State v. Redmond ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-5
No. COA21-212
Filed 4 January 2022
Buncombe County, No. 19 CRS 80531
STATE OF NORTH CAROLINA
v.
ZENA MARIE REDMOND, Defendant.
Appeal by Defendant from judgment entered 18 December 2019 by Judge Alan
Z. Thornburg in Buncombe County Superior Court. Heard in the Court of Appeals
17 November 2021.
Attorney General Joshua H. Stein, by Associate Attorney General Brian M.
Miller, for the State.
Carella Legal Services, PLLC, by John F. Carella, for the Defendant.
GRIFFIN, Judge.
¶1 Defendant Zena Marie Redmond, appeals from the trial court’s judgment
entering a jury verdict finding her guilty of misdemeanor injury to personal property
with a value in excess of $200. Defendant argues the trial court erred by: (1) denying
her motion to dismiss based on a fatal variance between the charging document and
the evidence presented at trial; and (2) ordering that she pay restitution in an amount
based only on speculative values. We discern no error.
I. Factual and Procedural Background
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¶2 This case arises from damage done to a painting in protest of the painter’s
alleged bad acts. On 12 January 2019, a magistrate judge entered an order charging
Defendant with injury to personal property in excess of $200 and resisting arrest by
a public officer. On 23 October 2019, Defendant was tried and found guilty of both
charges in district court. Defendant appealed to superior court for a jury trial.
Evidence presented during the proceedings in superior court tended to show as
follows:
¶3 On 12 January 2019, painter Jonas Gerard held a live painting performance
at the Jonas Gerard Fine Arts Gallery in Asheville. Gerard regularly held these
performances on the second Saturday of every month. During these performances,
Gerard would typically paint a few paintings over the course of around three hours.
Once the paintings were dry, they would be titled, catalogued, posted on the gallery’s
sales website, and moved out onto the Gallery’s sales floor.
¶4 On the morning of January 12, staff at the Jonas Gerard Fine Arts Gallery
“heard rumors that there was going to be a protest outside of the building” and
discovered a “blackish tar substance” and “busted balloons all over [the] front foyer,
front door.” Mr. Luzader, an employee who assisted Gerard on stage that day,
testified that he “made a point that day to scan the crowd” during the performance
and that he was on “high alert because [they] had heard rumors of the protestors.” A
“section in the crowd caught [Mr. Luzader’s] attention a couple times” because “[t]hey
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looked like they didn’t want to be there, they weren’t enjoying [the performance].”
Mr. Luzader identified Defendant as part of that section in the crowd.
¶5 After the performance, Gerard answered questions and invited the audience
onto the stage to examine the last painting. Gerard stepped away from the painting
to mingle with the audience. Mr. Luzader testified that he saw Defendant standing
near an exit door, partially concealed by a partition. Defendant was looking back and
forth at Mr. Luzader and the paintings in the room. Then Mr. Luzader “heard a
commotion and some lady screamed[ a]nd about that time a balloon came and hit
[him] on [his] foot.” Mr. Brasington, another gallery employee, testified that he was
assisting a woman who had expressed a desire to purchase the painting when the
commotion occurred. Mr. Brasington stated that, when “[I and the buyer] got back to
the sales desk, I looked back and I saw [Defendant] unleash at least one balloon, if
not two” from behind the partition. Mr. Luzader added that, after the event, the
painting had “this huge black ink stain in the middle of it that [took] up pretty much
the whole painting” and was “still wet with black ink.”
¶6 Mr. Luzader “looked up and saw [Defendant] run out the exit door.” A police
officer working event security called for back-up and pursued Defendant out of the
gallery and into the street. The responding officers ultimately detained Defendant
and an accomplice. At that time, Defendant “had a black mark on her hand and some
black paint [on her] as well”, and was carrying “a balloon filled with black paint” in
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her purse.
¶7 At the close of the State’s evidence, Defendant moved to dismiss the charge of
injury to personal property. The court denied Defendant’s motion. Defendant did not
present evidence at trial. The jury found Defendant guilty of misdemeanor injury to
personal property with a value in excess of $200. The superior court sentenced
Defendant to thirty days in the custody of the county sheriff, then suspended that
sentence and placed Defendant on eighteen months of supervised probation. The trial
court also ordered that Defendant pay $4,425.00 in restitution for the damaged
painting, over Defendant’s objection to the amount. Defendant gave timely written
notice of appeal.
