                            NO. COA13-1077

                    NORTH CAROLINA COURT OF APPEALS

                          Filed:   3 June 2014

STATE OF NORTH CAROLINA

    v.                                  Wilson County
                                        No. 12 CRS 53966
ALEXANDER SCOTT TALBOT


    Appeal by Defendant from judgment entered 3 May 2013 by

Judge Alma L. Hinton in Wilson County Superior Court.            Heard in

the Court of Appeals 5 February 2014.


    Attorney General Roy Cooper, by Assistant Attorney General
    Deborah M. Greene, for the State.

    Bowen and    Berry,   PLLC,    by   Sue   Genrich   Berry,   for   the
    defendant.


    MCCULLOUGH, Judge.


    Alexander Scott Talbot, (“Defendant”) was indicted on 30

December 2012 for the offense of Common Law Robbery.              He was

tried in Wilson County Superior Court, Judge Alma L. Hinton,

presiding and on 3 May 2013 convicted of Larceny from a Person

at which time he was sentenced to a minimum of eight (8) months

and maximum of nineteen (19) months in the custody of the North

Carolina Department of Corrections.       Defendant was also ordered

to pay $44.00 in restitution.       On 9 May 2013, Defendant filed

Notice of Appeal.     After a careful review of the proceedings
                              -2-
below we find No Error in the trial conducted in Superior Court,

but    vacate       the    sentence        of    restitution     and    remand    for    re-

sentencing on that issue.

                                      I.        BACKGROUND

       On 7 September 2012, Defendant’s father who is the owner

and operator of a business called 8 Ball Cycle Work in the

Wilson area, requested that Defendant watch his shop while he

ran some errands.                 On that date, Defendant, his girlfriend,

Cassandra Setzer (“Setzer”) and Jamy Reid (“Reid”), a friend of

Defendant       who       on    occasion        lived    with    Defendant,      left    his

apartment traveling to the father’s business.                          Along the way the

trio   stopped        at       Valvoline    to     pay   for    some   repairs    made   to

Defendant’s         Jeep        before      reaching       his    father’s       business.

Defendant began to have concerns about the repairs as he heard

noises coming from his Jeep, so all three proceeded to an auto

parts store to buy parts.                       Before returning to 8 Ball Cycle,

they   made     a     stop      at   McDonald’s.         While    at    McDonald’s      Reid

announced he was going to go make some money.                           Reid then left.

After receiving a call from his father about the length of time

it was taking for Defendant to arrive at his business, Defendant

informed Setzer that he was going to go find Reid.

       Churchwell’s Jewelers, a near-by custom jewelry business

was open as it was now past 10:00 a.m., its opening time, and
                                   -3-
jewelry had been placed        in glass-top counter displays.          The

owners, Angie and Anderson Bass were present in their upstairs

office    over-looking   the   showroom   while    two   employees,   Cora

Wooten and Ashley Townsand, were on the main floor.           Ms. Wooten

moved to the display case when Reid entered the store while Mr.

Townsand, who was in the repair area, stood up and watched Reid.

After Reid asked to see some rings, Ms. Wooten removed a display

of rings from inside a glass case in order to show them to Reid.

Shortly   thereafter,    Defendant   entered   the   store.      At   this

juncture, one of the owners, Mr. Bass, came downstairs to the

showroom and Defendant asked Mr. Bass what time the restaurant

located next door opened for business.            When Mr. Bass replied

that the restaurant opened at 5:00 p.m. Defendant began to exit

the store and opened the door. At that moment Reid grabbed the

ring display and ran out the open door behind Defendant.              Reid

ran in one direction and Defendant walked in another, until

Townsand caught up with Defendant and requested he return to the

store.

    Reid ran back to McDonald’s, got in the back seat of the

Jeep, and told Setzer to drive.           While doing so, she called

Defendant, and learned he was being held for acting as a decoy.

Once the police arrived, a lookout for the Jeep was issued and

shortly thereafter Reid and Setzer were taken into custody.              A
                                           -4-
consent    search      resulted      in    officers      discovering        the    stolen

jewelry hidden inside an antifreeze container in the rear of the

Jeep.

