Opinion
No. COA11–1360.
2012-06-5
STATE of North Carolina v. Daniel Dwayne WOOD.
Attorney General Roy Cooper, by Assistant Attorney General John W. Congleton, for the State. Kimberly P. Hoppin for Defendant-appellant.
Appeal by defendant from judgment entered 3 March 2011 by Judge Jesse B. Caldwell, III, in Mecklenburg County Superior Court. Heard in the Court of Appeals 7 March 2012. Attorney General Roy Cooper, by Assistant Attorney General John W. Congleton, for the State. Kimberly P. Hoppin for Defendant-appellant.
ERVIN, Judge.
Defendant Daniel Dwayne Wood appeals from a judgment sentencing him to six months imprisonment based upon his conviction for driving while impaired, with his active sentence having been suspended and Defendant having been placed on unsupervised probation for a period of eighteen months on the condition that Defendant pay restitution, among other things. On appeal, Defendant contends that the trial court erred by sentencing him in reliance upon an aggravating factor that had not been found to exist by a jury beyond a reasonable doubt and by ordering him to pay $540.00 in restitution despite the fact that the amount in question lacked adequate evidentiary support. 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 be affirmed in part and reversed and remanded in part.
As a result of the fact that Defendant has not advanced a challenge to the validity of his driving while impaired conviction, his conviction necessarily remains undisturbed.
I. Factual Background
A. Substantive Facts
At approximately 10:30 p.m. on 24 January 2009, Eric Wallace was driving south on Route I–77 towards downtown Charlotte at a speed of about 55 or 60 mph. Mr. Wallace had not been drinking, the lights on his car were functioning properly, and he was driving on a straight stretch of road. Although it was a clear night, Defendant drove up behind Mr. Wallace's vehicle and hit it in the rear. Despite the fact that Mr. Wallace had been checking his rearview mirror, he had not seen the Defendant prior to the collision. Mr. Wallace estimated that, in order to have caught up with him and struck his vehicle in the rear, Defendant would probably have been traveling at “60 or 70” mph.
Although Mr. Wallace was not injured at the time of the wreck, his vehicle did sustain substantial damage. According to Mr. Wallace, his rear bumper was knocked off, the bottom of his car was “pushed up,” and the hatchback was rendered inoperable. In addition, the front end of Defendant's car was smashed.
After the collision, Mr. Wallace and Defendant pulled to the side of the road, parked their vehicles, and walked toward each other. When Mr. Wallace told Defendant that he had run into Mr. Wallace's car, Defendant said “You must have put your brakelights on,” an assertion which Mr. Wallace denied. Following the arrival of emergency medical personnel and highway patrol officers, an event which occurred within ten minutes of the collision, Mr. Wallace had no further discussion with Defendant.
After Trooper Richard Hall of the State Highway Patrol arrived at the scene, he noticed a “strong odor of alcohol coming from [Defendant's] breath.” Defendant told Trooper Hall that he “really didn't know” what had happened and volunteered that he had drunk “a couple of beers and a shot of vodka.” Trooper Hall noticed that Defendant's “actions were slowed,” his “eyes were red and glassy,” and “[h]is speech was slurred.” As Defendant performed various field sobriety tests, Trooper Hall observed indicia of impairment. At the conclusion of his investigation, Trooper Hall placed Defendant under arrest for impaired driving based upon his “demeanor, slowed actions, ... red glassy eyes, slurred speech, strong odor of alcohol [and the] field sobriety tests.”
After being taken to the Charlotte–Mecklenburg law enforcement center, Defendant was given an opportunity to submit to a breathalyzer test. However, Defendant “failed to provide an adequate sample” on four occasions, causing Trooper Brian Huffstickler, a field training officer with the State Highway Patrol who was supervising Trooper Hall on the date in question, to “hit the refusal key.”
B. Procedural History
On 24 January 2009, a citation charging Defendant with driving while impaired was issued. On 9 September 2009, Defendant was convicted of impaired driving by Judge Regan Miller in Mecklenburg County District Court. As a result, Defendant sought a trial de novo in the Mecklenburg County Superior Court.
