Opinion
No. COA11–1150.
2012-05-1
STATE of North Carolina v. Anthony Lee McNAIR, Defendant.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Torrey D. Dixon, for the State. Irving Joyner for defendant-appellant.
Appeal by defendant from judgment entered on or about 30 March 2011 by Judge Clifton W. Everett, Jr. in Superior Court, Edgecombe County. Heard in the Court of Appeals 23 April 2012. Attorney General Roy A. Cooper, III, by Assistant Attorney General Torrey D. Dixon, for the State. Irving Joyner for defendant-appellant.
STROUD, Judge.
Anthony Lee McNair (“defendant”) appeals from a conviction for felonious breaking or entering. We find no error as to defendant's conviction but remand for a new hearing on restitution.
Evidence at trial establishes the following factual background. Around 12:25 a.m. on 22 March 2010, Corporal S.C. Hicks of the Rocky Mount Police Department was on patrol when he noticed a man pushing a large, red, industrial-sized toolbox down the driveway of a residence belonging to James Joyner. Given the late hour, Corporal Hicks was suspicious and proceeded to turn around in order to talk to the individual. When he did so, the individual began running. Corporal Hicks then radioed other officers in the area with a description of the suspect. Corporal M.B. Newsome, who was approximately two blocks away, responded and informed Corporal Hicks that he had just seen an individual matching the suspect's description.
Corporal Hicks went to Corporal Newsome's location and deployed his German Shepard tracking dog to find the suspect. The dog led Corporal Hicks to defendant, who was hiding under a car, approximately one-and-a-half to two blocks from Corporal Newsome's location. Corporal Hicks testified that the person hiding under the car was the same person he observed pushing the toolbox down the driveway. Defendant was taken into custody. Defendant then told Corporal Newsome that he was willing to cooperate. Defendant stated that he “went to get the tool chest because Jerome told me if I brought it to his house he would give me fifty dollars.”
Around 2:30 a.m., officers awakened the victim, James Joyner, and asked if he had a red toolbox in his garage. Mr. Joyner answered in the affirmative, and the officers informed him that it was outside in his driveway. Mr. Joyner went outside and observed that his toolbox was approximately six to seven feet from the garage where he stored the toolbox. Mr. Joyner testified that someone had pried his garage door open with a crowbar, taken the hinges off, and closed the door back to enable reentry. Additionally, a car parked in Mr. Joyner's driveway had scratch marks on it that appeared to be made by the toolbox. Mr. Joyner testified that he had not been in his garage or used the toolbox since the previous Saturday; when he was last in the garage, the toolbox was still inside and the garage was locked. He did not give defendant permission to go into his garage. Mr. Joyner observed that several other items were missing from his garage, none of which were recovered.
At the close of the State's evidence, defendant moved to dismiss the charge, which the trial court denied. Defendant testified in his own defense, denying the events testified to by the State's witnesses. Defendant renewed his motion to dismiss at the close of all evidence, which the trial court again denied.
On 30 March 2011, a jury found defendant guilty of felonious breaking or entering. The trial court sentenced defendant to a term of 9 to 11 months imprisonment. Defendant appeals.
In his first argument, defendant contends that the trial court erred by denying his motion to dismiss. When reviewing a motion to dismiss, we view “the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences.” State v. Morgan, 359 N.C. 131, 161, 604 S.E.2d 886, 904 (2004) (citation omitted), cert. denied,546 U.S. 830, 163 L.Ed.2d 79 (2005). A trial court may properly deny a motion to dismiss where “substantial evidence exists to support each essential element of the crime charged....” Id. “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984) (citation omitted).
“To support a conviction for felonious breaking or entering[,] ... there must be substantial evidence of each of the following elements of the offense: (1) the breaking or entering; (2) of any building; (3) with the intent to commit a felony or larceny therein.” State v. Sluka, 107 N.C.App. 200, 204, 419 S.E.2d 200, 202 (1992) (citations omitted). Defendant argues that the State failed to prove that he broke or entered the garage belonging to Mr. Joyner on 22 March 2010.
After reviewing the evidence in the record in the light most favorable to the State, we conclude the State presented sufficient evidence linking defendant to the breaking or entering of Mr. Joyner's garage. To begin, Corporal Hicks saw defendant pushing a large toolbox down Mr. Joyner's driveway, away from his garage. Mr. Joyner testified that he kept the toolbox locked in his garage. Officers also discovered that someone had broken into the garage and taken several other items. When Corporal Hicks saw defendant, he fled. Another officer spotted defendant, and after being tracked by a dog, defendant was found hiding under a car. Corporal Hicks confirmed that the person he saw pushing the toolbox was the same person hiding under the car. Furthermore, defendant admitted that he was retrieving the toolbox for “Jerome” in exchange for $50.00. Defendant appears to claim that this evidence is insufficient because it is circumstantial. However, “[t]he law makes no distinction between the weight to be given to either direct or circumstantial evidence.” Id. at 204, 419 S.E.2d at 203. Therefore, we find no error in the trial court's denial of defendant's motion to dismiss.
Next, defendant contends that the trial court erred in ordering defendant to pay restitution in the amount of $1,475.00. “The amount of restitution ordered by the trial court must be supported by competent evidence presented at trial or sentencing.” State v.. Mauer, 202 N.C.App. 546, 551, 688 S.E.2d 774, 777 (2010) (citation omitted). “This Court has held ... that a restitution worksheet, unsupported by testimony or documentation, is insufficient to support an order of restitution.” Id. at 552, 688 S.E.2d at 778. Here, at sentencing, the prosecutor initially informed the trial court that Mr. Joyner had not prepared a restitution worksheet. She explained that Mr. Joyner was requesting restitution in the amount of $1,475.00, but she did not know whether there was proof to support it. The trial court directed the prosecutor to write down the amount on the restitution worksheet and ordered defendant to pay restitution in the amount of $1,475.00 to Mr. Joyner. Defendant argues that this exchange was insufficient to support the restitution amount.
The State, on the other hand, argues that Mr. Joyner's testimony at trial supports the restitution amount, because Mr. Joyner and another officer testified as to the damage to Mr. Joyner's garage and a car parked in the driveway. We are not persuaded. While Mr. Joyner and the officer described the damage to the garage and car, the State failed to present any evidence tending to establish the cost of the damage and/or loss to Mr. Joyner's property. Therefore, the State's evidence regarding the amount of restitution is little more than a speculatory statement by the prosecutor. See State v. Tuck, 191 N.C.App. 768, 774–75, 664 S.E.2d 27, 31 (2008). Accordingly, we must vacate the trial court's restitution order and remand for a new hearing on restitution.
NO ERROR IN PART; VACATED AND REMANDED IN PART. Judges CALABRIA and BEASLEY concur.
Report per Rule 30(e).