IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-746
Filed: 7 August 2018
Lee County, Nos. 14 CRS 5077072
STATE OF NORTH CAROLINA
v.
BRITTON DARRELL BUCHANAN
Appeal by defendant from judgments entered 31 August 2016 by Judge Gale
M. Adams in Lee County Superior Court. Heard in the Court of Appeals 4 April 2018.
Attorney General Joshua H. Stein, by Assistant Attorney General LaShawn S.
Piquant, for the State.
Rudolf Widenhouse, by M. Gordon Widenhouse, Jr., for defendant.
ELMORE, Judge.
Defendant Britton Darrell Buchanan appeals from judgments entered upon
jury verdicts finding him guilty of assault with a deadly weapon inflicting serious
injury, assault with a deadly weapon, and assault by pointing a gun. On appeal,
defendant contends the trial court erred by omitting the essential element of “without
legal justification” from its final mandate to the jury on the charge of assault by
pointing a gun, by denying his motion to dismiss all the charges against him due to
insufficient evidence to rebut his claim of self-defense, and by ordering restitution in
an amount not supported by the evidence adduced at trial or sentencing. For the
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Opinion of the Court
reasons stated herein, we dismiss in part, find no error in part, and vacate in part
and remand.
Background
This appeal arises out of a physical altercation that took place in a Walmart
parking lot on 20 March 2014.
Robert Noeth was picking up his aunt’s prescription that afternoon when he
encountered defendant inside the store. At the time, Robert’s father James was living
with defendant’s ex-girlfriend, and Robert and defendant had a recent history of
“trouble on the phone with text messages.” While Robert was standing in the
pharmacy line, defendant approached him from behind, poked him in the back, and
stated, “you still running your mouth. I got something for you.” Defendant then went
outside to wait for Robert in the parking lot, while Robert used the pharmacist’s
phone to call his father.
Security cameras recorded what happened next, and several eyewitnesses
testified at trial. Robert’s aunt, Rhonda Yates, had been waiting in the parking lot
while Robert went inside the store to pick up her prescription. Yates was sitting on
Robert’s truck tailgate with defendantwho had parked his vehicle next to
Robert’swhen James Noeth, Skylar Windham, and Andy Hicks arrived in a black
SUV. Additionally, Fallon Hargenrader and her husband Jason had just finished
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Opinion of the Court
shopping and were sitting in their car nearby, and Debbie Tulloch was walking
through the parking lot toward defendant.
Robert was still inside the store when James, Windham, and Hicks arrived.
James stopped the SUV directly in front of Yates and defendant, who immediately
retrieved a gun from his vehicle. As the three men exited the SUV, defendant
approached Windham first and pointed the gun directly in Windham’s face, poking
him in the eye. Defendant then moved on to James, who he pistol-whipped in the
face before being intercepted by Hicks, who in turn hit defendant with a baseball bat.
A scuffle for the gun ensued after Hicks hit defendant with the bat. As the
fighting slowed, defendant returned the gun to his vehicle and retrieved an axe
handle instead. Defendant proceeded to knock James unconscious with the axe
handle before swinging it repeatedly at Hicks and Robert, who by that time had come
outside. Hicks and Windham eventually tackled defendant to the ground, and Robert
kicked defendant to prevent him from getting up again. Defendant’s jaw was broken
in seven places and five of his teeth were knocked out during the altercation, which
lasted approximately ten minutes. James was airlifted to UNC Hospital and
remained there for three to four days.
As a result of the events described above, defendant was indicted on two counts
of assault with a deadly weapon inflicting serious injury against James and Hicks
and one count of assault by pointing a gun against Windham. Defendant was tried
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jointly with Hicks, who was indicted on one count of assault with a deadly weapon
inflicting serious injury against defendant.
Eleven witnessesincluding defendant and Hickstestified at trial, and video
footage captured by the security cameras was played for the jury during Windham’s
testimony, which was consistent with the video. The video showed defendant sitting
on Robert’s tailgate in the parking lot; retrieving the gun from his vehicle prior to the
three men exiting the SUV; approaching Windham and pointing the gun in his face;
approaching James and pistol-whipping him in the face; being struck by Hicks with
the bat; getting an axe handle from his vehicle as the fighting slowed; and hitting
James in the head with the axe handle before turning it on Hicks and Robert.