The charge against Defendant came on for trial before the trial court and a jury at the 2 March 2011 criminal session of the Mecklenburg County Superior Court. At the conclusion of the trial, the jury found Defendant guilty as charged. At the ensuing sentencing hearing, the prosecutor announced that he “intended to submit one aggravating factor,” consisting of “[p]roperty damage equaling or in excess of $1,000.” In response, Defendant's trial counsel stated that, although he would “obviously raise an objection,” the existence of an aggravating factor was “a matter for the Court to decide,” that “[i]t's not the State's position to argue at this juncture what the aggravating factor is,” and that the existence of the aggravating factor was a matter committed to the trial court's discretion. As a result, the trial court conducted a sentencing hearing without further involvement by the jury and found that Defendant should be sentenced as a Level III offender; found as an aggravating factor that the “negligent driving of the defendant led to an accident causing property damage of $1000.00 or more;” and found as a mitigating factor that the “defendant has a safe driving record, having no convictions of any motor vehicle offense for which at least four points are assigned under [N.C. Gen.Stat. § ] 20–16 or for which the defendant's license is subject to revocation within five (5) years of the date of this offense.” After concluding that the aggravating factor substantially outweighed the mitigating factor, the trial court determined that “Level Three punishment shall be imposed” and sentenced Defendant to a term of six months imprisonment, suspended that sentence, and placed Defendant on unsupervised probation for eighteen months on the condition that Defendant make various monetary payments, including paying $540.00 in restitution to Mr. Wallace. Defendant noted an appeal to this Court from the trial court's judgment.
II. Legal Analysis
A. Aggravating Factor
In his initial challenge to the trial court's judgment, Defendant contends that the trial court erred by sentencing him “to an aggravated driving while impaired sentence where the aggravating factor was not presented to the jury and the State failed to prove the aggravating factor beyond a reasonable doubt.” We do not believe that Defendant is entitled to relief from the trial court's judgment on the basis of this contention.
The United States Supreme Court has held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” ... Thus, while a trial court may impose an aggravated sentence on the basis of admissions made by a defendant, error occurs when a judge aggravates a criminal sentence on the basis of findings made by the judge that are in addition to or in lieu of findings made by a jury.
State v. Hurt, 361 N.C. 325, 329, 643 S.E.2d 915, 917 (2007) (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362, 147 L.Ed.2d 435, 455 (2000), and citing Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)). Simply put, “[w]hen a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment,’ and the judge exceeds his proper authority.” Blakely v. Washington, 542 U.S. at 303–04, 124 S.Ct. at 2537, 159 L.Ed.2d at 413–14 (quoting 1 J. Bishop, Criminal Procedure, § 87, at 55 (2d ed. 1872)). Consistently with this line of authority, N.C. Gen.Stat. § 20–179(a1)(2) provides that, in determining the existence of aggravating factors for purposes of sentencing a criminal defendant convicted of impaired driving:
The defendant may admit to the existence of an aggravating factor, and the factor so admitted shall be treated as though it were found by a jury pursuant to the procedures in this section. If the defendant does not so admit, only a jury may determine if an aggravating factor is present....
As a result, with the encouragement of Defendant's trial counsel, the trial court clearly erred by making a finding in aggravation that was not submitted to the jury.
“In Washington v. Recuenco, 548 U.S. [212], 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006), the United States Supreme Court concluded that error under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), was subject to federal harmless error analysis.” State v. Blackwell, 361 N.C. 41, 42, 638 S.E.2d 452, 453 (2006), cert. denied,550 U.S. 948, 127 S.Ct. 2281, 167 L.Ed.2d 1114 (2007). “ ‘In conducting harmless error review, we must determine from the record whether the evidence against the defendant was so ‘overwhelming’ and ‘uncontroverted’ that any rational fact-finder would have found the disputed aggravating factor beyond a reasonable doubt.' “ State v. Lasiter, 361 N.C. 299, 306, 643 S.E.2d 909, 913 (2007) (quoting Blackwell, 361 N.C. at 49, 638 S.E.2d at 458 (citations omitted)). As a result, the trial court's error could be deemed harmless in the event that the State presented “overwhelming and uncontroverted” evidence that Defendant's negligence led to an accident causing more than $1000.00 in property damage.