                                  II.     Discussion

      On appeal the Defendant raises three issues, (1) Did the

trial    court   err     in    re-playing       the    surveillance     video      twice

during    jury   deliberations;           (2)   Did    the   trial    court       err   by

failing    to    instruct      the     jury     in    accordance     with    N.C.P.I.-

Criminal    104.50;      and     (3)      Did    the    Court   err    in     ordering

restitution without sufficient evidence?

 1.     Did the Trial Court Err by Playing Video Surveillance Tape

      Twice, Thereby Expressing an Opinion in Contravention of

                               N.C.G.S. § 15A-1222?

      Following the trial and closing arguments, the trial court

instructed the jury that they should not think the judge had any

opinion stating:

            [the trial court had] implied any of the
            evidence should be believed or disbelieved,
            that a fact has been proven or not or what
            your findings ought to be. Instead you alone
            are to find the facts and render a verdict
            reflecting the truth.

Defendant now argues, that despite the preceding instruction, by

re-playing the jewelry store surveillance tape of this incident,

the     trial    court    overly        emphasized       Defendant’s        role    thus
                              -5-
implicitly commenting on Defendant’s guilt.                   We do not believe

this argument has merit.

    Shortly after the jury began considering Defendant’s case,

the jury requested to review certain exhibits that had                             been

admitted    during    the    trial.      These   exhibits       included     certain

photographs, a copy of Defendant’s statement, a copy of Setzer’s

statement and a receipt.              The trial court agreed to allow the

jurors     to   review      these   exhibits     in    the    courtroom      without

objection.      Before the exhibits could be given to the jury, the

foreperson asked if the jury could also review the jewelry store

video    surveillance       film.      The   prosecutor      announced      that    the

equipment could be set up to re-play the tape.                       The foreperson

requested that the tape be played from the point where Defendant

entered the store.           Following the first playing of the video,

the trial judge instructed the prosecutor to play the tape a

second   time.       This    action    was   taken    without    a    request      from

either counsel.       The jury then resumed its deliberations finding

Defendant guilty as previously stated.

    As a preliminary matter, it should be noted that the court

was well within its discretion in permitting the inspection of

evidence including the re-playing of the video.                       In N.C. Gen.

Stat. § 15A-1233(a) it is provided that:

            [i]f      the      jury      after        retiring        for
                                  -6-
            deliberation requests a review of certain
            testimony or other evidence, the jurors must
            be conducted to the courtroom. The judge in
            [her]   discretion,   after   notice  to   the
            prosecutor and defendant, may direct that
            requested parts of the testimony be read to
            the jury and may permit the jury to
            reexamine   in   open   court   the  requested
            materials admitted into evidence. In [her]
            discretion the judge may also have the jury
            review other evidence relating to the same
            factual issue so as not to give undue
            prominence to the evidence requested.

N.C. Gen. Stat. § 15A-1233(a) (2013).

    The decision by the trial court to either grant or deny a

jury’s    request    to   review   evidence   previously   admitted   lies

within the court’s discretion, State v. Johnson, 346 N.C. 119,

124, 484 S.E.2d 372, 375 (1997) and it is presumed that the

court    does   so   in   accordance   with   this   statute.   State   v.

Weddington, 329 N.C. 202, 208, 404 S.E.2d 671, 675 (1991).            When

the examination takes place in open court as in the case at bar,

there is no necessity for obtaining the consent of the parties.

State v. Lee, 128 N.C. App. 506, 509, 495 S.E.2d 373, 375, cert.

denied 348 N.C. 76, 505 S.E.2d 883 (1998).             Thus, in the case

now before us we fail to see how merely playing a moving picture

(video) of an event which evidently did not contain any audio,

so that the jurors would have an ample opportunity to review

this evidence without having to ask to see the tape again later,

constitutes error nor do we see how the trial court by such an
                               -7-
action expresses any opinion whatsoever.               Jurors are presumed to

follow jury instructions and curative instructions, including

the one given in this case as set forth above, State v. Little,

56 N.C. App. 765, 770, 290 S.E.2d 393, 396 (1982).                     We do not

believe the record demonstrates the court rendering any opinion

about Defendant’s guilt rather the record demonstrates the court

properly instructed the jury wherein the court stated it was

expressing no opinion.           The record also demonstrates that the

trial     judge    complied   with      the   proper    statutory     method    of

allowing jurors to review evidence which they had previously

examined.       Appellant’s arguments to the contrary are overruled.