On cross-examination by Hicks’s attorney, defendant admitted to retrieving
the loaded gun from his vehicle before James, Windham, or Hicks even opened the
doors of the SUV. Defendant explained that he could see “the white in [the men’s]
eyes” and knew he was in trouble; he further claimed to have feared for his life.
At the close of the State’s evidence, defendant made a motion to dismiss the
charges against him on the grounds that the State “did not present substantial
evidence that he did not act in self-defense.” The trial court denied defendant’s
motion to dismiss, which was properly renewed and again denied at the close of all
the evidence.
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Opinion of the Court
At defendant’s request, the trial court instructed the jury using the pattern
jury instructions for the offense of assault by pointing a gun as well as for the legal
justification of self-defense. The trial court began its charge by instructing the jury
that the State was required to prove two things beyond a reasonable doubt: first, that
defendant “pointed a gun at Skylar Windham,” and second, that defendant “acted
intentionally and without justification or excuse.” The trial court continued:
If you find from the evidence beyond a reasonable doubt
that on or about the alleged date, the defendant
intentionally pointed a gun at Skylar Windham, nothing
else appearing, it would be your duty to return a verdict of
guilty. If you do not so find or you have a reasonable doubt
as to one or both of these things, it would be your duty to
return a verdict of not guilty.
Even if you are satisfied beyond a reasonable doubt that
the defendant committed an assault by pointing a gun, you
may return a verdict of guilty only if the State has also
satisfied you beyond a reasonable doubt that the defendant
did not act in self-defense. Therefore, if the defendant did
not reasonably believe that the defendant’s action was
necessary or appeared to be necessary to protect the
defendant from bodily injury or offensive physical contact,
or the defendant used excessive force, or the defendant was
the aggressor, the defendant’s actions would not be excused
or justified in defense of the defendant. If you do not so
find or you have a reasonable doubt that the State has
proved any of these things, then the defendant’s actions
would be justified by self-defense and it would be your duty
to return a verdict of not guilty.
Defendant did not object to any portion of the jury charge or omission therefrom prior
to the jury retiring for deliberations.
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Opinion of the Court
While the jury was unable to reach a verdict as to Hicks, it found defendant
guilty of assault with a deadly weapon inflicting serious injury against James, assault
with a deadly weapon against Hicks, and assault by pointing a gun against Windham.
The trial court sentenced defendant to 22 months’ incarceration, suspended on the
condition that he serve 36 months’ supervised probation and spend 30 days in jail,
pay the requisite jail fees, and not threaten or assault the complaining parties.
As to restitution, James testified at the sentencing hearing that he had
outstanding medical bills in the amount of $10,260.00 as a result of defendant’s
conduct. A bill from UNC Hospital dated 7 April 2014 was presented as a five-page
fax dated 24 August 2016, which James testified to requesting in preparation for trial.
Defendant did not object to the bill being admitted into evidence, but he did argue
that the amount still outstanding was not up-to-date; it was also unclear what, if any,
portion of the bill had been covered by insurance. The trial court thus held the issue
of restitution open to determine if a more recent bill could be obtained. In the
meantime, defendant entered written notice of appeal.
On 5 December 2016, the trial court reconvened for a follow-up hearing to
address the sole remaining issue of restitution. James was present at that hearing
as well, but he did not testify. The State informed the trial court that “as late as
October 28, [they] were receiving the same faxed materials regarding UNC Hospital
in terms of the $10,000.00. [They] also had, on behalf of the doctors, [an outstanding
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Opinion of the Court
bill] in the amount of $1,947.80.” The State explained that it had later determined
the $10,000.00 amount had been “written off” by both UNC Hospital and its collection
agency; thus, the only remaining bill was from UNC doctors in the amount of
$1,962.80, including interest. The State further explained that the doctors’ bill had
been turned over to a separate collection agency and had not been written off.
However, no testimony or documentation was presented as to the doctors’ bill.
In addition to the conditions set forth in its initial sentencing judgment, the
trial court ordered at the follow-up hearing that defendant pay restitution in the
amount of $1,962.80. Defendant gave oral notice of appeal from that ruling.
