Opinion
No. COA11–1182.
2012-04-3
STATE of North Carolina v. James Edward SCOTT.
Roy Cooper, Attorney General, by Daniel D. Addison, Special Deputy Attorney General, for the State. Charlotte Gail Blake, for the defendant.
Appeal by defendant from judgment and order entered 17 March 2011 by Judge G. Wayne Abernathy in Alamance County Superior Court. Heard in the Court of Appeals 7 February 2012. Roy Cooper, Attorney General, by Daniel D. Addison, Special Deputy Attorney General, for the State. Charlotte Gail Blake, for the defendant.
THIGPEN, Judge.
James Edward Scott (“Defendant”) appeals from convictions of felony breaking and entering, misdemeanor larceny, and injury to real property and from a restitution order. We must determine whether the trial court erred by (I) denying Defendant's motion to continue and (II) ordering Defendant to pay restitution. Because there was insufficient evidence to support the restitution amount, we vacate the restitution order. For all other issues, we find no error.
I. Factual and Procedural Background
Around 2 a.m. on 24 February 2010, Officer Charles Kirkman of the Graham Police Department was on patrol when he saw a car beside Lowes Foods grocery store inching forward with the brake lights blinking. Officer Kirkman pulled in behind the car to run the license plate number, and the car drove off. Officer Kirkman learned that the car was registered to Defendant.
Shortly thereafter, at 2:46 a.m., an alarm went off at the Lowes Foods store. As Officer Kirkman drove back toward Lowes Foods, he saw Defendant walking less than a block from Lowes Foods. Officer Kirkman stopped to question Defendant and eventually placed Defendant in handcuffs and took him back to Lowes Foods.
At Lowes Foods, Officer Kirkman and other police officers discovered that someone had apparently used a large rock to break the glass at the front door. There were mud stains in the broken glass at the front of the store leading from the broken glass to the cigarette room. Additionally, police officers could see that someone had kicked in the door to the cigarette room. At least forty cartons and several individual packs of cigarettes were stolen from the cigarette room, which the police later found in a black plastic bag near Lowes Foods. Officer Kirkman was asked to check Defendant's shoes for mud, and he saw mud on his shoes. Police officers later seized Defendant's boots, knit cap, and hoodie, which tended to match the clothing worn by the person on Lowes Foods' security video.
Defendant was charged with felony breaking and entering, misdemeanor larceny, injury to real property, and attaining the status of habitual felon. At trial, the jury convicted Defendant on all charges, and Defendant admitted his status as an habitual felon. On 17 March 2011, the trial court entered a judgment sentencing Defendant to 120 to 153 months imprisonment. In addition, the trial court ordered Defendant pay restitution in the amount of $790.28 to Lowes Food. Defendant appeals from this judgment and order.
II. Motion to Continue
Defendant first contends the trial court erred by denying his motion to continue because the State provided insufficient notice of its intent to use an expert witness to analyze the glass fragments found in Defendant's shoes. We disagree.
Defendant also contends the denial of his motion to dismiss violated his constitutional right to effective assistance of counsel. However, we will not address this constitutional argument because Defendant failed to raise it before the trial court. See State v. Williams, 355 N.C. 501, 528, 565 S.E.2d 609, 625 (2002) (stating that “[c]onstitutional issues not raised and passed upon at trial will not be considered for the first time on appeal”) (citations omitted), cert. denied,537 U.S. 1125, 123 S.Ct. 894, 154 L.Ed.2d 808 (2003).
“Ordinarily, a motion to continue is addressed to the discretion of the trial court, and absent a gross abuse of that discretion, the trial court's ruling is not subject to review.” State v. Taylor, 354 N.C. 28, 33, 550 S.E.2d 141, 146 (2001) (citation omitted), cert. denied, 535 U.S. 934, 122 S.Ct. 1312, 152 L.Ed.2d 221 (2002). Denial of a motion for a continuance is “grounds for a new trial only upon a showing by defendant that the denial was erroneous and that his case was prejudiced thereby.” State v. Searles, 304 N.C. 149, 153, 282 S.E.2d 430, 433 (1981) (citations omitted).
