An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1182
NORTH CAROLINA COURT OF APPEALS
Filed: 19 August 2014
STATE OF NORTH CAROLINA
Mecklenburg County
v.
Nos. 11 CRS 218387-88, 218434
ROBERT MCPHAIL
Appeal by defendant from judgments entered 17 April 2013 by
Judge Robert T. Sumner in Mecklenburg County Superior Court.
Heard in the Court of Appeals 4 March 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General I. Faison Hicks, for the State.
Kathryn L. VandenBerg, for Defendant.
ERVIN, Judge.
Defendant Robert McPhail appeals from judgments entered
based upon his convictions for first degree murder and
conspiracy to commit robbery with a dangerous weapon. On
appeal, Defendant contends that the trial court erred by failing
to conduct an investigation into whether jurors had been
subjected to improper external influences, temporarily closing
the courtroom during the questioning of the juror without making
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adequate findings of fact, and awarding $113,140.52 in
restitution in the absence of sufficient evidentiary support.
After careful consideration of Defendant’s challenges to the
trial court’s judgments in light of the record and the
applicable law, we conclude that the trial court’s judgment in
the case in which Defendant was convicted of conspiracy to
commit robbery with a dangerous weapon should remain
undisturbed, that Defendant’s conviction for first degree murder
should remain undisturbed, but that the trial court’s judgment
in the first degree murder case should be vacated, and that case
should be remanded to the Mecklenburg County Superior Court for
the sole purpose of the entry of a new judgment in which the
amount of restitution is calculated correctly.
I. Factual Background
A. Substantive Facts
On 15 April 2011, Defendant and N’Gai Yarree Sutton1
discussed a robbery that they intended to commit along with
Damon Grimes. According to the plan that the men developed, Mr.
Grimes would bring an individual to the Roseland Apartments for
the purpose of purchasing marijuana. After this individual
arrived, the group intended to rob him. Defendant told Mr.
1
Mr. Sutton pled guilty to second degree murder and robbery
with a dangerous weapon pursuant to a plea agreement in which he
agreed to provide truthful testimony at Defendant’s trial.
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Sutton that the “big guy”2 would have the money. Defendant, who
owned an AK-47, was supposed to bring his firearm to the site of
the robbery.
On the following day, Defendant and Mr. Sutton were told
that the robbery would occur at Mr. Grimes’ apartment at
Woodstone Apartments instead of at the Roseland Apartments. As
a result, Yvette Funderburke, Defendant’s girlfriend, drove Mr.
Sutton and Defendant to the Woodstone Apartments. According to
Mr. Sutton, Defendant put his AK-47 in the trunk of Ms.
Funderburke’s vehicle before leaving for Mr. Grimes’ apartment.
At the time that the group arrived at the Woodstone Apartments,
Defendant retrieved his AK-47 and joined Mr. Sutton in entering
Mr. Grimes’ apartment.
At approximately 12:15 p.m. on 16 April 2011, Mr. Wallace
and Usef Guy Isabell drove to Mr. Isabell’s sister’s apartment
at the Woodstone Apartments, at which Mr. Wallace intended to
purchase seven pounds of marijuana from Mr. Grimes. Mr. Wallace
had purchased marijuana from Mr. Grimes at that location on
multiple occasions. Upon arriving at the apartment, Mr. Isabell
and Mr. Wallace were instructed to wait in the kitchen.
After entering the apartment, Mr. Sutton went to the
kitchen, where he found two men sitting at a table. At that
2
At the time of his death, Larry Dean Wallace was 6 feet, 5
inches tall and weighed 469 pounds.
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point, Mr. Sutton said, “you know what time it is;” walked up to
the “big guy,” who was Mr. Wallace; and went through Mr.
Wallace’s pockets, from which he took money and marijuana. As
Mr. Sutton took Mr. Wallace’s money and marijuana, Defendant
pointed his rifle at him. At the time that Mr. Sutton turned to
leave, Defendant fired a shot at Mr. Wallace, who fell. After
Mr. Sutton and Defendant returned to the car, Ms. Funderburke
drove the group to her residence, where Defendant, Mr. Sutton
and Mr. Grimes divided the money and marijuana that had been
obtained in the robbery. Mr. Wallace died as the result of a
gunshot wound to the chest.