Discussion
On appeal, defendant argues the trial court erred by (I) omitting the phrase
“without legal justification” from its final mandate to the jury for the offense of
assault by pointing a gun; (II) denying defendant’s motion to dismiss, where
defendant contends the State’s evidence showed he acted in self-defense following a
violent assault; and (III) ordering restitution in the amount of $1,962.80.
I. Jury Instructions
Defendant first contends the trial court erred by omitting the essential element
of “without legal justification” from the mandate portion of the pattern jury
instructions for assault by pointing a gun. He argues further that the trial court
should not have included the phrase “nothing else appearing” in the mandate.
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Defendant asserts that “[b]ecause the jury may have acted on the incorrect part of
the instructions, [he] must receive a new trial on this charge.”
“A party may not make any portion of the jury charge or omission therefrom
the basis of an issue presented on appeal unless the party objects thereto before the
jury retires to consider its verdict[.]” N.C. R. App. P. 10(a)(2); see also State v. Schiro,
219 N.C. App. 105, 115, 723 S.E.2d 134, 141 (2012).
In criminal cases, an issue that was not preserved by
objection noted at trial and that is not deemed preserved
by rule or law without any such action nevertheless may be
made the basis of an issue presented on appeal when the
judicial action questioned is specifically and distinctly
contended to amount to plain error.
N.C. R. App. P. 10(a)(4).
Defendant here failed to object to the jury instructions at trial. In his brief,
defendant ignores this failure, asserting simply that “[w]here a defendant requests
and the trial court agrees to give a pattern jury instruction, any error in the actual
instruction is reviewed de novo.” Defendant does not contend on appeal that the
alleged error in the jury instructions amounts to plain error.
Because defendant failed to properly preserve this issue for appellate review
by lodging an objection at trial, and because defendant has failed to specifically and
distinctly allege plain error, we dismiss this portion of defendant’s appeal. See State
v. Goss, 361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007) (holding that defendant had
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waived an alleged constitutional error by failing to object at trial or to assign plain
error on appeal).
II. Motion to Dismiss
Defendant next contends the trial court erred in denying his motion to dismiss
the charges against him due to insufficiency of the evidence. Defendant asserts that
“the State’s own, credible evidence showed he acted in self-defense after he was
violently assaulted.” Defendant relies primarily on State v. Johnson, 261 N.C. 727,
136 S.E.2d 84 (1964), to support his argument that because the State’s evidence
tended only to exculpate defendant, his motion to dismiss should have been granted.
We review the trial court’s ruling on a motion to dismiss de novo. See State v.
Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002). When reviewing a challenge to
the denial of a defendant’s motion to dismiss a charge on the basis of insufficiency of
the evidence, the relevant inquiry is “whether the State presented ‘substantial
evidence’ in support of each element of the charged offense.” State v. Chapman, 359
N.C. 328, 374, 611 S.E.2d 794, 827 (2005). “In this determination, all evidence is
considered in the light most favorable to the State, and the State receives the benefit
of every reasonable inference supported by that evidence.” State v. Abshire, 363 N.C.
322, 328, 677 S.E.2d 444, 449 (2009) (citations and internal quotation marks omitted).
Further, a “ ‘substantial evidence’ inquiry examines the sufficiency of the evidence
presented but not its weight.” State v. McNeil, 359 N.C. 800, 804, 617 S.E.2d 271,
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274 (2005) (citations omitted). Thus, “if there is substantial evidencewhether
direct, circumstantial, or bothto support a finding that the offense charged has been
committed and that the defendant committed it, the case is for the jury and the
motion to dismiss should be denied.” Id. (citations, internal quotations marks, and
brackets omitted).
In State v. Johnson, the defendant was convicted of manslaughter for stabbing
a man after he broke open the door of her home and attempted to grab her. 261 N.C.
at 729, 136 S.E.2d at 86. At trial, the defendant had testified that the man had
physically assaulted her earlier on the day of the stabbing as well as three or four
months prior, had been told to leave the defendant’s home and to stay away, and had
been drinking. Id. Witnesses corroborated the defendant’s testimony, and the State
presented no contradictory evidence. Nevertheless, the trial court denied the
defendant’s motion to dismiss. Id.
