IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-814

Filed 15 August 2023

Union County, Nos. 17 CRS 052227, 052232-33

STATE OF NORTH CAROLINA

v.

JOHN LOUIS SPERA, Defendant.

Appeal by Defendant from judgment entered 10 March 2022 by Judge Nathan 

H. Gwyn, III in Union County Superior Court. Heard in the Court of Appeals 23 May

2023.

Attorney General Joshua H. Stein, by Assistant Attorney General Andrew L. 

Hayes, for the State.

Thomas, Ferguson & Beskind, LLP, by Kellie Mannette, for DefendantAppellant.

RIGGS, Judge.

Defendant John Louis Spera appeals from a judgment following a jury trial, 

which found him guilty of misdemeanor larceny of a vehicle and robbery with a 

dangerous weapon. On appeal, Mr. Spera argues that the trial court: (1) abused its 

discretion by denying his motion for a mistrial after the testifying victim’s 

identification of him as the perpetrator was ruled inadmissible; (2) erred in denying 

his motion to dismiss the misdemeanor larceny charge for insufficient evidence of

intent to permanently deprive the victim of the property taken; and (3) committed 
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plain error by failing to instruct the jury on the concept of temporary deprivation. 

After careful review, we hold that the trial court did not err in denying his motion for 

mistrial but did err in denying his motion to dismiss the misdemeanor larceny charge. 

As a result, we vacate the misdemeanor larceny conviction in File No. 17CRS052233

and remand for entry of judgment on the lesser-included offense of unauthorized use 

of a motor vehicle. We leave the remaining conviction undisturbed.

I. FACTUAL AND PROCEDURAL HISTORY

On 4 April 2017, recent high school graduate Dustin Perry was invited by his 

friend and drug dealer, Zackary Phifer, to hang out with two women, Hannah 

Tarleton and Charity Sharon, at a mobile home in Union County. Mr. Perry picked 

up Mr. Phifer at his mother’s house around 10:00 PM and the two drove in Mr. Perry’s 

pickup truck to the home where Ms. Tarleton and Ms. Sharon were spending the 

evening. On arrival, Mr. Phifer exited the truck, met with someone at the door, and 

waved for Mr. Perry to join him. The men headed inside together. 

Mr. Perry and Mr. Phifer entered through the living room before heading into 

a room at the rear of the home. Ms. Tarleton and Ms. Sharon met Mr. Perry and Mr. 

Phifer in that room; a few minutes later, three or four other men burst into the room. 

Two of the men were armed, one with a knife and the other with a hammer. Mr. 

Perry knew the man with the knife as Luther Weathers, but he did not recognize the 

man with the hammer. 
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The unknown man with the hammer began shouting “where’s the powder, 

where’s the powder,” at Mr. Perry and Mr. Phifer. The men then searched Mr. Perry 

and Mr. Phifer, rifling through the former’s wallet and taking his phone and the keys 

to his truck. The armed robbers then left the room, and Mr. Perry heard them start 

up his truck and drive away for what Mr. Perry presumed was a joyride. The 

remaining men, along with Ms. Tarleton and Ms. Sharon, stayed behind with Mr. 

Perry and Mr. Phifer to ensure that they did not leave the back room. 

Roughly thirty minutes after the robbery, the two armed robbers returned to 

the mobile home, escorted Mr. Perry and Mr. Phifer outside, returned the keys to Mr. 

Perry, and allowed them to leave unharmed. The man with the hammer did, 

however, threaten Mr. Perry with harm if he told the police about what had occurred. 

Mr. Perry found that unspecified “documentation” relating to the truck had been 

destroyed and a roadside safety kit was missing from the vehicle. Mr. Perry later 

reported the incident to law enforcement. 

Detective James Maye with the Union County Sheriff’s Office met and 

interviewed Mr. Perry about the night in question in May of 2017. Mr. Perry told 

Detective Maye that the man with the hammer was Black, about 5 feet tall, and bald. 

Roughly four years later, in 2021, the district attorney showed Mr. Perry a picture of 

Mr. Spera—who is white, 5’9”, and has long hair—and Mr. Perry affirmatively 

identified him as the robber with the hammer. 
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Mr. Spera was subsequently indicted on one count of felony larceny of a motor 

vehicle and two counts each of second-degree kidnapping, robbery with a dangerous 

weapon, and conspiracy to commit robbery with a dangerous weapon. Trial 

commenced on 7 March 2022, and Mr. Perry testified to his recollection of the robbery. 