B. Procedural History
On 19 April 2011, warrants for arrest charging Defendant
with murder, robbery with a dangerous weapon, and conspiracy to
commit robbery with a dangerous weapon were issued. On 2 May
2011, the Mecklenburg County grand jury returned bills of
indictment charging Defendant with murder, robbery with a
dangerous weapon, and conspiracy to commit robbery with a
dangerous weapon. On 4 August 2011, the State announced that it
did not intend to proceed against Defendant capitally. The
charges against Defendant came on for trial before the trial
court and a jury at the 8 April 2013 criminal session of the
Mecklenburg County Superior Court. On 17 April 2013, the jury
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returned a verdict convicting Defendant of first degree murder
on the basis of the felony murder rule with robbery with a
dangerous weapon as the predicate felony, robbery with a
dangerous weapon, and conspiracy to commit robbery with a
dangerous weapon. At the conclusion of the ensuing sentencing
hearing, the trial court arrested judgment in the case in which
Defendant had been convicted of robbery with a dangerous weapon
and entered judgments sentencing Defendant to a term of life
imprisonment without the possibility of parole based upon
Defendant’s conviction for first degree murder and to a
consecutive term of 38 to 55 months imprisonment based upon
Defendant’s conviction for conspiracy to commit robbery with a
dangerous weapon. Defendant noted an appeal to this Court from
the trial court’s judgments.
II. Substantive Legal Analysis
A. Failure to Conduct Jury Inquiry
In his initial challenge to the trial court’s judgments,
Defendant argues that the trial court erred by failing to
investigate the extent to which members of the jury had been
subjected to improper external influences. More specifically,
Defendant contends that the trial court erroneously failed to
conduct an inquiry into the extent to which the other members of
the jury had been subject to improper external influences after
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one juror had expressed concern about having been stared at by
members of the gallery and approached in the parking lot by a
trial spectator and indicated that other members of the jury had
discussed and expressed concern about the conduct of the members
of the gallery. We do not believe that Defendant is entitled to
relief from the trial court’s judgments based upon this
argument.
1. Standard of Review
“Due process requires that a defendant have ‘a panel of
impartial, “indifferent” jurors.’” State v. Williams, 330 N.C.
579, 583, 411 S.E.2d 814, 817 (1992) (citing State v.
Rutherford, 70 N.C. App. 674, 677, 320 S.E.2d 916, 919, disc.
review denied, 313 N.C. 335, 327 S.E.2d 897 (1985) (quoting
Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 1642, 6 L. Ed.
2d 751, 755 (1961)). “The trial court has the duty to insure
that jurors for the case being tried remain impartial and
uninfluenced by outside persons.” Williams, 330 N.C. at 583,
411 S.E.2d at 817 (citing Rutherford, 70 N.C. App. at 677, 320
S.E.2d at 919). However, “[a]n examination is ‘generally’
required only ‘where some prejudicial content is reported.’”
State v. Harrington, 335 N.C. 105, 115, 436 S.E.2d 235, 240-41
(1993) (quoting State v. Drake, 31 N.C. App. 187, 192, 229
S.E.2d 51, 54 (1976)). “Whether alleged misconduct has affected
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the impartiality of a particular juror is a discretionary
determination for the trial court[,]” State v. Clark, 138 N.C.
App. 392, 398, 531 S.E.2d 482, 487 (2000), cert. denied, 353
N.C. 730, 551 S.E.2d 108 (2001), with this determination to be
made based upon an analysis of the facts and circumstances
present in the case under consideration. Rutherford, 70 N.C.
App. at 677, 320 S.E.2d at 919. “‘The determination of the
existence and effect of juror misconduct is primarily for the
trial court whose decision will be given great weight on
appeal.’” Williams, 330 N.C. at 583, 411 S.E.2d at 817 (quoting
State v. Bonney, 329 N.C. 61, 83, 405 S.E.2d 145, 158 (1991)).