II. Analysis
¶8 Defendant makes two arguments on appeal: (1) the trial court should have
dismissed the charge of injury to personal property due to a fatal variance; and (2)
the trial court ordered restitution based upon speculative values.
A. Fatal Variance in Ownership Evidence
¶9 Defendant contends the “trial court erred by denying [her] motion to dismiss
based on a fatal variance between the charging document and the State’s evidence at
trial regarding ownership of the damaged painting.” Our Courts review motions to
dismiss to determine whether, in the light most favorable to the State, there was
substantial evidence of each essential element of the crime charged and whether the
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defendant was the perpetrator of the offense. State v. Craycraft, 152 N.C. App. 211,
213, 567 S.E.2d 206, 208 (2002) (citations omitted).
¶ 10 “[A] challenge to a fatal variance between the [charging document] and proof
is made by motion to dismiss for insufficiency of the evidence in the trial court.” State
v. Jones, 223 N.C. App. 487, 496, 734 S.E.2d 617, 624 (2012) (citations and quotation
marks omitted), aff’d, 367 N.C. 299, 758 S.E.2d 345 (2014). “It has long been the law
of this state that a defendant must be convicted, if convicted at all, of the particular
offense charged in the [charging document].” State v. Faircloth, 297 N.C. 100, 107,
253 S.E.2d 890, 894 (1979). “A variance occurs where the allegations in [the charging
document], although they may be sufficiently specific on their face, do not conform to
the evidence actually established at trial.” State v. Norman, 149 N.C. App. 588, 594,
562 S.E.2d 453, 457 (2002) (citation omitted). To prevail on a motion to dismiss for
fatal variance, “the defendant must show a fatal variance between the offense
charged and the proof as to [t]he gist of the offense”, meaning that the State’s evidence
contained “a variance regarding an essential element of the offense.” State v. Pickens,
346 N.C. 628, 646, 488 S.E.2d 162, 172 (1997) (citations and quotation marks
omitted).
¶ 11 Under N.C. Gen. Stat. § 14-160, “if any person shall wantonly and willfully
injure the personal property of another, causing damage in an amount in excess of
two hundred dollars ($200.00), [s]he shall be guilty of a Class 1 misdemeanor.” N.C.
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Gen. Stat. § 14-160(b) (2019). “The identity of the owner of the property that the
defendant allegedly injured is a material element of the offense of injury to personal
property.” State v. Ellis, 368 N.C. 342, 344–45, 776 S.E.2d 675, 677 (2015) (citations
and quotation marks omitted). “[A] criminal pleading seeking to charge the
commission of crimes involving theft of or damage to personal property, including
injury to personal property, must allege ownership of the property in a person,
corporation, or other legal entity capable of owning property.” Id. The charging
document for injury to personal property “must allege a person who has a property
interest in the property [injured,] and . . . the State must prove that that person has
ownership, meaning title to the property or some special property interest.” See State
v. Greene, 289 N.C. 578, 584, 223 S.E.2d 365, 369 (1976).
¶ 12 The magistrate’s charging order in this case stated:
[T]here is probable cause to believe that . . . [Defendant]
named above unlawfully and willfully did wantonly injure
personal property, A PAINTING, the property of JONAS
GERARD. The damage caused was in excess of $200.00.
¶ 13 Defendant contends that although the charging document alleges the painting
was “the property of Jonas Gerard”, the State’s evidence at trial showed that the
painting was actually owned by Gerard’s corporation, Jonas Gerard Fine Arts, Inc.
(“JGFAI”). Additional evidence presented at trial showed that the damaged painting
was owned by JGFAI, an S-corporation held in a revocable trust, and that Gerard
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was both an employee of JGFAI and the sole owner of JGFAI. Therefore, record
evidence in this case shows that “Jonas Gerard” and “Jonas Gerard Fine Arts, Inc.,”
are separate legal persons or entities, each of which is capable of owning property.