In this case, the prosecutor stated that on 8 March 2011, he again looked at the physical evidence in the case, including Defendant's shoes, and decided to have the State Bureau of Investigation (“SBI”) analyze the shoes to determine if the fragments in the shoes were glass. The prosecutor notified Defendant's attorney on that day and gave him “a CV for the SBI analyst that would be doing the work.” When the prosecutor received the SBI laboratory report on 10 March 2011, he immediately gave Defendant's attorney a copy of the report. Defendant's trial began on 14 March 2011.
Assuming arguendo the State failed to provide Defendant with sufficient notice of its intent to call an expert witness within a reasonable time prior to trial, see State v. Cook, 362 N.C. 285, 292, 661 S.E.2d 874, 878 (2008) (holding that the State's disclosure of its expert's name, curriculum vitae, and written report on the Friday afternoon before the Monday on which the defendant's trial was to begin “was not within a reasonable time prior to trial as required by N.C.G.S. § 15A903 (a)(2)”), Defendant has not shown that he would have been better prepared had the motion to continue been granted or that he was prejudiced by the denial of his motion. See State v. Bethea, 173 N.C.App. 43, 49, 617 S.E.2d 687, 691–92 (2005) (concluding that “the trial court did not abuse its discretion in denying defendant's motion to continue, as there was no evidence presented to show how defendant would have been better prepared had the continuance been granted or that he was materially prejudiced by the denial of his motion”) (quotation and quotation marks omitted).
Although Defendant argues in his appellate brief that he did not “have the opportunity to consult with someone similarly trained” or to rebut the State's expert's testimony, he did not make this argument, or give any other explanation as to why he needed more time to prepare, before the trial court. Moreover, Defendant has not shown he was prejudiced by the denial of his motion to continue. At trial, Defendant merely argued the untimely submission of discovery “places an undue burden [on] and unnecessarily prejudices” Defendant. Similarly, on appeal Defendant states only that “the full extent of the prejudice he suffered by his attorney's inability to prepare to rebut that testimony cannot be known.” Accordingly, we conclude the trial court did not abuse its discretion in denying Defendant's motion to continue.
III. Restitution
Defendant next contends the trial court erred by ordering him to pay restitution to Lowes Foods for the broken glass because there was insufficient evidence to support the restitution amount. We agree.
“[W]e review de novo whether the restitution order was supported by evidence adduced at trial or at sentencing.” State v. Wright, –––N.C.App. ––––, ––––, 711 S.E.2d 797, 801 (quotation omitted), disc. review denied,––– N.C. ––––, 717 S.E .2d 743 (2011). “The amount of restitution must be limited to that supported by the record[.]” N.C. Gen.Stat. § 15A–1340.36 (2011). “In the absence of an agreement or stipulation between defendant and the State, evidence must be presented in support of an award of restitution.” State v. Buchanan, 108 N.C.App. 338, 341, 423 S .E.2d 819, 821 (1992). “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) (quotation and quotation marks omitted). “Unsworn statements made by the prosecutor are insufficient to support the amount of restitution ordered.” Wright, ––– N.C.App. at ––––, 711 S.E.2d at 801 (citation omitted).
In this case, the only evidence presented at trial regarding the cost of the broken glass was an unsworn statement by the prosecutor. However, the State contends Defendant stipulated to the restitution amount based on the following colloquy:
MR. NADOLSKI: And does he stipulate to restitution in this matter in the amount of $790.28 payable to Lowes Foods?
MR. KENAN: I don't think any evidence of an amount was submitted.
MR. NADOLSKI: It's for the glass. I don't think they
MR. KENAN: There was no restitution brought up.
THE COURT: Well, they can put on evidence of the restitution if they like. It's going to be a judgment and it would have expired probably by the time he gets out.
