State v. Redman

• Decision Date: 18 December 2012
• Docket Number: No. COA12–142.,COA12–142.
• Citation: 736 S.E.2d 545
• Parties: STATE of North Carolina v. Robert Michael REDMAN.
• Court: North Carolina Court of Appeals

736 S.E.2d 545

STATE of North Carolina

v.Robert Michael REDMAN.

No. COA12–142.

Court of Appeals of North Carolina.

Dec. 18, 2012.

Appeal by Defendant from judgment entered 28 September 2011 by Judge Marvin K. Blount, III, in Currituck County Superior Court. Heard in the Court of Appeals 15 August 2012.

Roy Cooper, Attorney General, by Susannah P. Holloway, Assistant Attorney General for the State.

Staples Hughes, Appellate Defender, by Kathleen M. Joyce, Assistant Appellate Defender for the defendant.

THIGPEN, Judge.

Defendant appeals from a judgment entered upon a jury verdict convicting him of breaking or entering a motor vehicle, felony larceny, and injury to personal property, arguing that there was insufficient evidence to support the felony larceny conviction, that there was a fatal variance between the indictment and the proof with respect to the injury to personal property conviction, and that Defendant received ineffective assistance of counsel during plea negotiations. We find no error, in part; however, we dismiss Defendant's ineffective assistance of counsel claim, without prejudice, so that Defendant may properly raise the issue on a motion for appropriate relief at the trial level.

The evidence of record tends to show the following: On 6 October 2010, Stanley Murphy (“Murphy”) drove his 2003 Ford van from Virginia Beach, Virginia, to Knotts Island, North Carolina, and spent the night at the home of a friend. Murphy left his spare keys in the van and did not remember whether he locked the van.

The next morning, the van was gone. Murphy reported the missing van to the police; he also told his son, Audie Murphy (“Audie”), who worked in the area, that his van was missing. Audie received a lead from his co-workers that Robert Redman (“Defendant”) had taken the van and moved it to a wooded area.

On 13 October 2010, after receiving the information from his co-workers, Audie and several other people went to look for the van in the wooded area at Carova Beach, abutting the Currituck National Wildlife Refuge. There, they found the missing van and called the police. The van had multiple dents and a flat tire; its back glass was shattered; and its front glass was cracked. However, the van was still drivable, and nothing was missing from the van. Audie testified that the damage to the van amounted to “$5,200–and–some dollars.” Murphy testified that the van was worth “[$]30,000 plus interest, you know, paying by the month.” The van had 30,000 miles on it.

Five months later, Defendant was questioned about the van, and he said he had been drinking that night. After Defendant noticed that the door to the van was unlocked and that the keys were visible, Defendant said he took the van, without permission. Defendant was arrested on 14 March 2011 and indicted on charges of breaking or entering a motor vehicle, felony larceny, and injury to personal property causing under $200 damage. Defendant was also indicted on a charge of having attained the status of an habitual felon.

The State offered Defendant a plea arrangement, proposing that the State would dismiss the habitual felon indictment if Defendant would plead guilty to breaking or entering, felony larceny, and injury to personal property. Defendant, on the advice of counsel, rejected the plea arrangement.

Defendant moved to dismiss the breaking or entering a motor vehicle and larceny charges at trial, and his charge of attaining the status of an habitual felon, but the court denied his motions. Defendant did not challenge the sufficiency of the evidence to support the injury to personal property charge. The jury returned guilty verdicts on all charges. The trial court entered a consolidated judgment convicting Defendant of breaking or entering a motor vehicle, felony larceny, injury to personal property, and of having attained the status of an habitual felon. The court sentenced Defendant to 88 to 115 months incarceration. From this judgment, Defendant appeals.

I: Motion to Dismiss—Felony Larceny

In Defendant's first argument, he contends the trial court erred by denying his motion to dismiss the charge of felony larceny because there was insufficient evidence that the van was valued at more than one-thousand dollars. We disagree.

The standard of review on appeal from the trial court's denial of a defendant's motion to dismiss is “whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense.” State v. Harris, 145 N.C.App. 570, 578, 551 S.E.2d 499, 504 (2001), disc. review denied,355 N.C. 218, 560 S.E.2d 146 (2002) (quotation marks omitted). “Substantial evidence is that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion.” State v. Mann, 355 N.C. 294, 301, 560 S.E.2d 776, 781,cert. denied,537 U.S. 1005, 123 S.Ct. 495, 154 L.Ed.2d 403 (2002) (citation omitted). “In resolving this question, the trial court must examine the evidence in the light most advantageous to the State, drawing all reasonable inferences from the evidence in favor of the State's case.” Id. (citation omitted).

