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No. COA10-1256 TWENTY-SIXTH JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINA)
)
v.)FromMecklenburg
)
JEFFREY LAMONT PHIFER,)
Defendant.)
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DEFENDANT APPELLANT’S BRIEF
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INDEX
ISSUE PRESENTED...... 1
STATEMENT OF THE CASE...... 2
STATEMENT OF THE FACTS...... 3
STATEMENT OF GROUNDS FOR APPELLATE REVIEW...... 6
ARGUMENT
1. The trial court erred in denying Mr. Phifer’s motion to dismiss the felony charges against him because there was insufficient evidence that the air conditioner condenser was worth more than $1000.00 6
CONCLUSION...... 11
SIGNATURE OF COUNSEL...... 11
CERTIFICATE OF FILING AND SERVICE...... 11
TABLE OF AUTHORITIES
Cases
Maintenance Equipment Co., Inc. v. Godley Builders, 107 N.C. App. 343, 420 S.E.2d 199 (1992), disc. rev. denied, 333 N.C. 345, 426 S.E.2d 707 (1993) - 9 -
State v. Call, 349 N.C. 382, 508 S.E.2d 496 (1996), appeal afterremand,353 N.C. 400, 545 S.E.2d 190, cert. denied, 534 U.S. 1046 (2001) - 6 -
State v. Cobb, 150 N.C. App. 31, 563 S.E.2d 600, disc. rev. denied, 556 N.C. 169, 568 S.E.2d 618 (2002) - 9 -
State v. Hinton, 155 N.C. App. 561, 573 S.E.2d 609 (2002)...- 6 -
State v. Malloy, 309 N.C. 176, 305 S.E.2d 718 (1983)...... - 7 -
State v. McLaurin, 320 N.C. 143, 356 S.E.2d 636 (1987) - 6 -, - 10 -
State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980)...... - 7 -
Williams v. Chrysler-Plymouth, Inc., 48 N.C. App. 308, 269 S.E.2d 184, disc. rev. denied, 301 N.C. 406, 273 S.E.2d 451 (1980) - 9 -
Statutes
N.C. Gen. Stat. § 7A-27...... - 6 -
N.C. Gen. Stat. § 14-71.1...... - 7 -
N.C. Gen. Stat. § 14-72...... - 7 -
N.C. Gen. Stat. § 15A-1442...... - 6 -
N.C. Gen. Stat. § 15A-1444...... - 6 -
N.C. Gen. Stat. § 15A-1446...... - 6 -
N.C. Gen. Stat. § 15A-1447 (c)...... - 11 -
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No. COA10-1256 TWENTY-SIXTH JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINA)
)
v.)FromMecklenburgCounty
)
JEFFREY LAMONT PHIFER,)
Defendant.)
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DEFENDANT APPELLANT’S BRIEF
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ISSUE Presented
Whether the trial court erred in denying Mr. Phifer’s motion to dismiss the felony charges against him because there was insufficient evidence that the air conditioning condenser was worth more than $1000.00?
Statement of the Case
Jeffrey Lamont Phifer was indicted for felony larceny, felony possession of stolen goods and resisting arrest on November 17, 2008. The grand jury also returned an indictment on January 12 2009 against Mr. Phifer for having attained the status of a habitual felon. (R pp 3-8, 13-15)
Mr. Phifer’s cases were tried before the Honorable Beverly Beal at the May 24, 2010 Criminal Session of Mecklenburg County Superior Court. On May 25, 2010, the jury found Mr. Phifer guilty of all of his substantive charges. Mr. Phifer then stipulated that he had attained the status of a habitual felon and entered into a plea transcript. Judge Beal arrested judgment on the felony larceny conviction. (R pp 40-44, 57; T p 114, l.25 to T p 122, l.5; T p 127, ll. 1-3))
On May 25, 2010, Judge Beal sentenced Mr. Phifer in the presumptive range for Level IV for a habitual felon of 127 to 162 months in the Department of Corrections. He further sentenced Mr. Phifer to 60 days in the Department of Corrections on the misdemeanor conviction of resisting an officer. Judge Beal ordered that this sentence run concurrently with the habitual felon sentence. (R pp 58-59, 61-62, T p 127, ll. 4-24)
Mr. Phifer gave oral notice of appeal in open court on May 25, 2010. (T p 128, ll. 16-17) Appellate entries were entered on May 25, 2010. The transcript order was mailed to the court reporter on May 31, 2010. (R pp 63-64)
The Appellate Defender appointed appellate counsel for Mr. Phifer on June 3, 2010. (R p 65) The transcript was e-mailed to the parties on August 2, 2010. (R p 66)
The proposed record on appeal was mailed on September 7, 2010. (R p 68) The record on appeal was settled by stipulation. (R p 69) The record on appeal was mailed on October 6, 2010, filed on October 8, 2010, and docketed on October 14, 2010. (R pp 1, 70) The printed record was mailed to the parties on October 19, 2010. On November 18, 2010, this Court extended the time for Mr. Phifer to file his brief until December 20, 2010.