MR. KENAN: You want to go forward with that, too?
MR. NADOLSKI: No. What I have, Your Honor, is obviously the victim is not here but filled out a victim impact statement where he said $790.28 for damages, not for the cigarettes, but these losses are for repairs to the front door and security room as well as the labor charge. You can see from the pictures that the door was physically broken off the hinges and that the glass door was broken. And we also have statements that they prepared for us from Alamance Glass Door Repair. I don't know—I really don't know if that's an issue because I think it's—but the State wants to present it because the victim has been victimized and they're out money.
We note that it does not appear from the trial transcript that the victim impact statement or statements from Alamance Glass Door Repair were admitted as exhibits at trial. Nor are these documents part of the record on appeal.
THE COURT: Mr. Kenan, I've got these 12 jurors locked up back there.
MR. KENAN: We'll do what we said we're going to do, Your Honor. He['s] admitting the status of habitual felon.
THE COURT: Well, I've got to enter a judgment. One of the things the State has the right to ask for which is restitution which is a lot less than what was taken.
MR. KENAN: Yes, sir.
THE COURT: All right. So you stipulate to restitution in the amount of $790.22. That will be a judgment so it will be
MR. NADOLSKI: 28 cents.
THE COURT: 28 cents. All right. All right.
Later, after announcing Defendant's sentence, the trial court made the following statement: “[Defendant] is further ordered to pay as restitution the amount of $790.28. Anybody have anything else they want to add?” In response, defense counsel said nothing about restitution, but instead asked the trial court about the length of Defendant's sentence.
We cannot agree with the State that defense counsel's above quoted statements amount to a “definite and certain” stipulation. See Mumford, 364 N.C. at 403, 699 S.E.2d at 917. When initially asked by counsel for the State if Defendant would stipulate to the restitution amount, defense counsel stated, “I don't think any evidence of an amount was submitted.” Later, defense counsel reiterated that Defendant was “admitting the status of habitual felon[,]” but he did not state that Defendant was stipulating to the restitution amount. Finally, when asked by the trial court if Defendant would stipulate to the restitution amount, defense counsel did not respond. Although defense counsel did not object to the restitution amount, we cannot construe his silence as a “definite and certain” stipulation. See State v. Smith, –––N.C.App. –––, –––, 707 S.E.2d 779, 783 (2011) (“We do not consider Defendant's silence or lack of objection to the restitution amount to constitute a ‘definite and certain’ stipulation as required by North Carolina law.”) (citation omitted). Accordingly, we vacate the trial court's order of $790.28 in restitution to Lowes Foods.
Although we vacate the restitution order due to insufficient evidence to support the restitution amount, we note that both Defendant and the State agree the trial court erred by ordering restitution as a civil judgment against Defendant. N.C. Gen.Stat. § 15A–1340.34(b) (2011) states that “[i]f the defendant is being sentenced for an offense for which the victim is entitled to restitution under Article 46 of this Chapter [the Crime Victims' Rights Act], the court shall ... require that the defendant make restitution to the victim[.]” N.C. Gen.Stat. § 15A–1340.38(b) (2011) authorizes a trial court to order restitution under N.C. Gen.Stat. § 15A–1340.34(b) as a civil judgment. Id. (“The order for restitution under G.S. 15A–1340.34(b) shall be docketed and indexed in the county of the original conviction in the same manner as a civil judgment”). Here, Defendant was not convicted of a crime which entitles a “victim” to restitution under the Crime Victims' Rights Act. SeeN.C. Gen.Stat. § 15A–830(a)(7) (2011) (defining “victim” for purposes of the Crime Victims' Rights Act as “[a] person against whom there is probable cause to believe” one of the listed crimes was committed). Thus, we agree the trial court did not have authority pursuant to N.C. Gen.Stat. § 15A–1340.38(b) to docket the restitution against Defendant as a civil judgment.
NO ERROR. Judges HUNTER and McCULLOUGH concur.
Report per Rule 30(e).