During his testimony, Mr. Perry repeatedly identified Mr. Spera as the robber with 

the hammer; however, after it was revealed that Mr. Perry had initially identified 

Mr. Spera through a photograph that had not been previously disclosed to the 

defense, Mr. Spera objected to any identification by Mr. Perry and moved for a 

mistrial. Following voir dire and argument—which included assertions by the State 

that Ms. Tarleton would also be testifying and providing an identification of Mr. 

Spera—the trial court sustained Mr. Spera’s objection, struck Mr. Perry’s 

identification of Mr. Spera, and denied the motion for mistrial. Consistent with the 

State’s argument, Ms. Tarleton did testify and identify Mr. Spera as one of the 

robbers while also acknowledging that she knew him socially and had previously 

engaged in sexual relations with him. 

At the close of the State’s evidence, Mr. Spera moved to dismiss the charges 

against him. The trial court dismissed the robbery and kidnapping charges that 

related to Mr. Phifer, as well as both conspiracy charges. It also reduced the felony 

larceny of a motor vehicle charge to a misdemeanor, as the State had not put in any 

evidence as to the truck’s value. The trial court denied Mr. Spera’s motion to dismiss 

the remaining charges involving Mr. Perry. 
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After the charge conference, the trial court instructed the jury on the 

remaining counts. For misdemeanor larceny of a motor vehicle, the trial court 

instructed the jury that a conviction required the jury to find “that at the time the 

Defendant intended to deprive the victim of its use permanently.” After deliberation, 

the jury found Mr. Spera guilty of robbery with a dangerous weapon and 

misdemeanor larceny of a motor vehicle, acquitting Mr. Spera of second-degree 

kidnapping. The trial court sentenced Mr. Spera to 84 to 113 months’ imprisonment 

for robbery with a dangerous weapon, followed by a consecutive sentence of 120 days 

for misdemeanor larceny. Mr. Spera gave oral notice of appeal at sentencing. 

II. ANALYSIS

Mr. Spera’s three principal arguments identify error in: (1) the denial of his 

motion for mistrial; (2) the denial of his motion to dismiss the misdemeanor larceny 

charge for insufficient evidence of the requisite intent; and (3) the trial court’s failure 

to sua sponte instruct the jury regarding temporary deprivation. We disagree with 

Mr. Spera as to his first argument; however, because we hold the evidence was 

insufficient to show the requisite intent for misdemeanor larceny, we vacate that 

conviction and remand for entry of judgment on the lesser-included offense of 

unauthorized use of a motor vehicle. Finally, because our second holding is 

dispositive as to the larceny conviction, we decline to address Mr. Spera’s third 

argument.

A. Mistrial
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1. Standard of Review

A trial court’s denial of a motion for mistrial is reviewed for abuse of discretion. 

State v. Bradley, 279 N.C. App. 389, 406, 864 S.E.2d 850, 864 (2021). This is a highly 

deferential standard, as the trial court’s “ruling thereon (without findings of fact) is 

not reviewable without a showing of gross abuse of discretion.” State v. Daye, 281 

N.C. 592, 596, 189 S.E.2d 481, 483 (1972).

2. Analysis

A mistrial is proper “when there are improprieties in the trial so serious that 

they substantially and irreparably prejudice the defendant’s case and make it 

impossible for the defendant to receive a fair and impartial verdict.” State v. Bonney, 

329 N.C. 61, 73, 405 S.E.2d 145, 152 (1991) (citation and quotation marks omitted). 

A motion for mistrial necessitates demonstration of harm “beyond a reasonable 

doubt.” State v. Nolen, 144 N.C. App. 172, 178, 550 S.E.2d 783, 787 (2001) (citation 

omitted). In many instances, a curative instruction issued promptly by the trial court 

can effectively neutralize such prejudice. State v. McDougald, 279 N.C. App. 25, 30, 

862 S.E.2d 877, 881 (2021). Additionally, any prejudicial impact can be negated by 

the admission of cumulative evidence establishing the same fact. Nolen, 144 N.C. 

App. at 179, 550 S.E.2d at 787-88.

Here, Mr. Perry emphatically identified Mr. Spera as one of the armed men 

that robbed him, and repeatedly referred to Mr. Spera throughout his testimony. 

Partway through that incriminating testimony, Mr. Spera’s counsel learned that Mr. 
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Perry had given an out-of-court identification to the prosecution, leading counsel to 

lodge an immediate objection “based on a highly improper photo” identification and 

lack of disclosure to the defense. The trial court—after hearing voir dire testimony, 

arguments from the parties, and the forecast from the State of Ms. Tarleton’s 

anticipated identification testimony—sustained the objection and provided the 

following curative instruction:

For the record the motion to suppress the identification of 

the Defendant is granted. I am instructing, ladies and 

gentlemen of the jury, that you are to disregard totally and 

to give no weight to the last witness’s identification of the 

Defendant, that being Mr. Perry. Is that understood? You 

are to strike that entirely. Next witness.

