State v. Spera, COA22-814, ___ N.C. App. ___ (Aug. 15, 2023)

In this Union County case, defendant appealed his convictions for misdemeanor larceny of a vehicle and robbery with a dangerous weapon, arguing error in (1) denying his motion for a mistrial after the victim’s testimony identifying him was ruled inadmissible, (2) denying his motion to dismiss the charge of larceny of a motor vehicle for insufficient evidence of intent to permanently deprive the victim, and (3) failure to instruct the jury on the concept of temporary deprivation. The Court of Appeals found no error in (1), but found merit in (2) and vacated defendant’s conviction for larceny, remanding the case for entry of judgment on unauthorized use of a motor vehicle.

In April of 2017, defendant and several associates burst into a mobile home and robbed several friends who had gathered in the living room. Defendant, armed with a hammer, went through the pockets of the people gathered in the living room, and took the keys of one victim and went on a joyride in his truck, returning the truck 30 minutes later. The owner of the truck was allowed to leave unharmed, although some documentation in the truck was destroyed and a roadside safety kit had been taken out of the vehicle. When the matter reached trial, the victim testified that defendant was the man with the hammer who had robbed him. However, the testifying victim had initially identified defendant through a picture that was not disclosed to the defense, leading to an objection from defense counsel to his testimony. After voir dire and argument from both sides, the trial court struck the victim’s identification of defendant and gave a curative instruction to the jury, but denied defendant’s motion for a mistrial. The trial court also dismissed several charges against defendant but denied defendant’s motion for the robbery and larceny of a motor vehicle charges.

Taking up (1), the Court of Appeals noted that review of the trial court’s denial of a mistrial is highly deferential, and that a mistrial is only appropriate in situations where improprieties in the trial were so serious defendant could not receive a fair trial. Here, the court agreed that the victim’s testimony was improper and that the trial court’s curative instruction was likely too vague to remove the prejudice of the improper testimony. However, because the State offered a second witness that also identified defendant, and defense counsel conducted adequate cross-examination after the improper testimony, the court found that “albeit inadequate standing alone,” the cumulative effect of these factors “defeats [defendant’s] claim of a gross abuse of discretion by the trial judge.” Slip Op. at 8. The court also rejected defendant’s attempt to apply State v. Aldridge, 254 N.C. 297 (1961) to call into question the second witness’s credibility. 

Turning to (2), the court agreed with defendant that the State did not present evidence showing intent to permanently deprive the victim of his vehicle. Explaining the elements of larceny, the court noted that intent to permanently deprive the owner of possession must be shown to sustain a conviction, and this intent is typically shown by circumstantial evidence. However, “apart from the act of taking itself, additional facts must be present to support an inference of the requisite criminal intent, including both the intent to wrongfully take and the intent to permanently deprive the owner of possession.” Slip Op. at 15. Here, the State pointed to defendant’s use of force as evidence of intent, but the court rejected this argument, exploring precedent to show that force alone does not represent evidence of intent to permanently deprive the victim of their property. Defendant returned the truck to the victim willingly after 30 minutes, representing only a temporary deprivation. The court concluded that the appropriate remedy here was the lesser-included offense of unauthorized use of a motor vehicle, and remanded for entry of judgment for that offense. This remand negated defendant’s argument (3), which the court did not consider.