State v. Miller

• Court: Court of Appeals of North Carolina
• Decided: May 6, 2014
• Docket: 13-1024
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1024 NORTH CAROLINA COURT OF APPEALS

Filed: 6 May 2014

STATE OF NORTH CAROLINA

v. Cabarrus County No. 09 CRS 53721 FREDRICK ANTHONY MILLER

On writ of certiorari to review judgments entered 21

September 2011 by Judge W. David Lee in Cabarrus County Superior

Court. Heard in the Court of Appeals 7 April 2014.

Attorney General Roy Cooper, by Assistant Attorney General Erin O’Kane Scott, for the State.

Leslie C. Rawls for defendant-appellant.

ELMORE, Judge.

On 21 September 2011, Fredrick Anthony Miller (defendant)

was found guilty of felonious breaking or entering, larceny

after breaking or entering, felonious larceny, and injury to

real property. The trial court arrested judgment on the felony

larceny conviction and sentenced defendant to two active

consecutive terms of 15 to 18 months imprisonment for the

felonies, plus an active consecutive term of 120 days for the -2- misdemeanor. On 10 April 2013, this Court issued a writ of

certiorari to review defendant’s judgments.

I. Background

The State’s evidence from trial shows that on 31 October

2009, defendant broke into the home of Roderick Jordan and stole

two televisions, two CD players, two VCRs, a paint sprayer, two

grandfather clocks, a wooden china cabinet containing china, and

a wooden table. One VCR and one CD player were recovered and

returned to Mr. Jordan.

Mr. Jordan testified as to the value of the televisions,

VCRs, CD players, and paint sprayer. Mr. Jordan did not have

receipts for the televisions, but compared similar products and

believed they were worth $300 and $400, respectively. He also

estimated that the VCRs were worth $45 and $56, respectively,

after comparing similar products. Mr. Jordan testified that the

CD players were one and a half to two years old. One of the CD

players was a multi-disc player, and he had seen comparable CD

players being sold for $599. The other one was a single-disc

player, and he had paid $250 for it. Mr. Jordan inherited the

paint sprayer, which was unused, from his uncle. He testified

that it was being sold at Lowe’s for $699. Mr. Jordan testified

that the clocks, china cabinet, china, and wooden table were -3- family heirlooms. He did not have an opportunity to have a

professional appraisal of these items, and therefore did not

offer testimony as to their monetary value.

The trial court ordered restitution in the amount of

$2,349.00, which was the amount requested in the State’s

restitution worksheet. This amount appears to include the

values of the items to which Mr. Jordan testified: the two

televisions, the two VCRs, the two CD players, and the paint

sprayer. It does not appear to include the value of any of the

family heirlooms. The trial court explained as follows:

I am constrained to find restitution only in the amount of what the monetary evidence has shown to be the amount in this case and at this point I am going to enter a civil judgment, without in any way prejudicing your right to seek a further civil judgment for any additional sums, but I’m going to enter a civil judgment based upon the monetary evidence that’s come before me in the amount of $2,349.00.

II. Analysis

Defendant challenges the trial court’s order of

restitution. Specifically, defendant argues that the amount of

restitution is not supported by evidence in the record because

it (1) was based on the retail price or the original purchase

price of the items, not the fair market value, and (2) included -4- items that were returned to Mr. Jordan. We agree with

defendant’s second contention.

“The amount of restitution ordered by the trial court must

be supported by competent evidence presented at trial or

sentencing.” State v. Mauer, 202 N.C. App. 546, 551, 688 S.E.2d

774, 777 (2010). To justify an order of restitution, “‘there

must be something more than a guess or conjecture as to an

appropriate amount of restitution.’” State v. Clifton, 125 N.C.

App. 471, 480, 481 S.E.2d 393, 399 (1997) (quoting State v.

Daye, 78 N.C. App. 753, 758, 338 S.E.2d 557, 561 aff'd, 318 N.C.

502, 349 S.E.2d 576 (1986)).

Pursuant to N.C. Gen. Stat. § 15A-1340.35(a)(2) (2013),

when determining the amount of restitution, a trial court must

consider the “[r]eturn of the property to the owner of the

property or someone designated by the owner” in cases “resulting

in the damage, loss, or destruction of property of a victim of

the offense[.]” Here, the amount requested and ordered by the

trial court is equal to the sum of all the values to which Mr.

Jordan testified, including the returned CD player and returned

VCR. The State offered no evidence that the returned CD player

and returned VCR were damaged or destroyed in any way, so as to

make their return “inadequate.” See N.C. Gen. Stat. § 15A- -5- 1340.35(a)(2) (2013). Therefore, because it included the value

of items which were returned to the victim, the full amount of

the restitution order is not supported by the evidence from

trial.

However, we disagree with defendant’s first argument. In

support of his argument that the amount of restitution must be

based on fair market value as opposed to retail or purchase

price, defendant cites only the general statutory provision,

which states that “[i]n determining the amount of restitution,

the court shall consider” “[t]he value of the property on the

date of the damage, loss, or destruction[.]” N.C. Gen. Stat. §

15A-1340.35(a)(2)(b1) (2013). Defendant, however, has not cited

any additional authority for his assertion, and the statutory

authority does not define “value” as fair market value as

opposed to original purchase price or retail replacement cost.

Thus, we are not persuaded by defendant’s argument.

We have previously held that “‘[w]hen, as here, there is

some evidence as to the appropriate amount of restitution, the

recommendation will not be overruled on appeal.’” State v.

Davis, 167 N.C. App. 770, 776, 607 S.E.2d 5, 10 (2005) (quoting

State v. Hunt, 80 N.C. App. 190, 195, 341 S.E.2d 350, 354

(1986)). Here, the record contains sufficient evidence that the -6- amount of restitution was appropriate as to the items which were

not returned to Mr. Jordan. Additionally, we note that

defendant did not present any evidence to the contrary.

Thus, we conclude that there was some evidence to support

the award of restitution. However, because it included the

value of items which were returned to the victim, it was not

“specific enough” to support the total amount of $2,349.00. See

State v. Moore, 365 N.C. 283, 286, 715 S.E.2d 847, 849 (2011).

Accordingly, we must remand this case to the trial court for the

trial court to calculate the correct amount of restitution. See

id. at 286, 715 S.E.2d at 849-50.

Remanded for redetermination of restitution.

Judges McGEE and DAVIS concur.

Report per Rule 30(e).