Opinion
No. COA10-1080
Filed 3 May 2011 This case not for publication
Appeal by defendant from judgment entered 7 April 2010 by Judge Jay D. Hockenbury in Sampson County Superior Court. Heard in the Court of Appeals 25 April 2011.
Attorney General Roy Cooper, by Special Deputy Attorney General Elizabeth N. Strickland, for the State. Reece Reece, by Michael J. Reece, for the defendant-appellant.
Sampson County File No. 08 CRS 52018.
Defendant Thomas Lee Davis appeals from a judgment entered by the trial court sentencing him to a minimum of twenty months and a maximum of twenty-four months imprisonment in the custody of the North Carolina Department of Correction and recommending that he pay $24,668.70 in restitution and $1,912.50 in attorney's fees as a condition of post-release supervision or work release based upon his convictions for common law robbery and assault inflicting serious bodily injury. On appeal, Defendant argues that the trial court erred by failing to submit the issue of his guilt of the lesser included offense of larceny from the person to the jury and by recommending that he pay restitution from any earnings that might become available to him in the event that he became subject to post-release supervision or participated in the work release program when considering his ability to make the recommended payments. After careful consideration of Defendant's challenges to the trial court's judgment in light of the record and the applicable law, we conclude that the trial court's judgment should remain undisturbed on appeal.
I. Factual Background A. Substantive Facts 1. State's Evidence
On 17 May 2008, Herman Best, Jr., hired Defendant and his cousin, Edward Glenn Davis, to help him pick up limbs and other debris in his yard. After the work had been completed, a dispute arose about how much Glenn Davis should be paid. Defendant and Glenn Davis went to the magistrate's office in order to take out assault charges against Mr. Best in light of their contention that he had tried to run them over with his car. At the magistrate's office, Mr. Best paid Defendant and Glenn $60.00 and $30.00, respectively, for their work on Defendant's property, so that neither of them ultimately sought to institute criminal charges against Mr. Best.
Later that evening, while Mr. Best was watching television at his cousin's house, Defendant, Glenn Davis, and two others drove up to the residence in question and parked in the driveway. After Mr. Best walked out to speak to the group, Glenn Davis struck Mr. Best in the face several times and knocked him to the ground. While Mr. Best was on the ground, Defendant kicked him and took his wallet. Mr. Best suffered a broken eye socket, a torn iris, a broken nose, and fractured sinuses as a result of the assault, resulting in the necessity for stitches and surgical procedures to repair the damage.
2. Defendant's Evidence
Glenn Davis testified that Defendant was not involved in the assault on Mr. Best. In addition, Glenn Davis stated that he never told Defendant to take Mr. Best's wallet and that he did not know anything about Mr. Best's missing wallet. Finally, Defendant also denied any involvement in the attack upon Mr. Best or the theft of his wallet.
B. Procedural History
On 28 May 2008, a Warrant for Arrest was issued charging Defendant with the common law robbery of Mr. Best and with assaulting Mr. Best and inflicting serious bodily injury upon him. On 16 November 2009, the Sampson County grand jury returned a bill of indictment charging Defendant with the common law robbery of Mr. Best and with assaulting Mr. Best and inflicting serious bodily injury upon him. The charges against Defendant came on for trial before the trial court and a jury at the 5 April 2010 criminal session of the Sampson County Superior Court. At the conclusion of the trial, the jury returned verdicts convicting Defendant as charged. At the ensuing sentencing hearing, the trial court determined that Defendant had accumulated twelve prior record points and should be sentenced as a Level IV offender. Based upon these determinations, the trial court sentenced Defendant to a minimum term of twenty months and a maximum term of twenty-four months imprisonment in the custody of the North Carolina Department of Correction and recommended that he pay $24,668.70 in restitution and $1,912.50 in attorney's fees from any earnings associated with post-release supervision or participation in the work release program. Defendant noted an appeal to this Court from the trial court's judgment.
II. Legal Analysis A. Submission of Felonious Larceny
On appeal, Defendant first contends that the trial court erred by failing to submit the issue of his guilt of the lesser-included offense of felony larceny from the person to the jury. In essence, Defendant argues that the record contained evidence that would permit a reasonable jury to determine that he did not share in a common purpose to assault and rob Mr. Best and that, in the absence of such a shared purpose, his action in taking Mr. Best's wallet could be deemed to constitute larceny rather than robbery. We do not find Defendant's argument persuasive.
