.       Markham

accepted the counterfeit cocaine, removed his car keys from his shoe, and replaced

the keys with the counterfeit substance. Markham then gave defendant the keys to

his car. Defendant testified that the two men agreed that he would leave Markham’s

car in front of a nearby McDonald’s restaurant the next day.

      According to Markham, he never gave defendant permission to use his car.

Markham testified that when he returned to the halfway house after work on 10

January 2012, Markham went to his room, where his roommates, including

defendant, were present. Markham changed clothes and placed his car keys in his

shoe. Markham then left the room to use the telephone and upon returning, found

that his car keys were missing. Defendant was no longer in the room. Markham


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                                     Opinion of the Court



reported his missing keys to staff members at the halfway house. A staff member

testified that she witnessed defendant leaving the halfway house in a car, after which

she completed escaped inmate paperwork and called the police. Later that evening,

Markham’s car was reported stolen to police.

       Three days later, on 13 January 2012, defendant returned from Atlanta and

parked     the   car   near   his   home     in    Charlotte   to   unload    his   clothes.

Officer Bryan Overman was driving in the neighborhood after responding to a call

and observed a gold Lexus parked on the street. Officer Overman ran the license

plate through a database that confirmed that the vehicle had been reported stolen.

While Officer Overman and other officers canvassed the area, Officer William Dotson

saw defendant and arrested him. Markham claimed that the vehicle was damaged

and personal items were missing from the vehicle. Defendant testified that the car

was returned in the condition in which he received it and that he had not taken any

property from the car.

       On 6 February 2012, a grand jury indicted defendant for possession of a stolen

vehicle and larceny of a motor vehicle. Then on 2 April 2012, defendant was indicted

for having attained habitual felon status. In three superseding indictments, one

dated 2 April 2012 and two dated 20 May 2013,1 the grand jury indicted defendant



       1 The typewritten portion of the superseding indictment charging defendant with
possession of a stolen vehicle is dated 20 March 2013; however, the grand jury foreman signed
and dated the indictment 20 May 2013.


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                                 STATE V. ROBINSON

                                  Opinion of the Court



for possession of a stolen vehicle, breaking and entering a motor vehicle, and larceny

of a motor vehicle.2

      Defendant pleaded not guilty and was tried before Judge Robert T. Sumner in

Superior Court, Mecklenburg County, beginning on 28 August 2013. During the

charge conference, defendant requested a jury instruction on the misdemeanor

offense of unauthorized use of a motor vehicle as a lesser-included offense of

possession of a stolen vehicle. The trial court denied the request.

      On 30 August 2013, the jury found defendant guilty of possession of a stolen

motor vehicle, but not guilty of breaking or entering a motor vehicle or larceny of a

motor vehicle. Pursuant to a plea agreement, defendant pleaded guilty to having

attained habitual felon status. The trial court sentenced defendant to an active term

of 84 to 113 months of imprisonment, and defendant appealed from the judgment to

the Court of Appeals making two arguments on appeal.

      Defendant first argued that he received ineffective assistance of counsel

because the questions defense counsel asked on direct examination required

defendant to admit guilt to possession of a stolen vehicle, the only crime for which he

was found guilty. State v. Robinson, ___ N.C. App. ___, ___, 763 S.E.2d 178, 180

(2014).   The Court of Appeals disagreed, concluding that defendant’s ineffective


      2   Two superseding indictments charge defendant with “breaking and entering” a
motor vehicle in violation of N.C.G.S. § 14-56. We note that section 14-56 references
“breaking or entering.” See N.C.G.S. § 14-56 (2013) (emphasis added). The trial court
instructed the jury using the statutory language.


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                                  Opinion of the Court



assistance of counsel claim failed because his responses on direct examination only

established that defendant kept the car longer than allegedly agreed; however,

defendant never testified that he knew or had reason to know that the car was stolen,

which is an essential element of possession of a stolen vehicle. Id. at ___, 763 S.E.2d

at 180-81.

