An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-361
                       NORTH CAROLINA COURT OF APPEALS

                             Filed:     6 January 2015


STATE OF NORTH CAROLINA

      v.                                      Cleveland County
                                              No. 12 CRS 050344
TERRENCE MONTREAL NORRIS



      Appeal by defendant from judgment entered 26 August 2013 by

Judge   C.   Thomas    Edwards     in   Cleveland     County    Superior    Court.

Heard in the Court of Appeals 24 September 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Alvin W. Keller, Jr., for the State.

      Appellate Defender Staples Hughes, by Assistant Appellate
      Defender Emily H. Davis, for defendant-appellant.


      CALABRIA, Judge.


      Terrence     Montreal      Norris    (“defendant”)       appeals     from    a

judgment entered upon jury verdicts finding him guilty of second

degree murder and possession of a firearm by a felon.                      We find

no error at trial, but remand to the trial court to reconsider

the amount of restitution.

                                 I. Background
                               -2-
       On 20 January 2012, twin sisters Patricia “Fonda” Watkins

(“Fonda”) and Rita “Wonda” Watkins (“Wonda”) (collectively, “the

Watkins sisters”), and Brian Galmer (“Galmer”) were gathered at

Wonda’s     home    in    Shelby,    North    Carolina.         Later,     they   all

relocated across the street to Fonda’s residence, because they

intended to purchase crack cocaine and did not want to smoke the

cocaine in front of Wonda’s children.                 They contacted “T-Mack”

(later identified as defendant) to buy crack cocaine from him.

Kelton Ross (“Ross”), a close friend of the Watkins sisters,

subsequently arrived at Fonda’s residence.                    Ross was upset and

had    argued      with    defendant    earlier      in   the    evening     because

defendant had not paid him for work he had completed.                      When Ross

and defendant saw one another at Fonda’s house, the men argued,

left the house, returned, and resumed arguing.

       Although Wonda, Fonda, and Galmer encouraged both men to

stop arguing, defendant fired three shots at Ross.                   At the time,

Galmer stood next to Ross across the room from defendant.                         Two

of    the   shots,       from   a   firearm   that    had     been   concealed     in

defendant’s jacket pocket, hit Ross in the chest.                        Ross later

died from his injuries.

       Sergeant     William     Craig   Earwood      (“Sgt.     Earwood”)    of   the

Shelby Police Department (“SPD”), one of the law enforcement

officers who helped to secure the scene, discovered Ross lying
                               -3-
face down on the floor, partially blocking the front door of the

house.    When emergency medical services personnel entered the

house to perform lifesaving procedures, they discovered Ross had

been lying on top of a gold-colored candleholder.               Later, Randy

Conner (“Conner”), an SPD crime scene investigator, recovered

the candleholder from under a loveseat in the living room, where

it had been moved by emergency services personnel.              Conner also

recovered   another     brass     candleholder   from   under    the   coffee

table.

    Defendant fled to South Carolina, where he briefly stayed

with his family.       Three days later, defendant surrendered to law

enforcement.        Before surrendering, defendant called Wonda and

offered to send her something of value if she agreed not to

identify him to law enforcement.              Defendant was charged with

first degree murder, intimidating a witness, possession of a

firearm by a felon, and obstruction of justice. At trial, the

State    presented    testimony    from   several   witnesses,     including

Wonda, Fonda, Galmer, Sgt. Earwood, and Conner.                 The witness

intimidation offense was dismissed at the close of the State’s

evidence.

    On 26 August 2013, the jury found defendant not guilty of

obstruction    of    justice.      However,   the   jury   found   defendant

guilty of second degree murder and possession of a firearm by a
                                 -4-
felon.     The trial court sentenced defendant to a minimum of 156

months and a maximum of 200 months in the custody of the North

Carolina    Division      of     Adult    Correction.       Defendant      was   also

ordered to pay restitution in the amount of $6,670 to Ross’s

mother and $46 to Shelby Radiological Associates.                          Defendant

appeals.

                               II. Jury Instruction

    Defendant first argues that the trial court committed plain

error by instructing the jury that he could not receive the

benefit of self-defense if he were the aggressor.                   We disagree.

    Because defendant failed to object to the jury instruction

as given, we must apply plain error review.                      The Supreme Court

of North Carolina “has elected to review unpreserved issues for

plain    error   when     they    involve    .   .   .   errors    in    the   judge’s

instructions to the jury[.]”                State v. Gregory, 342 N.C. 580,

584, 467 S.E.2d 28, 31 (1996).                   Plain error arises when the

error is “so basic, so prejudicial, so lacking in its elements

that justice cannot have been done[.]” State v. Odom, 307 N.C.