2. Relevant Facts
At the beginning of the sixth day of Defendant’s trial,
shortly before the jury instruction conference, the trial court
received a letter from a member of the jury in which she stated
that she was being stared at by certain gallery members, that
this conduct made her fear for her safety, and that she would be
unable to reach a fair and impartial verdict in light of her
concerns. After receiving the juror’s letter and consulting
with counsel for both parties, the trial court cleared the
courtroom of everyone with the exception of court personnel,
Defendant, his trial counsel, the prosecutors, and a
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representative from the Charlotte-Mecklenburg Police Department
and brought the juror into the courtroom.
In response to the trial court’s inquiry, the juror in
question stated that the letter that she had transmitted to the
trial court stemmed from two separate incidents. In the first
of these incidents, members of the gallery sitting on
Defendant’s side of the courtroom had been staring at her in
what she believed to be an effort to intimidate her. In her
letter, the juror specified that the conduct of two women, in
particular, had made her uncomfortable and fearful, so that she
was “scared to death” when she left the courtroom.
The second incident occurred as the juror walked to her car
after leaving the courtroom at the end of the day’s proceedings.
As the juror passed a car parked on the same level of the
parking deck as the one in which her car was parked, a man
sitting in that vehicle said, “hey, how are you doing?” The
juror believed that the man who had spoken to her had been
sitting in the back of the courtroom on Defendant’s side during
part of the trial. Although the juror was already scared by the
conduct of the women who had stared at her in the courtroom,
this incident frightened her even more.
After describing these two incidents, the juror informed
the trial court that she felt unsafe and feared that someone
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might attempt to harm her if she failed to return a verdict in
Defendant’s favor. For that reason, the juror stated that, even
if the State proved Defendant’s guilt beyond a reasonable doubt,
she would still refrain from returning a guilty verdict.3 In
response to the trial court’s inquiry concerning whether she had
shared any of her concerns with other members of the jury, the
juror denied having done so. However, the juror did inform the
trial court that other jurors had mentioned that members of the
gallery had been staring at them and that one juror had
expressed a desire to have an escort at the time that he or she
left the courtroom at the end of the day.
At the conclusion of this discussion, the trial court sent
the juror to a room other than the one in which the other
members of the jury were waiting and gave each party an
opportunity to be heard with respect to the issue of whether the
juror should remain a member of the jury. Although the State
argued that the juror should be excused, Defendant expressed
concern about excusing a juror at such a late stage of the trial
3
In her letter to the trial court, the juror attempted to
explain why these incidents were so disturbing, stating that
“[a]dding to my anxiety is the memory of the time I tried to get
a restraining order from the court against my ex-boyfriend and
was sent away with nothing since not enough damage had been done
yet.” She further stated that, “[a]lthough I returned soon
after with enough damage to get the order, . . . I know that the
court lets things go too far out of hand before acting on them”
and “I can’t allow this to become another incident like that in
my life.”
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and noted that a decision to replace the juror with an
alternative would exhaust the supply of available alternate
jurors. After reviewing the letter and hearing from the juror
and counsel for both parties, the trial court determined that
the juror should be excused and replaced by an alternate juror
given the juror’s expression of doubt about her ability to
return a fair and impartial verdict in accordance with the law
and the facts.
Having made this decision, the trial court stated that
“[t]he second issue is my concern about what [the juror]
described and what [the juror] heard from the other jurors.”
Although the trial court expressed doubt to the parties “that
it’s in anyone’s best interest to approach that subject with
other jurors,” it stated that “I’ll certainly let you speak to
that if you think that it’s necessary.” Neither party dissented
from the trial court’s logic with respect to the issue of
whether the other jurors should be brought in for further
questioning.
Subsequently, the trial court addressed the issue of what
steps should be taken concerning the behavior of spectators
during the remainder of the trial. On the one hand, the State
argued that the courtroom should be closed for the remainder of
the trial to ensure that no additional problematic incidents
-11-
occurred. On the other hand, Defendant objected to any decision
to close the courtroom. At the conclusion of this discussion,
the trial court decided to refrain from closing the courtroom
during the remaining trial proceedings. However, the trial
court also decided to address the gallery outside the presence
of the jury concerning the manner in which they should behave in
the courtroom. Both the State and Defendant expressed agreement
with the manner in which the trial court proposed to proceed.