Defendant's initial contention that the record did not contain sufficient evidence of negligent driving on his part is clearly without merit. The State presented evidence that, while impaired by alcohol, Defendant smashed into the rear of Mr. Wallace's vehicle while driving 60 to 70 miles per hour. “A violation of [N.C. Gen.Stat. § ] 20–138.1 is negligence per se.” Smith v. Winn–Dixie Charlotte, Inc., 142 N.C.App. 255, 265, 542 S.E.2d 288, 295 (citing Davis v. Rigsby, 261 N.C. 684, 686, 136 S.E.2d 33, 34–35 (1964) (stating that “[i]t is negligence per se for one to operate an automobile while under the influence of an intoxicant within the meaning of [N.C. Gen.Stat. § ] 20–138.”), disc. review denied, 353 N.C. 452, 548 S.E.2d 528 (2001). As a result, we conclude that the State presented overwhelming and uncontroverted evidence that Defendant negligently collided with Mr. Wallace's vehicle.
Similarly, we conclude that the State presented overwhelming and uncontroverted evidence tending to show that Defendant's negligence caused more than $1,000.00 in damage to Mr. Wallace's vehicle. At trial, Defendant objected when the prosecutor attempted to question Mr. Wallace about his “out of pocket” expenses. In support of his objection, Defendant argued that:
Unless we have someone here who is able to ascertain what that damage amount is, unless he has some type of paperwork that shows the foundation, authentication of what the actual damage was, we would object to anything he would offer; otherwise, that would be speculation. We would ask for a foundation to be laid before any number particularly comes in.
In response, the prosecutor assured the trial court that:
... I am not speaking to get in any kind of hearsay, if that is the objection, in terms of what insurance has told him.... The only reason I am trying to get that information into evidence at all is for restitutional purposes in the event they did come back guilty. That is the limited purpose I seek to get that information in.
After hearing the arguments of counsel, the trial court stated: “I don't believe [restitution is] relevant to the issue of driving while impaired or guilt or innocence thereof” and “sustain[ed] the objection” “at this time.” However, the trial court also told the prosecutor:
Why don't you go ahead and get it out now with regard to the offer [of] proof with regard to the issue of restitution. In the event the defendant is convicted, the Court will be able to consider that and afford [Defendant's trial counsel] an opportunity to ask any questions, again, in the absence of the jury.
At the time that the prosecutor began questioning Mr. Wallace on voir dire, Defendant's trial counsel asked the trial court if he correctly understood that “this is post-conviction” and received an affirmative answer. At that point, the prosecutor informed the trial court that he had received a letter from Mr. Wallace's insurance company stating that the loss stemming from the collision was $1,160.09. However, this letter was neither authenticated nor introduced into evidence. During the course of his voir dire examination, Mr. Wallace testified that:
Q Mr. Wallace, how much did you have to pay out of pocket as a direct result of that?
A $500.
....
Q Was your car repaired?
A It wasn't repaired. I didn't have enough money for the repair.... I ended up having to drive to the beach with my door taped shut.
....
THE COURT: Is it still in that condition?
THE WITNESS: No. The door got fixed.
THE COURT: How did you pay to get it fixed?
THE WITNESS: It was only like $250.
....
THE COURT: How much did you say you spent? Do you remember?
THE WITNESS: It was [$]250, I think.
....
[PROSECUTOR] Mr. Wallace, I just want to follow up. You can confirm the amount that you were actually—the amount of loss was $1,106.09.
A Yes.
Q On the basis of that being the estimate?
A Yes.
....
THE COURT: Before I let—I am not sure how is it that they say they are not able to pay that back to him?
THE WITNESS: The thing was Mr. Wood didn't have any insurance. So they paid it, but they kept the deductible. It was a $500 deductible. That is why they couldn't recoup the money from him.
THE COURT: It's not the $1,106.09?
THE WITNESS: That is the cost of the repairs minus the deductible.... They paid whatever it was.
[PROSECUTOR]: They paid you the amount on this?
THE COURT: How much money have you gotten from the insurance company?
THE WITNESS: Whatever happened in the letter right there. But the repair cost was more than that.
....
[DEFENSE COUNSEL] You have [ ] only paid $250 bucks from your pocket.
A $250.
Q Did that come out of your pocket?
A Yes.
....