      Second, defendant argued that the trial court erred in denying his request for

a jury instruction on unauthorized use of a motor vehicle as a lesser-included offense

of possession of a stolen vehicle. Id. at ___, 763 S.E.2d at 181. The Court of Appeals

found no error on the grounds that it was bound by its decision in State v. Oliver, 217

N.C. App. 369, 718 S.E.2d 731 (2011), which held that unauthorized use of a motor

vehicle is not a lesser-included offense of possession of a stolen vehicle. Id. at ___,

763 S.E.2d at 181-82. The Court of Appeals noted that in Oliver the court relied on

this Court’s decision in State v. Nickerson, 365 N.C. 279, 715 S.E.2d 845 (2011). Id.

at ___, 763 S.E.2d at 182. But the court explained that “in Nickerson, ‘the principal

question [wa]s whether the crime of unauthorized use of a motor vehicle is a lesser[-

]included offense of possession of stolen goods.’ ”      Id. at ___, 763 S.E.2d at 181

(brackets in original) (quoting Nickerson, 365 N.C. at 281, 715 S.E.2d at 846

(emphasis added)). The Court of Appeals concluded that “[t]hus, in Oliver, this Court

mistakenly relied on Nickerson for a proposition not addressed, nor a holding reached,

in that case.” Id. at ___, 763 S.E.2d at 181 (italics added). The Court of Appeals

further stated:


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                                   Opinion of the Court



             However, we hope that by noting the clear discrepancy
             between Oliver and Nickerson, the Supreme Court may
             take this opportunity to clarify our case law and provide
             guidance on the issue of whether unauthorized use of a
             motor vehicle is in fact a lesser-included offense of
             possession of a stolen motor vehicle.

Id. at ___, 763 S.E.2d at 182 (citation omitted).

      On 18 December 2014, this Court allowed defendant’s petition for discretionary

review on the issue of whether unauthorized use of a motor vehicle is a lesser-

included offense of possession of a stolen vehicle.

      Defendant maintains that Oliver was wrongly decided because that decision

incorrectly interpreted Nickerson.     The State contends that in Oliver the court

properly applied the rule as stated in Nickerson when it concluded that unauthorized

use of a motor vehicle is not a lesser-included offense of possession of a stolen vehicle.

The rule in Nickerson establishes that an offense is not the lesser-included offense of

another if the lesser-included offense contains an essential element not present in the

greater offense. We conclude that the Oliver court misapprehended this Court’s

decision in Nickerson.

      In Oliver the defendant argued that the trial court should have instructed the

jury on unauthorized use of a motor vehicle as a lesser-included offense of possession

of a stolen vehicle. 217 N.C. App. at 372, 718 S.E.2d at 733-34. The court in Oliver

reasoned that

             [d]uring the pendency of defendant's appeal, our Supreme
             Court addressed this very issue of whether unauthorized


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                                   Opinion of the Court



             use of a motor vehicle is a lesser included offense of
             possession of a stolen vehicle. See State v. Nickerson, 365
             N.C. 279, 715 S.E.2d 845 (2011). Due to our Supreme
             Court's recent decision, we see no need to further discuss
             this issue. Id. Consequently, the trial court did not err in
             not instructing the jury on the crime of unauthorized use
             of a stolen vehicle as it is not a lesser included offense of
             possession of a stolen vehicle.

Id. at 372-73, 718 S.E.2d at 734. But contrary to the court’s assessment in Oliver,

Nickerson addressed whether unauthorized use of a motor vehicle is a lesser-included

offense of possession of stolen goods. Nickerson, 365 N.C. at 282-83, 715 S.E.2d at

847 (“Because the offense of unauthorized use of a motor vehicle requires proof of at

least one essential element not required to prove possession of stolen goods,

unauthorized use of a motor vehicle cannot be a lesser included offense of possession

of stolen goods under the definitional test in [State v. Weaver].”). Possession of stolen

goods is an offense distinct from possession of a stolen vehicle, and these offenses are

codified in different chapters of the General Statutes. See N.C.G.S. §§ 14-71.1, 20-

106 (2013). The court’s reliance on Nickerson to support its holding in Oliver was

erroneous.   Consequently, to the extent that Oliver holds that the offense of

unauthorized use of a motor vehicle is not a lesser-included offense of possession of a

stolen vehicle for the reasons stated in Nickerson, Oliver is expressly overruled.

