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					NO. COA07-1413                                      TENTH DISTRICT




                   NORTH CAROLINA COURT OF APPEALS

                  *********************************

STATE OF NORTH CAROLINA       )
                              )         From Wake County
v.                            )         No. 06 CRS 85336
                              )
ERIC KENDALL PINDER,          )
          Defendant.          )

                 ***********************************
                     Defendant-Appellant’s Brief

                 ***********************************
                          QUESTION PRESENTED

     I.     WHETHER THE TRIAL COURT ERRED WHEN ORDERING
            DEFENDANT PAY RESTITUTION IN THE AMOUNT OF $37,355
            WHEN DEFENDANT WAS ACQUITTED OF THE CHARGES OF
            BREAKING AND ENTERING AND LARCENY?


                            STATEMENT OF THE CASE

          A warrant for arrest was issued in Wake County for Eric

Kendall Pinder (―Defendant‖) on 7 August 2006 for the offense of

obtaining property by false pretenses, a violation of N.C. Gen.

Stat. § 14-100.       (R. p. 2-4) The date of offense was 28 July

2006 and it was alleged Defendant presented four rings to

American Gold Exchange & Pawn, Inc., falsely representing

himself as the owner of the rings, and exchanging the same for

$58.00. (Id.) On 8 January 2007, Defendant was indicted on one




                                  1
count of obtaining property by false pretenses pursuant to this

warrant, case number 06 CRS 85336.(R. p. 6)

    On 8 January 2007, Defendant was indicted for one count of

felonious breaking and entering, in violation of N.C. Gen. Stat.

§ 14-54(a), and one count of felonious larceny, in violation of

N.C. Gen. Stat. § 14-72(2).(R. p.7)   These counts were contained

in case number 06 CRS 65572.   The offense date on both counts in

06 CRS 65572 was alleged to be 15 July 2006.(R. p.7) The

breaking and entering count pertained to Defendant allegedly

breaking into the residence of Manuela Navarro.(R. p. 7) The

larceny count pertained to Defendant allegedly stealing the

following items: $500.00 in cash, 3 credit cards, 20 assorted

gold bracelets, 20 pairs of assorted earrings, 1 pearl necklace

with matching ring and earrings, 2 matching gold necklace and

bracelet sets, 1 diamond, ring with matching band, 1 triangle-

shaped light blue stone ring, 1 diamond ring, 1 ruby heart-

shaped ring, 1 sapphire with opal set—all the personal property

of Manuela Navarro having the value of $33,000. (R. p.7)

    The case of State of North Carolina v. Eric Kendall

Pinder, 06 CRS 65572 and 85336 came on for Motions and

Trial in the General Court of Justice, Superior Court

Division, County of Wake, at the 9 July 2007 Criminal

Session before the Honorable Donald W. Stephens, Judge

presiding.


                               2
      Pursuant to a jury verdict on 11 June 2007, Defendant

was found not guilty of felony breaking and entering and

felony larceny; Defendant was found guilty of obtaining

property by false pretenses. (R. p. 11-12) Defendant was

sentenced within the presumptive range and given an active

sentence of 8 to 10 months and ordered to pay restitution

to include the approximate $33,355 of Ms. Manuela Navarro‘s

personal property. (T.p.193)       Defendant entered his notice

of appeal in open court on 11 June 2007. (T.p.194)

               STATEMENT OF THE GROUNDS FOR APPELATE REVIEW

      Defendant appeals from a final judgment of the Superior

Court convicting him obtaining property by false pretenses after

a   jury   trial.   The   Court   of   Appeals    has   jurisdiction   over

Defendant‘s appeal under N.C. Gen. Stat. § 7A-27(b) and N.C.

Gen. Stat. § 15A-1442.

                          STATEMENT OF THE FACTS

      Manuela Navarro (―Ms. Navarro‖) lived in Raleigh, North

Carolina at 2825 Henslow Drive.        (T.p.14)    Ms. Navarro lived

with her two daughters, Juliana and Jarlienna, one son, Jesus,

and two cats.    (T.pp.15,16)     Next door to the Navarro family

lived Eric Pender (―Defendant‖).        (Id.)     After approximately ten

months as neighbors, Defendant began dating Juliana, and Ms.

Navarro did ―not agree with that.‖(T.pp.16, 47) She did not like




                                  3
it because Defendant was a little bit older than Juliana.

(T.p.32)

    Defendant and Juliana dated off and on, until Ms. Navarro

told Defendant he was no longer welcome in her house, especially

when she was not there. (T.pp.32,48) Ms. Navarro testified that,

―[a]s soon as I turn my back, he is in my house.‖ (T.p.32)

    In July of 2006, Ms. Navarro took a trip to Disney World

with her kids. (T.p.16) The Navarro family drove to Florida on

Thursday, 13 July 2006, and arrived in Florida on Friday, 14

July 2006. Ms. Navarro had planned to take the family to Disney

World for five days. (T.p.17)

    Ms. Navarro arranged for Ms. Barbara Weinburg (―Ms.

