Opinion
No. COA11–1122.
2012-05-1
STATE of North Carolina v. David Wayne CAMP.
Attorney General Roy Cooper, by Assistant Attorney General Teresa L. Townsend, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Emily H. Davis, for defendant-appellant.
Appeal by defendant from judgment entered 12 April 2011 by Judge Robert C. Ervin in Catawba County Superior Court. Heard in the Court of Appeals 24 April 2012. Attorney General Roy Cooper, by Assistant Attorney General Teresa L. Townsend, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Emily H. Davis, for defendant-appellant.
CALABRIA, Judge.
David Wayne Camp (“defendant”) appeals from a judgment entered upon jury verdicts finding him guilty of felony larceny. Defendant pled guilty to attaining the status of an habitual felon. We vacate and remand for resentencing.
In July 2009, defendant resided next door to Ann (“Mrs.Hinson”) and John Hinson (“Mr.Hinson”) (collectively “the Hinsons”). Defendant visited the Hinsons several times a week to eat dinner, borrow money, feed the cats and help Mr. Hinson with repair work. The Hinsons permitted defendant to have access to their home, which they left unlocked unless they were away from home for an extended period of time.
In early July, Mrs. Hinson was unable to find a ring. She also noticed other jewelry items were missing. The Hinsons went to defendant's residence and Mrs. Hinson confronted defendant about the missing jewelry. When defendant did not acknowledge her accusation, Mrs. Hinson left and returned to her home. According to Mr. Hinson, after his wife left, defendant confessed that he had taken the jewelry and sold it to the Jewelry Exchange (“the shop”) for the amount of $300.00.
When Mr. Hinson returned home, his wife had already called the police. A police officer advised the Hinsons to purchase the jewelry from the shop and seek reimbursement from defendant. The Hinsons met defendant at the shop, which was solely in the business of purchasing gold and silver for resale to a smelter. Paul Sizemore (“Sizemore”), the owner of the shop, was unable to locate any record of a sale and the Hinsons did not recover any items of missing jewelry.
The Hinsons subsequently submitted a formal crime report to the Hickory Police Department (“HPD”). They provided the police with an insurance appraisal document prepared in 1992 listing items of jewelry they owned at that time and circled the missing items. Officer Kong Pheng Lo (“Officer Lo”) of the HPD typed a report listing thirteen items which were missing: twelve rings and one choke necklace.
Defendant told the officers that he sold two men's rings, two women's rings, and a rope necklace to the gold recycling shop. He denied taking Mrs. Hinson's jewelry. Sizemore indicated he had purchased a necklace from defendant and paid defendant $200.00 to $300.00 for it. However, he did not recall purchasing any rings from defendant.
Defendant was charged with felony larceny and attaining the status of an habitual felon. After the jury returned a verdict finding defendant guilty of felony larceny, he pled guilty to the habitual felon charge. The court sentenced defendant to a minimum of 107 months to a maximum of 138 months in the North Carolina Department of Correction. Defendant appeals.
Defendant alleges the trial court erred by denying his motion to dismiss the charge of felony larceny. Specifically, defendant contends that the evidence was insufficient to show that the value of the stolen property exceeded the amount of $1,000.00. We agree.
In reviewing the denial of a motion to dismiss in a criminal case, we determine whether there is substantial evidence (1) to establish each essential element of the offense charged, or of a lesser offense included therein, and (2) to prove the defendant perpetrated the offense. State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002). “[W]e must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences.” State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992).
“Larceny of goods of the value of more than one thousand dollars ($1,000) is a Class H felony.” N.C. Gen.Stat. § 14–72(a) (2011). “To 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 .” State v. Owens, 160 N.C.App. 494, 500, 586 S.E.2d 519, 523–24 (2003).
“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). Typically, Courts rejected “the original cost and any special value to the owner personally as standards of value for purposes of graduation of the offense.” State v. Dees, 14 N.C.App. 110, 112, 187 S.E.2d 433, 435 (1972) (citation omitted). Rather, the proper standard is “the price which the subject of the larceny would bring in open market-its ‘market value’ or its ‘reasonable selling price,’ at the time and place of the theft, and in the condition in which it was when the thief commenced the acts culminating in the larceny....” Id.
Evidence as to what the owner paid for a stolen item years before its theft, without more, is insufficient to prove value and to withstand a motion to dismiss a charge of felonious larceny. State v. Shaw, 26 N.C.App. 154, 158, 215 S.E.2d 390, 393 (1975). “It is a matter of common knowledge that the market value of items and articles of personal property can appreciate and depreciate rapidly depending upon a myriad of circumstances.” Id. “The State is not required to produce direct evidence ... of value to support the conclusion that the stolen property was worth over $1,000.00, provided that the jury is not left to speculate as to the value of the item.” State v. Rahaman, 202 N.C.App. 36, 47, 688 S.E.2d 58, 66,review denied,364 N.C. 246, 699 S.E.2d 642 (2010) (internal quotations omitted).
In the instant case, Mrs. Hinson testified that she had no personal knowledge of the value of the missing jewelry. Mr. Hinson testified that he had purchased some of the missing jewelry items for his wife. When asked to estimate the value of the missing items he had purchased for his wife, Mr. Hinson testified that he purchased one ruby ring for $850.00 and a gold necklace for $300.00.
On appeal, defendant is not alleging that the State failed to provide sufficient evidence that he took Mrs. Hinson's jewelry, carried it away, without her consent and with the intention to deprive her of the jewelry permanently. The disputed issue is whether the State provided substantial evidence of the value of the stolen items, supporting a conviction for felony larceny. According to the State's evidence, Mr. Hinson purchased one of the rings for $850.00 sometime before 1992 and a gold necklace for $300.00 at another unspecified time. In addition, the State showed that defendant sold four rings and a necklace for the sum of $300.00 in July 2009. However, there is no other evidence as to the fair market value of the purloined items as of 11 July 2009. Without an opinion of the fair market value, the evidence here is insufficient to establish that the value of the stolen items exceeded the sum of $1,000.00.
Our Court has found when evidence of value is insufficient, the appropriate remedy is to remand to the trial court for entry of judgment of a lesser included offense. State v. Parker, 146 N.C.App. 715, 718, 555 S.E.2d 609, 611 (2001). We therefore vacate the judgment of felony larceny and habitual felon and remand for entry of a judgment for misdemeanor larceny.
Vacated and remanded for resentencing. Judges STROUD and BEASLEY concur.
Report per Rule 30(e).