STATE OF NORTH CAROLINA
v
.
FRANK WILSON
Attorney General Roy Cooper, by Assistant Attorney General
Kevin L. Anderson, for the State.
Hall & Hall, P.C., by Douglas L. Hall, for defendant-
appellant.
CALABRIA, Judge.
Frank Wilson (“defendant”) appeals from a conviction and
judgment entered upon a jury's verdict of guilty of common law
robbery. At trial, the State's evidence tended to show that midday
on 17 May 2001, Melissa Jane Bridges (“the victim”) was leaving
work, and as she was walking to her car, a man whom the victim
later identified as defendant approached and stopped her.
Defendant explained to the victim that he had been dropped off in
Winston-Salem on his way home to Raleigh by two of his friends.
Defendant, who claimed he was not familiar with Winston-Salem,
asked the victim for ten dollars to purchase a bus ticket to
Raleigh. The victim testified that after she declined to give
money to defendant, he grabbed her purse with his right hand,
pushed her to the ground with his left, and ran away. Although the victim was frightened and had sustained abrasions
and bruises to her ankle, she was anxious to retrieve her property,
so the victim got up and chased defendant. The victim recovered
her purse and wallet, which had been dropped by defendant after he
removed the currency in it, consisting of a single twenty-dollar
bill. The victim then flagged down a police officer to explain
what had occurred and to give him a description of her attacker.
Afterwards, Dr. William Dunn (“Dr. Dunn”), a podiatrist and the
victim's employer, provided medical treatment for the cuts and
bruises to her ankle. The victim noted the incident in her
appointment book.
The victim further testified that, approximately two weeks
later, on 4 June 2001 around 8:30 in the morning, she was on her
way to work when defendant again approached her and asked for ten
dollars so that he might get back to Raleigh after two of his
friends had dropped him off in Winston-Salem. The victim asked
defendant to wait there, and she went inside to summon the police.
Defendant was subsequently taken into custody by Officer S. P.
Dickerson (“Officer Dickerson”) and charged with larceny from the
person.
Defendant was indicted by the Forsyth County Grand Jury on 30
July 2001 for common law robbery in violation of N.C. Gen. Stat. §
14-87.1. Defendant pled not guilty, and the case came to trial on
22 January 2002 in the Superior Court of Forsyth County, the
Honorable James M. Webb, presiding. After the close of the State's
case, defendant testified on his own behalf and denied that he knewor robbed the victim. On cross-examination, the State inquired as
to defendant's previous convictions. Both at the close of the
State's case and at the close of defendant's evidence, defendant
moved to dismiss the charges based upon insufficiency of the
evidence. The trial court denied defendant's motions and sent the
case to the jury, instructing, in part, that the jury could use the
evidence of prior convictions for credibility purposes only and not
as evidence of guilt of the crime charged. The jury found
defendant guilty of the crime charged, and defendant was sentenced
to fourteen to seventeen months in jail and ordered to pay
restitution in the amount of $500.00 to the victim. Defendant
appeals.
Defendant asserts that (I) the indictment was fatally
defective and that the trial court erred by (II) denying
defendant's motion to dismiss; (III) ordering defendant to pay
$500.00 in restitution; and (IV) instructing the jury to consider
defendant's prior criminal convictions for credibility purposes.
I. Indictment
Defendant asserts the indictment for common law robbery in the
instant case was fatally defective because the foreman of the grand
jury failed to indicate that the witnesses identified on the face
of the indictment appeared before the grand jury and gave
testimony. North Carolina General Statute § 15A-623(c) (2001)
states “[t]he foreman must indicate on each bill of indictment or
presentment the witness or witnesses sworn and examined before the
grand jury. Failure to comply with this provision does not vitiatea bill of indictment or presentment.” See also State v. Mitchell,
260 N.C. 235, 237-38, 132 S.E.2d 481, 482 (1963) (holding an
indictment is not fatally defective where the names of the
witnesses to the grand jury are not marked). Accordingly, this
assignment of error is overruled.