3. Legal Analysis
Although Defendant contends that the trial court abused its
discretion by failing to make inquiry of the other members of
the jury concerning the extent, if any, to which they had
knowledge of incidents or had concerns similar to those
expressed by the excused juror, the fact that the excused juror
denied having mentioned her concerns to any other member of the
jury, the fact that none of the other jurors had expressed
similar concerns, and the fact that the record contains no
indication that any other member of the jury lacked the ability
to return a fair and impartial verdict raises serious doubts
about the validity of Defendant’s argument that the trial
court’s decision to refrain from making an inquiry of the other
members of the jury concerning the extent to which they had been
subject to improper external influences constituted an abuse of
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discretion. However, we need not reach this issue given the
fact that Defendant neither objected to the trial court’s
decision to refrain from conducting such an inquiry nor
requested that such an inquiry be conducted. State v. Najewicz,
112 N.C. App. 280, 291, 436 S.E.2d 132, 139 (1993) (holding
that, given the defendant’s failure to make any “motion for
mistrial or request for other court action based upon the
alleged juror misconduct,” he had waived his right to challenge
the trial court’s failure to act on appeal).
In apparent recognition of his failure to properly preserve
this issue for appellate review, Defendant contends that we
should reach the merits of his “external influence” claim in
reliance upon N.C. R. App. P. 2 in the event that we conclude
that this issue is not properly before us. As the Supreme Court
has indicated, however, an appellate court should only utilize
its authority to overlook appellate rule violations under N.C.
R. App. P. 2 “when necessary to prevent manifest injustice to a
party or to expedite decision in the public interest,” with the
presence of “exceptional circumstances” in the case under
consideration being the critical factor in determining whether
we should act in the manner that Defendant recommends. Dogwood
Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191,
196, 657 S.E.2d 361, 364 (2008) (citing State v. Hart, 361 N.C.
-13-
309, 315-17, 644 S.E.2d 201, 205-06 (2007), and Steingress v.
Steingress, 350 N.C. 64, 66, 511 S.E.2d 298, 299-300 (1999)
(internal quotations omitted)). We see nothing in the present
record establishing that there are any “exceptional
circumstances” present in this case that suffice to support the
invocation of our authority to overlook Defendant’s failure to
properly preserve this issue for appellate review pursuant to
N.C. R. App. P. 2. As a result, Defendant is not entitled to
relief from his convictions based upon this aspect of his
challenge to the trial court’s judgments.
B. Right to Public Trial
Secondly, Defendant argues that the trial court erred by
temporarily closing the courtroom to the public during the
questioning of the excused juror. More specifically, Defendant
contends that the trial court erred by closing the courtroom to
members of the public during the inquiry concerning the issues
raised by the excused juror without making findings of fact
sufficient to support this decision. Once again, we conclude
that Defendant is not entitled to relief from the trial court’s
judgments on the basis of this argument.
1. Standard of Review
A criminal defendant is entitled to a “public trial.” U.S.
Const. amend. VI; State v. Rollins, __ N.C. App. __, __ 729
-14-
S.E.2d 73, 76-77 (2012). As a result, a claim that a defendant
was denied the right to an open and public trial is an assertion
of constitutional magnitude. We review alleged constitutional
violations de novo. State v. Comeaux, __ N.C. App. __, __, 741
S.E.2d 346, 349 (2012), disc. review denied, 366 N.C. 584, 739
S.E.2d 853 (2013).
2. Courtroom Closure
“‘In clearing the courtroom, the trial court must determine
if the party seeking closure has advanced an overriding interest
that is likely to be prejudiced, order closure no broader than
necessary to protect that interest, consider reasonable
alternatives to closing the procedure, and make findings
adequate to support the closure.’” State v. Starner, 152 N.C.
App. 150, 154, 566 S.E.2d 814, 816–17 (quoting State v. Jenkins,
115 N.C. App. 520, 525, 445 S.E.2d 622, 625, disc. review
denied, 337 N.C. 804, 449 S.E.2d 752 (1994) (citing Waller v.