The elements of felony larceny are “that defendant, acting alone or in concert with some other person, took and carried away another person's property, without such person's consent, from a building after a breaking and entering, knowing he was not entitled to take it and intending to permanently deprive the victim of its use.” State v. Roseboro, 344 N.C. 364, 377–78, 474 S.E.2d 314, 321 (1996) (citation omitted). However, “[w]here neither larceny from the person nor by breaking and entering is involved, an indictment for the felony of larceny must charge, as an essential element of the crime, that the value of the stolen goods was more than [1,000.00] dollars.” State v. Jones, 275 N.C. 432, 436, 168 S.E.2d 380, 383 (1969) (citations omitted); see also State v. Owens, 160 N.C.App. 494, 500, 586 S.E.2d 519, 523–24 (2003) (stating, “[t]o convict a defendant of felonious larceny, it must be shown that he: (1) took the property of another, (2) with a value of more than $1,000.00, (3) carried it away, (4) without the owner's consent, and (5) with the intent to deprive the owner of the property permanently”) (citations omitted). In this case, the State proceeded on a theory of felonious larceny based on the van being worth more than $1,000.00, and Defendant challenges the sufficiency of the evidence of only that element on appeal.¹

“Value as used in [N.C. Gen.Stat. § ] 14–72 means fair market value.” State v. McCambridge, 23 N.C.App. 334, 336, 208 S.E.2d 880, 881 (1974). “Stolen property's fair market value is the item's reasonable selling price at the time and place of the theft, and in the condition in which it was when [stolen].” State v. Davis, 198 N.C.App. 146, 151, 678 S.E.2d 709, 714 (2009) (quotation omitted) (alteration omitted). “It is not necessary that a witness be an expert in order to give his opinion as to value. A witness who has knowledge of value gained from experience, information and observation may give his opinion of the value of specific real property, personal property, or services.” State v. Cotten, 2 N.C.App. 305, 311, 163 S.E.2d 100, 104 (1968) (quotation omitted).

On appeal, Defendant cites State v. Holland, 318 N.C. 602, 350 S.E.2d 56 (1986), overruled on other grounds, State v. Childress, 321 N.C. 226, 362 S.E.2d 263 (1987), for the proposition that the evidence in this case was insufficient on the question of whether the van was worth more than $1,000.00. We believe Holland is distinguishable. In Holland, the Court ruled that the following evidence was insufficient:

Although the State offered no direct evidence of the Cordoba's value, there is in the record evidence tending to show that the victim owned two automobiles and that the 1975 Chrysler Cordoba was his favorite one of which he took especially good care, always keeping it parked under a shed, and that a picture of this automobile was exhibited to the jury for the purpose of establishing the location of the automobile when discovered after its theft.

Id. at 610, 350 S.E.2d at 61.

In this case, the evidence of record shows that the van was a 2003 Ford Model 250 van with four-wheel drive, oversized tires, and a lift suspension system. The van had 30,000 miles on it. Murphy also gave the following testimony:

Q: Do you recall how much that vehicle is worth?

A: Probably [$]30,000 plus interest, you know, paying by the month.

Q: Did you say $30,000?

A: Yeah, that's what it costs.

This Court has previously held that an owner's testimony as to the value of his property is “competent evidence to be considered by the jury.” State v. Cotten, 2 N.C.App. 305, 311, 163 S.E.2d 100, 104 (1968) (holding that the owner's testimony that “I could get a thousand dollars for it” was competent evidence such that the question of whether the property was valued in excess of $200.00 was appropriately for the jury). Although Murphy referenced the loan on the vehicle in response to the question regarding the vehicle's value, Murphy's answer is nonetheless evidence of the vehicle's value. This case is therefore distinguishable from Holland, and more akin to Cotten, as the owner here gave an actual number regarding what he believed the vehicle was worth, albeit based on what the owner owed; in Holland, the only evidence of value pertained to the manner of care given to the vehicle, and no numerical value was provided. Thus, we conclude the trial court did not err by denying Defendant's motion to dismiss for lack of sufficient substantial evidence that the van was worth in excess of $1,000.00.

II: Indictment—Fatal Variance

In Defendant's second argument, he contends the trial court erred by entering judgment on the injury to personal property offense because there was a fatal variance between the indictment, which charged there was under $200 of damage, and the evidence, upon which Defendant was...