Opinion
No. COA11–1549.
2012-08-7
STATE of North Carolina v. James Daniel BOYD.
Attorney General Roy Cooper by Assistant Attorney General Karen A. Blum for the State. Hartsell & Williams, P.A. by Benjamin G. Goff and Christy E. Wilhelm for defendant-appellant.
Appeal by defendant from judgment entered 20 April 2011 by Judge Beverly T. Beal in Lincoln County Superior Court. Heard in the Court of Appeals 9 May 2012. Attorney General Roy Cooper by Assistant Attorney General Karen A. Blum for the State. Hartsell & Williams, P.A. by Benjamin G. Goff and Christy E. Wilhelm for defendant-appellant.
STEELMAN, Judge.
The admission of certain statements of a co-defendant at trial did not amount to plain error. Where defendant failed to raise the issue of a fatal variance between the indictment and the evidence presented at trial, that argument is dismissed. The trial court properly instructed the jury on felonious possession of stolen goods based upon the property being stolen pursuant to a breaking or entering. Where defendant stipulated to the amount of restitution before the trial court, he cannot complain about that amount on appeal.
I. Factual and Procedural History
On 3 May 2010, Donald Edwards (Edwards) noticed that part of the fence surrounding his heating and air conditioning business had been cut down. Edwards owns Edward's Air Works Incorporated (Air Works). About 10 to 12 air conditioner units had been cut up, and the copper and steel coils were missing.
On that same day, James Daniel Boyd (defendant) and Jessie Bivens (co-defendant) sold 56 pounds of copper, 453 pounds of “aluminum copper radiators[,]” and 13 pounds of aluminum radiators to Ira Brewster (Brewster) at his metal recycling company, Crouse Metal Recycling.
The State's motion for joinder names co-defendant as “Bivens.” The evidence log names co-defendant as “Bivens.” The trial transcript names co-defendant as “Bevins.” Defendant lists codefendant as “Bivens” and as “Bevins.” The State's brief noted these inconsistencies.
On 12 July 2010, defendant was indicted for the felonies of possession of stolen property and obtaining property by false pretenses. A jury found defendant guilty of both charges. Defendant was sentenced to two consecutive active terms of imprisonment of 12–15 months. These sentences were from the aggravated range. At the sentencing hearing, defendant stipulated to restitution in the amount of $4,654.00.
Defendant appeals.
II. Statements of Co–Defendant
In his first argument, defendant contends that the trial court committed plain error in allowing State's witnesses to testify as to out-of-court statements of his co-defendant, Bivens. We disagree.
A. Standard of Review
By failing to object to the testimony at trial, defendant did not preserve the issue for appeal. We review this issue for plain error only. State v. Rourke, 143 N.C.App. 672, 675–76, 548 S.E.2d 188, 190 (2001).
[T]he plain error rule ... is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a “ fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,” or “where [the error] is grave error which amounts to a denial of a fundamental right of the accused,” or the error has “ ‘resulted in a miscarriage of justice or in the denial to appellant of a fair trial’ “ or where the error is such as to “seriously affect the fairness, integrity or public reputation of judicial proceedings” or where it can be fairly said “the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.”
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (alterations in original) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.1982) (footnotes omitted)).
To show plain error, “a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice—that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty.” State v. Lawrence, ––– N.C. ––––, ––––, ––– S.E.2d ––––, –––– (2012) (internal citation and quotation marks omitted).
A defendant who fails to object to evidence at trial bears the burden of proving that the trial court committed plain error. Rourke, 143 N.C.App. at 676, 548 S.E.2d at 190. “[T]he test for ‘plain error’ places a much heavier burden upon the defendant than that imposed by N.C.G.S. § 15A–1443 upon defendants who have preserved their rights by timely objection.” State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986).
B. Analysis
“The Sixth Amendment to the United States Constitution provides in part that ‘[i]n all criminal prosecutions the accused shall enjoy the right ... to be confronted with the witnesses against him.’ “ State v. Lewis, 361 N.C. 541, 545, 648 S.E.2d 824, 827 (2007) (citing U.S. Const., amend. VI). “Ordinarily, a witness whose testimony is introduced at a joint trial is not considered to be a witness ‘against’ a defendant if the jury is instructed to consider that testimony only against a codefendant.” Richardson v.. Marsh, 481 U.S. 200, 206, 95 L.Ed.2d 176, 185 (1987).