      As to the issue before this Court, defendant contends that all the essential

elements of unauthorized use of a motor vehicle are covered by the elements of




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                                  STATE V. ROBINSON

                                   Opinion of the Court



possession of a stolen vehicle, and as a result, unauthorized use of a motor vehicle is

a lesser-included offense of possession of a stolen vehicle. We disagree.

      This Court has adopted a definitional test for determining whether one offense

is the lesser-included offense of another. In State v. Weaver, 306 N.C. 629, 295 S.E.2d

375 (1982), we stated:

                    We do not agree with the proposition that the facts
             of a particular case should determine whether one crime is
             a lesser included offense of another. Rather, the definitions
             accorded the crimes determine whether one offense is a
             lesser included offense of another crime. In other words, all
             of the essential elements of the lesser crime must also be
             essential elements included in the greater crime. If the
             lesser crime has an essential element which is not
             completely covered by the greater crime, it is not a lesser
             included offense. The determination is made on a
             definitional, not a factual basis.

Id. at 635, 295 S.E.2d at 378-79 (internal citation omitted), overruled in part on other

grounds by State v. Collins, 334 N.C. 54, 61, 431 S.E.2d 188, 193 (1993).

      The statute proscribing “unauthorized use of a motor-propelled conveyance”

states that “[a] person is guilty of an offense under this section if, without the express

or implied consent of the owner or person in lawful possession, he takes or operates

an aircraft, motorboat, motor vehicle, or other motor-propelled conveyance of

another.” N.C.G.S. § 14-72.2(a) (2013).

      The statute proscribing unlawful possession of a stolen vehicle provides:

                    Any person who, with intent to procure or pass title
             to a vehicle which he knows or has reason to believe has
             been stolen or unlawfully taken, receives or transfers


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                                  STATE V. ROBINSON

                                   Opinion of the Court



             possession of the same from or to another, or who has in
             his possession any vehicle which he knows or has reason to
             believe has been stolen or unlawfully taken, and who is not
             an officer of the law engaged at the time in the performance
             of his duty as such officer shall be punished as a Class H
             felon.

Id. § 20-106 (emphasis added).

      In applying the definitional test as prescribed in Weaver, this Court considers

the elements of possession of a stolen vehicle and unauthorized use of a motor vehicle.

The elements of possession of a stolen vehicle are: (1) possession; (2) of a vehicle; (3)

while having knowledge or reason to believe that the vehicle has been stolen or

unlawfully taken. See id.; State v. Bailey, 157 N.C. App. 80, 86, 577 S.E.2d 683, 688

(2003) (citation omitted). The elements of unauthorized use of a motor vehicle are:

(1) taking or operating; (2) a motor-propelled conveyance; (3) “without the express or

implied consent of the owner or person in lawful possession.” N.C.G.S. § 14-72.2(a).

It is clear that the crime of unauthorized use of a motor vehicle contains an essential

element that is not an element of possession of a stolen vehicle, namely that the State

must prove that the offender took or operated a motor-propelled conveyance.

Possession of a stolen vehicle requires the State to prove that the offender possessed

a vehicle. While “taking or operating” necessarily infers possession, it does not follow

that possession encompasses “taking or operating.” Therefore, unauthorized use of a

motor vehicle contains an essential element—“taking or operating”—that is not

included in possession of a stolen vehicle. Because we conclude that the lesser offense



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                                   Opinion of the Court



contains at least one essential element that is not an essential element of the greater

offense, we need not analyze the remaining elements. Nickerson, 365 N.C. at 282,

715 S.E.2d at 847 (citing Weaver, 306 N.C. at 635, 295 S.E.2d at 378).

      We hold, therefore, that the offense of unauthorized use of a motor vehicle is

not a lesser-included offense of possession of a stolen vehicle. As such, the trial court

did not err in denying defendant’s request to instruct the jury on unauthorized use of

a motor vehicle. For the reasons stated, we affirm the opinion of the Court of Appeals

as modified herein.

      MODIFIED AND AFFIRMED.




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