Opinion
No. COA09-955.
Filed March 2, 2010.
Wayne County No. 08 CRS 52417.
Appeal by defendant from judgment entered 19 February 2009 by Judge William R. Pittman in Wayne County Superior Court. Heard in the Court of Appeals 8 February 2010.
Attorney General Roy Cooper, by Special Deputy Attorney General Donald R. Teeter, Sr., for the State.
Michele Goldman for defendant-appellant.
Defendant Justin Mitchell appeals from his convictions for assault on a government official and injury to personal property with damage over $200.00. Defendant contends the State failed to present sufficient evidence of damage over $200.00 when the State only presented evidence of the replacement value of the damaged property (prescription eyeglasses). Because, however, the damaged property was not susceptible to market valuation, we hold that the replacement value of the property was sufficient evidence of damages. We, therefore, find no error.
Facts
At trial, the State's evidence tended to show the following facts. Officer Linda Daye was working in the inmate yard of the Wayne Correctional Center on 9 April 2008 when defendant walked into the yard from another building. Defendant was agitated and "ranting and raving," apparently upset over something that someone said about his mother. Officer Daye tried to calm defendant, but he grabbed her face and head, started hitting her, and knocked off her eyeglasses. Defendant knocked Officer Daye to the ground, causing her to injure her knee. Officer Daye began looking for her glasses while the other officers secured defendant. She testified that when she found her glasses, they were "all messed up, broken, everything."
Defendant was subsequently charged with assault on a government official and injury to personal property with damage over $200.00. On 21 November 2008, defendant was convicted of both charges in district court and sentenced to an active term of 75 days imprisonment for the assault charge and to a suspended sentence of 45 days, with 12 months supervised probation, for the damage to personal property charge. Defendant appealed to superior court, and he was tried on 18 and 19 February 2009.
Officer Daye testified that she has difficulty seeing without her glasses. She explained that although her glasses were completely destroyed, she was able to "halfway wear them a little bit" while waiting to determine whether the loss of her glasses was covered by insurance. After waiting three months, she learned that the loss was not covered, and she purchased new glasses, paying approximately $866.00 out of pocket for the glasses and the required eye exam. The trial court admitted into evidence a receipt from Officer Daye's optometrist that showed that she actually paid $889.87 for the new glasses.
On 19 February 2009, a jury convicted defendant of both charges. The trial court consolidated the two convictions into one judgment and imposed an active term of 75 days imprisonment to be served at the expiration of the sentence he was serving at the time of judgment. Defendant gave oral notice of appeal in open court.
Discussion
Defendant's only contention on appeal is that the trial court erred in denying his motion to dismiss the charge of injury to personal property of more than $200.00. "This Court reviews the trial court's denial of a motion to dismiss de novo." State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). We view the evidence in the light most favorable to the State. State v. Morgan, 359 N.C. 131, 161, 604 S.E.2d 886, 904 (2004), cert. denied, 546 U.S. 830, 163 L. Ed. 2d 79, 126 S. Ct. 47 (2005). A trial court should deny a motion to dismiss where "substantial evidence exists to support each essential element of the crime charged and that defendant was the perpetrator. . . ." 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).
Pursuant to N.C. Gen. Stat. § 14-160(a) (2009), "[i]f any person shall wantonly and willfully injure the personal property of another he shall be guilty of a Class 2 misdemeanor." The offense is elevated to a Class 1 misdemeanor if the damage to the personal property is over $200.00. N.C. Gen. Stat. § 14-160(b). Defendant contends the State's evidence regarding the amount of damage to Officer Daye's glasses was insufficient to support the charge of a Class 1 misdemeanor because the State failed to use the appropriate measure of damages.
Defendant argues the State should have introduced evidence showing the reduction in the fair market value, rather than the replacement value, of the glasses. As support for this argument, defendant points out that under the larceny statute, the measure of the value of the property taken — which determines whether the larceny is felonious or not — is usually its fair market value. See State v. Morris, 318 N.C. 643, 645 n. 1, 350 S.E.2d 91, 93 n. 1 (1986) ("We note in passing that `value' in N.C.G.S. § 14-72(a) (1986) refers to fair market value, not replacement cost.").
In State v. Helms, 107 N.C. App. 237, 418 S.E.2d 832 (1992), however, this Court recognized that in some instances, a stolen item will not be susceptible to market valuation. In Helms, the defendant was charged with larceny of a public pay telephone containing $165.20 and a wall unit enclosure. Id. at 238, 418 S.E.2d at 832. There was no evidence of the property's market value, but the State presented evidence that the telephone and enclosure were not common articles having a market value and that the replacement cost of the items was over $1,500.00. Id. at 240, 418 S.E.2d at 834. This Court held that "where stolen property is not commonly traded and has no ascertainable market value, a jury may infer the market value of the stolen property from evidence of the replacement cost." Id., 418 S.E.2d at 833. It held that the evidence presented by the State "was sufficient to allow the jury to determine that the value of the stolen property was greater than $400." Id.
"`North Carolina is committed to the general rule that the measure of damages for injury to personal property is the difference between the market value of the damaged property immediately before and immediate [sic] after the injury.'" In re Davis, 126 N.C. App. 64, 66-67, 483 S.E.2d 440, 442 (1997) (quoting Carolina Power Light Co. v. Paul, 261 N.C. 710, 710-11, 136 S.E.2d 103, 103-04 (1964)). Our Supreme Court has also recognized, however, that "if there is no market, there can be no market value," in which case the "[c]ost of repairs is then about the only available evidence of the extent of the loss." Carolina Power Light Co., 261 N.C. at 711, 136 S.E.2d at 104. See also Givens v. Sellars, 273 N.C. 44, 51, 159 S.E.2d 530, 536 (1968) ("If the property has no market value the measure of damages may be gauged by the cost of repairs.").
Officer Daye testified that her glasses were prescription eyeglasses for which she had to undergo an individual eye exam. There is no evidence that there is a market for her prescription eyeglasses other than defendant's assertion in his brief, without any supporting authority, that there is one. We conclude that the replacement value of Officer Daye's eyeglasses was sufficient evidence of damages in this case.
Next, defendant contends that even if replacement value is used, Officer Daye's testimony is insufficient because she did not testify as to the condition, age, and make of the glasses. This argument goes to the weight rather than the sufficiency of the evidence, an issue for the jury to resolve. State v. Brown, 177 N.C. App. 177, 187, 628 S.E.2d 787, 793 (2006).
Officer Daye testified that her glasses were broken but that she was able to piece them together until she could determine whether the loss was covered by insurance. She testified that the cost for replacing her glasses was approximately $866.00. Her receipt shows that she actually paid $889.87 for the new glasses, with the frames alone costing more than $200.00, the statutory amount. Viewed in the light most favorable to the State, this evidence was sufficient to allow a jury to find that defendant damaged Officer Daye's personal property in an amount greater than $200.00. Accordingly, we hold the trial court properly denied defendant's motion to dismiss.
No error.
Judges McGEE and ROBERT HUNTER, JR. concur.
Report per Rule 30(e).