Immediately following this instruction, Mr. Spera’s counsel cross-examined Mr. Perry 

on the substantial discrepancies between Mr. Spera as he appeared in court and Mr. 

Perry’s testimonial description of the perpetrator.

Mr. Spera acknowledges that curative instructions are usually sufficient to 

preclude a mistrial, but asserts this case is different based on the specific instruction 

given and the evidence presented, noting that the sufficiency of a curative instruction 

is a fact-intensive inquiry dependent on the circumstances of each individual trial. 

State v. Aldridge, 254 N.C. 297, 300, 118 S.E.2d 766, 768 (1961). He argues—and we 

agree—that the trial court’s curative instruction here was likely too vague, standing 

alone, to adequately dispel the prejudice of Mr. Perry’s repeated and emphatic 

identifications of Mr. Spera. Where we part from Mr. Spera’s logic, however, is in the 
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import of Ms. Tarleton’s testimony, and we ultimately hold that her cumulative 

testimony, coupled with the curative instruction, albeit inadequate standing alone,

and his counsel’s able cross-examination of Mr. Perry, defeats Mr. Spera’s claim of a 

gross abuse of discretion by the trial judge in denying his mistrial motion.

In opposing Mr. Spera’s mistrial motion, the State explicitly directed the trial 

court to Ms. Tarleton’s anticipated testimony identifying Mr. Spera as one of the 

perpetrators of the alleged larceny. After she took the stand, Ms. Tarleton 

affirmatively identified Mr. Spera as such, and testified that “Spera stepped in and 

started demanding [the victims’] stuff. . . . He just started demanding their stuff, all 

they had. The weed, they had phones, everything. Whatever goods they may have 

had on them.” She subsequently confirmed that Mr. Spera left the mobile home with 

the other robber, Mr. Weathers, and only recalled seeing Mr. Spera again after Mr. 

Perry’s truck returned to the mobile home. As for her familiarity with the alleged 

perpetrators, she testified that she knew both Mr. Spera and Mr. Weathers 

intimately, which lent credence to her identification. And, though Mr. Spera’s counsel 

elicited testimony from Ms. Tarleton that she was testifying pursuant to a plea 

arrangement, any evaluation as to her credibility—consistent with the standard 

credibility and interested witness instructions given by the trial court—was within 

the exclusive province of the jury. State v. Hoff, 224 N.C. App. 155, 160, 736 S.E.2d 

204, 208 (2012). We cannot say that the trial court’s decision to leave that credibility 

determination to the jury, made in light of those proper instructions, amounts to a 
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manifest abuse of discretion.

Beyond Ms. Tarleton’s cumulative testimony, any prejudice resulting from Mr. 

Perry’s improper identification was further ameliorated by defense counsel’s crossexamination. Immediately following the curative instruction, Mr. Spera’s counsel 

elicited in testimony Mr. Perry’s initial identification of the second robber, first 

described as a five-foot-tall bald Black man with a goatee—a description that clearly 

did not match Mr. Spera’s appearance in the courtroom. Such evident discrepancies 

were probative to impeach any improper identification by Mr. Perry. See, e.g., State 

v. Joyner, 33 N.C. App. 361, 365, 235 S.E.2d 107, 110 (1977) (holding trial counsel’s 

cross-examination and impeachment of a witness concerning allegedly improper 

testimony negated any prejudice from said testimony). In sum, trial counsel’s crossexamination, Ms. Tarleton’s cumulative testimony identifying Mr. Spera as the 

perpetrator of the alleged crime, and the trial court’s curative instruction—however 

insufficient on its own—preclude us from holding that there was “substantial and 

irreparable prejudice to the defendant’s case,” N.C. Gen. Stat. § 15A-1061 (2021), such 

that the trial court’s denial was “a gross abuse of . . . discretion,” State v. Bidgood, 

144 N.C. App. 267, 273, 550 S.E.2d 198, 202 (2001) (citation omitted).

Mr. Spera urges us to reach a different result based on Aldridge, where the 

Supreme Court reversed a trial court’s denial of a mistrial for improperly admitted 

evidence notwithstanding a curative instruction and cumulative testimony from 

additional witnesses. 254 N.C. at 301, 118 S.E.2d at 768. The facts of Aldridge, a 
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half-century old criminal child support case, render it inapposite to the case at bench. 

