State v. Hardy

774 S.E.2d 410, 242 N.C. App. 146, 2015 N.C. App. LEXIS 576
CourtCourt of Appeals of North Carolina
DecidedJuly 7, 2015
DocketNo. COA14–1320.
StatusPublished
Cited by24 cases

This text of 774 S.E.2d 410 (State v. Hardy) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hardy, 774 S.E.2d 410, 242 N.C. App. 146, 2015 N.C. App. LEXIS 576 (N.C. Ct. App. 2015).

Opinion

INMAN, Judge.

This case presents, among other issues, the question of whether an air-conditioning unit attached to the exterior of a mobile home, which unit is dismantled and destroyed causing extensive water damage to the home, is correctly classified as real property or personal property for the purpose of a criminal charge and conviction. Based on the record below, the answer in this case is real property.

Defendant appeals the judgment entered after a jury found him guilty of breaking and entering, larceny after breaking and entering, possession of stolen property, and willful and wanton injury to real property. On appeal, defendant contends that: (1) the trial court erred in failing to strike the victim's testimony that "other witnesses" saw defendant outside her home on the day the air-conditioner was damaged; (2) the trial court erred in denying defendant's motion to dismiss the injury to real property charge because there was insufficient evidence that the air-conditioner was real property; (3) the trial court erred by instructing the jury that the air-conditioner constituted real property; (4) the restitution order requiring defendant to pay $7,408.91 was not supported by evidence; and (5) defendant is entitled to a new sentencing hearing because it is unclear whether the trial court based his sentence on defendant's conviction for felony possession of stolen goods.

After careful review, we conclude that defendant received a trial free of error but remand for resentencing.

Background and Procedural History

On 25 July 2011, Zulema Bass ("Ms. Bass") arrived home and noticed that her mobile home was hot inside even though the air-conditioner was on. After hearing a loud noise outside, she asked her fifteen-year-old son Brendell Bass ("Brendell") to investigate. Brendell went to the back door and began screaming that a man was out there. Ms. Bass ran to the door and saw a man riding away on a bicycle; she only saw half of the man's face and was unable to identify him. Ms. Bass went outside and saw that the air-conditioning unit was "demolished" and noticed a twisted pipe on the ground beside the unit. She also noticed that there was extensive water damage under her home from "pipes leaking everywhere." Ms. Bass called 911. The State did not elicit any identification testimony from Ms. Bass regarding whether the man she saw that day was defendant.

On cross-examination, defense counsel asked Ms. Bass about her inability to identify defendant to police officers. Ms. Bass responded that she could not identify him because she "did not see his whole face ... when [defendant] was riding off." Defense counsel then asked: "So you can't tell this jury that it was [defendant] that was outside your home that day; is that correct?" Ms. Bass replied: "That was him, because I had *413other witnesses that saw him go on the bicycle in the woods, and my-also my son was there." Defense counsel immediately objected that the answer was nonresponsive and requested that her answer be stricken from the record. The trial court overruled the objection. Ms. Bass did not offer any further testimony clarifying her statement about "other witnesses."

Brendell also testified at trial that, after hearing "loud" noises, he saw a man coming out of the crawlspace beneath their home holding copper wire and went out to confront him. At trial, he identified defendant as the man he had seen and confronted. Brendell testified that once defendant heard him yell, defendant threw the copper wire on the ground beside a tree. Before Brendell was able to answer the State's question as to whether he had ever seen defendant before, defense counsel objected, and the trial court excused the jury to determine whether Brendell's testimony was "objectionable."

During voir dire, Brendell testified that he had seen defendant around the neighborhood about four or five times, including one particular incident where he saw defendant take a refrigerator out of another house in the neighborhood. The trial court allowed Brendell to testify to the jury that he had seen defendant around the neighborhood, but did not allow any testimony concerning the refrigerator incident.

Detective Parchman, the officer who responded to the 911 call from the mobile home, corroborated Brendell's testimony, claiming that Brendell identified the man he saw as defendant.

Jack Gregory ("Mr. Gregory"), a handyman with 40 years of experience, testified that he went to Ms. Bass's mobile home to inspect and attempt to repair the air-conditioner. Mr. Gregory explained that Ms. Bass's air-conditioner was a two-piece unit. The outside unit was a condensing unit, which sat on the ground outside the mobile home and is connected to a second unit. The second unit, known as the A-coil, was located on the inside of the home and sat on the top of the home's heater. A high pressure copper pipe beneath the mobile home connected the outside unit to the indoor A-coil. Mr. Gregory testified that Ms. Bass's outside condensing unit had been completely "gutted." The compressor had been completely removed, and the wiring in the control box had been pulled out. Almost the entire high pressure copper piping that ran beneath the home had been removed. Mr. Gregory also noted some water line damage in the crawlspace of the mobile home; the water lines were broken so extensively that the entire back side of the brick wall on the underpinning was "soaked through." The air-conditioner was inoperable and beyond repair.

Dale Davis ("Mr. Davis") testified that he owned the mobile home but used it as a rental property. He testified that he had received an estimate of over $6,000 to repair "just the AC" from Jackson & Sons.

At the end of the State's evidence, defense counsel made a motion to dismiss the injury to real property charge because the air-conditioning unit "would be more better described as personal property" since part of it was outside of the mobile home's crawlspace. The trial court denied the motion.

During jury instructions, the trial court instructed the jury on the charge of injury to real property as follows:

The [d]efendant has also been charged with willful and wanton injury to real property. For you to find the [d]efendant guilty of this offense the State must prove two things beyond a reasonable doubt:
First, that the [d]efendant injured the air conditioner of Dale Davis. An air conditioner affixed to a house is real property.
And second, that the [d]efendant did this willfully and wantonly[.]

The jury found defendant guilty of all charges. Before judgment was entered, defendant pled guilty to attaining habitual felon status in exchange for the State's recommendation of a mitigated sentence.

On 14 February 2012, the trial court sentenced defendant to 77 months to 102 months imprisonment and ordered defendant to pay $7,408.91 in restitution. The restitution amount was based on the amount Mr. Davis paid to Mr. Gregory to inspect the air-conditioner and fix the water pipes, $918.91, and *414an estimate from Jackson & Sons to replace the "heat pump" for $6,490.00.

On the same day as judgment was entered but after sentencing defendant, the trial court arrested judgment on defendant's conviction for possession of stolen goods. The trial court did not modify defendant's sentence. Defendant appeals.1

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Cite This Page — Counsel Stack

Bluebook (online)
774 S.E.2d 410, 242 N.C. App. 146, 2015 N.C. App. LEXIS 576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hardy-ncctapp-2015.