{ "id": 8900225, "name": "STATE OF NORTH CAROLINA v. MICHAEL EUGENE FREEMAN", "name_abbreviation": "State v. Freeman", "decision_date": "2004-06-01", "docket_number": "No. COA03-878", "first_page": "673", "last_page": "680", "citations": [ { "type": "official", "cite": "164 N.C. App. 673" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "338 S.E.2d 99", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "315 N.C. 371", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4717740 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/315/0371-01" ] }, { "cite": "338 S.E.2d 557", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "78 N.C. App. 753", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524066 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/78/0753-01" ] }, { "cite": "341 S.E.2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1986, "pin_cites": [ { "page": "354", "parenthetical": "citing State v. Daye, 78 N.C. App. 753, 338 S.E.2d 557 (1986)" }, { "page": "354" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 190", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522655 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "195", "parenthetical": "citing State v. Daye, 78 N.C. App. 753, 338 S.E.2d 557 (1986)" }, { "page": "195" }, { "page": "195" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0190-01" ] }, { "cite": "298 S.E.2d 380", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "307 N.C. 438", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562658 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0438-01" ] }, { "cite": "483 S.E.2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "parenthetical": "citing Shew v. Southern Fire & Casualty Co., 307 N.C. 438, 298 S.E.2d 380 (1983)" } ], "opinion_index": 0 }, { "cite": "392 S.E.2d 625", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "626" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 184", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521639 ], "year": 1990, "pin_cites": [ { "page": "186-87" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0184-01" ] }, { "cite": "570 S.E.2d 262", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "266" }, { "page": "266" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 455", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250387 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "460" }, { "page": "461" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0455-01" ] }, { "cite": "143 L. Ed. 2d 1036", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1999, "opinion_index": 0 }, { "cite": "526 U.S. 1147", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11211492, 11211525, 11211430, 11211835, 11211690, 11212171, 11211212, 11212111, 11211570, 11211635, 11212021, 11211349, 11211735, 11211896, 11211259 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/us/526/1147-05", "/us/526/1147-06", "/us/526/1147-04", "/us/526/1147-11", "/us/526/1147-09", "/us/526/1147-15", "/us/526/1147-01", "/us/526/1147-14", "/us/526/1147-07", "/us/526/1147-08", "/us/526/1147-13", "/us/526/1147-03", "/us/526/1147-10", "/us/526/1147-12", "/us/526/1147-02" ] }, { "cite": "505 S.E.2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "109" } ], "opinion_index": 0 }, { "cite": "349 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571552 ], "year": 1998, "pin_cites": [ { "page": "81" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0062-01" ] }, { "cite": "462 S.E.2d 492", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1995, "pin_cites": [ { "page": "504" }, { "page": "504", "parenthetical": "Our Supreme Court declined to apply plain error when defendant failed to renew motion to dismiss and preserve issue for review pursuant to N.C.R. App. P. 10(b)(3)" } ], "opinion_index": 0 }, { "cite": "341 N.C. 658", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793180 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "676-77" }, { "page": "676-77" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0658-01" ] } ], "analysis": { "cardinality": 657, "char_count": 14686, "ocr_confidence": 0.746, "pagerank": { "raw": 9.203756253408365e-08, "percentile": 0.5097588701117324 }, "sha256": "2b15b774c5713cd385abe86e4f2eaae5601329926c8916b4d2a9eabfa0a4a8f8", "simhash": "1:876964745f7afcd7", "word_count": 2445 }, "last_updated": "2023-07-14T17:15:16.246957+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and TIMMONS-GOODSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. MICHAEL EUGENE FREEMAN" ], "opinions": [ { "text": "TYSON, Judge.\nMichael Eugene Freeman (\u201cdefendant\u201d) appeals from judgment entered after a jury found him to be guilty of misdemeanor cutting, injuring, or removing another\u2019s timber. Defendant was sentenced to imprisonment for 120 days. The trial court suspended this sentence and placed defendant on probation for sixty months. As part of the judgment, defendant was ordered to pay restitution in the amount of $12,837.00 to Billy Cain (\u201cCain\u201d). We find no error at trial and affirm the judgment ordering restitution.