State Of North Carolina v. Dallas

• Decision Date: 06 July 2010
• Docket Number: No. COA09-644.,COA09-644.
• Citation: 695 S.E.2d 474
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolinav.Christopher Allan DALLAS, Defendant.

695 S.E.2d 474

STATE of North Carolinav.Christopher Allan DALLAS, Defendant.

No. COA09-644.

Court of Appeals of North Carolina.

July 6, 2010.

Appeal by defendant from judgments entered 23 July 2008 by Judge Thomas D. Haigwood in Perquimans County Superior Court. Heard in the Court of Appeals 30 November 2009.

Attorney General Roy Cooper, by Special Deputy Attorney General B. LeAnn Martin, for the State.

Russell J. Hollers, III, Carrboro, for defendant-appellant.

GEER, Judge.

Defendant Christopher Allan Dallas appeals from his convictions of three counts of felony larceny of a motor vehicle, one count of misdemeanor larceny of a motor vehicle, and of being a habitual felon. Defendant primarily contends the trial court erred in admitting hearsay evidence as to the values of the stolen vehicles. We hold, however, that the challenged evidence either fell under the hearsay exception set out in Rule 803(17) of the Rules of Evidence or its admission was not prejudicial to defendant. Defendant also argues, and we agree, that the trial court's award of restitution-based solely on the unverified restitution worksheet submitted by the State-is not supported by competent evidence in the record. Accordingly, we vacate the award of restitution.

Facts

At trial, the State's evidence tended to show the following facts. Dianne Welter, who lives at 100 Soundside Drive in Hertford, North Carolina, had parked on her property a 1987 white GMC van and a 1986 white Chevrolet C20 custom conversion van. She left her residence for a period of time beginning in August 2007. While she was away, she was contacted by defendant, who was interested in purchasing the vans. Ms. Welter told defendant repeatedly that she did not want to sell them.

When Ms. Welter returned to her residence in November 2007, the vans were missing from the property. A month earlier, in October 2007, Harry Clubb, a friend of defendant's who hauls cars and junk for a living, saw defendant broken down on the side of the road. Defendant was attempting to tow a white 1985 or 1986 Chevrolet van with his truck. Mr. Clubb pulled over, loaded the van onto his trailer, and hauled it to the metal crusher for defendant. The next morning, Mr. Clubb went with defendant to Ms. Welter's property where they used Mr. Clubb's trailer to pick up another white van. No one was home at the time, but defendant told Mr. Clubb that he had permission from Ms. Welter to take the van.

Roy Lewis, who lived in Ms. Welter's neighborhood, was riding his bike that morning when he came across two men working on a van parked on Ms. Welter's property. Mr. Lewis stopped to investigate, and the men told him they had talked to Ms. Welter and had been given permission to clean up and haul away the junk in her yard. At trial, Mr. Lewis testified that defendant looked familiar, but he could not be absolutely sure defendant was one of the men he talked to that day.

On 8 November 2007, Mark MacLenan came home from work to discover his 1993 Honda Accord missing from his driveway. At around 8:00 a.m. that morning, Mr. Clubb had accompanied defendant to pick up a Honda Accord and take it to a metal crushing facility. Defendant told Mr. Clubb he had bought the Honda for $50.00. While driving through town that day, William Bostwick, Mr. MacLenan's neighbor, saw Mr. MacLenan's Accord being loaded onto a flatbed truck in front of defendant's house. Mr. Bostwick had noticed that the Accord was not parked in its usual spot on Mr. MacLenan's property earlier that day.

On 16 November 2007, Shirley Proctor discovered that her 1988 Ford Taurus was missing from her backyard. Sometime in August or September 2007, defendant had come to Ms. Proctor's house to ask if she would be interested in selling the Taurus. Ms. Proctor refused to sell the car to defendant. A few months later, on 15 November 2007, defendant came back and again asked to purchase the car. That time, Ms. Proctor told defendant she would sell it to him, but they never discussed a price, and she told him she would need to clean the car out beforehand. Defendant told Ms. Proctor he would be back to pick it up the next day. James Rushing, who was working with defendant on 15 November 2007, accompanied defendant to Ms. Proctor's home. Mr. Rushing sat in the car while defendant talked to Ms. Proctor on her front porch. He heard Ms. Proctor say twice that she did not want her car crushed. Defendant came back to the van and said he was going to buy the car.

The next morning, Ms. Proctor called defendant and left him a message saying she had decided not to sell the car. She then left her house to go shopping. Later that day, Mr. Rushing and defendant went over to Ms. Proctor's house to pick up the car. When Mr. Rushing asked defendant how he got the keys to the car, defendant told him that Ms. Proctor had given them to him. They loaded the car onto the truck and drove it to the metal crusher. When Ms. Proctor returned from her shopping trip and discovered her car missing, she called defendant who denied taking the car.