There, a married woman was seeking child support from a man who was not her 

husband, alleging he fathered her child. In an attempt to prove that the defendant

was the child’s father, the woman impermissibly (under the common law in effect at 

the time) testified before the jury that her husband could not have sired the child 

because she had not seen him for two years. Id. at 298, 118 S.E.2d at 767. Though a 

curative instruction was given and other witnesses gave “much less probative” 

testimony suggesting the woman’s nonaccess to her husband, the Supreme Court 

ultimately held that the improper testimony was so prejudicial that a mistrial should 

have been declared. Id. at 299, 118 S.E.2d at 767.

But the prejudice identified in Aldridge stemmed from antiquated evidentiary 

concepts found in the common law of child support cases involving “illegitimate” 

children. Under the common law of that era, “[t]he wife [wa]s not a competent 

witness to prove the nonaccess of the husband . . . . Her testimony and declarations 

[were] excluded not only as violative of the confidential relations existing between 

husband and wife but pursuant to a sound public policy which prohibits the parent 

from bastardizing her own issue.” Ray v. Ray, 219 N.C. 217, 219, 13 S.E.2d 224, 226 

(1941). Thus, whether a wife had “access” to her husband was presumed to be private 

information within the marital relationship. Id. And, lacking DNA evidence, the 

testimony of the wife was presumed to be the most probative evidence of her sexual 

activities. Cf. id. (“[S]he is permitted to testify as to the illicit relations in actions 
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directly involving the parentage of the child, for in such cases, proof thereof 

frequently would be an impossibility except through the testimony of the woman.”

(citations omitted)).

We decline to analogize the prejudice stemming from caselaw: (1) grounded in 

the patent sexism of the past; and (2) predating the modern rules of evidence on 

paternity and DNA testing. See N.C. Gen. Stat. § 8-57.2 (2021) (abrogating the 

common law rule discussed in Aldridge and explicitly authorizing the mother in any 

action involving paternity of a child born during a marriage to testify to nonaccess); 

N.C. Gen. Stat. § 8-50.1(a) (2021) (requiring the trial court to order blood testing to 

determine parentage, “regardless of any presumptions with respect to parentage,” 

upon motion of the State or defendant). Moreover, Mr. Spera’s identity is not so 

intimate a fact as whether a spouse had “nonaccess” to their partner such that Mr. 

Perry’s identification was inherently more probative than one from another witness; 

Ms. Tarleton was in the room at the time of the robbery, knew both Mr. Spera and 

Mr. Weathers well, and could thus provide an identification of equal—if not 

altogether greater—probative value.1

The case before us is also different for several additional reasons, namely: (1) 

Mr. Spera’s counsel ably cross-examined Mr. Perry on the differences between his 

1 Indeed, given that Ms. Tarleton’s description of Mr. Spera’s appearance at the time of the 

robbery lacked the glaring inconsistencies between Mr. Spera’s actual appearance and Mr. Perry’s 

initial description of the man with the hammer, Ms. Tarleton’s identification could reasonably be 

afforded greater weight than Mr. Perry’s.
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initial identification and Mr. Spera’s in-court appearance, substantially undercutting 

the improper identification’s probative value;2 (2) Ms. Tarleton’s identification of Mr. 

Spera was highly probative given her intimate familiarity with both Mr. Spera and 

Mr. Weathers; and (3) Mr. Spera’s identity—unlike the details of the wife’s sexual 

activities in Aldridge—was not intimate and private knowledge such that Mr. Perry 

was the best and most credible source for that information. Thus, Aldridge’s context 

and ruling do not align sufficiently with our case, and we find it inapposite to the 

appeal before us.

B. Motion to Dismiss

Mr. Spera next challenges the trial court’s denial of his motion to dismiss the 

larceny charge, arguing that the evidence presented does not sufficiently demonstrate 

his intention to permanently deprive Mr. Perry of his vehicle. He highlights that the 

evidence, at best, implies only an intended temporary deprivation. We agree with 

Mr. Spera, vacate his misdemeanor larceny conviction on this basis, and remand for 

entry of a judgment convicting him of the lesser-included offense of unauthorized use 

of a motor vehicle.