Statement of the Facts
On October 28, 2008, Jeffrey Lamont Phifer found a ride from his home in Statesville down to Charlotte to visit his daughter. His friends gave him a ride from Statesville to the corner of Statesville Avenue and Oaklawn in Charlotte. Mr. Phifer planned to try to catch the last bus there that would take him to his daughter’s home so he could visit his young grandbaby. (T p 60, ll. 18-24; T p 62, l.15 to p 63, l.14; T p 65, ll. 8-21)
Once his friends let him out, Mr. Phifer noticed a truck in a church parking lot. He thought it looked like his sister’s truck. Mr. Phifer walked over and saw that one of the people near the truck, Tony, used to talk to his sister. When Mr. Phifer asked what was going on, Tony said he was taking care of business. (T p 63, ll. 15-25)
Mr. Phifer asked Tony if he had permission to have the vehicle. Tony did not really respond, so Mr. Phifer decided to take the truck back to the rightful owner. When Mr. Phifer told Tony what he planned to do, Tony hopped in the passenger seat as Mr. Phifer got in the driver’s seat. (T p 64, ll. 2-20)
As Mr. Phifer was pulling out of the church parking lot to return the truck, he became startled when he noticed a police car behind him. Mr. Phifer accidentally hit the accelerator. He hit a pole, jumped out and ran. Mr. Phifer wanted to get as far away from Tony as he could because he did not know what Tony might have had on him, such as a gun. Tony also ran. (T p 64, l.22 to p 65, l.7; T p 72, ll. 3-15)
The police officer chased only after the driver and soon arrested Mr. Phifer. No one else was arrested. Mr. Phifer testified that when he saw Tony, he noticed only the front of the truck. He did not notice anything in the back of the truck. (T p 26, ll. 3-7; T p 29, ll. 3-13; T p 68, ll. 19-23)
The officer who arrested Mr. Phifer, Caleb Comis, had been driving patrol when he noticed a dark pick-up truck with no lights moving through the church parking lot. He saw something in the bed of the truck. After he arrested Mr. Phifer, Officer Comis discovered that there was an air conditioner condenser in the back of the pick-up truck. When he walked around the church, he saw that the air conditioning unit was missing its condenser. The air conditioning unit itself was still at the church. (T p 25, l.2 to p 29, l.20)
Claude Campbell served on the Board of Trustees of the FirstBaptistChurch located on Oaklawn Avenue in Charlotte. He testified that he did not give Mr. Phifer permission to take anything in 2008. Mr. Campbell further testified that he got two estimates to fix the entire air conditioner unit– one was for $12,604 and the other was for $8462. Mr. Campbell testified that the church replaced the entire air conditioning unit and not just the condenser. He testifiedin response to a direct question that he believed the condenser was worth more than $1000.00. Mr. Campbell also did not know how much the church actually paid to replace the entire air conditioning unit because he did not handle that. (T p 18, l.24 to p 23, l.8)
Officer Comis ran the tag on the truck and discovered that it belonged to Mr. Phifer’s mother. (T p 30, ll. 2-6)
Mr. Phifer testified that he took Haldol and Cogenta for his schizophrenia and bipolar disorders. He testified that he had taken medications for a very long time. (T p 61, ll. 5-23)
During the jury’s deliberations, the jury asked questions about how much the church paid to fix or replace the air conditioning unit. The jury wanted to see any documents showing the estimates the church received. The trial court instructed the jury to rely on its recollection. (T p 99, l.1 to p 102, l.20)
STATEMENT OF GROUNDS FOR APPELLATE REVIEW
Mr. Phifer appeals his convictions as a matter of right from his conviction after a jury trial in Superior Court. N.C. Gen. Stat. §§ 7A-27(b); N.C. Gen. Stat. § 15A-1442; N.C. Gen. Stat. § 15A-1444(a); and N.C. Gen. Stat. § 15A-1446(a) and (d).
