                              NO. COA14-224

                    NORTH CAROLINA COURT OF APPEALS

                        Filed: 16 September 2014


STATE OF NORTH CAROLINA

    v.                                  Mecklenburg County
                                        Nos. 12 CRS 16114, 202039
STILLOAN DEVORAY ROBINSON



    Appeal by Defendant from judgment entered 30 August 2013 by

Judge Robert T. Sumner in Mecklenburg County Superior Court.

Heard in the Court of Appeals 13 August 2014.


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

    Appellate Defender Staples Hughes, by Assistant Appellate
    Defender Jon H. Hunt, for Defendant.


    STEPHENS, Judge.


                  Procedural and Factual Background

    On 6 February 2012, Defendant Stilloan Devoray Robinson was

indicted for possession of a stolen motor vehicle, breaking and

entering a motor vehicle, and larceny of a motor vehicle.1              On 2

April   2012,   Defendant   was   indicted   for   having   attained     the


1
  In two superseding indictments in          May   2013,    Defendant    was
indicted for the same three offenses.
                                        -2-
status of an habitual felon.            The evidence at Defendant’s August

2013 trial tended to show the following:

       On   13    January    2012,    Defendant   was    arrested       just   after

parking and exiting a car belonging to William Markham which

Markham had reported stolen.            At the time, Markham and Defendant

were    roommates       at   the     McCloud   Federal        Halfway    House2     in

Charlotte.         Markham   testified    that,    on    10    January    2012,     he

returned to the house after work, parking his car in a back

parking lot.           Markham checked in with staff and went to his

room.       Defendant and Markham’s other roommates were present.

After changing out of his work clothes, Markham hid his car keys

in his shoe and left the room to make a phone call.                               When

Markham returned, he discovered that Defendant and the car keys

were both gone.          Markham checked the parking lot and saw that

his car was missing.           Markham testified that he had not given

Defendant permission to take his car.                   A staff member at the

halfway house testified that she saw Defendant drive away in

Markham’s        car   and   called     the    Charlotte-Mecklenburg           Police

Department.




2
  The facility is also referred to as the “McCloud Center” at
certain points in the trial transcript.
                                     -3-
       Defendant’s theory of the case was that Markham had given

him permission to use the car on a limited basis.                  Specifically,

Defendant testified that Markham had agreed to loan Defendant

the car for one day in exchange for crack cocaine.3                  After being

unable to obtain actual crack cocaine, Defendant gave Markham

some counterfeit crack cocaine on 10 January 2012.                 In exchange,

Markham gave Defendant his car keys with the understanding that

Defendant    would   return    the   car     by   leaving     it    at    a    local

McDonald’s the following day.             However, on direct examination,

Defendant    acknowledged     that   he    kept   Markham’s    car       for   three

days:

            Q.   About how long would you have used the
                 car?

            A.   He wanted it the next day.

            Q.   So the understanding was that you were
                 going to use it one day.

            A.   Yes, sir.

            Q.   You were only supposed to only have it
                 one day.

            A.   Yes, sir.

            Q.   And you wound up keeping it longer?

            A.   Longer than that.



3
    Markham testified that he had never used any form of cocaine.
                                      -4-
At the charge conference following completion of the evidence,

Defendant requested that the jury be instructed on the crime of

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

of possession of a stolen motor vehicle.                The trial court denied

the request.

    The jury found Defendant guilty of possession of a stolen

motor   vehicle,     but   not   guilty   of    the    other    two   substantive

criminal   charges.         Defendant       admitted     to     having   attained

habitual felon status.           The trial court sentenced Defendant to

an active term of 84-113 months in prison.                     Defendant’s trial

counsel gave notice of appeal in open court following the jury’s

verdict, but failed to give notice of appeal following entry of

the trial court’s final judgment.              Instead, trial counsel asked

the court whether the appeal would be assigned to the Office of

the Appellate Defender.          The trial court responded by appointing

the Office of the Appellate Defender to represent Defendant in

his appeal, and stated, “I’ll note your appeal for the record.”

    By failing to give timely notice of appeal, Defendant has

lost his right of appeal.          See N.C. Gen. Stat. §§ 7A-27(b), 15A-

1444(a)    (2013).         Recognizing      this      deficiency,     Defendant’s

appellate counsel has filed, along with the record on appeal and

Defendant’s brief, a petition for writ of certiorari pursuant to
                                    -5-
Appellate Rule 21.     “Rule 21 provides that a writ of certiorari

may be issued to permit review of trial court orders . . .

when[, inter alia] the right to an appeal has been lost by

failure to take timely action . . . .”          Bailey v. North Carolina

Dep’t of Revenue, 353 N.C. 142, 157, 540 S.E.2d 313, 322 (2000)

(citing N.C.R. App. P. 21(a)) (italics added).               The State did

not   oppose   Defendant’s   petition,    and     we   allowed   Defendant’s

petition for writ of certiorari by order entered 23 July 2014.