1. Standard of Review

2 Of note, the Supreme Court stated in Aldridge that the defendant’s counsel “undertook, with 

indifferent success, to impeach [the woman’s] testimony as to nonaccess.” 254 N.C. at 299, 118 S.E.2d 

at 767-68 (emphasis added).
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A trial court’s ruling on a motion to dismiss is subject to de novo review. State 

v. Summey, 228 N.C. App. 730, 733, 746 S.E.2d 403, 406 (2013). When considering 

the denial of a motion to dismiss, we assess “whether there is substantial evidence 

(1) of each essential element of the offense charged, or of a lesser offense included 

therein, and (2) of defendant’s being the perpetrator of such offense.” State v. Fritsch, 

351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000) (citation omitted).

Substantial evidence is defined as “such relevant evidence as a reasonable 

mind might accept as adequate to support a conclusion.” State v. Vause, 328 N.C. 

231, 236, 400 S.E.2d 57, 61 (1991) (citation and quotation marks omitted). In other 

words, the State must present “more than a mere scintilla” of evidence to establish 

each and every element of the charge. State v. Smith, 40 N.C. App. 72, 77-78, 252 

S.E.2d 535, 539 (1979) (citations and quotation marks omitted). We grant “the State 

the benefit of every reasonable inference and resolv[e] any contradictions in its favor.”

State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994) (citation omitted). The 

presented evidence and inferences must go beyond “rais[ing] suspicion or conjecture.”

State v. Chekanow, 370 N.C. 488, 492, 809 S.E.2d 546, 550 (2018) (citation omitted).

2. Analysis

Larceny is a common law crime with the essential elements “that the 

defendant: (1) took the property of another; (2) carried it away; (3) without the owner’s 

consent; and (4) with the intent to deprive the owner of his property permanently.” 

State v. Sisk, 285 N.C. App. 637, 641, 878 S.E.2d 183, 186 (2022) (citations and 
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quotation marks omitted). “The statutory provision upgrading misdemeanor larceny 

to felony larceny does not change the nature of the crime; the elements of proof remain 

the same.” State v. Smith, 66 N.C. App. 570, 576, 312 S.E.2d 222, 226 (1984).

The final element—intent—is often inferred from circumstantial evidence 

rather than direct proof. State v. Harlow, 16 N.C. App. 312, 315, 191 S.E.2d 900, 902 

(1972). However, our Supreme Court recognized long ago that “[s]omething more 

than the mere act of taking is necessary to be shown before the jury can proceed to 

inquire into the [defendant’s] intent.” State v. Foy, 131 N.C. 804, 805, 42 S.E. 934, 

935 (1902). This “felonious intent” is multifaceted and includes more than just an 

intent of permanent deprivation:

Felonious intent as applied to the crime of larceny is the 

intent which exists where a person knowingly takes and 

carries away the personal property of another without any 

claim or pretense of right with the intent wholly and 

permanently to deprive the owner of his property.

State v. Perry, 21 N.C. App. 478, 481-82, 204 S.E.2d 889, 891 (1974) (citation and 

quotation marks omitted). Thus, a defendant who takes another’s property on an 

honestly mistaken belief that it belongs to them has not committed larceny. See, e.g., 

State v. Gaither, 72 N.C. 458, 460 (1875) (holding, on appeal from a larceny conviction 

for taking and eating the alleged victim’s chickens, that “it cannot be maintained, 

that if one takes the property of another and eats it, that he is guilty of larceny. It 

may be trespass, or mistake, or larceny, according to circumstances; it is not 

necessarily larceny.” (emphasis in original)). Similarly, a defendant who knowingly 
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and dishonestly takes another’s property for only a temporary purpose lacks 

“felonious intent” necessary for larceny and has instead merely committed a trespass. 

State v. Rogers, 255 N.C. App. 413, 415, 805 S.E.2d 172, 174 (2017). Thus, proving 

felonious intent for larceny requires showing two distinct aspects of intent: (1) an 

intentionally wrongful taking of another’s property, State v. Bowers, 273 N.C. 652, 

655, 161 S.E.2d 11, 14 (1968); and (2) an intent to permanently deprive the victim of 

possession, Rogers, 255 N.C. App. at 415, 805 S.E.2d at 174.