Weinburg‖), a neighbor, to look after the two cats. (T.p.77)     On

Thursday, 13 July 2006, Ms. Weinburg went over to Ms. Navarro‘s

house after work and let the cats in the Navarro house.

(T.p.78) One of the cats followed her in immediately, and the

other cat came in later through the back door. (T.p.78) After

the second cat came in, Ms. Weinburg closed the back door of Ms.

Navarro‘s house and locked it, but was unable to employ the

deadbolt on the back door.   (T.p.78)   She noticed while in the

house that one of the bedroom doors was open.   (T.p.79)   On

Friday, 14 July 2006, Ms. Weinburg came in the house to care for

the cats, and noticed the same bedroom door was closed. (T.p.80)

Ms. Weinburg left the house, and eventually called the Raleigh


                                4
Police Department three times before going to work that morning.

(T.p.83) Ms. Weinburg returned after lunch on that same Friday,

and found that an officer had responded to her call and left a

card.   (T.p.84)   She then looked in the house and this time

found all the bedroom doors open.(T.p.84) On Saturday morning

she entered the house with a police officer and found that the

back door had been kicked in.        (T.p.86)

    Officer Frank Patercity of the Raleigh Police Department

(―Officer Patercity‖) entered the house with Ms. Weinburg

observed that the house was in general disarray, and there were

items that would have been easily taken from the house that were

not. (T.p.99) He observed that the backdoor door jamb was

completely broken.   (T.p.101)

    On Saturday, 15 July 2006, Ms. Navarro received a call from

the Raleigh Police Department informing her that someone had

broken into her house.(T.p.17) Upon receiving this call, Ms.

Navarro decided to return to North Carolina.(T.p.19) On the

drive back to North Carolina, Juliana stated that she had money

and that no one would find it because she had Defendant see

where she hid it. (T.p.19) Juliana testified that Defendant had

told her where to cut a hole in her mattress to hide her money.

    When Ms. Navarro arrived back to the house, she learned

that the back door had been damaged and that her room and

Juliana‘s room had been overturned by someone. (T.p.24-28, 31)


                                 5
Juliana had a new mattress that had been tossed in the corner of

the room, and had a hole in it and everything was pulled out of

her closets.   (T.p.27)   Ms. Navarro‘s safe had been moved from

her closet and was all over her mattress.   (T.pp.27-28) In the

safe Ms. Navarro kept $500, all her credit cards, and her

jewelry.(T.p.29) All of these items were missing. (Id.) Aside

from Ms. Navarro and her daughter‘s rooms, the house was nice

and organized. (T.p.31)

    James Massey (―Mr. Massey‖) owned American Gold Exchange, a

pawn shop in Raleigh. (T.p.59) On 3 August 2006, Mr. Massey was

contacted by Raleigh Police Detective Sandy Culpepper

(―Detective Culpepper‖) and was asked to place three items from

a single transaction on hold status. (T.p.60)    The transaction

related to the purchase of three items for $58.00 and occurred

on 28 July 2007. (T.p.63) Detective Stuart Rhodes of the Raleigh

Police Department went to the American Gold Exchange and

observed and photographed the three rings that were requested to

be placed on hold.   (T.p.109-110) A pawn ticket was admitted

into evidence at trial, under the business records exception to

the hearsay rule, that stated in the document that an Eric

Pinder was the seller of the rings. (T.p.64)

    Ms. Navarro was later contacted by Raleigh Police

Department (―RPD‖) because it was believed some of her stolen

rings had been discovered. (T.p.33) RPD brought pictures of


                               6
rings that had been located at a pawn shop to Ms. Navarro‘s

house, and she identified them as the rings taken from her

house.   (T.p.34)

    At trial, Defendant‘s motions to dismiss the state‘s case

where denied.(T.p.139) During jury deliberations, the jury

requested a transcript of Ms. Nazarro‘s testimony.(T.p.167)    The

court informed them that there was no transcript available, but

that the court reporter could read back Ms. Nazarro‘s testimony

in its entirety if they so elected. (T.pp.168-69) The jury later

requested the judge reinstruct the jury on the elements of

breaking and entering, larceny, the doctrine of recent

possession, and reasonable doubt. (T.pp.171-172) The jury later

requested the judge submit in writing the first two elements of

larceny, and further asked the following questions regarding the

larceny charge: ―Does the Defendant have to have physically

taken the stolen property away, or can he just have been

involved in the handling of goods once they left the house?‖

(T.p.180)

