State v. Miller

An unpublished opinion of the North Carolina Court of Appeals does not constitute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
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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
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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
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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-
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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
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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).