              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-746

                                 Filed: 7 August 2018

Lee County, Nos. 14 CRS 5077072

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 defendantwho had parked his vehicle next to

Robert’swhen 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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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 witnessesincluding defendant and Hickstestified 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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      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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      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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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 evidencewhether

direct, circumstantial, or bothto 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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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

testimonyregardless of the fact that he claimed to have feared for his

lifedemonstrated 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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