Different facts may circumstantially demonstrate an intent to accomplish a 

wrongful taking, “inconsistent with an honest purpose, such as when done 

clandestinely, or, when charged with, denies, the fact; or secretly, or forcibly; or by 

artifice.” Foy, 131 N.C. at 805-06, 42 S.E. at 935 (citations omitted). By contrast, 

intent to permanently deprive the owner of possession “may, generally speaking, be 

deemed proved if it appears he kept the goods as his own ‘til his apprehension, or that 

he gave them away, or sold or exchanged or destroyed them.” State v. Smith, 268 

N.C. 167, 173, 150 S.E.2d 194, 200 (1966) (citation and quotation marks omitted). In 

summary, 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. And 

while force goes to an intent to wrongfully take, Foy, 131 N.C. at 805-06, 42 S.E. at 

935, no case cited by the State has held that it also demonstrates an intent to 

permanently deprive; to the contrary, courts have looked to other factors besides force 
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to show intent to permanently deprive, even in cases where force was used, Smith, 

268 N.C. at 172-73, 150 S.E.2d at 200 (holding intent to permanently deprive the 

owner of a rifle taken in an armed robbery was shown by the abandonment of the 

rifle after the taking rather than the death threats, use of a firearm, and firing of a 

warning shot at the victim’s feet in the robbery itself).

Consistent with Smith, intent to permanently deprive the victim of possession 

has been shown in a number of factual circumstances, though the use of force does 

not appear to be among them. In State v. Osborne, a larceny case involving the theft 

of numerous personal articles from the victim’s apartment, we held that the discovery 

of the items “in the defendant’s bags and among his own possessions [was] sufficient 

evidence from which a reasonable jury could conclude defendant had the necessary 

intent to permanently deprive [the victim] of [his] property.” 149 N.C. App. 235, 243, 

562 S.E.2d 528, 534 (2002). That is, the stolen materials were kept until discovered, 

not voluntarily returned after a short period. Similarly, apprehension of missing 

money, in the defendants’ possession and alongside other unrelated stolen items, was 

sufficient to show the requisite criminal intent to permanently deprive the rightful 

owner of possession in State v. Jones, 57 N.C. App. 460, 464, 291 S.E.2d 869, 872 

(1982). In State v. Hager, we held that a jewelry thief’s intent to permanently deprive 

the owner of possession was shown from the “defendant’s exchanging the [stolen] 

items for cash” at several pawnshops. 203 N.C. App. 704, 708, 692 S.E.2d 404, 407 

(2010). We likewise held that intent to permanently deprive was shown in an 
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automobile theft in State v. Jackson; because the stolen car in that case was never 

recovered, “[t]he fact that the car ha[d] not yet been returned or even located by the 

police [was] sufficient to raise an inference in favor of the State that the defendant 

did in fact intend to keep the car permanently when he took it.” 75 N.C. App. 294, 

297-98, 330 S.E.2d 668, 670 (1985). Finally, abandonment of a car was similarly 

deemed sufficient evidence of intent of permanent deprivation in State v. Allen, where 

the “[d]efendant’s abandonment of the vehicle . . . placed the vehicle beyond his power

to return it to [the victim] and showed his indifference as to whether [the victim] ever 

recovered it.” 193 N.C. App. 375, 381, 667 S.E.2d 295, 299 (2008). 

These illustrative cases demonstrate that some additional facts beyond the 

taking itself must exist to prove an intent to permanently deprive the owner of 

possession. Foy, 131 N.C. at 805, 42 S.E. at 935; Smith, 268 N.C. at 173, 150 S.E.2d 

at 200. And, importantly, those decisions did not rely on force to show that particular 

form of intent; indeed, courts looked to other factors even in cases where force was 

present. See Smith, 268 N.C. at 172-73, 150 S.E.2d at 200; see also Jones, 57 N.C. 

App. at 464, 291 S.E.2d at 872 (discovery of missing money stolen in an armed bank 

robbery alongside other unrelated stolen goods served to establish intent to 

permanently deprive, rather than use of weapons in robbery); State v. Mann, 355 N.C. 

294, 304, 560 S.E.2d 776, 783 (2002) (abandonment of vehicle, rather than use of a 

weapon in the armed robbery, showed intent to permanently deprive owner of 

possession).
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In contrast to the above cases, other precedents demonstrate that where the 

uncontroverted evidence contradicts the intent of permanent deprivation, dismissal 

of the larceny charge is proper. We applied this principle in Matter of Raynor to

reverse the denial of a motion to dismiss a larceny charge, as all the evidence showed

the juvenile defendant picked up a watch with the intention to play with it before

voluntarily returning it when asked by its owner. 64 N.C. App. 376, 378-79, 307 

S.E.2d 219, 221 (1983). State v. Watts, 25 N.C. App. 194, 212 S.E.2d 557 (1975), is 

even more compelling. There, after being threatened with a hammer and scissors, 

the victim gave the defendant his wallet and some credit cards. Id. at 195, 212 S.E.2d 

at 557. When the defendant demanded more money, the victim replied that he would 

be receiving his $150 paycheck later that morning. Id. The defendant responded by 