In reversing the defendant’s conviction, our Supreme Court in Johnson held
that “[w]hen the State introduces in evidence exculpatory statements of the
defendant which are not contradicted or shown to be false by any other facts or
circumstances in evidence, the State is bound by these statements.” Id. at 730, 136
S.E.2d at 86. Furthermore, “[w]hen the State’s evidence and that of the defendant is
to the same effect and tends only to exculpate the defendant, motion for nonsuit
should be allowed.” Id. Thus, because the evidence in Johnson tended only to show
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Opinion of the Court
that the defendant “had the right to stand her ground, protect her person, [and]
prevent the invasion of her home,” the trial court erred in denying the defendant’s
motion to dismiss. Id.
The instant case is readily distinguishable from Johnson in that the evidence
here did not tend only to exculpate defendant. Rather, defendant’s own
testimonyregardless of the fact that he claimed to have feared for his
lifedemonstrated that he was waiting for Robert in the parking lot and retrieved a
loaded gun from his vehicle before James, Windham, or Hicks even opened the doors
of the SUV. Moreover, multiple witnesses testified and video footage tended to show
that defendant acted as the aggressor. Thus, because there was substantial evidence
to contradict defendant’s claim of self-defense, the trial court did not err in denying
defendant’s motion to dismiss.
III. Amount of Restitution
In his final argument on appeal, defendant contends there was insufficient
evidence to support the trial court’s restitution award in the amount of $1,962.80 to
compensate James Noeth for medical expenses. Defendant asserts that the State
offered no evidence at all—through testimony or documentary submission—to
support the unsworn statements of the prosecutor indicating that a collection agency
was still seeking payment from James.
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Even absent an objection, awards of restitution are reviewed de novo. State v.
McNeil, 209 N.C. App. 654, 667, 707 S.E.2d 674, 684 (2011). The restitution award
does not have to be supported by specific findings of fact or conclusions of law, and
the quantum of evidence needed to support the award is not high. State v. Davis, 167
N.C. App. 770, 776, 607 S.E.2d 5, 10 (2005). Rather, when there is some evidence
that the amount awarded is appropriate, it will not be overruled on appeal. Id.
Although the quantum of evidence needed to support a restitution award is not
high, the amount awarded nevertheless “must be supported by evidence adduced at
trial or at sentencing.” State v. Moore, 365 N.C. 283, 285, 715 S.E.2d 847, 849 (2011)
(citation and quotation marks omitted). “[A] restitution worksheet, unsupported by
testimony or documentation, is insufficient to support an order of
restitution.” Id. (citation omitted). Unsworn statements of a prosecutor are also
insufficient. McNeil, 209 N.C. App. at 668, 707 S.E.2d at 684. When no evidence
supports the award, the award of restitution will be vacated, and the typical remedy
is to remand the restitution portion of the sentence for a new sentencing hearing. Id.
(remanding when there was evidence of physical damage to victim’s property but no
evidence as to appropriate amount of restitution); see also State v. Hunt, ___ N.C.
App. ___, ___, 792 S.E.2d 552, 563 (2016).
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Here, the transcripts from both the initial sentencing hearing and the follow-
up hearing indicate that the trial court’s restitution award was not supported by the
evidence.
While James testified at the sentencing hearing and was present at the follow-
up hearing, his testimony concerned only the UNC Hospital bill in the approximate
amount of $10,000.00. Based on his testimony, James knew very little about the
status of the bill or his insurance coverage. The only documentation submitted to the
trial court at either hearing consisted of the faxed and outdated bill from UNC
Hospital, which the State later determined had been “written off.” No testimony or
documentation was submitted to support an award based on the UNC doctors’ bill.
Because there was no evidence adduced at trial or sentencing to support the
trial court’s restitution award of $1,962.80, we vacate the award and remand the
restitution portion of defendant’s sentence for a new sentencing hearing.
Conclusion
As defendant neither objected to the jury instructions at trial nor alleges plain
error in his brief, he has waived appellate review of this issue. Additionally, because
there was substantial evidence to contradict defendant’s claim of self-defense, the
trial court did not err in denying his motion to dismiss. Lastly, because the State’s
evidence failed to support the trial court’s restitution award of $1,962.80, we vacate
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the award and remand the restitution portion of that judgment for a new sentencing
hearing.
DISMISSED IN PART; NO ERROR IN PART; VACATED IN PART AND
REMANDED.
Judges TYSON and ZACHARY concur.
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