State v. Sanford

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-890
NORTH CAROLINA COURT OF APPEALS

Filed: 21 January 2014

STATE OF NORTH CAROLINA

v. Mecklenburg County
Nos. 11 CRS 55572–73
ELIZIAH SANFORD

Appeal by defendant from judgment entered 3 April 2012 by

Judge W. Robert Bell in Mecklenburg County Superior Court.

Heard in the Court of Appeals 30 December 2013.

Attorney General Roy Cooper, by Assistant Attorney General
Kimberly A. D’Arruda, for the State.

William B. Gibson for defendant-appellant.

HUNTER, JR., Robert N., Judge.

A jury found defendant guilty of felonious larceny and

felonious possession of stolen goods, whereupon he pled guilty

to attaining habitual felon status. The trial court arrested

judgment on the possession of stolen goods charge and sentenced

defendant to an active prison term of 88 to 115 months.

Defendant gave notice of appeal in open court.
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Thaddeus Johnson, an employee of Norfolk Southern Railway

Company (“Norfolk Southern”), was approached by defendant while

working near an O-line switch in Charlotte on 30 June 2011.

Defendant asked Johnson about a pile of six switch heaters that

were lying approximately twenty feet from the tracks while

workers performed maintenance on the switch. The heaters were

ten feet in length and, when in use, were bolted to the side of

the tracks to keep snow and ice off the switches in cold

weather. Johnson described them as “piece[s] of pipe with holes

in them . . . [they] looked like a gas grill, but they’re real

long, and . . . square[.]” The heaters were connected by hoses

and piping to a propane tank.

Defendant asked Johnson if the switch heaters were “any

good,” to which he replied, “[O]h, yeah, they’re really good.

We’re using them. I mean, we’re going to put them back on our

switch sometime later in the week.” Johnson left the area for

approximately ninety minutes to have lunch. When he returned,

he saw that “defendant had another man in a pickup truck. They

were loading the rail heaters up and they w[ere] taking off.”

Defendant was in the truck bed holding the rail heaters, and his

associate was driving “north down a dirt road toward 36th
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Street.” Neither Johnson nor anyone at Norfolk Southern gave

defendant permission to take the switch heaters.

Johnson immediately reported the theft to track supervisor

Richard Snider, who in turn notified Special Agent Joseph Talley

of the Norfolk Southern Police Department. As Talley drove past

a metal recycling center between his office and 36th Street, he

spied a “pickup truck approaching the scales to load in what

appeared to be railroad switch heaters protruding from the

back[.]” Talley approached the truck and spoke to the driver,

Cornelius Penn. Defendant emerged from the scale house “where

you clock in and weigh in at the recycling center” and walked

over to the truck. Defendant told Talley they had obtained the

switch heaters “from the railroad tracks.” Talley directed

defendant and Penn to return the items to where they had found

them. Talley then contacted Snider and asked him to come to the

O-line switch, where Snider saw “a pickup truck there that had

switch heaters . . . in the back of it.” Still attached to the

heaters were “the brackets, the piping, the hoses. Everything

that is associated with them.” Although they had no serial

numbers or identifying marks, Snider identified the heaters as

“the same thing” Norfolk Southern used at the O-line switch.
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They were subsequently reinstalled and continued to work

properly at the time of defendant’s trial in April 2012.

Defendant first argues that the trial court erred in

denying his motion to dismiss the charges of felonious larceny

and felonious possession of stolen goods, absent substantial

evidence that the value of the property in question exceeded

$1,000. While conceding the State’s proof was sufficient to

establish the misdemeanor versions of larceny and possession of

stolen goods, defendant insists that State failed to establish

the fair market value of the used switch heaters at the time

they were stolen on 30 June 2011.

In order to overcome a motion to dismiss a charge of

felonious possession or felonious larceny of stolen goods under

N.C. Gen. Stat. §§ 14-71.1, 14-72(a) (2013), the State must

present substantial evidence that the defendant stole or

possessed personal property having a value of more than $1,000.

See State v. Owens, 160 N.C. App. 494, 500, 586 S.E.2d 519, 523–

24 (2003); State v. Jones, 151 N.C. App. 317, 327, 566 S.E.2d

112, 119 (2002). “What constitutes substantial evidence is a

question of law for the court. . . . Substantial evidence is

relevant evidence that a reasonable mind might accept as

adequate to support a conclusion.” State v. Olson, 330 N.C.
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557, 564, 411 S.E.2d 592, 595 (1992). For purposes of our

review, we “must examine the evidence in the light most

favorable to the State, and the State is entitled to every

reasonable inference and intendment that can be drawn

therefrom.” Id.

“The term ‘value’ as used in N.C. Gen. Stat. § 14-72, the

larceny statute, ‘means fair market value.’” State v. Dallas,

205 N.C. App. 216, 223, 695 S.E.2d 474, 479, (quoting State v.

Cotten, 2 N.C. App. 305, 311, 163 S.E.2d 100, 104 (1968)), disc.

review denied, 364 N.C. 604, 703 S.E.2d 737 (2010). “[I]n the

case of common articles having a market value,” value denotes

“the price which the subject of the larceny would bring in open

market . . . at the time and place of the theft, and in the

condition in which it was when the thief commenced the acts

culminating in the larceny.” State v. Dees, 14 N.C. App. 110,

112, 187 S.E.2d 433, 435 (1972) (internal citation and quotation

marks omitted). However, “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.” State v. Helms, 107 N.C. App. 237, 240, 418

S.E.2d 832, 833 (1992). “The State is not required to produce

direct evidence of value to support the conclusion that the
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stolen property was worth over $1,000.00, provided that the jury

is not left to speculate as to the value of the item.” State v.

