State v Rossi, (03-637) 05/04/2004

Appeal by defendant from judgment entered 15 January 2003 by Judge James M. Webb in Guilford County Superior Court. Heard in the Court of Appeals 15 March 2004.

Attorney General Roy Cooper, by Assistant Attorney General Hilda Burnett-Baker, for the State.

Winifred H. Dillon, for defendant-appellant.

    LEVINSON, Judge.

    Defendant appeals from convictions and judgments entered upon a jury verdict of guilty of breaking and entering a motor vehicle and misdemeanor larceny. We find no error in part and reverse and remand in part.
    The trial evidence is summarized as follows: Officer Terrence Garrison of the High Point, North Carolina, Police Department testified that in 2001 he was a K-9 officer who worked with a tracking dog. On 1 April 2001 Garrison was dispatched to the Vecoplan Company in High Point where a man was seen running away following a break-in. Upon their arrival, Garrison's dog tracked a scent from the Vecoplan building to a brushy area about 120 yards away, where the defendant was discovered hiding under a bush. Defendant was wearing a black book bag and was crouching over a plastic trash bag. The trash bag contained laptop computers and other items of office equipment identified as having been stolen from Vecoplan. The book bag contained a handgun that police determined was stolen, DVD's and music cd's, three cell phones, a laptop computer, and various other items. Defendant was arrested and taken into custody.
    Cynthia Sumner testified that in March 2001 she lived in High Point. During the night of 4 March 2001, her house and car were broken into. Items were stolen from each, including a palm pilot and several DVD's taken from her house, and $150.00 cash and her cell phone that were stolen from her car. Sumner testified that her car appeared “ransacked” and papers were scattered around. She identified one of the cell phones found in defendant's possession as the cell phone that was stolen from her car on the night of 4 March 2001.
    Defendant initially denied any wrongdoing in connection with the stolen property and told the arresting officers that he had bought the items from unknown parties. However, on 4 April 2001 defendant contacted law enforcement officers from the jail and asked to speak with them. Accordingly, he was interviewed by Officers Howey and McCluney of the High Point Police Department. Howey testified that defendant waived his Miranda rights and agreed to make a statement. Defendant admitted to stealing the property that was in his possession when he was arrested. He provided the officers with details of his theft of several items, such as wherea car was parked when he broke into it and took a particular item. Regarding the other stolen property, including Sumner's cell phone, Howey testified that defendant “just generalized” that he had taken the rest of the items found in his possession from vehicles at various locations in High Point.
    On 13 January 2003 defendant was tried for first degree burglary and felony larceny from Sumner's home, and breaking and entering a motor vehicle and misdemeanor larceny from her car. He was acquitted of the burglary and felony larceny, and convicted of breaking and entering a motor vehicle and misdemeanor larceny. Defendant was sentenced to consecutive prison terms of 8 to 10 months and 120 days. The trial court also ordered $500.00 in “restitution to Cynthia Sumner for her emotional distress, the money stolen from her, and the general disarray in which her automobile was left.” From these convictions and judgments defendant appeals.

    Defendant argues first that the trial court erred by denying his motion to dismiss the charges against him for insufficiency of the evidence. We disagree.
    A defendant's motion to dismiss requires the trial court to determine whether the State has presented “substantial evidence of each essential element of the crime.” State v. Call, 349 N.C. 382, 417, 508 S.E.2d 496, 518 (1998) (citation omitted). “Substantial evidence is that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” State v.Williams, 355 N.C. 501, 579, 565 S.E.2d 609, 654 (2002). “In making its decision, the trial court must view the evidence in the light most favorable to the State.” State v. Smith, 357 N.C. 604, 616, 588 S.E.2d 453, 461 (2003) (citation omitted).
    In the instant case, defendant was convicted of breaking and entering a motor vehicle and misdemeanor larceny:
        For the State to successfully obtain a conviction for breaking and entering a motor vehicle, the State must prove the following five elements beyond a reasonable doubt: (1) there was a breaking or entering by the defendant; (2) without consent; (3) into a motor vehicle; (4) containing goods, wares, freight, or anything of value; and (5) with the intent to commit any felony or larceny therein. See N.C. Gen. Stat. § 14-56 (2003).