"Common law robbery is the felonious, non-consensual taking of money or personal property from the person or presence of another by means of violence or fear." State v. Smith, 305 N.C. 691, 700, 292 S.E.2d 264, 270, cert. denied, 459 U.S. 1056, 74 L. Ed. 2d 622, 103 S. Ct. 474 (1982). Larceny from the person is a lesser included offense of common law robbery, which differs from larceny from the person by virtue of the fact that guilt of common law robbery requires proof of the additional element that the property be taken through violence or fear. State v. White, 142 N.C. App. 201, 204, 542 S.E.2d 265, 267 (2001).
A defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater. The trial court may refrain from submitting the lesser offense to the jury only where the evidence is clear and positive as to each element of the offense charged and no evidence supports a lesser-included offense.
State v. Tillery, 186 N.C. App. 447, 450, 651 S.E.2d 291, 294 (2007) (citations and quotations omitted) . As a result, the ultimate issue raised by this aspect of Defendant's challenge to the trial court's judgment is the extent, if any, to which the record evidence would reasonably permit the jury to conclude that Defendant was involved in taking Mr. Best's wallet by means other than the use of violence or fear.
In this case, the record evidence would simply not permit a jury to rationally find Defendant guilty of larceny from the person rather than common law robbery. The uncontroverted evidence tends to show that an assault was committed against Mr. Best and that his wallet was taken from him during the course of this assault. Although Defendant testified that he was not a party to the assault and that he was, instead, sitting inside the car while the assault occurred, Defendant also denied having taken Mr. Best's wallet. The only evidence describing the taking of the wallet was presented by Mr. Best, who testified that Defendant took the wallet at Glenn Davis' instruction immediately after having assaulted him. As a result, the only evidence concerning the theft of Mr. Best's wallet clearly and positively indicated that it was taken as the result of the use of violence and force. Simply put, the record contains no evidence whatsoever tending to show that Defendant was involved in a taking of Mr. Best's wallet that did not involve the use of force and violence. Thus, given that the record evidence does not support a finding that Defendant took the wallet in any way other than as part of an assault upon Mr. Best, there is no basis for the submission of the issue of Defendant's guilt of larceny from the person to the jury and Defendant is not entitled to any relief on appeal based on this claim.
B. Restitution
Secondly, Defendant contends that the trial court erred by requiring him to pay restitution in the amount of $24,668.70. In essence, Defendant contends that the trial court's restitution "order" should be vacated because the trial court failed to consider Defendant's ability to pay before determining that Defendant should make restitution in the amount specified. Defendant's argument lacks merit.
Contrary to the assertion on which Defendant's claim is based, the trial court did not order Defendant to pay restitution. Instead, the trial court recommended that Defendant pay restitution as a condition of post-release supervision or from amounts earned by virtue of participation in the work release program. Therefore, the challenged portion of the trial court's judgment "constitutes a recommendation to the Secretary of the Department of Correction and the Parole Commission, not an order binding defendant to pay restitution in this amount upon entry of the judgment in this action." State v. Wilson, 340 N.C. 720, 725-26, 459 S.E.2d 192, 195 (1995). As we have previously explained:
Neither the Parole Commission nor the Department of Correction is bound by the judge' s recommendation of restitution as a condition of parole or work release. When the time comes that restitution may be imposed as a condition of parole, the Parole Commission must give defendant notice that restitution is being considered as a condition of parole and an opportunity to be heard. [N.C. Gen. Stat. § ] 148-57.1(d). The Department of Correction must follow this same procedure before restitution may be imposed as a condition of work release. [N.C. Gen. Stat. § ] 148-33.2(d). Such a hearing is the proper forum for determination of defendant's ability to pay restitution.
State v. Arnette, 67 N.C. App. 194, 196, 312 S.E.2d 547, 548 (1984) (citation omitted). Accordingly, "`there is no statutory requirement for a sentencing judge to inquire into a defendant's ability to pay restitution when the judge merely recommends restitution as a condition of parole or work release.'" Wilson, 340 N.C. at 726, 459 S.E.2d at 195 (quoting Arnette, 67 N.C. App. at 196, 312 S.E.2d at 548-49). Thus, as was the case in Wilson and Arnette, the challenged portion of the trial court's judgment merely recommends payment of restitution as a condition of post-release supervision or participation in the work release program, obviating any necessity for the trial court to consider Defendant's ability to pay the recommended amount as a prerequisite for the inclusion of this provision in its judgment.
III. Conclusion
Therefore, for the reasons set forth above, we conclude that Defendant received a fair trial, free from prejudicial error, and that the restitution-related recommendation in the trial court's judgment was not unlawfully made. As a result, we further conclude that the trial court's judgment should not be disturbed on appeal.
NO ERROR.
Judges STEPHENS and BEASLEY concur.
Report per Rule 30(e).