                                 Discussion

      Defendant argues that he received ineffective assistance of

counsel   (“IAC”)    in   that    “his    trial    attorney,     on   direct

examination, asked him questions to which the answers conceded

his guilt to the only crime for which he was convicted[,]” to

wit, possession of a stolen motor vehicle.

      “An IAC claim must establish both that the professional

assistance [the] defendant received was unreasonable and that

the trial would have had a different outcome in the absence of

such assistance.”    State v. Fair, 354 N.C. 131, 167, 557 S.E.2d

500, 525 (2001) (citation omitted), cert. denied, 535 U.S. 1114,

153 L. Ed. 2d 162 (2002).

           IAC claims brought on direct review will be
           decided on the merits when the cold record
           reveals that no further investigation is
           required, i.e., claims that may be developed
                                           -6-
               and argued without such ancillary procedures
               as the appointment of investigators or an
               evidentiary    hearing.     This   rule    is
               consistent with the general principle that,
               on   direct  appeal,    the reviewing   court
               ordinarily limits its review to material
               included in the record on appeal and the
               verbatim transcript of proceedings, if one
               is designated.

Id.    at   166,      557   S.E.2d    at   524-25       (citations     and      internal

quotation marks omitted).             Defendant contends that the record

before us is sufficient for this matter to be resolved without

further investigation, and we agree.                     Accordingly, we address

the merits of his argument.

       The only elements of the offense of possession of a stolen

motor vehicle under N.C. Gen. Stat. § 20-106 are that (1) the

defendant possessed a motor vehicle which (2) he knew or had

reason to believe was stolen.              State v. Baker, 65 N.C. App. 430,

437, 310 S.E.2d 101, 108 (1983), cert. denied, 312 N.C. 85, 321

S.E.2d 900 (1984).            Property is stolen when it has been carried

away    without       the   owner’s    consent         and   with   the    intent    to

permanently deprive the owner of the property.                      See, e.g., State

v.    Perry,    305    N.C.    225,   233,       287   S.E.2d   810,      815   (1982),

overruled in part on other grounds by State v. Mumford, 364 N.C.

394, 699 S.E.2d 911 (2010).
                                         -7-
      As noted supra in the recap of the evidence presented at

trial, Defendant never disputed that he possessed Markham’s car.

Rather,    Defendant     contended      that      he     possessed    the    car       with

Markham’s    permission        and   that    he    intended     to    return       it    to

Markham per their alleged agreement.                      On direct examination,

defense counsel’s questions only induced Defendant to admit that

he   had   kept   the   car    longer    than      the    alleged    agreement         with

Markham    had    permitted.         Defense      counsel’s    questions         did    not

require Defendant to admit to believing the car was stolen, and

indeed, Defendant never gave any testimony indicating that he

knew or had reason to know that the car was stolen.                               To the

contrary, Defendant’s testimony was that he knew the car was not

stolen at the time he possessed it, in that Markham had given

Defendant permission to use it.              Although Defendant did admit to

keeping    Markham’s     car    longer      than    permitted       by     the   alleged

agreement,       he   never    suggested       that      he   had    the    intent       to

permanently deprive Markham of the car.                   In sum, defense counsel

did not elicit testimony from Defendant which conceded his guilt

of any crime for which he was charged,4 and thus, Defendant



4
  Defendant’s testimony would have supported his conviction of a
charge of unauthorized use of a motor vehicle (the current
version of statute is titled “[u]nauthorized use of a motor-
propelled conveyance”).   “A person is guilty of [unauthorized
                                        -8-
cannot    show   that   he   received    ineffective   assistance   in     this

regard.    Accordingly, Defendant’s IAC argument is overruled.