In Bruton v. United States, 391 U.S. 123, 20 L.Ed.2d 476 (1968), the United States Supreme Court created a “narrow exception” to this principle. Richardson, 481 U.S. at 208, 95 L.Ed.2d at 186.
[T]here are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial.
Bruton, 391 U.S. at 135–36, 20 L.Ed.2d at 485. “We held that a defendant is deprived of his Sixth Amendment right of confrontation when the facially incriminating confession of a nontestifying co-defendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant.” Richardson, 481 U.S. at 207, 95 L.Ed.2d at 186.
Our Supreme Court has held that the “ sine qua non for application of Bruton is that the party claiming incrimination without confrontation at least be incriminated.” State v. Brewington, 352 N.C. 489, 511, 532 S.E.2d 496, 509 (2000) (internal quotation marks omitted).
In the instant case, several out-of-court statements of codefendant Bivens were testified to by co-defendant Bivens' wife (Chrystal) and Officer Tracy Riddle (Officer Riddle). (T. p. 60–82; 95, 103–08).
i. Testimony of Chrystal Bivens
Defendant challenges four statements in Chrystal's testimony: “(1) Mr. Bevins said the heaters under the house belonged to Mr. Boyd, (2) Mr. Bevins and Mr. Boyd broke into the Air Works, (3) Mr. Bevins had received the items from Mr. Boyd, and (4) Mr. Bevins admitted to breaking into and taking the items from Air Works.”
On direct examination, Chrystal testified that “Bevins and Jamie [defendant] broke into Air Works located in Lincoln County[.]” Her statement drew no objection and did not contain the statements of Bivens. Admission of nonhearsay raises no Confrontation Clause concerns. State v. Gainey, 355 N.C. 73, 87, 558 S.E.2d 463, 473 (2002). This statement is not subject to Bruton analysis.
On cross-examination, Bivens' counsel elicited three statements from Chrystal that defendant now appeals. Chrystal acknowledged that Bivens told her: 1) “that him and Jamie [defendant] went and done something, they put stuff underneath the house[,]” and that 2) “they [the heaters] belonged to Jamie [defendant].” Chrystal also testified that Bivens told her that “he broke into the Air Works[.]”
The first statement directly identifies defendant. While it is not at all clear that this statement incriminated defendant for the charged crimes, we nevertheless analyze the admission of this statement for plain error.
At about 7:00 a.m. on 3 May 2010, defendant arrived at Crouse Metal Recycling to sell scrap metal from commercial and home air conditioners. Defendant sold 56 pounds of copper, 459 pounds of “aluminum copper radiators[,]” 13 pounds of aluminum radiators, and two pounds of insulated wire. The aluminum copper radiators were coils from air conditioning units. Defendant seemed rushed. Defendant's name, signature, driver's license number, and address appear on the receipt for the scrap metal.
In the instant case, the victim testified that he discovered that his property was missing on 3 May 2010. Air conditioning units “had been cut up” and the “coils removed[.]” He testified that “there was nothing left but just a compressor” and “the metal shell of it. All the copper coil was gone.” At least 12 air conditioning units had been stripped of copper and steel. An eight-foot chain link fence stood in front of the victim's property. A six to eight-foot section of this fence had been cut down.
We fail to discern how this testimony, which does not clearly implicate defendant in the crimes for which he was tried, would have had a probable impact upon the jury's finding of guilt. Its admission does not constitute a plain error.
Next, we analyze the statement that the heaters belonged to defendant. This statement does not incriminate defendant for the charged crimes and is therefore not subject to Bruton analysis. See Brewington, 352 N.C. at 511, 532 S.E.2d at 509.
Finally, we analyze the statement that co-defendant Bivens broke into Air Works. Defendant argues that “the statements at issue here directly referred to and incriminated [defendant].” However, this statement refers only to Bivens, not defendant.
[COUNSEL FOR CO–DEFENDANT BIVENS]. And you're testifying now that your husband told you he broke into the Air Works?
[CHRYSTAL]. Yeah....
Q. And you just put, “I know that my husband broke into Air Works.”
A. Yes.
This statement does not incriminate defendant for the charged crimes and is therefore not subject to Bruton analysis. See Brewington, 352 N.C. at 511, 532 S.E.2d at 509.
ii. Testimony of Officer Riddle
On direct examination, Officer Riddle read into evidence co-defendant Bivens' written statement.
