State v. McKoy, ___ N.C. App. ___, 2021-NCCOA-237 (Jun. 1, 2021)

A man owned a trailer containing various catering equipment used for his business and stored the trailer on the business’s property adjacent to Sheetz. In the last week of August 2016, he drove past the property and saw that the trailer was gone. He contacted the police department, and a detective met him at the property. After reviewing footage recorded by Sheetz’s cameras, the detective sent a still image to a DMV agent who was able to identify the defendant as the person in the image. At trial, the man, the detective, the manager at Sheetz, and the DMV agent each identified the defendant as the person in the footage towing the trailer away. The defendant was found guilty of larceny of the trailer.

(1) On appeal, the defendant argued that the trial court plainly erred by permitting the State’s witnesses to give lay opinion testimony identifying the defendant as the individual pictured in the Sheetz footage. The Court of Appeals held that because the DMV agent testified that he was familiar with and had previous dealings with the defendant, the agent was qualified to give lay opinion testimony identifying the person in the Sheetz footage as the defendant and that the admission of the agent’s testimony was not error. The Court also held that because the other witnesses each had no familiarity with the defendant prior to seeing him in the Sheetz footage, admission of their testimony was error. However, the Court concluded that those admissions did not amount to plain error because the admission of the DMV agent’s identification was not erroneous, the Sheetz footage illustrated the agent’s identification and permitted the jury to assess its accuracy, and the jury had the opportunity to draw its own conclusions based on still images admitted into evidence.

(2) The defendant next argued that the trial court erred by denying his motion to dismiss because the evidence was insufficient to support his conviction for felony larceny. The defendant argued that the evidence admitted at trial established only that the defendant was in the Sheetz store and that there was insufficient evidence to support an inference that the person depicted in the Sheetz surveillance video is the person who stole the trailer. In rejecting this argument, the Court of Appeals determined that crediting the in-court identifications and giving the State the benefit of every reasonable inference, a rational juror could conclude that the defendant was the sole occupant and driver of the truck and, without consent, hitched the man’s trailer to the truck and drove away with the trailer in tow, intending to deprive the man of it permanently.

(3) The defendant argued that the trial court erred in ordering restitution because it failed to consider the defendant’s ability to pay. Prior to ordering restitution, the trial court was informed that the defendant was near the end of an active sentence and therefore unable to currently earn, the defendant has two children to support upon his release, and the defendant plans to go back to school and get a trade once he leaves from custody. The defendant also filed an affidavit of indigency reflecting that he was in custody and had zero assets and zero liabilities as of the date of the trial. The Court of Appeals held that the trial court did not fail to consider the defendant’s resources and thus did not abuse its discretion in ordering restitution.