¶ 14 Nonetheless, the State presented sufficient evidence that Gerard otherwise
had a “special property interest” in the painting. In reaching our holding in this case,
we evaluate cases regarding the crime of injury to personal property as well as the
crime of larceny. North Carolina case law has acknowledged that these crimes share
the requirement that the State allege the owner of injured or stolen property. Ellis,
368 N.C. at 344–45, 776 S.E.2d at 677; State v. Cave, 174 N.C. App. 580, 582, 621
S.E.2d 299, 301 (2005) (“To convict a defendant of injury to personal property or
larceny, the State must prove that the personal property was that ‘of another,’ i.e.,
someone other than the person or persons accused.” (emphasis added)); State v. Price,
170 N.C. App. 672, 673, 613 S.E.2d 60, 62 (2005). In application, larceny and injury
to personal property both arise from a defendant’s acts which deprive the owner of
the use and enjoyment of their personal property. The breadth of our state’s
precedent defining “special property interests” that properly allege ownership
appears in cases of larceny.
¶ 15 “[T]he person named in the indictment may be either the person having a
‘general interest’ in the . . . property—that is, the actual owner—or the person with a
‘special interest’ in the property—that is, the person who had possession and control
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of it at the time when it was stolen [or damaged].” State v. Carr, 21 N.C. App. 470,
472, 204 S.E.2d 892, 894 (1974); see State v. Campbell, 257 N.C. App. 739, 761, 810
S.E.2d 803, 817 (2018), aff’d as modified, 373 N.C. 216, 835 S.E.2d 844 (2019)
(exploring cases of joint possession, parental responsibility, and bailee/custodian
relationships which Courts have held to be “special property interests”). In Carr,
record evidence showed that a stolen vehicle was actually owned by an electronics
business, while the charging document alleged the car was property owned by the
business owner’s son. Id. at 472, 204 S.E.2d at 894. However, the son “regarded [the
vehicle] as his car, took it to college with him, and was in possession of it at all times.”
Id. at 471, 204 S.E.2d at 893. This Court held that, based upon this evidence, “it
[was] clear that [the son] had a special interest in the stolen automobile.” Id. at 472,
204 S.E.2d at 894.
¶ 16 Conversely, in Campbell, this Court reiterated the rule that “an employee in
possession of property on behalf of the employer does not have a sufficient ownership
interest in the property” to allege ownership in a charging document. Campbell, 257
N.C. App. at 764, 810 S.E.2d at 819. In Campbell, the defendant stole audio
equipment which belonged only to a church, but the indictment alleged that the
equipment was also the property of the church’s pastor. Id. at 762–64, 810 S.E.2d at
818–19. The evidence showed only that the pastor worked at the church, lived on
church property, and benefitted from others’ use of the audio equipment in his work;
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the pastor had no responsibility for or control over the stolen audio equipment. Id.
The Campbell Court held this evidence “did not show that [the pastor] had any special
property interest in the stolen items.” Id. at 766, 810 S.E.2d at 819.
¶ 17 Gerard’s relationship to his paintings is similar to the ownership analysis in
Carr. Record evidence showed that Gerard had authority to use materials owned by
JGFAI to create paintings and did so at least once per month. Gerard had actual
possession of the damaged painting throughout its creation and walked away from
the painting to discuss his work with audience members shortly before the painting
was damaged. Though a buyer had expressed interest in this particular painting,
evidence showed that Gerard had not yet finished the painting: the painting’s ink had
not settled, it had not yet been named, and it had not yet been catalogued or added
to the sales floor. Even after a painting is catalogued and posted for sale in the
gallery, testimony showed that Gerard retained the right to revisit his finished
creations and to alter or improve them if he felt they needed “a little more love.”
JGFAI employed Gerard for the purpose of creating paintings and granted him
control over new and finished paintings. Though they were distinct legal entities,
Gerard regarded himself and JGFAI as one and the same and certainly held out the
paintings as his own. It is clear from the record that Gerard had a special property
interest in the paintings he created for JGFAI.
¶ 18 The allegation of ownership by Gerard in the charging order was sufficient to
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notify Defendant of the particular piece of personal property which she was alleged
to have damaged. See State v. Spivey, 368 N.C. 739, 743–44, 782 S.E.2d 872, 875
(2016) (“A description of the owner of personal property is useful to differentiate
between two similar pieces of personal property, thereby notifying the defendant of
the particular transaction on which the indictment is founded and giv[ing] the
[defendant] the benefit of the first acquittal or conviction if accused a second time of
the same offense.” (citation and internal quotation marks omitted)). The trial court
did not err by denying Defendant’s motion to dismiss because there was no fatal
variance between the charging order and the evidence presented at trial.