\nI. Background\nDuring November and December 1999, defendant was employed as a logger with Ross Logging Company, owned by Riley Ross (\u201cRoss\u201d). In November 1999, Ross contracted with Elvin Simmons (\u201cSimmons\u201d) to cut and remove timber from his property. Ross hired Canal Wood Company to remove the timber, sell it, and pay Simmons the proceeds. Simmons was obligated to pay Ross Logging Company. The project was completed in late December 1999. Ross and Simmons testified that trees on adjoining properties were left when the Simmons\u2019s job was completed.\nSteven Shaffer (\u201cShaffer\u201d) testified that his grandmother lived down the road from Simmons\u2019s and Cain\u2019s properties, although none of these individuals were personally acquainted. In late 1999 or early 2000, Shaffer observed several men, including defendant, and two trucks bearing the logo \u201cAll American Timber\u201d near his grandmother\u2019s property. Shaffer engaged in a conversation with defendant, who informed him that Simmons had permitted the men to cut trees. The men were there to identify, or \u201ctag,\u201d the trees to be cut. Shaffer requested defendant to remove some trees from his grandmother\u2019s property. Defendant gave Shaffer a business card with his name and phone number written on the back. The front of the card read, \u201cAll American Timber Company,\u201d which matched the name on the trucks.\nCain owns property adjoining Simmons\u2019s land. Prior to 1999, ninety-five percent (95%) of his land was covered by large, longleaf, southern yellow pine trees, with trunks up to twenty-four inches in diameter. In late 1999 or early 2000, Cain visited his property and observed that timber from approximately five acres of his land had been cut and removed. Cain spoke with neighbors, including Shaffer\u2019s grandmother, and learned that trees Shaffer saw being tagged were actually located on Cain\u2019s property. He called the Fayetteville Police Department and reported his trees had been cut.\nDefendant contacted Cain approximately five times by phone and two times in person after charges were filed against him. In the first telephone conversation with Cain, defendant admitted that he cut the timber, but contended that he acted at the direction of the company and was not personally responsible. A few weeks later, defendant called Cain and informed him that a \u201cMr. Riley\u201d had cut the timber. Six weeks later, defendant met with Cain. Cain provided defendant with an estimate of the stolen timber\u2019s value. Cain asked how much money defendant received from the timber. Defendant admitting cutting the timber and receiving payment for it, but could not remember the amount of money he had received. Cain testified that defendant\u2019s story changed from working/or Mr. Riley to working with Mr. Riley.\nDefendant asked Cain what amount of money he wanted. Cain replied that he would be satisfied if defendant paid for the value of the timber and reimburse him for the cost of obtaining the estimate. Defendant stated he would see what he could do about getting the money and left. Defendant later visited Cain\u2019s office and told Cain that he would pay for the timber but was trying to raise money. A few days after this visit, defendant called Cain again and stated that Cain had damaged his name and would sue Cain if he did not drop the charges. Cain told defendant never to contact him again and had no further contact with defendant until trial.\nThe jury found defendant to be guilty of cutting, injuring, or removing Cain\u2019s timber and the trial court proceeded to sentencing and restitution. The State offered two methods to determine the issue of damages. The first method involved Cain\u2019s testimony that he had sold a similar tract of land in 2002 that was slightly larger, measuring approximately 8.4 acres, and included 6.2 acres of cuttable timber. The second method was based on Cain\u2019s testimony that he hired a forestry agent who documented and estimated the value of the timber cut from Cain\u2019s land.\nThe trial court averaged the results of the two methods and ordered defendant to pay restitution in the amount of $12,337.00, plus the $500.00 Cain paid for the forestry report, for a total of $12,837.00. The trial court suspended defendant\u2019s sentence and placed defendant on probation for five years on the condition that he pay the restitution and costs of the action. Defendant appeals.\nII. Issues\nThe issues presented are whether the trial court erred in: (1) failing to dismiss the case and submitting the case to the jury; (2) failing to consider the factors set forth in N.C. Gen. Stat. \u00a7 15A-1340.35 by not measuring damages at the time and place of the alleged loss; and (3) speculating as to the amount of restitution due and whether defendant had the ability to pay.