Argument
I.THE TRIAL COURT ERRED IN DENYING MR. PHIFER’S MOTION TO DISMISS THE FELONY CHARGES AGAINST HIM BECAUSE THERE WAS INSUFFICIENT EVIDENCE THAT THE AIR CONDITIONER CONDENSER WAS WORTH MORE THAN $1000.00.
Standard of Review: In deciding whether to dismiss a charge due to the insufficiency of the evidence to support a conviction, the trial court determines whether the State has presented “substantial evidence of each element of the crime and that the defendant is the perpetrator.” State v. Call, 349 N.C. 382, 417, 508 S.E.2d 496, 518 (1996), appealafterremand,353 N.C. 400, 545 S.E.2d 190, cert.denied, 534 U.S. 1046 (2001). Substantial evidence “is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. McLaurin, 320 N.C. 143, 146, 356 S.E.2d 636, 638 (1987). The trial court must consider all evidence in the light most favorable to the State. State v. Hinton, 155 N.C. App. 561, 573 S.E.2d 609 (2002).
Evidence is not substantial if it arouses only a suspicion about the fact to be proved, even if the suspicion is strong. State v. Malloy, 309 N.C. 176, 305 S.E.2d 718 (1983). If the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, the defendant’s motion to dismiss must be allowed. State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980).
For larceny and possession of stolen goods to be felonies, the State must prove that the property in question was worth more than $1000.00. N.C. Gen. Stat. §§ 14-72 and 14-71.1. Because the State failed to prove that the value of the air conditioner condenser was worth more than $1000.00, the trial court erred in denying Mr. Phifer’s motions to dismiss those charges against him. (T p 47, l.14 to p 48, l.22; T p 74, ll. 2-13)
The State’sevidence that the air conditioner condenser was worth more than $1000 was insufficient to withstand Mr. Phifer’s motion to dismiss. The only evidence offered at all regarding value camefrom Mr. Campbell. Although Mr. Campbell had served as a trustee at the church for 30 years, there was no evidence as to what experience, knowledge or familiarity, if any, that role gave him with the maintenance aspects of the church in general or the air conditioning unit and condenser in particular. Mr. Campbell specifically testified that he was not responsible for handling this matter for the church and that the man who had been responsible for handling the air conditioner was no longer around. (T p 19, ll. 2-8, T p 21, ll. 3-9; T p 22, ll. 2-6)
In addition to not being the person at the church responsible for this matter, Mr. Campbell seemed to confuse the damage from having the condenser removed from the air conditioning unit with the replacement of the entire air conditioning unit. Mr. Campbell testified that he saw the air conditioning unit about 2 days after the incident. He further testified about how “they took apart the air conditioner in the inside. Then they came back and got the outside, the other part. The case was completely removed.” (T p 21, l.24 to p 21, l.4; T p 22, ll. 7-24) Because only the air conditioning condenser was removed, not the entire air conditioning unit, it appears Mr. Campbell was testifying about how the church replaced the entire unit after the condenser had been removed.
Mr. Campbell’s confusion tainted his statement about the value of the condenser as well. Although Mr. Campbell responded affirmatively when asked directly whether the value of the condenser was over $1000.00, it appears he was testifying about the value of the entire air conditioning unit, not the condenser alone. Mr. Campbell testified that the church received two estimates to replace the entire air conditioning unit. He did not offer any evidence regarding the cost of repairing or replacing just the condenser itself. He offered no estimate regarding the value of the condenser alone.