“agree[ing] that he would take the money but forced [the victim] to get his television 

set and place it and other items in a paper bag, which defendant would hold as 

security until [the victim] could get the money.” Id. at 195, 212 S.E.2d at 557-58. We 

held that these facts were insufficient to show larceny of the television set, as “[a]ll of 

the evidence tends to show that [the defendant] took the set for the purpose of 

coercing the owner to pay him $150,” rather than with an intent to permanently 

deprive the victim of the TV. Id. at 198, 212 S.E.2d at 559. Thus, in Watts, the use 

of force and the taking of other items were insufficient to show intent to permanently 

deprive the owner of possession of the TV when all the other uncontradicted evidence 

established the taking was for a temporary purpose only. Id.
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We have not identified—and the State has not provided—any precedent 

upholding a denial of a motion to dismiss a larceny charge where: (1) the only alleged 

evidence of intent of permanent deprivation was the taking itself; and (2) all 

additional evidence disclosed an intent to accomplish only a temporary deprivation.3

Indeed, such precedent would be at odds with both our longstanding common law, 

Foy, 131 N.C. at 805-06, 42 S.E. at 935, and the logical notion that the lone act of 

taking does not indicate, one way or the other, whether the deprivation is intended 

to be permanent or temporary. The State’s claim that Mr. Spera “took Mr. Perry’s 

keys, without his consent, and permanently deprived Mr. Perry of his truck for some 

period of time,” is internally inconsistent because “some period of time” essentially 

and logically concedes non-permanence. To hold that inferences drawn from the 

taking alone, with no other evidence related to the permanence of the taking, would 

permit the State to send larceny cases to the jury where only a lesser crime had been 

proven, eliminating the State’s burden of proving the elements of the greater larceny 

3 The State relies primarily on State v. Walker, where a jewelry thief was caught putting rings 

into his pocket on the salesroom floor. 6 N.C. App. 740, 742, 171 S.E.2d 91, 92 (1969). When the thief 

was confronted by an owner of the store, the thief dropped the rings, offered to be searched and, when 

told the police would be searching him, fled the premises before he was apprehended a few blocks 

away. Id. The central issue in Walker was not intent, but “the question of asportation,” id. at 743, 

171 S.E.2d at 93, which is an entirely different element than intent. See State v. Carswell, 296 N.C. 

101, 103, 249 S.E.2d 427, 428 (1978) (discussing “asportation, or carrying away” as an element of 

larceny (citation and quotation marks omitted)). Regardless, the defendant in Walker was initially 

apprehended and confronted by the store owner with the stolen goods in his possession, 6 N.C. App. 

at 742, 171 S.E.2d at 92, which is a well-recognized means of circumstantially demonstrating an 

intended permanent deprivation. Smith, 268 N.C. at 173, 150 S.E.2d at 200. Finally, unlike a truck—

which is useful for innumerable purposes, both temporary and permanent—it is difficult to conceive 

of a reason for temporarily and illicitly taking a handful of rings and shoving them in one’s pocket.
STATE V. SPERA

Opinion of the Court

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offense. See, e.g., State v. Ross, 46 N.C. App. 338, 339, 264 S.E.2d 742, 743 (1980) 

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

larceny that does not require showing intent of permanent deprivation).

Nor do threats of violence and the taking of some other objects of lesser value—

not alleged in the larceny indictment—amount to sufficient evidence to support such 

an inference when the remaining uncontroverted facts show an intent to only 

accomplish a temporary deprivation. See Watts, 25 N.C. App. at 198, 212 S.E.2d at 

559; Smith, 268 N.C. at 172-73, 150 S.E.2d at 200. Again, consistent with logic and 

the absence of any caselaw to the contrary from the State, the use of force to 

accomplish a theft reveals an intent to wrongfully take an item, but it says nothing 

about the intended duration of the taking. Compare Foy, 131 N.C. at 805-06, 42 S.E. 

at 935 (noting use of force as circumstantial evidence showing an intent to wrongfully 

take possession of another’s property), with Smith, 268 N.C. at 173, 150 S.E.2d at 200 

(enumerating, without mention of force, facts that are generally considered sufficient 

to circumstantially show intent of permanent deprivation).

Turning to the specific evidence introduced in this case, there was insufficient 

evidence of an intent of permanent deprivation to send the misdemeanor larceny 

charge to the jury. Mr. Perry testified that Mr. Spera took the car on a “joy rid[e],” 

and Ms. Tarleton testified, without objection, that she “underst[ood] . . . [Mr. Perry 

and Mr. Taylor] were waiting until Luther [Weathers] came back with the truck so 

they could leave.” And both witnesses testified that Mr. Spera returned the vehicle 
STATE V. SPERA

Opinion of the Court

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voluntarily, handed back the keys to Mr. Perry, and released him without harm. Mr. 