\nIII. Motion to Dismiss\nDefendant contends the State presented insufficient evidence to submit the charge of cutting, injuring, or removing another\u2019s timber to the jury. We disagree and dismiss this assignment of error.\nThe failure of a defendant to move to dismiss at the close of all the evidence bars him from raising this issue on appeal. State v. Richardson, 341 N.C. 658, 676-77, 462 S.E.2d 492, 504 (1995). Rule 10 of the North Carolina Rules of Appellate Procedure provides that \u201ca defendant in a criminal case may not assign as error the insufficiency of the evidence to prove the crime charged unless he moves to dismiss the action . . . .\u201d N.C.R. App. P. 10(b)(3) (2004). Further, \u201cif a defendant fails to move to dismiss the action... at the close of all the evidence, he may not challenge on appeal the sufficiency of the evidence to prove the crime charged.\u201d Id.\nHere, defendant failed to renew his motion to dismiss and waived appellate review of this issue. Defendant argues we should apply plain error review. Plain error, however, only applies to jury instructions and evidentiary matters in criminal cases. State v. Atkins, 349 N.C. 62, 81, 505 S.E.2d 97, 109 (1998), cert. denied, 526 U.S. 1147, 143 L. Ed. 2d 1036 (1999). While this is a criminal case, defendant\u2019s failure to renew his motion to dismiss does not trigger a plain error analysis. See Richardson, 341 N.C. at 676-77, 462 S.E.2d at 504 (Our Supreme Court declined to apply plain error when defendant failed to renew motion to dismiss and preserve issue for review pursuant to N.C.R. App. P. 10(b)(3)). This assignment of error is dismissed.\nIV. N.C. Gen. Stat \u00a7 15A-1340.35\nDefendant contends the trial court failed to consider the requirements of N.C. Gen. Stat. \u00a7 15A-1340.35 in ordering restitution. We disagree.\nThe trial court may order restitution as a condition of probation. State v. Canady, 153 N.C. App. 455, 460, 570 S.E.2d 262, 266 (2002); N.C. Gen. Stat. \u00a7 15A-1343(d) (2003). \u201cRestitution, imposed as a condition of probation, is not a legal obligation equivalent to a civil judgment, but rather an option which may be voluntarily exercised by the defendant for the purpose of avoiding the serving of an active sentence.\u201d State v. Smith, 99 N.C. App. 184, 186-87, 392 S.E.2d 625, 626 (1990), cert. denied, 483 S.E.2d 189 (1997) (citing Shew v. Southern Fire & Casualty Co., 307 N.C. 438, 298 S.E.2d 380 (1983)).\nThe amount of restitution ordered by the court must be supported by the evidence. State v. Hunt, 80 N.C. App. 190, 195, 341 S.E.2d 350, 354 (1986) (citing State v. Daye, 78 N.C. App. 753, 338 S.E.2d 557 (1986)); see also Canady, 153 N.C. App. at 461, 570 S.E.2d at 266. The trial court is not required to make specific findings of fact. Hunt, 80 N.C. App. at 195, 341 S.E.2d at 354 (citing State v. Hunter, 315 N.C. 371, 338 S.E.2d 99 (1986)). If there is \u201csome evidence as to the appropriate amount of restitution, the recommendation will not be overruled on appeal.\u201d Hunt, 80 N.C. App. at 195, 341 S.E.2d at 354.\n\u201cWhen restitution or reparation is a condition imposed, the court shall take into consideration the factors set out in G.S. 15A-1340.35 and G.S. 15A-1340.36.\u201d N.C. Gen. Stat. \u00a7 15A-1343(d) (2003). To determine the amount of restitution where the offense results in damage, loss, or destruction of a victim\u2019s property, and the return of that property is impossible, impractical, or inadequate, the trial court shall consider: \u201c(1) The value of the property on the date of the damage, loss, or destruction; or (2) The value of the property on the date of sentencing, less the value of any part of the property that is returned.\u201d N.C. Gen. Stat. \u00a7 15A-1340.35(a)(2); N.C. Gen. Stat. \u00a7 15A-1340.35(b)(l)-(2) (2003).\nHere, two methods were offered to determine the issue of damages at trial and during the sentencing hearing. The tract at bar was five acres, with approximately 4.6 acres of merchantable timber. Cain testified at trial that he had sold a similar, although slightly larger, tract of land with approximately 6.2 acres of cuttable timber in 2002. This tract contained large, longleaf, southern yellow pine trees that were \u201csubstantially similar\u201d to the timber removed from the tract at bar. During the sentencing hearing, Cain testified he received $15,000.00 from the sale. Using this evidence, the trial court calculated an amount of $11,129.00 for the 4.6 acres of timber cut from Cain\u2019s property.\nThe State also submitted at the sentencing hearing a report taken by a JMG Forestry agent (\u201cforestry report\u201d), which Cain had obtained in April 2000 as a result of discussions with defendant. The forestry report estimated the tract had a market value of approximately $13,545.00.