Defendant was subsequently charged with four counts of felony larceny of a motor vehicle and with being a habitual felon. At trial, Ms. Welter testified that the 1987 GMC van, which had over 150,000 miles on it, was worth $1,200.00 and the Chevrolet C20 van was worth between $1,200.00 to $1,400.00. In addition, Ms. Welter had paid $1,300.00 to put new tires on both vans. When asked how she arrived at the value of the new tires, Ms. Welter said she had contacted Wal-Mart, where she had purchased the tires, and had been given that number. Ms. Proctor testified that her Taurus had around 150,000 miles on it, but did not remember what she had told the investigating detectives about the value of the car. Mr. MacLenan testified that the Accord had approximately 130,000 miles on it and needed a couple hundred dollars' worth of work in order for it to be driven. Mr. MacLenan testified that he looked up the car's value in the Kelley Blue Book and that it was worth $1,500.00.

Chris Cooper, a used car salesman, testified that, in his opinion, the 1993 Honda Accord had a value of between $2,000.00 to $4,000.00; the 1987 GMC van had a value of between $1,200.00 to $3,000.00, depending on the add-ons to the vehicle; and the 1986 Chevrolet van had a value of $1,200.00 to $3,000.00, depending on the upgrades made to the vehicle. He based this testimony on the NADA pricing guide.

Defendant testified on his own behalf and admitted speaking to Ms. Welter about purchasing her vans, but denied stealing them. Defendant admitted taking Ms. Proctor's Taurus, but contended that she had given it to him and authorized him to take it off her lot. Defendant denied any involvement with the theft of Mr. MacLenan's Honda Accord. He testified that on 8 November 2007, Mr. Clubb had parked his trailer in defendant's yard and left for a few minutes, returning with a black car. Mr. Clubb stripped the car and loaded it onto his trailer and left. Defendant indicated that the black car he saw could have been Mr. MacLenan's Accord.

The trial court ultimately dismissed the felony larceny charge with respect to Ms. Proctor's Taurus and instead instructed the jury on the charge of misdemeanor larceny of the Taurus. The jury found defendant guilty of misdemeanor larceny of the Taurus and felony larceny of the Accord and the two vans. Defendant pled guilty to being a habitual felon. The trial court sentenced defendant to a presumptive-range term of 107 to 138 months imprisonment for one count of felony larceny of a motor vehicle, a consecutive presumptive-range term of 107 to 138 months imprisonment for the second count of felony larceny of a motor vehicle, and a concurrent presumptive-range term of 107 to 138 months imprisonment for the third count of felony larceny of a motor vehicle. The court sentenced defendant to a term of 120 days for the misdemeanor larceny charge with that sentence to run consecutive to the second felony count sentence. The trial court also ordered restitution to Mr. MacLenan in the amount of $1,500.00 and to Ms. Welter in the amount of $8,277.00. Defendant timely appealed to this Court.

I

Defendant challenges three valuation opinions given by the State's witnesses: (1) Mr. MacLenan's testimony that, according to the Kelley Blue Book, his Accord was worth $1,500.00; (2) Mr. Cooper's testimony that the Accord was worth $2,000.00 to $4,000.00, the 1987 GMC van was worth $1,200.00 to $3,000.00, and the 1986 Chevrolet van was worth $1,200.00 to $3,000.00; and (3) Ms. Welter's testimony that she paid $1,300.00 for new tires on the vans. He claims that the testimony violated the hearsay rule and that Mr. MacLenan's and Ms. Welter's testimony also improperly invaded the province of the jury.

As defendant did not object to Mr. MacLenan's or Mr. Cooper's testimony, this Court reviews the admissibility of that testimony only for plain error. See State v. Locklear, 172 N.C.App. 249, 259, 616 S.E.2d 334, 341 (2005) ( “ ‘Where, as here, a criminal defendant fails to object to the admission of certain evidence, the plain error analysis ... is the applicable standard of review.’ ” (quoting State v. Ridgeway, 137 N.C.App. 144, 147, 526 S.E.2d 682, 685 (2000))). “If ‘we are not persuaded that the jury probably would have reached a different result had the alleged error not occurred, we will not award defendant a new trial.’ ” Id. (quoting Ridgeway, 137 N.C.App. at 147, 526 S.E.2d at 685).

With respect to Mr. MacLenan and Mr. Cooper, the issue is whether their reliance on the values set out in the Kelley Blue Book and the NADA pricing guide amounted to inadmissible hearsay. Rule 803(17) of the Rules of Evidence provides that “[m]arket quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations” are not excluded by the hearsay rule. We hold that both the Kelley Blue Book and the NADA...