THE COURT: ... I just want to make sure I understand. You are saying that even though you got over [one] thousand dollars, the reason that you still haven't paid to have other damage repaired, which is still damage from the accident, is that those repairs were going to cost more than what you were given?
THE WITNESS: Right.
THE COURT: How much more?
THE WITNESS: I think the repairs [were] like $1,600. I took that and got an estimate right after that.
[DEFENSE COUNSEL]: We would just object.
THE WITNESS: I can bring the paperwork. I am pretty sure I still have it. It might even be in the car.
....
THE COURT: [Defendant's counsel], again, all this is irrelevant [unless] and until the defendant is convicted, then, obviously, I will hear any arguments, any questions at this time.
Although the prosecutor's statements do not constitute admissible evidence upon which a finding of harmlessness can be based and although the letter to which the prosecutor made reference was never admitted into evidence, the voir dire testimony of Mr. Wallace clearly establishes that the damage to his vehicle could be repaired for approximately $1,600.00, that his insurance carrier had paid him a minimum of $1,106.09, that he had a $500.00 deductible, and that he could not cover the cost of the needed repairs using the monies that he received from his insurance carrier. The evidence received during the voir dire examination of Mr. Wallace, which is undisputed, clearly shows that the negligent driving in which Defendant engaged caused Mr. Wallace to sustain a loss in excess of $1,000.00. In view of the fact that the record contains ample evidence tending to show that the loss that Mr. Wallace sustained exceeded $1,000.00 and the fact that the record contains no basis for questioning either the negligent nature of Defendant's driving or the fact that Defendant's negligent driving caused more than $1,000.00 in damage, we conclude that the trial court's error was harmless beyond a reasonable doubt and that Defendant is not entitled to receive relief on appeal as a result of the trial court's error.
In light of this determination, we need not address the issue of whether the trial court's error should be excused on the basis of the “invited error” doctrine.
B. Restitution
Secondly, Defendant argues that the trial court erred by ordering him, as a condition of probation, to pay $540.00 in restitution to Mr. Wallace on the grounds that “this amount was not supported by the evidence.” Although the evidence sufficed to support an order for restitution, it did not support the amount Defendant was ordered to pay by the trial court. As a result, Defendant's restitution-related contention has merit.
“A trial court's judgment ordering restitution ‘must be supported by evidence adduced at trial or at sentencing.’ “ State v. Mumford, 364 N.C. 394, 403, 699 S.E.2d 911, 917 (2010) (quoting State v. Wilson, 340 N.C. 720, 726, 459 S.E.2d 192, 196 (1995) (internal citations omitted). “[T]o justify an order to pay restitution, ‘there must be something more than a guess or conjecture as to an appropriate amount of restitution.’ “ State v. Clifton, 125 N.C.App. 471, 480, 481 S.E.2d 393, 399 (quoting State v. Daye, 78 N.C.App. 753, 757–58, 338 S.E.2d 557, 561,aff'd,318 N.C. 502, 349 S.E.2d 576 (1986)), disc. review improvidently allowed,347 N.C. 391, 493 S.E.2d 56 (1997). “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) (citing State v. Buchanan, 108 N.C.App. 338, 341–42, 423 S.E.2d 819, 821 (1992)). “ ‘Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence. The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on the attorney for the Government.’ “ State v. Tate, 187 N.C.App. 593, 596, 653 S.E.2d 892, 895 (2007) (quoting 18 U.S.C. § 3664(e)).
On voir dire, Mr. Wallace testified that his insurance carrier sent him a check for the estimated amount of his loss, less a $500 deductible. Although this testimony would suffice to show that Mr. Wallace had sustained a $500 loss for which he had not received reimbursement from his insurance carrier, the trial court ordered Defendant to pay $540 in restitution. As a result, given that the record does not provide any support for the additional $40 in restitution that the trial court ordered Defendant to pay, “[w]e conclude that the appropriate course here is to remand for the trial court to ... calculate the correct amount of restitution.” State v. Moore, 365 N.C. 283, 286, 715 S.E.2d 847, 849–50 (2011). As a result, the trial court's judgment is reversed and this case is remanded to the trial court for the sole purpose of calculating a proper restitution award.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART. Judges CALABRIA and THIGPEN concur.
Report per Rule 30(e).