            Defendant’s Motion to File Supplemental Brief

     On 30 June 2014, Defendant filed with this Court a “motion

to file supplemental brief.”            In the motion, appellate counsel

for Defendant states the following:            That he intended to argue

on direct appeal that the trial court committed reversible error

in   denying     the    defense   request     to   instruct   the   jury     on

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

of possession of a stolen motor vehicle.             While researching the

issue, however, appellate counsel reviewed this Court’s opinion

in State v. Oliver, __ N.C. App. __, 718 S.E.2d 731 (2011).                  In

Oliver, the defendant had alleged error in the trial court’s

refusal to instruct on unauthorized use of a motor vehicle,



use of a motor vehicle] 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. Gen. Stat. § 14-72.2(a)
(2013). “One of the essential elements of unauthorized use of a
motor vehicle is the taking or operating of a motor vehicle
without having formed an intent to permanently deprive the owner
thereof.”   State v. McCullough, 76 N.C. App. 516, 518, 333
S.E.2d 537, 538 (1985) (contrasting this offense with that of
common law robbery). This offense occurs, inter alia, where one
initially has permission for the use of a vehicle, but keeps the
vehicle after its owner has withdrawn his permission or
requested that the vehicle be returned.      See, e.g., State v.
Milligan, 192 N.C. App. 677, 666 S.E.2d 183 (2008).
                                -9-
contending that “all the essential elements of unauthorized use

of a stolen vehicle are essential elements of possession of a

stolen vehicle.”    Id. at __, 718 S.E.2d at 734.       This Court

rejected the defendant’s contention on the following basis:

          During the pendency of [the] defendant’s
          appeal, our Supreme Court addressed this
          very issue of whether unauthorized 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.   However, as appellate counsel now notes, 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.”   Nickerson, 365 N.C. at 281, 715 S.E.2d at 846

(emphasis added).   The Supreme Court reasoned that

          [b]oth offenses concern personal property.
          However,     the     specific      definitional
          requirement that the property be a “motor-
          propelled   conveyance”    is   an    essential
          element    unique    to   the     offense    of
          unauthorized use of a motor vehicle.        For
          the offense of possession of stolen goods,
          the   State   need  not   prove    that   [the]
          defendant had a “motor-propelled conveyance”
          but rather that the property in [the]
          defendant’s   possession   is   any   type   of
                                     -10-
           personal property.    As such, unauthorized
           use of a motor vehicle has an essential
           element not found in the definition of
           possession of stolen goods.      Because we
           conclude that this element of the lesser
           crime is not an essential element of the
           greater crime, we need not address the other
           elements.

Id. at 282, 715 S.E.2d at 847 (citation omitted).                   Thus, in

Oliver,    this    Court   mistakenly       relied    on   Nickerson    for   a

proposition not addressed, nor a holding reached, in that case.

     To compound that error, appellate counsel concedes that he

relied solely on our opinion in Oliver in determining that the

law on whether unauthorized use of a stolen vehicle is a lesser-

included offense of possession of a stolen vehicle was settled

contrary   to     Defendant’s     prospective   argument    on   this    issue.

Appellate counsel did not read Nickerson at that time, and thus

did not discover the discrepancy in the opinions.                      Instead,

appellate counsel filed Defendant’s brief and petition for writ

of   certiorari     with   this    Court    without    including   the     jury

instruction issue.

     In June 2014, appellate counsel read Nickerson and realized

the discrepancy between that opinion’s actual holding and the

holding as described in and relied upon by this Court in Oliver.

In Defendant’s “motion to file supplemental brief[,]” he asks

this Court to exercise our discretion under Rule 2 of our Rules
                                          -11-
of     Appellate     Procedure       to      prevent     manifest      injustice    to

Defendant.       See N.C.R. App. P. 2.            In its response filed 8 July

2014, the State did not object to Defendant’s motion.                       By order

entered     24     July   2014,    we        allowed   Defendant’s       motion    and

instructed the State to file its own supplemental brief on the

jury    instruction       issue   no      later   than    8   August    2014.       The

following day, the State filed a motion for an extension of time

until and including 20 August 2014 to file its supplemental

brief which we allowed by order entered 1 August 2014.

       As for the merits of this argument, as Defendant concedes

in his supplemental brief, we are bound by this Court’s decision

in Oliver.       See In re Appeal from Civil Penalty, 324 N.C. 373,

384, 379 S.E.2d 30, 37 (1989) (“Where a panel of the Court of

Appeals has decided the same issue, albeit in a different case,

a subsequent panel of the same court is bound by that precedent,

unless it has been overturned by a higher court.”) (citations

omitted).     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.     See State v. Jones, 358 N.C. 473, 487, 598 S.E.2d 125,
                             -12-
134 (2004) (“While we recognize that a panel of the Court of

Appeals may disagree with, or even find error in, an opinion by

a prior panel and may duly note its disagreement or point out

that error in its opinion, the panel is bound by that prior

decision until it is overturned by a higher court.”).   In light

of Oliver, we must conclude that the trial court did not err in

denying Defendant’s request for an instruction on unauthorized

use of a motor vehicle.

    NO ERROR.

    Judges CALABRIA and ELMORE concur.