    Defendant was found guilty of obtaining property by false

pretenses in case number 06 CRS 85336, and found not guilty of

the breaking and entering charge and felony larceny charge in 06

CRS 65572.(R. p. 11,12) Defendant was ordered to serve 8 to 10

months in the Department of Corrections, and ordered to make

restitution of $58.00 to American Gold Exchange and $37,355 to


                             7
Ms. Navarro. (T.p.193) The court also entered an order returning

the rings from American Gold Exchange to Ms. Navarro.             (T.p.194)

                                 ARGUMENT1

    I.     THE TRIAL COURT ERRED WHEN ORDERING DEFENDANT PAY
           RESTITUTION IN THE AMOUNT OF $37,355 WHEN DEFENDANT
           WAS ACQUITTED OF THE CHARGES OF BREAKING AND
           ENTERING AND LARCENY.

           Assignment of Error No. 3 (T.pp.193-94)

    A. Standard of Review.

    The standard of review of a sentencing error is whether the

sentence is supported by evidence introduced at the trial and

sentencing hearing. State v. Deese, 127 N.C.App. 536, 540, 491

S.E.2d 682, 685(1997). The N.C. Supreme Court has stated that in

appealing a sentencing error, the defendant must show that the

sentence imposed is invalid due to an abuse of discretion on the

part of the trial judge or on the basis of procedural conduct or

other circumstances prejudicial to the defendant. State v.

Swimm, 316 N.C. 24, 27-28, 340 S.E.2d 65, 68(1986).

    B. Discussion.

           1.    The victim was made whole for defendant’s criminal
                 conduct.

    Setting forth the general parameters of restitution, N.C. Gen.

Stat. § 15A-1340.34(a) states:

         When sentencing a defendant convicted of a criminal
         offense, the court shall determine whether the defendant

1
 Assignments of error numbers one and two are not raised herein, and are
thus respectfully waived.


                                   8
    shall be ordered to make restitution to any victim of the
    offense in question. For purposes of this Article, the term
    ―victim‖ means a person directly and proximately harmed as
    a result of the defendant‘s commission of the criminal
    offense.

One clear purpose of ordering that an injured party be paid

restitution is to make the victim whole again in terms of

economic loss. Although North Carolina case law does not

explicitly state this purpose, many other state‘s have more

explicitly addressed this purpose. See State v. Tate,

___N.C.App.___,___, ___ S.E.2d___,___ (2007)(Hunter, concurring)

(citing Fore v. State, 858 So.2d 982, 985 (Ala.App.2003) (―‗one

of the purposes of restitution is to make the victim whole‘‖);

Dorris v. State, 656 P.2d 578, 584 (Alaska App.1982) (―the

purpose of the restitution statute is to make the victim

whole‖); State v. Reynolds, 832 P.2d 695, 698 (Ariz.App. Div. 1

1992) (―a trial court is required to determine the full amount

of the victim‘s loss to make the victim whole‖); Simmons v.

State, 205 S.W.3d 194, 197 (Ark.App.2005) (―[t]he purpose of

restitution is to make the victim whole with respect to the

financial injury suffered as a result of the victim's crime‖)

(emphasis omitted); Cumhuriyet v. People, 615 P.2d 724, 726

(Colo.1980) (―[r]estitution ... is intended to make the victim

whole‖); Gonzalez v. State, 948 So.2d 892, 895 (Fla.2007) (―the

trial court is granted discretion in determining a restitution

amount to make the victim whole‖).


                             9
    In the case at bar, Defendant was ordered to pay

restitution in the amount of $33,355 to the victim Ms. Navarro.

(R. p. 17) This amount was based on the measure of loss in case

06 CRS 065572, the charges of felony larceny and breaking and

entering.(R. p. 7) Defendant was acquitted of these charges by

the jury.(R. p. 12) While Ms. Navarro was harmed by the

Defendant‘s alleged commission of obtaining property by false

pretenses, the extent of her harm pursuant to that criminal

conduct was limited to the loss of her four rings.    At the

conclusion of Defendant‘s sentencing hearing, the trial court

ordered the return of Ms. Navarro‘s four rings thus making her

whole for the criminal conduct of which she was the victim, and

of which Defendant was found guilty.(T.p.194)    Thus, no further

amount of restitution was owed to Ms. Navarro and the court

abused its discretion in finding otherwise.

    Defendant maintained his innocence in both cases against

him: 06 CRS 065572 (B&E and Larceny) and 06 CRS 85336 (OPBFP).

He exercised his Constitutional right to trial, and was found

not guilty in case 06 CRS 065572.   Yet, his judgment held him

absolutely accountable for the loss specified in the very case

he was found to lack criminal culpability.    This had the affect

of imposing a judgment of guilt, and a costly judgment of

$37,355, despite Defendant receiving a favorable jury verdict.