 2.     Did the Trial Court Commit Prejudicial Error by Failing to

      Properly Instruct Pursuant to N.C.P.I.-Criminal 104.50?

      During the charge conference, Defendant’s counsel requested

that the court issue N.C.P.I.-Criminal 104.50 which states "A

photograph was introduced into evidence in this case for the

purpose    of     illustrating    and    explaining     the    testimony   of    a

witness.     This photograph may not be considered by you for any

other purpose.”        The State requested the court instruct that the

video could be viewed as substantive evidence.                  The trial judge

informed counsel that N.C.P.I.-Criminal 104.50A includes both.

This instruction provides, in part, "A [photograph] [video] was

introduced      into   evidence    in    this   case.         This   [photograph]
                                         -8-
[video]   may     be    considered      by you    as    evidence   of   facts     it

illustrates or shows."           The trial court instructed the jury in

accordance    with      the    latter   pattern    instruction,     without      any

additional objection.

      When a party, requests an instruction which is supported by

the   evidence,    it    is    recognized   that    a   failure    to   give    that

instruction or an instruction in substantial conformity thereto

is error.     State v. Rose, 323 N.C. 455, 458, 373 S.E.2d 426, 428

(1988).     When defendant requests an instruction which was not

given, the lack of objection does not waive the error and the

issue is deemed preserved.           State v. Ross, 322 N.C. 261, 265-66,

367 S.E.2d 889, 891-92 (1988).               In the case sub judice some

photographs     were     for    illustrative      purposes,   those     being    the

photos of the jewelry shop and its goods while the video was

undoubtedly admitted as substantive evidence depicting                     actual

events that transpired.           While the trial judge did not clarify

which portion of the instruction as given applied to the video

or to the other photos it hardly seems likely that the jury

failed to understand the distinction and it is difficult to see

how the muddled instruction prejudiced Defendant.                   Accordingly,

this argument is likewise overruled.

                                3.      Restitution
                                -9-
       Although we are constrained by the Supreme Court’s ruling

in State v. Mumford, 364 N.C. 394, 402-03, 699 S.E.2d 911, 917

(2010)    to    review    restitution     awards     on      appeal    regardless     of

whether a defendant has objected to the restitution amount at

trial, we note that this issue is frequently before this Court

due to easily correctable errors.             As this Court noted in State

v. Moore, 365 N.C. 283, 285, 715 S.E.2d 847, 849 (2011), “the

quantum of evidence needed to support a restitution award is not

high.”    In the interest of judicial economy, we urge prosecutors

and    trial     judges    to   ensure     that    this       minimal     evidentiary

threshold is met before entering restitution awards.

       Here,    the   trial     judge    entered   an     order       directing     that

Defendant re-pay Churchwell’s Jewelers the sum of $44.00.                         There

is no evidentiary support for this amount in the record and both

parties concede the trial court erred in ordering restitution.

An order of restitution must be supported by evidence, State v.

Shelton, 167 N.C. App. 225, 233, 605 S.E.2d 228, 233 (2004) and

neither    a    prosecutor’s      unsworn    statement         nor    a   restitution

worksheet is adequate to support an order of restitution, State

v. Mauer, 202 N.C. App. 546, 552, 688 S.E.2d 774, 778 (2010).

Here   Appellant      argues     that    Defendant      is    entitled     to   a    new

sentencing hearing on the issue of restitution and the State

agrees.        Therefore the sentence of restitution is vacated and
                           -10-
the case remanded for a new sentencing hearing on this sole

issue.

                                III. Conclusion

    In summary, we find no error in Defendant’s conviction and

sentence   save    for   the   issue   of    restitution.    The    order   of

restitution   is    vacated     and    the   case   is   remanded   for     re-

sentencing on the issue of restitution only.

    No Error, Restitution Order Vacated and Remanded

    Judges HUNTER, Robert C. and GEER concur.