B. Evidence Supporting Restitution
¶ 19 Defendant next argues the “trial court erred by ordering Defendant to pay
$4,425 in restitution by speculating the value of an unsold painting.”
¶ 20 “On appeal, we review de novo whether the restitution order was supported by
evidence adduced at trial or at sentencing.” State v. Wright, 212 N.C. App. 640, 645,
711 S.E.2d 797, 801 (2011). “In determining the amount of restitution, the court shall
consider . . . [i]n the case of an offense resulting in the damage, loss, or destruction of
property of a victim of the offense . . . [t]he value of the property on the date of the
damage, loss, or destruction[.]” N.C. Gen. Stat. § 15A-1340.35(a)(2)(b)(1) (2019).
¶ 21 “[T]he quantum of evidence needed to support a restitution award is not high.”
State v. Moore, 365 N.C. 283, 285, 715 S.E.2d 847, 849 (2011). “Prior case law reveals
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two general approaches: (1) when there is no evidence, documentary or testimonial,
to support the award, the award will be vacated, and (2) when there is specific
testimony or documentation to support the award, the award will not be disturbed.”
Id.; see State v. Cousart, 182 N.C. App. 150, 154, 641 S.E.2d 372, 375 (2007) (holding
restitution award was adequately supported by victim’s testimony that stolen stereo
was purchased for $787.00); State v. Price, 118 N.C. App. 212, 221, 454 S.E.2d 820,
826 (1995) (holding victim’s testimony that, due to the defendant’s conduct, “he had
to purchase a special van costing $19,900 and that he had incurred $1,000 in medical
expenses” supported restitution award); cf. Moore, 365 N.C. at 285–86, 715 S.E.2d at
849 (remanding for additional determinations on restitution because testimony “that
the estimate for repairs was ‘[t]hirty-something thousand dollars’” was “not specific
enough to support the award of $39,332.49”).
¶ 22 Here, Mr. Brasington testified that a buyer was interested in the painting and
in discussions with sales staff to purchase the painting at the time it was damaged.
This buyer asked Gerard during the performance how much the painting would cost,
to which Gerard replied “$8,850.00.” Mr. Brasington further testified that $8,850.00
was the gallery’s base price for all paintings of this size. Gerard testified at trial that
he sometimes painted over or added to his paintings, but he could not paint over the
black ink stain or reuse the damaged painting in any way because the canvas was
“destroyed completely.” Based upon this evidence, and evidence that Defendant was
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assisted by an accomplice, the trial court ordered that Defendant pay $4,425.00—half
the value of the damaged painting—in restitution.
¶ 23 Contrary to Defendant’s assertions, the fact that the specific, damaged item
had not yet been purchased by a buyer does not mean that the market value assigned
by the trial court for restitution was speculative. In State v. Freeman, this Court used
the sale price of substantially similar lumber from another parcel to determine the
amount of restitution awarded for unsold timber illegally cut from the victim’s
property. State v. Freeman, 164 N.C. App. 673, 678, 596 S.E.2d 319, 322–23 (2004);
see also Kaplan v. City of Winston-Salem, 286 N.C. 80, 83, 209 S.E.2d 743, 746 (1974)
(“According to the decided cases in North Carolina, ‘[t]he measure of damages for
injury to personal property is the difference between the market value immediately
before the injury and the market value immediately after the injury.’”). In the present
case, it was proper for the trial court to consider the base rate for which Gerard’s
paintings of the same or similar size are sold. The evidence adduced at trial was
sufficiently specific to show the market value of the painting prior to damage by
Defendant on the date of loss, damage, or destruction, and therefore we will not
disturb the trial court’s award.
III. Conclusion
¶ 24 We hold the trial court did not err by denying Defendant’s motion to dismiss
the charge of injury to personal property. The charging order and the evidence at
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trial showed that Jonas Gerard had a special property interest in the painting. The
trial court also did not err by ordering Defendant to pay $4,425.00 as restitution. The
State presented sufficient evidence of the market value of the damaged painting.
NO ERROR.
Judges DIETZ and TYSON concur.