Georgia, 467 U.S. 39, 48, 104 S. Ct. 2210, 2216, 81 L. Ed. 2d
31, 39 (1984)), cert. denied, 356 N.C. 311, 571 S.E.2d 209
(2002). However, the trial court is not required to make
specific findings of fact in the event that the defendant
consents to the closing of the courtroom. Id. at 154, 566
S.E.2d at 817.
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At the time that the courtroom was closed to members of the
public for the purpose of inquiring about the issues raised by
the excused juror’s letter, the trial court stated that,
“[a]fter consulting with the attorneys for the State and the
attorney for the defendant, I’ve decided to clear the courtroom
except as to the court personnel, of course the defendant, his
attorney, the State’s attorneys and their representative from
the [Charlotte-Mecklenburg Police Department].” After making
this announcement, the trial inquired if either party had
“[a]nything before I bring her in?” In response, Defendant’s
trial counsel responded “[n]o, Your Honor.” Although the
consultation between the trial court and counsel for the parties
occurred off the record, it is clear from the materials
presented for our review that Defendant had an opportunity to
object to the closing of the courtroom on the record and
specifically declined to do so. In a remarkably similar case,
we held that the defendant waived the right to object to the
trial court’s decision to close the courtroom to members of the
public without holding a hearing or making adequate findings of
fact on the grounds that the defendant had been given an
opportunity to object to the trial court’s decision and declined
to take advantage of that opportunity. State v. Smith, 180 N.C.
App. 86, 98, 636 S.E.2d 267, 275 (2006). As a result, in light
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of the complete absence of any indication that Defendant
expressed any disagreement with the trial court’s decision to
close the courtroom despite being given ample opportunity to
lodge an objection to the proposed procedure,4 we hold that
Defendant is not entitled to relief from his convictions based
upon the trial court’s decision to temporarily close the
courtroom.
C. Restitution Award
Finally, Defendant contends that the trial court erred by
ordering him to pay $113,140.52 in restitution. More
specifically, Defendant argues that the record developed before
the trial court did not support the amount of the trial court’s
restitution award. Defendant’s argument has merit.
1. Standard of Review
Although Defendant did not lodge a contemporaneous
objection to the trial court’s restitution award, “no objection
is required to preserve for appellate review issues concerning
the imposition of restitution.” State v. Smith, 210 N.C. App.
4
In his brief, Defendant points out that he did object to
the State’s suggestion to close the courtroom during closing
arguments and other proceedings subsequent to the inquiry into
the issues raised by the excused juror’s letter. Aside from the
fact that the trial court declined to close the courtroom during
the remaining portions of the trial, the fact that Defendant
objected to closing the courtroom at one point in the trial does
not constitute a valid objection to the trial court’s decision
to close the courtroom at a different stage of the proceedings.
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439, 443, 707 S.E.2d 779, 782 (2011) (citing State v. Mumford,
364 N.C. 394, 402–03, 699 S.E.2d 911, 917 (2010)). “The amount
of restitution must be limited to that supported by the
record[.]” N.C. Gen. Stat. § 15A–1340.36(a). “Issues at a
sentencing hearing may be established by stipulation of counsel
if that stipulation is ‘“definite and certain.”’” Mumford, 364
N.C. at 403, 699 S.E.2d at 917 (citing State v. Alexander, 359
N.C. 824, 828, 616 S.E.2d 914, 917 (2005) (quoting State v.
Powell, 254 N.C. 231, 234, 118 S.E.2d 617, 619 (1961) (citations
omitted))). “In the absence of an agreement or stipulation
between defendant and the State, evidence must be presented in
support of an award of restitution.” State v. Buchanan, 108
N.C. App. 338, 341, 423 S.E.2d 819, 821 (1992). “Unsworn
statements made by the prosecutor are insufficient to support
the amount of restitution ordered.” State v. Wright, 212 N.C.