On Sunday night 5–4, 2010, I walked down to Air Works and cut the fence. I then went on the property and scrapped the air conditioner units. Later me and one of Jamie's friends went back to Air Works and picked up the stuff on Monday morning, which is 5–5–10, me and Jamie Boyd [defendant] took the stuff to Crouse Scrap Yard.
Co-defendant Bivens' statement identifies defendant. Assuming arguendo that this statement incriminated defendant for the charged crimes, we analyze this statement for plain error.
The only portion of this statement that incriminates defendant is that Bivens and defendant sold the scrap metal at Crouse. It was uncontroverted at trial that defendant sold the metal to Crouse. Defendant signed a receipt and produced identification at Crouse. We fail to discern how this testimony would have had a probable impact upon the jury's finding of guilt. Its admission does not constitute plain error.
III. Motion to Dismiss
In his second argument, defendant contends that the trial court erred in denying his motion to dismiss the charge of possession of stolen goods because there was a fatal variance between the indictment and the evidence presented at trial. We disagree. Defendant makes no argument as to the sufficiency of the evidence as to the charge of obtaining property by false pretenses.
A. Standard of Review
“In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.” N.C.R.App. P. 10(a)(1) (2011).
To preserve the issue of a fatal variance for review, defendant must state at trial that a fatal variance is the basis for the motion to dismiss. State v. Curry, 203 N.C.App. 375, ––––, 692 S.E.2d 129, 137,appeal dismissed and disc. review denied,364 N.C. 437, 702 S.E.2d 496 (2010). In Curry, the Court held that because the “defendant failed to argue a variance between his indictment and the evidence presented at trial or even to argue generally the sufficiency of the evidence regarding the type of firearm or weapon possessed to the trial court, he has waived this issue for appeal.” Curry, 203 N.C.App. at ––––, 692 S.E.2d at 138.
B. Analysis
In the instant case, at the close of the State's evidence, defendant moved to dismiss. Defendant did not specify a basis for this motion. “Just at the close of the state's evidence that we would make the motion to dismiss the charges against Mr. Boyd. We will just make the general motion, how about that, at this point.” At the close of all evidence, defendant renewed the previously stated motion. Defendant again failed to state a basis for or make any argument in support of the motion. “Just would renew the motion at the end of all the evidence on behalf of Mr. Boyd, the charges against him be dismissed.”
Defendant failed to preserve this issue for appeal, and it is dismissed.
IV. Jury Instructions
In his third argument, defendant contends that the trial court erred in instructing the jury on possession of stolen goods under the theory that goods were stolen pursuant to a breaking and entering when that theory was not alleged in the indictment. We disagree.
Defendant's argument conflates two issues: (1) whether there was a fatal variance between the indictment and the evidence presented at trial and (2) whether jury instructions were based on a reasonable view of the evidence presented at trial. As previously discussed, defendant did not argue that there was a fatal variance as part of his motion to dismiss at the close of all of the evidence. This argument has been waived and is dismissed.
We review the jury instructions for plain error. Lawrence, ––– N.C. at ––––, ––– S.E.2d at ––––. “Jury instructions must be based upon a state of facts presented by some reasonable view of the evidence.” State v. Shelman, 159 N.C.App. 300, 307, 584 S.E.2d 88, 94 (2003) (internal quotation marks omitted).
In the instant case, the trial court instructed the jury that defendant could be found guilty of felonious possession of stolen goods under the theory that the property was stolen pursuant to a breaking and entering or that the property was worth more than one thousand dollars. The State presented evidence at trial that showed that the property was stolen pursuant to a breaking and entering.
This argument is without merit.
V. Restitution
In his final argument, defendant contends that the trial court erred in ordering restitution when the evidence was insufficient to support the amount. We disagree.
“Issues at a sentencing hearing may be established by stipulation of counsel if that stipulation is definite and certain.” State v. Mumford, 364 N.C. 394, 403, 699 S.E.2d 911, 917 (2010) (internal quotation marks omitted). In Mumford, there was some confusion over whether insurance payments had been included in the restitution worksheets. This confusion cast doubt on the certainty of the defendant's stipulation. Mumford, 364 N.C. at 403–04, 699 S.E.2d at 917.
In the instant case, defendant concedes that he “stipulated to restitution in the amount of $4,654.00[.]” This stipulation was definite and certain.
The trial court did not err in the amount of restitution ordered.
DISMISSED IN PART, NO ERROR IN PART. Judges CALABRIA and BEASLEY concur.
Report per Rule 30(e).