An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-957
                         NORTH CAROLINA COURT OF APPEALS

                              Filed: 18 March 2014


STATE OF NORTH CAROLINA

      v.                                        Washington County
                                                No. 11 CRS 50589
WALTER THOMAS PHELPS



      Appeal by defendant from judgment entered 24 April 2013 by

Judge    Wayland    J.   Sermons,    Jr.   in    Washington     County    Superior

Court.     Heard in the Court of Appeals 21 January 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Kathleen N. Bolton, for the State.

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


      ELMORE, Judge.

      On 23 April 2013, Walter T. Phelps (defendant) was indicted

by a Washington County grand jury.                Defendant was tried before

Judge    Wayland    J.   Sermons,    Jr.   in    Washington     County    Superior

Court beginning on 22 April 2013.                The jury returned a guilty

verdict as to the charge of robbery with a dangerous weapon on

23 April 2013.       On 24 April 2013, defendant was sentenced to 60-

81 months imprisonment and ordered to pay restitution to Annie
                                      -2-
Hyman in the amount of $242.91.             Defendant gave oral notice of

appeal.        Defendant now appeals the trial court’s admittance of

Captain Willie Williams’ (Captain Williams) testimony and the

award     of    restitution.     After      careful     review,       we   find    no

prejudicial error in part, and remand in part.

                                I. Background

       On 22 November 2011, Annie Ruth Hyman (Hyman) was working

at the Head Shop salon (Head Shop).            Around 7:30 p.m., Hyman was

cutting a little boy’s hair as patron George Puckett (Puckett)

sat in the waiting area, and employee Francis Gilliam (Gilliam)

cleaned the restroom.          Suddenly, three black men entered the

Head    Shop     wearing   hoodies   and    bandannas    that     covered     their

faces.         These three men were        later identified as defendant,

Hesus Basnight (Basnight), and Anthony Seeley (Seeley).

       According to the State’s evidence, Seeley entered the Head

Shop first, followed by defendant and Basnight.                   Defendant and

Basnight, who was wielding a baseball bat, stood near the Head

Shop’s    entrance    door.     Seeley,     machete     in    hand,    immediately

approached Hyman and demanded money.            Hyman handed Seeley $60 in

cash from her station drawer.              Seeley grew upset and demanded

more.      Gilliam     heard   the   commotion    and        returned      from   the

restroom.        Suddenly, Seeley struck Hyman on the head with his
                                           -3-
machete, knocking her to the ground.                 Gilliam screamed.        Puckett

tried to help Hyman, but Basnight raised his baseball bat and

instructed Puckett to sit down.                  Hyman handed Seeley her purse,

which    contained    credit      cards,     identification,          car   keys,   and

approximately $60.00 to $100.00 in cash.                   With Hyman’s purse and

cash in their possession, all three men fled from the Head Shop

and into Ms. Rochelle Bowser’s (Bowser) car, which was parked at

the “basketball court around the corner.”                    Bowser drove Basnight

and Seeley to Seeley’s house.                Basnight testified that he did

not know where Bowser took defendant.

    Shortly       after    the    robbery,       Officer   John     Sawyer   (Officer

Sawyer) received a call and started patrolling the area by the

Head Shop.       Officer Sawyer was alerted that Bowser was possibly

involved in the incident.            As such, Officer Sawyer took custody

of Bowser’s vehicle and brought her to the police department for

questioning.       Bowser named Seeley and Basnight as suspects and

directed Officer Sawyer to the Seeley residence located at 102

Linden     Street.         Both     men     were     taken     into     custody      for

questioning.        During    questioning,         Basnight    admitted      that    he,

Seeley,    and    defendant       were    each     involved    in     the   Head    Shop

robbery.

    At     trial,    the     State       called    Basnight,      who   again      named
                                         -4-
defendant and himself as two of the three men who participated

in the Head Shop robbery.               The State also called Gilliam and

Puckett, who partially described defendant as one of the men

involved    in    the    Head    Shop    robbery.      Specifically,          Gilliam

described    defendant      as    a   “short,   black    male    with     a    light

complexion.”      Puckett described defendant as                a “little short

fellow” who stood near the entrance. Finally, the State called

Captain Williams and elicited testimony to the effect that the

third robber, unavailable co-defendant Seeley, pled guilty to

robbery    with   a     dangerous     weapon,   and    “was   sent   to       the   []

Department of Corrections” for the Head Shop robbery.                   It is the

admission of this testimony that is the basis on which defendant

now appeals.

    Defendant’s sole witness at trial was Deborah Walker, who

testified that on 22 November 2011, defendant arrived at her

home between 5:00 p.m. and 6:00 p.m., played a video game with

her son, and left between 9:00 p.m. to 9:30 p.m.