655, 660, 300 S.E.2d 375, 378 (1983) (citation and quotation

marks omitted).         “Under the plain error rule, defendant must

convince this Court not only that there was error, but that

absent    the    error,    the     jury     probably     would    have    reached   a
                                    -5-
different result.”          State v. Jordan, 333 N.C. 431, 440, 426

S.E.2d 692, 697 (1993).

      “[T]he defendant can be considered the aggressor when [he]

‘aggressively and willingly enters into a fight without legal

excuse or provocation.’”            State v. Vaughn, ___ N.C. App. ___,

___, 742 S.E.2d 276, 279 (2013) (quoting State v. Wynn, 278 N.C.

513, 519, 180 S.E.2d 135, 139 (1971)).                “A person is considered

to   be   an    aggressor   .   .   .   when   he    has   provoked     a   present

difficulty      by   language   or      conduct     towards   another       that   is

calculated and intended to bring it about.”                   State v. Effler,

207 N.C. App. 91, 97, 698 S.E.2d 547, 551-52 (2010) (citation

omitted).       When “more than sufficient evidence was presented to

indicate that [a] defendant could have been the aggressor in the

fight resulting in the victim’s death[,]” it is not error to

deliver an instruction that the defendant was not entitled to

self-defense if he was the aggressor.                State v. Wood, 149 N.C.

App. 413, 419, 561 S.E.2d 304, 308-09 (2002).

      In the instant case, the trial court instructed the jury,

in pertinent part, as follows:

               The defendant would not be guilty of any
               murder or manslaughter if the defendant
               acted in self-defense, and if the defendant
               was not the aggressor in provoking the fight
               and did not use excessive force under the
               circumstances.
                                             -6-
            . . .

            A person is . . . justified in using
            defensive force when the force used by the
            person who was provoked is so serious that
            the person using defensive force reasonably
            believes that he was in imminent danger of
            death or serious bodily harm, the person
            using defensive force had no reasonable
            means to retreat, and the use of force
            likely to cause death or serious bodily harm
            was the only way to escape the danger.

            The defendant is not entitled to the benefit
            of self-defense if the defendant was the
            aggressor with the intent to kill or inflict
            serious bodily injury upon the deceased.

    Defendant relies upon four cases to support his argument

that the jury instruction was erroneous because there was no

evidence that he was the aggressor:                     State v. Washington, 234

N.C. 531, 67 S.E.2d 498 (1951); State v. Tann, 57 N.C. App. 527,

291 S.E.2d 824 (1982); State v. Jenkins, 202 N.C. App. 291, 688

S.E.2d 101 (2010); and State v. Vaughn, __ N.C. App. ___, 742

S.E.2d      276     (2013).                However,     defendant’s         cases     are

distinguishable.              All     of     them     held    that    the     aggressor

instruction       was   erroneous          because    there   was    no   evidence     to

establish    that       the   defendants       were    the    aggressors      in    their

respective situations.              In the instant case, there is sufficient

evidence to suggest that defendant was, or could have been, the

aggressor in his encounter with Ross.
                            -7-
    The State presented evidence from several witnesses that

although Ross had argued with defendant throughout the evening,

that argument had never escalated to a physical altercation.

Galmer testified that Ross picked up a candleholder, but quickly

returned it to the coffee table when Wonda scolded him.                        Wonda

corroborated Galmer’s testimony regarding Ross picking up the

candleholder    and    returning      it   to     the    table.       Wonda     also

testified that Ross did not raise the candleholder or swing it

in defendant’s direction.          Although defendant argues that he

feared for his life, alleging that Ross attacked him with a

candleholder,   testimony      from    the   State’s      witnesses        indicated

that Ross was not holding the candleholder when defendant fired

the shots.

    The   evidence     also   indicates         that    Ross   was    unarmed    and

attempting to leave the house when defendant fired the shots.

Fonda   testified     that   she   thought      the     argument     had   “settled

down,” when she heard a “firecracker” in the living room.                       She

also testified that she heard Ross say “no, man, you ain’t got

to do that” just before she saw defendant fire the last shot.

Both Wonda and Galmer testified that Ross had nothing in his

hands and was attempting to leave the house through the front

door when defendant fired.         Sgt. Earwood testified that Ross was
                              -8-
lying on the floor in front of the door when law enforcement and

emergency medical services personnel arrived.

    The State also presented evidence from the medical examiner

regarding the shape of the bullet trajectory.               The fact that the

trajectory was curved instead of straight indicated that Ross

was not directly facing the direction of the shots, but was

turned with his left shoulder rotated forward when he was struck

by the bullets.