II. Motion to Dismiss
Defendant asserts the trial court erred in denying his motion
to dismiss because the evidence was insufficient to support the
conviction of common law robbery. “A motion to dismiss on the
ground of sufficiency of the evidence raises . . . the issue
'whether there is substantial evidence of each essential element of
the offense charged and of the defendant being the perpetrator of
the offense.'” State v. Barden, 356 N.C. 316, 351, 572 S.E.2d 108,
131 (2002), cert. denied, ___ U.S. ___, ___ L. Ed. 2d ___ (May 19th
2003) (quoting State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920,
925 (1996)). “The existence of substantial evidence is a question
of law for the trial court, which must determine whether there is
relevant evidence that a reasonable mind might accept as adequate
to support a conclusion.” Id. (citing State v. Vause, 328 N.C.
231, 236, 400 S.E.2d 57, 61 (1991)). “The court must consider the
evidence in the light most favorable to the State and give the
State the benefit of every reasonable inference from that
evidence.” State v. Lucas, 353 N.C. 568, 581, 548 S.E.2d 712, 721
(2001). Evidence may be direct, circumstantial, or both. State v.
Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988). Common law robbery under N.C. Gen. Stat. § 14-87.1 (2001) is
established where the State shows a “felonious, non-consensual
taking of money or personal property from the person or presence of
another by means of violence or fear.” State v. Parker, 322 N.C.
559, 566, 369 S.E.2d 596, 600 (1988) (citing State v. Smith, 305
N.C. 691, 700, 292 S.E.2d 264, 270 (1982)). Defendant contends the
State failed to establish that he was the perpetrator or that the
taking of the property from the victim was accomplished by violence
or fear.
Defendant first argues there was not sufficient evidence the
defendant was the perpetrator of the act because the victim gave an
approximate date of the first offense and because she gave a vague
description of the assailant to the officer who responded on 17
May. However, the victim testified as follows at trial:
A. I knew it was [defendant].
Q. And how did you know that?
A. Because May the 17th he was eyeball to eyeball with
me when he was talking. And he was no more than that far
away [indicating a distance of about one to two feet with
her hand from her face] from me when we were talking, and
had been at least talking five minutes trying to explain
hisself (sic) to me when he robbed me.
Throughout her testimony, the victim reiterated her certainty that
defendant was her assailant no less than three times. Moreover,
the victim testified her assailant asked for the same amount of
money for the same reasons and giving the same story on both 4 June
and 17 May. In the light most favorable to the State, this
constituted relevant evidence from which a reasonable mind might
conclude defendant was the perpetrator of the crime. Defendant also argues the State failed to present evidence
that the taking was accomplished by fear. Defendant argues the
victim could not have been intimidated because (1) she ran after
her assailant after he robbed her and (2) she did not appear
intimidated after Officer Dickerson apprehended defendant on 4 June
and was asking the victim questions. The victim gave testimony
during direct examination and cross-examination that she was
“absolutely scared,” in fear, frantic, and “scared to death” of
defendant while defendant robbed her. Dr. Dunn, the victim's
employer, stated the victim was “in a terrible state,” was “scared
to death,” and was acting unusual after the attack on 17 May. Not
only is the victim's repeated direct testimony of her own state of
mind and Dr. Dunn's testimony sufficient evidence, common law
robbery requires the taking of property to be accompanied by either
fear or violence, and it is undisputed that the victim was knocked
down as her purse was taken. Parker, 322 N.C. at 566, 369 S.E.2d
at 600. There is substantial evidence of each element of the
crime, and this assignment of error is overruled.