                                        II. Analysis

    Defendant contends that the trial court erred in allowing

Captain Williams to testify as to co-defendant Seeley’s guilty

plea and active incarceration for the Head Shop robbery.                            We

agree.
                                       -5-
       As defendant failed to object to the contested testimony at

trial, we must review this issue for plain error.                   “[P]lain

error review is available in criminal appeals[] for challenges

to jury instructions and evidentiary issues[.]”              Dogwood Dev. &

Mgmt. Co., LLC v. White Oak Transp. Co., Inc., 362 N.C. 191,

196,   657    S.E.2d   361,    364    (2008)   (citations   omitted).     “Our

decisions have recognized plain error only in truly exceptional

cases when absent the error the jury probably would have reached

a different verdict.”         Id. (quotation omitted).

       For error to be tantamount to plain error, the defendant

must

             demonstrate   that    a  fundamental   error
             occurred at trial.    To show that an error
             was fundamental, a defendant must establish
             prejudice that, after examination of the
             entire record, the error had a probable
             impact on the jury’s finding that the
             defendant was guilty.      Moreover, because
             plain error is to be applied cautiously and
             only in the exceptional case, the error will
             often be one that seriously affect[s] the
             fairness, integrity or public reputation of
             judicial proceedings.

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)

(citations and quotations omitted) (alteration in original).

A. Admitting the Challenged Testimony

       Our   Supreme   Court    has   recognized   the   “clear   rule”   that

“neither a conviction, nor a guilty plea, nor a plea of nolo
                                        -6-
contendere by one        defendant is         competent as evidence         of the

guilt of a codefendant on the same charges.”                State v. Rothwell,

308 N.C. 782, 785, 303 S.E.2d 798, 800-01 (1983) (citation and

quotation omitted).          This rule “appl[ies] equally to evidence

that [co-defendants] were charged and evidence that they were

tried.”    State v. Gary, 78 N.C. App. 29, 37, 337 S.E.2d 70, 76

(1985).

       In Rothwell, our Supreme Court elucidated:

           The rationale underlying this “clear rule”
           is twofold.     [First,] a defendant’s guilt
           must be determined solely on the basis of
           the    evidence    presented  against   him.
           [Second,] the introduction of such a plea by
           a co-defendant, when he or she has not
           testified at defendant’s trial, would also
           deprive the defendant of his constitutional
           right    of     confrontation   and   cross-
           examination.

Rothwell, at 785-86, 303 S.E.2d at 801 (citations omitted).

       However,   “the    Supreme      Court    in     Rothwell    realized    that

neither   of   these     bases   for    the    rule     would     be   violated   if

evidence of a testifying co-defendant’s . . . [guilt] . . . is

introduced for a legitimate purpose.”                  State v. Brown, 67 N.C.

App.    223,   232,    313   S.E.2d     183,     190    (1984)     (citation      and

quotation omitted) (alteration in original).                    In contrast, “if

such evidence is introduced for [an] illegitimate purpose—solely

as evidence of the guilt of the defendant on trial—it is not
                                          -7-
admissible.”       Rothwell, at 786, 303 S.E.2d at 801.

      Here, co-defendant Seeley was unavailable for trial and was

not   a    testifying      witness.       Nonetheless,      the    State     elicited

testimony from Captain Williams regarding co-defendant Seeley’s

guilty plea and active sentence for the same crime charged in

defendant’s case without offering a legitimate purpose.                      Captain

Williams testified that Seeley pled guilty to robbery with a

dangerous weapon——the same crime charged against defendant——and

that Seeley was “sent to [the] Department of Corrections.”                          As

Seeley did not testify to his own participation in the crime,

defendant was not afforded an opportunity to cross-examine him.

Because    defendant’s      guilt     must      be    determined    solely    by   the

evidence    presented      against       him    and   because     Seeley’s   absence

during trial deprived defendant of his constitutional right of

confrontation and cross-examination, we conclude that the trial

court erred in admitting the challenged testimony.                      See, e.g.,

State v. Lyles, 172 N.C. App. 323, 330, 615 S.E.2d 890, 895

(2005)     (finding      error   in   the       trial    court’s    admittance     of

testimony that unavailable co-defendant was charged with similar

offenses as defendant); see also Gary at 37-38, 337 S.E.2d at 76

(holding    that    it    was    error    to    admit    co-defendant’s      charges

because “[n]o purpose was served by informing the jury that [co-
                                        -8-
defendant] had been tried, other than to suggest that he had

also   been     convicted,   and   by   inference     that    defendant    should

receive the same treatment”).

B. Prejudicial Error

       Having found that the trial court erred, we now turn to the

question of whether such error was prejudicial to defendant such

that it had a probable impact on the jury’s finding of guilt.

See Lawrence, supra.

       Here,    defendant    contends    that   the   error    was   prejudicial

because the State failed to produce any competent evidence to

support   his     conviction,   other    than   the   admission      of   Captain

Williams’ testimony regarding the disposition of Seeley’s case.