State v. Jackson, __ N.C. App. __, __, 592 S.E.2d 575, 577 (2004). “The essential elements of larceny are: (1) the taking of the property of another; (2) carrying it away; (3) without the owner's consent; and (4) with the intent to permanently deprive the owner of the property.” State v. Barbour, 153 N.C. App. 500, 502, 570 S.E.2d 126, 127 (2002) (citation omitted). If the property has a value of not more than one thousand dollars ($ 1,000), the offense is a Class 1 misdemeanor. N.C.G.S. § 14-72(a) (2003).
    Defendant presents only one argument to support his contention that the evidence was insufficient: that the defendant was arrested too long after the Sumner break in for the doctrine of recent possession to be applicable. However, defendant did not preserve the issue of whether recent possession was “applicable” in this case, as he (1) failed to object at trial to the court's instruction on recent possession; (2) failed to assign theinstruction as plain error in his assignments of error; (3) failed to argue in his brief that the trial court committed error or plain error in its jury instructions; and (4) failed to include in the record a transcript of the court's charge to the jury. Ordinarily, then, this issue would not be reviewable by this Court. See State v. Williams, 153 N.C. App. 192, 196, 568 S.E.2d 890, 893 (2002).
    Nonetheless, pursuant to our discretion under N.C.R. App. P. 2, we elect to review defendant's general argument that the evidence was insufficient to allow submission of the charges to the jury. Taken in the light most favorable to the State, the evidence showed, at a minimum, the following: Defendant was wearing a book bag when he was arrested. Inside the book bag was the cell phone that Sumner later identified as the phone that was stolen from her car. In a statement to law enforcement officers, defendant admitted that he stole the items in his possession from motor vehicles in the High Point area. This constitutes substantial evidence of each of the elements of the offenses for which defendant was convicted. This assignment of error is overruled.

    Defendant argues next that the trial court erred by ordering $500.00 in restitution to Sumner, in part as compensation for the “emotional distress” caused by her car being in “disarray.” Defendant contends that “emotional distress is not a proper basis for award of restitution.” We agree.
    N.C.G.S. § 15A-1340.34 (2003), “Restitution generally,” provides that when sentencing a criminal defendant the trial court“shall determine whether the defendant shall be ordered to make restitution to any victim of the offense” and that “the term 'victim' means a person directly and proximately harmed as a result of the defendant's commission of the criminal offense.” G.S. § 15A-1340.34(a). Under G.S. § 15A-1340.34(c), “the court may, in addition to any other penalty authorized by law, require that the defendant make restitution to the victim or the victim's estate for any injuries or damages arising directly and proximately out of the offense committed by the defendant.” These statutes give the trial court general authority to order restitution in appropriate cases.
    However, to determine the scope of this authority we must read N.C.G.S. § 15A-1340.34 in conjunction with N.C.G.S. § 15A-1340.35 (2003), “Basis for restitution.” “Reading the statutory provisions together, the more specific statute explains and provides context for the broad language employed in the section concerning restitution generally.” State v. Wilson, 158 N.C. App. 235, 240, 580 S.E.2d 386, 390 (2003). G.S. § 15A-1340.35 states, in pertinent part, that “[i]n determining the amount of restitution, the court shall consider the following:
        (1) . . . [If] an offense result[s] in bodily injury to a victim: a. The cost of necessary medical and related professional services . . . relating to physical, psychiatric, and psychological care required by the victim; b. The cost of . . . therapy and rehabilitation required by the victim; and c. Income lost by the victim. . . . (2) In the case of an offense resulting in the damage, loss, or destruction of property of a victim of the offense: a. Return of the property to the owner . . . or b. If return of the property . . . is impossible,impracticable, or inadequate: 1. The value of the property on the date of the damage, loss, or destruction; or 2. . . . on the date of sentencing, less the value of any part of the property that is returned.

N.C.G.S. § 15A-15A-1340.35(a)(1) and (2).
    This Court has held 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”. Wilson, 158 N.C. App. at 241, 580 S.E.2d at 390 (applying N.C.G.S. 15A-1340.35(a)(1) where defendant convicted of common law robbery). While the award in the present case was for the “emotional distress” occasioned by finding her car in “disarray,” this is functionally indistinguishable from the award for “pain and suffering” in Wilson. Even if “bodily injury” included “emotional distress” as an element of recovery, there is nothing of record in the present case to support a conclusion that the victim suffered the same as a result of the offenses committed by defendant. Moreover, we note that an award for “emotional distress” cannot, of course, be based on the application of G.S. § 15A-1340.35(a)(2).
    While defendant's trial was free of prejudicial error, the judgment must be reversed and remanded for resentencing not inconsistent with this opinion.
    Affirmed in part, reversed and remanded in part.
    Judge THORNBURG concurs.
    Judge TIMMONS-GOODSON concurs in the result.
    Report per Rule 30(e).

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