Mr. Campbell further testified that the church did not replace just the condenser, but replaced the entire air conditioning unit. Mr. Campbell did not even know how much the church actually paid to replace the entire air conditioning unit. He never testified about the estimate or actual cost to replace or repair just the condenser. Any testimony from Mr. Campbell regarding cost or value related to entire air conditioning unit – not the condenser that was taken.
A “non-expert witness who has knowledge of value gained from experience, information, and observation may give his opinion of the value of personal property." Williams v. Chrysler-Plymouth, Inc.,48 N.C. App. 308, 317, 269 S.E.2d 184, 190, disc. rev. denied, 301 N.C. 406, 273 S.E.2d 451 (1980)(holding that owner’s opinion regarding value was supported when the owner had the vehicle for 26 months, drove it for 40,000 miles, and was able to discuss at length the vibration problem with the vehicle). SeealsoMaintenance Equipment Co., Inc. v. Godley Builders,107 N.C. App. 343, 355, 420 S.E.2d 199, 206 (1992), disc. rev. denied, 333 N.C. 345, 426 S.E.2d 707 (1993)(holding that the testimony of the former and current presidents of company who were familiar with each item of personal property that was lost was sufficient to support value). The weight, if any, to be given to the opinion as to value is for the trier-of-fact to determine. Id.
In State v. Cobb, 150 N.C. App. 31, 36, 563 S.E.2d 600, 605, disc. rev. denied, 556 N.C. 169, 568 S.E.2d 618 (2002), this Court held thata lab technician's experience and close personal observation of the victim's vehicle, coupled with the victim’s wife’s testimony regarding how meticulously the victim maintained the vehicle, supported the lab technician’s opinion that the vehicle’s value was over $1000.00.
Mr. Campbell’s lack of qualification and familiarity with the air conditioning unit or condenser stands in stark contrast with the type of testimony this Court has previously found to be sufficient. He testified that he did not handle this matter at all for the church. He offered no testimony regarding his experience with the air conditioner or with any of the maintenance aspects of the church. Although Mr. Campbell had served as a trustee for a number of years, there was nothing about that role or about his personal experience, information or observations alone to support his bare statement that the condenser was worth more than $1000.
Mr. Campbell’s testimony fell short of what a “reasonable mind might accept as adequate to support a conclusion”. McLaurin at 146, 356 S.E.2d at 638. Because his testimony was the only evidence the State offered with regard to the value elements of felony larceny and felony possession of stolen goods, the State fell short of meeting its burden of proof. Therefore, the trial court erred in denying Mr. Phifer’s motion to dismiss.
Conclusion
Mr. Phifer respectfully requests that this Court reverse the judgment against him and dismiss the felony larceny and felony possession of stolen goods charges against him because the evidence against him was insufficient as a matter of law. N.C. Gen. Stat. § 15A-1447 (c). Because the State failed to meet its burden to prove any felony offenses against Mr. Phifer, he requests that his subsequent admission to habitual felon status and judgment be vacated.
Respectfully submitted this the 20th day of December, 2010.
_s/Charlotte Gail Blake______
Charlotte Gail BlakeAttorney at Law
PO Box 1609, 329 S. Main Street
Jefferson, NC 28640
(336) 246-2544 phone/fax
N.C. State Bar No. 15482
ATTORNEY FOR JEFFERY LAMONT PHIFER
CERTIFICATE OF FILING AND SERVICE
I hereby certify that the original Defendant Appellant’s Brief has been filed electronically pursuant to Rule 26.
I further hereby certify that a copy of the above and foregoing Defendant Appellant’s Brief has been duly served upon Elizabeth Leonard McKay, Special DeputyAttorney General, North Carolina Department of Justice, by first class mail, postage prepaid at 1505 MailServiceCenter, Raleigh, NC 27699-1505.
This the 20th day of December, 2010.
s/Charlotte Gail Blake___
Charlotte Gail Blake
Attorney at Law