\nDefendant was sentenced on 12 February 2003. The trial court valued the timber based on the forestry report estimating the value of the timber near the \u201cdate of the damage, loss, or destruction.\u201d N.C. Gen. Stat. \u00a7 15A-1340.35 (b)(1). The trial court also considered Cain\u2019s sale of similar property in 2002, near the date of sentencing. N.C. Gen. Stat. \u00a7 15A-1340.35 (b)(2). None of the timber was recovered, and the restitution does not credit any \u201cvalue of any part of the property that is returned.\u201d Id.\nThe trial court averaged the value it calculated from Cain\u2019s testimony and the value set forth in the forestry report. The trial court ordered restitution in the amount of $12,837.00, including $500.00 Cain had paid to obtain the forestry report. The trial court did not err in averaging the two values, which were both supported by evidence and authorized under N.C. Gen. Stat. \u00a7 15A-1340.35, and ordering the averaged amount as restitution. This assignment of error is overruled.\nV. Ability to Pav Restitution\nDefendant contends the trial court erred in failing to consider his ability to pay the amount of restitution due under the order. We disagree and dismiss this assignment of error.\n\u201c[T]he scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal-\u201d N.C.R. App. P. 10(a) (2004). Further, \u201c[i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection, or motion ...N.C.R. App. P. 10(b) (2004).\nHere, defendant did not identify within his assignments of error contained in the record that the trial court failed to consider his ability to pay the ordered restitution. Defendant did not object to the trial court\u2019s ruling by arguing that defendant could not pay the $214.00 monthly payment over five years. Defendant failed to object when the trial court conducted an inquiry regarding whether defendant intended to pay the ordered amount:\nThe Court: Look me in the eyes, Mr. Freeman. Do you plan to pay this money back at about \u2014 its going to be just a little better than $200.00 a month. Do you plan to pay it back?\nThe Defendant: If I have to.\nThe Court: You have to.\nThe Defendant: Okay.\nThe Court: The other alternative ... is going to prison.\nThe Defendant: Right. That\u2019s right.\nDefendant has waived appellate review of this argument. See N.C.R. App. P. 10 (2004). Additionally, defendant testified at trial that he worked all his life as a logger, had owned his own logging business with his father, and was currently employed. Defendant presents no argument on appeal of his inability to pay the ordered amount. This assignment of error is dismissed.\nVI. Conclusion\nDefendant failed to renew his motion to dismiss at the close of all evidence and to assign error to the trial court\u2019s ruling that he had the ability to pay the restitution amount. We dismiss these arguments pursuant to the North Carolina Rules of Appellate Procedure. See N.C.R. App. P. 10. In ordering restitution, the trial court properly considered the requirements set forth in N.C. Gen. Stat. \u00a7 15A-1340.35. We hold that defendant received a trial free from error. The trial court\u2019s order setting the restitution amount is affirmed.\nNo Error.\nJudges McGEE and TIMMONS-GOODSON concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Donna B. Wojcik, for the State.", "Mark A. Key and Penny K. Bell, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MICHAEL EUGENE FREEMAN\nNo. COA03-878\n(Filed 1 June 2004)\n1. Appeal and Error\u2014 preservation of issues \u2014 sufficiency of evidence \u2014 failure to move to dismiss\nDefendant\u2019s failure to move to dismiss a charge of cutting another\u2019s timber at the close of all the evidence barred defendant from raising the issue on appeal. Moreover, plain error only applies to jury instructions and evidentiary matters in criminal cases.\n2. Probation and Parole\u2014 restitution \u2014 cutting timber \u2014 values from forestry report and sales of similar property \u2014 averaged\nThe trial court did not err when determining restitution as a condition of probation for cutting another\u2019s timber by averaging the values from a forestry report and from the owner\u2019s sale of similar property. The values were both supported by evidence and authorized under N.C.G.S. \u00a7 15A-1340.35.\n3. Appeal and Error\u2014 preservation of issues \u2014 failure to assign error \u2014 no objection at trial\nDefendant\u2019s failure to assign error or object at trial waived the question of whether the court erred by not considering his ability to pay restitution.\nAppeal by defendant from judgment entered 13 February 2003 by Judge Gary L. Locklear in Cumberland County Superior Court. Heard in the Court of Appeals 21 April 2004.\nAttorney General Roy Cooper, by Assistant Attorney General Donna B. Wojcik, for the State.\nMark A. Key and Penny K. Bell, for defendant-appellant." }, "file_name": "0673-01", "first_page_order": 705, "last_page_order": 712 }