III. Restitution
Defendant asserts the trial court committed plain error in
ordering defendant to make restitution in the amount of $500.00
when the property loss incurred by the victim was limited to
$20.00. The State correctly asserts defendant is not entitled to
plain error review because defendant did not object to the
restitution ordered and did not assert plain error in his
assignment of error in violation of N.C.R. App. P. 10(c)(4) (2003). Nevertheless, because this issue raises important questions
concerning the trial court's authority to order restitution in a
criminal case, we will address defendant's contentions in our
discretion pursuant to Rule 2 of the North Carolina Rules of
Appellate Procedure. N.C.R. App. P. 2 (2003).
North Carolina General Statute § 15A-1340.34(b) (2001) directs
a trial court to award restitution for “any injuries or damages
arising directly and proximately out of the offense committed by
the defendant.” However, this provision (entitled “Restitution
generally”) must be read in conjunction with the following
provisions contained in N.C. Gen. Stat. § 15A-1340.35 (2001)
(entitled “Basis for restitution”). A trial court is entitled to
award restitution for “an offense resulting in bodily injury to a
victim” based on the following:
a. The cost of necessary medical and related
professional services and devices or equipment
relating to physical, psychiatric, and
psychological care required by the victim;
b. The cost of necessary physical and
occupational therapy and rehabilitation
required by the victim; and
c. Income lost by the victim as a result of
the offense.
N.C. Gen. Stat. § 15A-1340.35(a)(1) (2001). The State argues that
awarding $20.00 to replace the $20.00 stolen from the victim and
adding $480.00 for pain and suffering is appropriate. We disagree.
Reading the statutory provisions together, the more specific
statute explains and provides context for the broad language
employed in the section concerning restitution generally. The
trial court's basis for awarding restitution is limited toquantifiable costs, income, and values of the kind set out in N.C.
Gen. Stat. § 15A-1340.35. This conclusion is reinforced by how the
term “costs” (found in two of the three factors in N.C. Gen. Stat.
§ 15A-1340.35(a)(1)) is carried over into subsection (b). Id.
Under subsection (b), a court may require the victim to provide
“admissible evidence that documents the costs claimed” under these
statutory provisions. Pain and suffering, unlike medical and
physical or occupational therapy costs, is neither tangible nor
easily quantifiable, and the determination of the appropriate
valuation of an individual's pain and suffering is traditionally
left to the jury. Weeks v. Holsclaw, 306 N.C. 655, 661, 295 S.E.2d
596, 600 (1982) (observing “[t]he jury's ultimate task in answering
the damages issue in a personal injury action . . . is somehow to
assign a monetary value to the injured party's intangible losses
attributable to pain [and] suffering”). Unlike lost income,
medical costs, and physical or occupational therapy costs, no
document can support the mathematical calculation of the value
attributable to pain and suffering.
The conclusion that pain and suffering is an impermissible
basis for restitution is supported by recent changes to statutory
provisions concerning restitution as a condition of probation.
Prior to 1998, N.C. Gen. Stat. § 1340.35 (2001) had no statutory
predecessor; however, the predecessor to the current N.C. Gen.
Stat. § 15A-1343(d) defined restitution as a condition of probation
in part as follows: “compensation for damage or loss as could
ordinarily be recovered by an aggrieved party in a civil action[.]” N.C. Gen. Stat. § 15A-1343(d) (1997). This broad definition, which
would permit a trial court to predicate restitution on the basis of
pain and suffering, was deleted in 1998 when the provision dealing
with restitution as a condition of probation was substantially
changed. These changes also included using portions of N.C. Gen.
Stat. § 15A-1343(d) (1997) as the basis for the newly enacted
provisions concerning the determination of restitution and the
effect of a restitution order found in N.C. Gen. Stat. §§ 15A-
1340.36(a) and -1340.37(a) . Significantly, the current framework
provides no definition of restitution as a condition of probation;
rather, the trial court is directed to consider the factors set
forth in N.C. Gen. Stat. §§ 15A-1340.35 and -1340.36. N.C. Gen.
Stat. § 15A-1343(d) (2001). These changes are consistent with a
legislative intent to narrow the scope of permissible bases upon
which a trial court may award restitution and accord with our
interpretation of the factors found in N.C. Gen. Stat. § 15A-
1340.35(a)(1).