Perry also testified that Mr. Spera began the robbery by demanding “powder” and 

“must have assumed we were selling cocaine or something,” suggesting Mr. Spera 

initially intended to steal drugs rather than permanently steal a truck. All of this 

uncontroverted evidence supports only an inference of a temporary deprivation. See 

Raynor, 64 N.C. App. at 379, 307 S.E.2d at 221 (holding there was “no evidence 

whatsoever” of intent of permanent deprivation notwithstanding evidence that the 

item was initially recovered in the defendant’s possession, as the defendant’s 

testimony disclaimed such intent and uncontradicted evidence showed the item was 

voluntarily returned at the request of the purported victim (emphasis in original)).

No other facts support a contrary inference under the caselaw cited to this 

Court and reviewed above. While it is true that Mr. Spera threatened force and took 

the phone and keys from Mr. Perry, those facts do not overcome other uncontradicted 

evidence establishing a temporary deprivation only. Watts, 25 N.C. App. at 195, 212 

S.E.2d 557-58; Smith, 268 N.C. at 172-73, 150 S.E.2d at 200; cf. Raynor, 64 N.C. App. 

at 379, 307 S.E.2d at 221. Any inference of a permanent deprivation from these facts 

amounts to mere conjecture and speculation insufficient to survive a motion to 

dismiss.

Having held that the trial court erred in denying Mr. Spera’s motion to dismiss 

the larceny charge, we turn to the appropriate remedy. Mr. Spera argues that pure 

vacatur without remand is required, asserting that he was charged by indictment 
STATE V. SPERA

Opinion of the Court

- 22 -

with larceny of property in excess of $1,000 and that unauthorized use of a motor 

vehicle is only a lesser-included offense of “larceny of a motor vehicle.”4 But our 

precedents establish that “[a]ll of the essential elements of the crime of unauthorized 

use of a conveyance, N.C.G.S. 14-72.2(a), are included in larceny, N.C.G.S. 14-72, and 

we hold that it may be a lesser included offense of larceny where there is evidence to 

support the charge.” Ross, 46 N.C. App. at 339, 264 S.E.2d at 743 (emphasis added)

(citation omitted); see also State v. Hole, 240 N.C. App. 537, 540, 770 S.E.2d 760, 763 

(2015) (recognizing unauthorized use of a motor vehicle as a lesser-included offense 

of larceny but not possession of stolen goods). “Larceny of a motor vehicle” is not a 

separate or distinct offense from “larceny” under either our common law or statutes. 

See, e.g., State v. Allen, 193 N.C. App. 375, 380, 667 S.E.2d 295, 299 (2008) (applying 

the common law elements of larceny and the related offense classification statute for 

larceny generally, N.C. Gen. Stat § 14-72, to a conviction for “felonious larceny of a 

motor vehicle”).

Nothing in Ross or related precedents limits unauthorized use of a motor 

vehicle as a lesser-included offense to indictments for “larceny of a motor vehicle” 

alone. Consistent with this caselaw, we vacate Mr. Spera’s conviction for 

misdemeanor larceny and remand for entry of a judgment on the lesser-included 

4 We note that the indictment in this case did specifically assert “larceny of a motor vehicle,” 

alleging Mr. Spera “did steal, take and carry away a motor vehicle, to wit, a 1984 Chevrolet truck . . . 

having a value of more than $1,000.00.” 
STATE V. SPERA

Opinion of the Court

- 23 -

offense of unauthorized use of a motor vehicle. See State v. Jolly, 297 N.C. 121, 130, 

254 S.E.2d 1, 7 (1979) (holding that the proper remedy for an improperly denied 

motion to dismiss where the only unproved element was the element elevating the 

offense to the greater crime is vacatur of the judgment and remand for entry of 

judgment on the lesser-included offense, as “in finding defendant guilty of [the 

greater crime], the jury necessarily had to find facts establishing the [lesser] offense”).

III. CONCLUSION

For the foregoing reasons, we vacate Mr. Spera’s conviction for misdemeanor 

larceny in 17CRS052233 and remand for entry of a judgment on the lesser-included 

offense of unauthorized use of a motor vehicle. Beyond that, we find no error in his 

remaining convictions.

VACATED IN PART AND REMANDED.

Judges HAMPSON and FLOOD concur.