                             10
    The restitution defendant should be ordered to pay in this

case should be limited to the offensive conduct for which he was

found guilty; it should certainly not have been expanded by

alleged conduct for which the Defendant was ultimately found not

guilty. Ms. Navarro‘s only loss suffered in the facts

surrounding the 06 CRS 85336 was that of the four rings, which

were ordered to be returned to her by the pawn shop at the close

of the case.(T.p.194) Thus, the restitution portion of the

judgment should be vacated.   See State v. Wilson, 340 N.C. 720,

727, 459 S.E.2d 192, 196 (1995).

       2.   There was insufficient evidence to support the
            $37,355 amount of restitution ordered in this case.

    Even if this court determines that it was proper to award

restitution beyond that of the conduct alleged and for which

Defendant was found guilty in 06 CRS 85336, any amount of

restitution recommended by the trial court must be supported by

evidence adduced at trial or at sentencing. State v. Daye, 78

N.C.App. 753, 756, 338 S.E.2d 557, 560, disc. rev. allowed, 316

N.C. 554, 344 S.E.2d 11, aff’d per curiam, 318 N.C. 502, 349

S.E.2d 576 (1986). ―Even though recommendations of restitution

are not binding, we see no reason to interpret the statutes of

this State to allow judges to make specific recommendations that

cannot be supported by the evidence before them.‖ Id. 78

N.C.App. at 757, 338 S.E.2d at 560. Therefore, ―[r]egardless of



                              11
whether restitution is ordered or recommended by the trial

court, the amount must be supported by the evidence.‖   See State

v. Wilson, 340 N.C. 720, 726, 459 S.E.2d 192, 196 (1995).

    At trial, the only evidence supporting the trial court‘s

findings of a proper restitution award was the unclear, and

otherwise unspecific testimony of Ms. Navarro.   Ms. Navarro

testified that in her safe she had ―lots of jewelry.‖ (T.p.29)

She stated: ―I remember one set was the—it‘s a bracelet, ring

and ear rings and some nice necklaces was [sic.] diamonds…That

was at least, like, $7,000.‖ (Id.)   She went on to testify as

follows: ―…its hard for me to describe everything.   It was a lot

of rings, ear rings, chains, and a lot of different kind of

things to put it on the chains, and a lot of other sets. There

was anther set of jewelry with a ring, bracelet and ear rings.‖

(T.p.30)   Ms. Navarro further testified that she lost $500 from

the safe. (T.p.29) At best, measuring the value of what was

taken from the house, there was evidence for the court to find

$7,000 in value for the jewelry set, $500 for Ms. Navarro‘s

cash, and the $58.00 value of the four rings.

    There was otherwise no reasonable basis for a restitution

amount based on the evidence at trial, and thus it was an abuse

of discretion to award a jury verdict of $37,355, an amount

approximately five times as that offered in evidence.   The only

other basis for a restitution amount of $37,355 is the statement


                              12
of the prosecutor, which insufficient.   See State v. Buchanan,

108 N.C.App. 338, 341, 423 S.E.2d 819, 821 (1992) (unsworn

statements of prosecutor insufficient to support recommended

amount of restitution).

    It is evident by the jury‘s deliberations that they not

only found Ms. Navarro‘s testimony confusing, but they found it

unconvincing to prove Defendant‘s guilty.   The trial court

therefore abused its discretion in undermining the jury‘s role

as fact-finder, and imposing a restitution award on facts not in

evidence, nor found by the jury when enacting their civic and

constitutional role.

                            CONCLUSION

    On the basis of the preceding facts, authorities, and

arguments, the Defendant requests relief: Because the trial

court abused its discretion in ordering Defendant pay

restitution on charges for which he was found not guilt,

Defendant is entitled to have this restitution portion of his

judgment vacated and to any further relief or mandate this court

deems just and proper.

    Respectfully submitted, this the 31 day of December, 2007.




                             13
     GREENE & WILSON, P.A.

     _____________________
     THOMAS RESTON WILSON
     N.C. Bar # 31876
     P.O. Box 1676
     409 Pollock St.
     New Bern, NC 28563
     (252)634-9400
     (252)634-3464
     twilson@greenewilson.com




14
                      CERTIFICATE OF SERVICE

    This is to certify that a true and correct copy of the

above and foregoing Defendant-Appellant‘s Brief has been duly

served on counsel for the State by U.S. Mail to the following:


    Anne J. Brown – Special Deputy Attorney General
    Department of Justice – Service to State Agencies
    P.O. Box 629
    Raleigh, NC 27602


  This the 31 day of December 2007.




                                   ________________________
                                   THOMAS RESTON WILSON
                                   N.C. Bar # 31876
                                   P.O. Box 1676
                                   409 Pollock St.
                                   New Bern, NC 28563
                                   (252)634-9400
                                   (252)634-3464
                                   twilson@greenewilson.com




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