App. 640, 645, 711 S.E.2d 797, 801, disc. review denied, 365
N.C. 351, 717 S.E.2d 743 (2011). “On appeal, we review de novo
whether the restitution order was ‘supported by evidence adduced
at trial or at sentencing.’” Wright, 212 N.C. App. at 645, 711
S.E.2d at 801 (quoting State v. Shelton, 167 N.C. App. 225, 233,
605 S.E.2d 228, 233 (2004)).
2. Relevant Facts
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After counsel for the parties addressed the trial court
concerning sentencing-related issues, the State sought the entry
of an order requiring the payment of restitution in the amount
of $113,140.52. In support of this request, the State presented
medical and funeral bills that totaled this amount to the trial
court. In response, Defendant stated that the only medical bill
of which he was aware totaled approximately $84,000.00. At the
conclusion of the sentencing hearing, the trial court ordered
Defendant to pay, jointly and severally with his codefendants,
restitution in the amount of $113,140.52, with this amount to be
docketed as a “civil lien.”
3. Legal Analysis
Although the State tendered medical and funeral bills
totaling $113,140.52 to the trial court at the sentencing
hearing, the bills were never offered or admitted into evidence.
For that reason, we have little choice but to conclude that the
amount of restitution awarded in this case rested upon nothing
beyond the unsworn statement of the prosecutor, a form of proof
that is “insufficient to support the amount of restitution
ordered.” Wright, 212 N.C. App. at 645, 711 S.E.2d at 801.
Thus, the trial court’s restitution award lacks sufficient
evidentiary support.
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In seeking to persuade us to reach a different result, the
State argues that, by failing to contest or dispute the
documentary materials submitted to the trial court at the
sentencing hearing, Defendant effectively stipulated to the
appropriateness of the restitution amount awarded by the trial
court.5 However, we do not read the record as supportive of the
State’s contention. Instead, when the trial court asked
Defendant’s counsel if he had seen the bills upon which the
State relied, Defendant’s trial counsel responded, “I guess the
only thing we have is that $84,000 bill from [Carolinas Medical
Center] whether that’s still the same amount . . . [b]ut that’s
all that we’d bring up.” When read in context, the statement
made by Defendant’s trial counsel simply did not amount to a
“definite and certain” stipulation. Mumford, 364 N.C. at 403,
699 S.E.2d at 917. Although Defendant’s trial counsel did not
object to the restitution amount sought by the State in so many
words, his statement cannot be understood as indicating anything
other than an assertion that he had seen a single bill in an
amount substantially less than the award sought by the State and
knew nothing about the other bills upon which the State relied
5
The State has not contended that the documents upon which
the trial court relied were admitted into evidence or should
otherwise be deemed properly before the trial court on the basis
of any theory aside from the “stipulation” approach discussed in
the text.
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in support of its restitution request. For that reason, we
cannot construe the statement made by Defendant’s trial counsel
as a “definite and certain” stipulation of the amount of
restitution that the trial court was entitled to award. See
Smith, 210 N.C. App. at 444-45, 707 S.E.2d at 783 (“We do not
consider Defendant’s silence or lack of objection to the
restitution amount to constitute a ‘definite and certain’
stipulation as required by North Carolina law”). As a result,
given that Defendant did not stipulate to the restitution amount
deemed appropriate by the trial court and given that the
evidentiary record did not support the trial court’s restitution
award, the trial court’s judgment in the case in which Defendant
was convicted of first degree murder is vacated and that case is
remanded to the trial court for the purpose of entering a new
judgment containing a properly calculated restitution award.
State v. Moore, 365 N.C. 283, 286, 715 S.E.2d 847, 849–50 (2011)
(stating that “the appropriate course here is to remand for the
trial court to . . . calculate the correct amount of
restitution”).
III. Conclusion
Thus, for the reasons set forth above, we conclude that
Defendant’s challenges to his convictions lack merit. On the
other hand, we conclude that the trial court erred by awarding
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an amount of restitution that lacked adequate evidentiary
support. As a result, although we find no error in Defendant’s
convictions and in the trial court’s judgment in the case in
which Defendant was convicted of conspiracy to commit robbery
with a dangerous weapon, the trial court’s judgment in the case
in which Defendant was convicted of first degree murder should
be, and hereby is, vacated and that case should be, and hereby
is, remanded to the Mecklenburg County Superior Court for the
entry of a new judgment containing a properly calculated
restitution award.
NO ERROR IN PART; VACATED AND REMANDED IN PART.
Judges McGEE and STEELMAN concur.
Report per Rule 30(e).