Specifically, defendant avers that

               [i]n   all    probability,    the   erroneously
               admitted testimony ultimately pushed the
               jury into convincting Mr. Phelps based on
               the preexisting legal determination that his
               co[-]defendant was guilty of the exact same
               charge.    Without the erroneously admitted
               guilty   plea    of   a   non-testifying   co[-
               ]defendant, it is probable the jury would
               have been unable to convict as the only
               evidence linking [defendant] to the robbery
               was the story of a convicted felon with a
               significant    negotiated   interest   in   the
               outcome of the case.


       We are not persuaded.       The fact that the jury learned that

Seeley pled guilty and was serving an active sentence is not
                                     -9-
determinative of the outcome in defendant’s case.                 The State

presented sufficient additional evidence to warrant defendant’s

conviction.     At trial, the State proceeded under the theory of

acting in concert.        Plenary evidence showed that a robbery with

a dangerous weapon occurred at the Head Shop.           The State’s three

eye witnesses testified that three men entered the barber shop,

one wielding a machete, and demanded money from Ms. Hyman before

fleeing together.    Additionally, co-defendant Basnight testified

that defendant participated in the Head Shop              robbery.      This

testimony     corroborated     his   earlier   statements     to     Captain

Williams.      Further,    Gilliam   and   Puckett    partially    described

defendant as a “short, black male with a light complexion” and

as “little short fellow,” respectively.

      Defendant has failed to convince us that the challenged

testimony had a probable impact on the jury’s guilty verdict.

Disclosing Seeley’s guilty plea and conviction resulted in no

substantial prejudice to defendant.            We note that       the State

never otherwise alleged that Seeley’s guilty plea and conviction

was   competent   evidence     of    defendant’s     guilt——the    contested

testimony was referenced once during Captain Williams’ direct

examination.

      Because we apply plain error cautiously and only in the
                                          -10-
exceptional case, we conclude that defendant failed to meet the

high   burden     of   proving      that    the   contested          testimony     had   a

probable impact on the jury’s guilty verdict.                        Lawrence, supra.

Accordingly, while the admission of the guilty plea of Seeley

was error, it does not rise to the level of plain error on these

facts.

                             III. Restitution Order

       Defendant argues, and the State concedes, that the trial

court erred in ordering defendant to pay $242.91 in restitution

to Hyman, because the restitution amount is not supported by

sufficient evidence.         We agree.

       “[N]o    objection     is    required      to    preserve       for   appellate

review issues concerning the imposition of restitution.”                           State

v. Smith, 210 N.C. App. 439, 443, 707 S.E.2d 779, 782 (2011).

“Under a de novo review, the court considers the matter anew and

freely   substitutes      its      own   judgment      for    that    of     the   lower

tribunal.”       State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d

290, 294 (2008) (citation omitted).

       Our     restitution    statute       requires         that    the   “amount       of

restitution must be limited to that supported by the record.”

N.C. Gen. Stat. § 15A-1340.36 (2013).                  “A restitution worksheet,

unsupported      by    testimony,        documentation,        or    stipulation,        is
                                       -11-
insufficient to         support an order       of restitution.”          State v.

Blout,   209     N.C.   App.    340,   348,    703    S.E.2d   921,    927   (2011)

(quotation omitted).           Where some evidence supports an award of

restitution, but the evidence is not specific enough to support

the exact amount ordered, our Supreme Court has held that the

proper course is to remand to the trial court to determine the

correct amount of restitution.                See State v. Moore, 365 N.C.

283, 286, 715 S.E.2d 847, 850-51 (2011) (remanding to the trial

court for a new hearing to recalculate the restitution award

where    there    was     “some   evidence”      to    support    an    order    of

restitution, but the evidence was unable to support the exact

amount ordered).

    Here, Ms. Hyman testified that defendant stole $60 cash

from her station drawer and took her purse, which contained $60-

$100 in cash, credit cards, identification cards, and car keys.

No evidence was introduced regarding the cost of replacing her

stolen   goods.         Nevertheless,    the     trial    court    ordered      that

“[defendant] shall pay restitution to Annie Hyman in the amount

of $242.91,” without any further explanation.                  Because defendant

did not stipulate to the restitution amount,                     and   because no

evidence was presented at trial or during sentencing to support

the exact amount of restitution ordered, the trial court erred
                                      -12-
in   ordering   defendant       to   pay    $242.91.      While      an   award   of

restitution is supported by the record, the evidence presented

did not adequately support the particular amount awarded.                    Thus,

we remand for the trial court to calculate the correct amount of

restitution.

                                IV. Conclusion

      In sum, we conclude that the trial court erred in admitting

Captain   Williams’       testimony        regarding   co-defendant       Seeley’s

sentence and plea; however, such error did not constitute plain

error under Rule 10(b)(2).           Accordingly, we find no prejudicial

error in defendant’s conviction.                   We conclude that there is

insufficient evidence in the record to support the trial court’s

specific award of restitution.                Therefore, we remand to the

trial   court   for   a   new    hearing      to   determine   the    appropriate

amount of restitution.

      No prejudicial error in part; remanded in part.

      Judges McGEE and HUNTER, Robert C., concur.

      Report per Rule 30(e).