Rahaman, 202 N.C. App. 36, 47, 688 S.E.2d 58, 66, disc. review

denied, 364 N.C. 246, 699 S.E.2d 642, abrogated in part by State

v. Tanner, 364 N.C. 229, 695 S.E.2d 97 (2010) (internal citation

and quotation marks omitted).

Defendant emphasizes that the State did not present direct

evidence of the present market value of the used switch heaters

and attachments as of 30 June 2011. Snider testified that “when

I order four of them, just the heaters themselves, they’re

around $2,000.” He did not know when Norfolk Southern had

purchased the heaters stolen by defendant; nor was there a

specific replacement schedule. According to Snider, “[s]ome of

them have to be replaced after five or six years, some of them

maybe less than that.” Asked to estimate “the value of all the

various attachments that came with the switch heaters[,]” he

averred that “it would be at least 2- or 3,000, 4,000, $5,000.”

See generally State v. Boone, 39 N.C. App. 218, 221, 249 S.E.2d

817, 820 (1978) (“The general rule in North Carolina is that a

witness who has knowledge of value gained from experience,

information and observation may give his opinion of the value of

specific personal property.”), modified on other grounds, 297
 -7-
N.C. 652, 256 S.E.2d 683 (1979). Special Agent Talley likewise

testified that he contacted Norfolk Southern’s supplier and

obtained a quote of $6,255.60 for “the same items” removed by

defendant on 30 June 2011.

The State’s proffer was sufficient to allow a reasonable

juror to find that the value of the stolen property exceeded

$1,000. Given evidence of a replacement cost in excess of

$6,000 and that the switch heaters continued to operate properly

ten months after the theft, the jury was not left merely to

speculate as to their value. See State v. Davis, 198 N.C. App.

146, 151–52, 678 S.E.2d 709, 714 (2009). Nor was there any

indication that used switch heaters and their accessories were

commonly traded such that their actual market value was readily

ascertainable. We note that, unlike the cases cited by

defendant, the trial court also instructed the jury on the

lesser included offenses of non-felonious possession of stolen

goods and larceny. E.g., State v. Morris, 318 N.C. 643, 646,

350 S.E.2d 91, 93 (1986) (“[T]he jury could have inferred from

this evidence that the fair market value of the tools was less

than their replacement cost, and also that it might well have

concluded that this value was not more than $[1,000]. Under

these circumstances, it was error for the trial judge not to
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have charged on misdemeanor larceny when properly

requested.”(emphasis added)). Accordingly, defendant’s argument

is overruled.

Defendant next claims the trial court abused its discretion

in failing to exclude State’s Exhibit 1 from evidence as a

sanction for untimely discovery. The State produced a CD

containing five photographs of the switch heaters, taken between

the date of the pretrial readiness conference and defendant’s

trial, depicting the devices in their operational position

attached to the tracks. During a recess in jury selection,

defense counsel objected to the photographs on the ground that

the prosecutor had failed to disclose them until the morning of

trial. See N.C. Gen. Stat. § 15A-903(a)(1)(d) (2013). The

prosecutor acknowledged that he inadvertently failed to attach

the photographs to an earlier email to defense counsel. After

hearing from the parties, the court allowed the State to use the

photographs to illustrate witness testimony. Defendant contends

that the introduction of the photographs amounted to an “ambush”

and that they portrayed the switch heaters to the jury as

“equipment worth considerably more than then fair market value

of the items recovered by Officer Talley on the day of

[d]efendant’s arrest.”
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The record on appeal includes a “stipulation” that "all

Exhibits introduced at trial are incorporated by reference into

this Record on Appeal and will be provided by the Clerk of

Superior Court of Mecklenburg County upon the request of either

party or the appellate Court.” As we have previously noted:

“It is the duty of the appellant to see that
the record is properly [prepared] and
transmitted.” Hill v. Hill, 13 N.C. App.
641, 642, 186 S.E.2d 665, 666 (1972). The
appellant also has the duty to ensure that
the record is complete and contains the
materials asserted to contain error. Pharr
v. Worley, 125 N.C. App. 136, 139, 479
S.E.2d 32, 34 (1997). Rule 9 of the North
Carolina Rules of Appellate Procedure
requires that “exhibit[s] offered in
evidence and required for understanding of
errors assigned shall be filed in the
appellate court.” N.C. R. App. P. 9(d)(2)
(2008).

State v. Hall, 187 N.C. App. 308, 324, 653 S.E.2d 200, 211–12

(2007) (first emphasis added). We have received no exhibits in

this case; nor is there any indication that defendant requested

the clerk of superior court to transmit the contested

photographs to this Court. Therefore, we are unable to examine

the photographs of the switch heaters to determine their

prejudicial impact, if any. See N.C. Gen. Stat. § 15A-1443(a)

(2013). We note that the trial court admitted the photographs
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solely for illustrative purposes and instructed the jury that

they could “not be considered by you for any other purpose.”

“[W]hether a party is issued sanctions for failure to

comply with discovery rules is in the discretion of the trial

court. . . . [The] discretionary rulings of the trial court

will not be disturbed on the issue of failure to make discovery

absent a showing of bad faith by the state in its noncompliance

with the discovery requirements.” State v. East, 345 N.C. 535,

552, 481 S.E.2d 652, 663–64 (1997) (internal quotation marks and

citation omitted). Absent any allegation or indicia of bad

faith by the prosecutor, we discern no abuse of discretion by

the trial court.

NO ERROR.

Chief Judge MARTIN and Judge DILLON concur.

Report per Rule 30(e).