We hold that where a trial court grants an award of
restitution based on a victim's pain and suffering, the trial court
has exceeded the intended bases upon which such an award may be
premised. We note restitution was not sought for treatment
administered by Dr. Dunn since Dr. Dunn treated his employee
without charging her; otherwise, any costs associated with such
treatment would clearly be appropriate as a basis for restitution.
In the instant case, the trial court erred in awarding restitutionbeyond the statutory authority granted, and we remand with
instructions to reduce the restitution awarded to $20.00.
IV. Jury instructions
Finally, defendant asserts the trial court erred by
instructing the jury as to impeachment of a defendant as a witness
by proof of an unrelated crime. Defendant, after testifying on his
own behalf, was cross-examined by the State regarding past
convictions of disorderly conduct, indecent exposure, communicating
threats, resisting an officer, possession of drug paraphernalia,
public disturbance, attempt to assault a government official, and
misdemeanor larceny. In its charge to the jury, the trial court
instructed the jury as follows:
When evidence has been received that at an
earlier time the defendant was convicted of
criminal charges, you may consider this
evidence for one purpose only. If considering
the nature of the crimes you believe that this
bears on truthfulness, then you may consider
it together with all other facts and
circumstances bearing upon the defendant's
truthfulness in deciding whether you will
believe or disbelieve his testimony at this
trial. It is not evidence of the defendant's
guilt in this case. You may not convict him
on the present charge because of something he
may have done in the past.
While defendant recognizes that the crimes inquired into were
admissible under Rule 609 of the North Carolina Rules of Evidence,
defendant contends these prior convictions do not bear on
defendant's truthfulness, and the trial court erred in instructing
the jury to consider such. Defendant's argument is flawed for two
reasons. First, the trial court did not instruct the jury to consider
the prior convictions as bearing on defendant's truthfulness. The
trial court's instruction explicitly left to the jury the
determination of whether the prior convictions bore on defendant's
truthfulness. Moreover, the instruction made clear that if the
jury determined the prior convictions bore on defendant's
truthfulness, the jury could consider the prior convictions solely
for the purpose of impeaching the credibility of defendant's
testimony. Finally, the trial court instructed that, even if the
prior convictions by defendant bore on his credibility, the jury
was instructed to consider the other “facts and circumstances” in
deciding whether defendant's testimony was credible. Past crimes
were not evidence of guilt on the present charge and, more
importantly, the jury could not convict defendant on that basis.
Second, the instruction given by the trial court correctly
sets forth the law in North Carolina. “For the purpose of attacking
the credibility of a witness, evidence that the witness has been
convicted of a felony, or of a Class A1, Class 1, or Class 2
misdemeanor, shall be admitted if elicited from the witness or
established by public record during cross-examination or
thereafter.” N.C. Gen. Stat. § 8C-1, Rule 609(a) (2001). As the
commentary indicates, the practice in North Carolina, which permits
inquiry into any sort of criminal offense for “the purpose of
attacking credibility[,]” stands in contradistinction to its
federal counterpart, which only allows evidence of convictions of
a crime involving dishonesty or a false statement to be used toattack a witness' credibility. Commentary, N.C. Gen. Stat. § 8C-1,
Rule 609 (2001). See also State v. Ross, 329 N.C. 108, 119, 405
S.E.2d 158, 164 (1991) (recognizing North Carolina's version of
Rule 609 to be more permissive than its federal counterpart). This
assignment of error is overruled.
Defendant's remaining assignment of error has been abandoned.
N.C.R. App. P. 28(b)(6) (2003).
In sum, as to the common law robbery conviction and sentence
of fourteen to seventeen months, we find no error; however, we
vacate the portion of the judgment awarding $500.00 in restitution
and remand for proceedings not inconsistent with this opinion.
No error in part, vacated and remanded in part.
Chief Judge EAGLES and Judge HUNTER concur.
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