Opinion
No. COA12–324.
2012-10-2
STATE of North Carolina v. Steven Glenn JOHNSON, Defendant.
Attorney General Roy A. Cooper, III, by Assistant Attorney General David D. Lennon, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Emily H. Davis, for defendant-appellant.
Appeal by defendant from judgment and order entered on or about 19 November 2010 by Judge W. Erwin Spainhour in Superior Court, Iredell County. Heard in the Court of Appeals 11 September 2012. Attorney General Roy A. Cooper, III, by Assistant Attorney General David D. Lennon, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Emily H. Davis, for defendant-appellant.
STROUD, Judge.
Defendant appeals from the judgment and order convicting him of forgery of instrument and ordering him to pay restitution. For the following reasons, we dismiss defendant's appeal regarding his conviction for forgery of instrument and vacate and remand the order requiring him to pay restitution.
I. Background
The State's evidence tended to show that on 7 January 2009, defendant went to Tilley Harley Davidson (“Tilley”) and wrote a check for $18,858.38 to purchase a motorcycle. Defendant left with the motorcycle. “The check did not pay.” The motorcycle was later returned to Tilley but the value was depreciated due to “a ding in the fender, plus an additional 430 miles, plus the dirty condition that the motorcycle was in[.]” Ms. Nancy Ray, a supervisor at the Department of Treasury for the United States, Bureau of Public Debt (“Treasury”) testified that the routing number on defendant's check belonged to the Federal Reserve Bank of Chicago which private citizens cannot access. The check also read “TREAS/BDP/SELL DIRECT” on it; Ms. Ray testified “TREAS represents treasury, BPD represents Bureau of Public Debt, and Sell Direct represents a program that we offer our customers who own marketable securities.” Defendant himself testified that he contacted Carousel Checks to create the check using “the routing number listed of the bank—at the bank on the Treasury's website” and never deposited any money into the “account” from which he wrote the check.
After a trial by jury, defendant was found guilty of forging and falsely making a check upon the United States Treasury (“forgery”), uttering a forged check, obtaining property by false pretenses, and felony worthless check. The trial court arrested judgment for uttering a forged instrument, sentenced defendant to 6 to 8 months imprisonment for obtaining property by false pretenses, and suspended defendant's sentence for felony worthless check and forgery. Defendant was also ordered to pay $1,555.00 in restitution. Defendant appeals.
II. Rule 2
Defendant first contends that his “forgery conviction must be vacated as the State failed to establish an essential element of the charged offense: that Mr. Johnson made a false writing.” (Original in all caps.) Defendant concedes that he failed to make a motion to dismiss at the close of all of the evidence and requests this Court “invoke Rule 2” to consider this issue in order “[t]o prevent a ‘manifest injustice[.]’ “ See State v. Whitley, –––N.C.App. ––––, ––––, 713 S.E.2d 505, 506 (2011) (“[D]efendant failed to make a motion to dismiss at the close of all of the evidence, and as such we will not address this issue. State v. Richardson, 341 N.C. 658, 677, 462 S.E.2d 492, 504 (1995) (‘Rule 10(b)(3) provides that a defendant who fails to make a motion to dismiss at the close of all the evidence may not attack on appeal the sufficiency of the evidence at trial.’)”). As to North Carolina Rule of Appellate Procedure 2, our Supreme Court has stated,
Rule 2 permits the appellate courts to excuse a party's default in both civil and criminal appeals when necessary to prevent manifest injustice to a party.... Rule 2 ... must be invoked cautiously, and we reaffirm our prior cases as to the exceptional circumstances which allow the appellate courts to take this extraordinary step.
Dogwood Dev. and Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 196, 657 S.E.2d 361, 364 (2008) (citations and quotation marks omitted).
The evidence showed that defendant testified at his own trial that he, and not a financial institution, created the check at issue using a routing number and name from the Treasury; however, private citizens cannot access funds for the routing number at issue. Essentially, defendant admitted that he intentionally created checks based upon an imaginary account into which he had deposited no funds and used his self-created check to buy a motorcycle. Furthermore, after defendant's check was not paid; he never paid for the motorcycle. Accordingly, we do not believe Rule 2 need be invoked “to prevent manifest injustice [;]” and thus we will not address this issue. Id.; see Whitley, –––N.C.App. at ––––, 713 S.E.2d at 506. This argument is dismissed.
III. Restitution
Defendant next contends that “the trial court erred in ordering Mr. Johnson to pay $1,555.00 in restitution to Tilley Harley–Davidson as the amount of restitution ordered was not supported by evidence presented at trial or during sentencing.” (Original in all caps.)
On appeal, we consider de novo whether the restitution order was supported by evidence adduced at trial or at sentencing.
... [O]ur Supreme Court held that the amount of restitution recommended by the trial court must be supported by evidence adduced at trial or at sentencing. To justify an order to pay restitution, there must be something more than a guess or conjecture as to an appropriate amount of restitution. Even though recommendations of restitution are not binding, we see no reason to interpret the statutes of this State to allow judges to make specific recommendations that cannot be supported by the evidence before them. Therefore, regardless of whether restitution is ordered or recommended by the trial court, the amount must be supported by the evidence. Unsworn statements of a prosecutor, standing alone, cannot support an award of restitution.
State v. McNeil, ––– N.C.App. ––––, ––––, 707 S.E.2d 674, 684 (2011) (citations, quotation marks, and brackets omitted).
In McNeil, the defendant also argued “that the trial court committed reversible error by ordering him to pay restitution when the State presented no evidence to support the award.” Id. This Court agreed with the defendant noting that though a detective had
testified that the back doors of [the] ... home were busted in, that there were splinters of wood laying on the floor, and that the lock had been kicked in. A photograph of the damaged doors was shown to the jury, and the State submitted a Restitution Worksheet, Notice and Order, stating that there was damage caused to the home[,]
“there was no evidence as to the appropriate amount of restitution. There was merely testimony and visual evidence that [the] door was busted in.” Id. (quotation marks and brackets omitted). As there was “no evidence of the cost of the broken door or who paid for it[,]” this Court “vacated and remanded to the trial court for redetermination.” Id. at ––––, 707 S.E.2d at 684–85.
Here, the State's evidence demonstrated that although the motorcycle was returned, it had depreciated in value due to having approximately 400 more miles on it and had a ding in the fender. While this was evidence of damage, it was not “evidence as to the appropriate amount of restitution” as it did not address the actual amount of depreciation or the cost to repair the motorcycle. Id. Accordingly, we vacate and remand the restitution order “for redetermination.” Id. at ––––, 707 S.E.2d at 685.
IV. Conclusion
For the foregoing reasons, we dismiss defendant's appeal as to his forgery conviction and vacate and remand the order requiring him to pay restitution.
DISMISSED in part; VACATED and REMANDED in part. Chief Judge MARTIN and Judge GEER concur.
Report per Rule 30(e).