    When there is conflicting evidence as to which party was

the aggressor, the jury, as the finders of fact, are entitled to

determine which of the parties, if either, is the aggressor.

See State v. Cannon, 341 N.C. 79, 82-83, 459 S.E.2d 238, 241

(1995) (trial court “properly allowed the triers of fact to

determine    that   [the]   defendant        was   the   aggressor”     when   the

evidence supported an inference that the defendant shot at the

victim as she was trying to leave); see State v. Williams, 100

N.C. App. 567, 572, 397 S.E.2d 364, 367 (1990) (no error in

aggressor instruction when there was evidence that the victim

was unarmed and the defendant shot the victim a second time even

after   he    pleaded    with   the    defendant     not   to   shoot    again).

However,     even   if   Ross   were   the    aggressor,    the   evidence      is

sufficient to support an inference that defendant used excessive

force under the circumstances by firing three shots at Ross, who
                               -9-
was unarmed and attempting to leave.                    Since defendant has failed

to   convince   this    Court      that    the      jury    would       have    reached    a

different     result,   he    fails       to     show     that   the      trial   court’s

instruction     constituted        plain       error.        Therefore,         the     jury

properly returned a verdict finding defendant guilty of second

degree murder.     This argument is overruled.

                                  III. Restitution

       Defendant    also     argues       that      the    trial        court   erred     in

ordering a total of $6,816 in restitution because the amount was

not supported by evidence.           We agree.

       “[A]   defendant’s     failure          to   specifically         object   to    the

trial court’s entry of an award of restitution does not preclude

appellate review.”         State v. Mauer, 202 N.C. App. 546, 551, 688

S.E.2d 774, 777-78 (2010).                “On appeal, we consider de novo

whether the restitution order was supported by evidence adduced

at trial or at sentencing.”           State v. McNeil, 209 N.C. App. 654,

667, 707 S.E.2d 674, 684 (2011) (citation and internal quotation

marks omitted).

       “[T]he amount of restitution recommended by the trial court

must    be    supported      by     evidence        adduced        at     trial    or     at

sentencing.”       State v. Wilson, 340 N.C. 720, 726, 459 S.E.2d

192, 196 (1995).           “[A] restitution worksheet, unsupported by

testimony or documentation, is insufficient to support an order
                                       -10-
of restitution.”             Mauer, 202 N.C. App. at 552, 688 S.E.2d at

778.        “Unsworn       statements           of    a    prosecutor,          standing      alone,

cannot support an award of restitution.”                               McNeil, 209 N.C. App.

at 668, 707 S.E.2d at 684.

       In    the       instant    case,         the    State      submitted       a    restitution

worksheet for medical bills and funeral costs totaling $6,816.

However, the State did not present any evidence to show the

total amount of restitution.                         Defendant neither stipulated nor

objected to the proposed amount of restitution.                                       In addition,

defendant also did not object to the admission of the State’s

restitution            worksheet.          “Furthermore,             the     worksheet        was    an

unsworn       statement       by       a    prosecutor           and       as   such     does       not

constitute evidence and cannot support the amount of restitution

recommended.”            McNeil, 209 N.C. App. at 668, 707 S.E.2d at 684

(citation      omitted).          On   appeal,            the   State      concedes      that       the

record fails to show that the State introduced any evidence to

support the requested amount of restitution.

       Since       a    restitution        worksheet            alone      is   insufficient         to

support an order of restitution, and since the State concedes

that    the    record        on     appeal           fails      to    show      that    the     State

introduced         any    evidence         to    support        the     requested       amount      of

restitution, we remand to the trial court to reconsider the

amount of restitution.                 See McNeil, 209 N.C. App. at 668, 707
                                    -11-
S.E.2d   at    685   (vacating   and remanding   the   portion   of   the

judgment ordering restitution where the State failed to present

evidence of the appropriate amount of restitution).

                             IV. Conclusion

    Since there was more than sufficient evidence presented to

indicate that defendant was the aggressor in the encounter with

Ross, the trial court properly instructed and allowed the jury

to determine whether defendant was entitled to the rule of self-

defense.      Therefore, defendant’s argument regarding plain error

fails.     However, the State failed to provide evidence to support

the amount of restitution.       Therefore, we hold that there was no

error in defendant’s trial, but that the matter be remanded to

reconsider the amount of restitution.



    No error; remand for reconsideration of restitution.

    Judges STEELMAN and McCULLOUGH concur.

    Report per Rule 30(e).
