An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1182
                          NORTH CAROLINA COURT OF APPEALS
                                 Filed:    19 August 2014
STATE OF NORTH CAROLINA

                                                  Mecklenburg County
      v.
                                                  Nos. 11 CRS 218387-88, 218434

ROBERT MCPHAIL


      Appeal by defendant from judgments entered 17 April 2013 by

Judge Robert T. Sumner in Mecklenburg County Superior Court.

Heard in the Court of Appeals 4 March 2014.


      Attorney General Roy Cooper, by Special                    Deputy    Attorney
      General I. Faison Hicks, for the State.

      Kathryn L. VandenBerg, for Defendant.


      ERVIN, Judge.


      Defendant         Robert   McPhail    appeals     from   judgments    entered

based      upon    his     convictions      for     first   degree    murder    and

conspiracy        to    commit   robbery    with    a   dangerous    weapon.      On

appeal, Defendant contends that the trial court erred by failing

to   conduct       an    investigation      into    whether    jurors     had   been

subjected to improper external influences, temporarily closing

the courtroom during the questioning of the juror without making
                                              -2-
adequate      findings        of     fact,         and     awarding           $113,140.52     in

restitution in the absence of sufficient evidentiary support.

After     careful     consideration           of   Defendant’s          challenges      to   the

trial      court’s      judgments        in    light       of     the     record       and   the

applicable law, we conclude that the trial court’s judgment in

the   case    in     which   Defendant         was       convicted       of    conspiracy    to

commit       robbery       with      a     dangerous            weapon        should     remain

undisturbed, that Defendant’s conviction for first degree murder

should remain undisturbed, but that the trial court’s judgment

in the first degree murder case should be vacated, and that case

should be remanded to the Mecklenburg County Superior Court for

the sole purpose of the entry of a new judgment in which the

amount of restitution is calculated correctly.

                              I. Factual Background

                               A. Substantive Facts

      On     15    April     2011,       Defendant        and    N’Gai        Yarree    Sutton1

discussed a robbery that they intended                           to commit        along with

Damon Grimes.        According to the plan that the men developed, Mr.

Grimes would bring an individual to the Roseland Apartments for

the   purpose      of   purchasing        marijuana.             After    this     individual

arrived, the group intended to rob him.                              Defendant told Mr.
      1
      Mr. Sutton pled guilty to second degree murder and robbery
with a dangerous weapon pursuant to a plea agreement in which he
agreed to provide truthful testimony at Defendant’s trial.
                                          -3-
Sutton that the “big guy”2 would have the money.                      Defendant, who

owned an AK-47, was supposed to bring his firearm to the site of

the robbery.

       On the following day, Defendant and Mr. Sutton were told

that       the   robbery   would    occur       at   Mr.   Grimes’     apartment    at

Woodstone Apartments instead of at the Roseland Apartments.                        As

a result, Yvette Funderburke, Defendant’s girlfriend, drove Mr.

Sutton and Defendant to the Woodstone Apartments.                      According to

Mr.    Sutton,      Defendant      put   his    AK-47      in   the   trunk   of   Ms.

Funderburke’s vehicle before leaving for Mr. Grimes’ apartment.

At the time that the group arrived at the Woodstone Apartments,

Defendant retrieved his AK-47 and joined Mr. Sutton in entering

Mr. Grimes’ apartment.

       At approximately 12:15 p.m. on 16 April 2011, Mr. Wallace

and Usef Guy Isabell drove to Mr. Isabell’s sister’s apartment

at the Woodstone Apartments, at which Mr. Wallace intended to

purchase seven pounds of marijuana from Mr. Grimes.                     Mr. Wallace

had purchased marijuana from Mr. Grimes at that location on

multiple occasions.          Upon arriving at the apartment, Mr. Isabell

and Mr. Wallace were instructed to wait in the kitchen.

       After      entering   the    apartment,       Mr.    Sutton     went   to   the

kitchen, where he found two men sitting at a table.                           At that
       2
      At the time of his death, Larry Dean Wallace was 6 feet, 5
inches tall and weighed 469 pounds.
                                        -4-
point, Mr. Sutton said, “you know what time it is;” walked up to

the   “big    guy,”   who   was   Mr.    Wallace;    and     went   through     Mr.

Wallace’s pockets, from which he took money and marijuana.                       As

Mr. Sutton took Mr. Wallace’s money and marijuana, Defendant

pointed his rifle at him.         At the time that Mr. Sutton turned to

leave, Defendant fired a shot at Mr. Wallace, who fell.                    After

Mr. Sutton and Defendant returned to the car, Ms. Funderburke

drove the group to her residence, where Defendant, Mr. Sutton

and Mr. Grimes divided the money and marijuana that had been

obtained in the robbery.          Mr. Wallace died as the result of a

gunshot wound to the chest.

                            B. Procedural History

      On 19 April 2011, warrants for arrest charging Defendant

with murder, robbery with a dangerous weapon, and conspiracy to

commit robbery with a dangerous weapon were issued.                     On 2 May

2011,   the    Mecklenburg    County     grand     jury    returned     bills   of

indictment     charging     Defendant     with     murder,    robbery    with     a

dangerous     weapon,   and   conspiracy      to    commit    robbery    with    a

dangerous weapon.       On 4 August 2011, the State announced that it

did not intend to proceed against Defendant capitally.                          The

charges against Defendant came on for trial before the trial

court and a jury at the 8 April 2013 criminal session of the

Mecklenburg County Superior Court.               On 17 April 2013, the jury
                                        -5-
returned a verdict convicting Defendant of first degree murder

on the basis of the felony murder rule with robbery with a

dangerous     weapon    as     the    predicate      felony,     robbery     with   a

dangerous   weapon,      and    conspiracy      to    commit     robbery     with    a

dangerous weapon.        At the conclusion of the ensuing sentencing

hearing, the trial court arrested judgment in the case in which

Defendant had been convicted of robbery with a dangerous weapon

and entered judgments sentencing Defendant to a term of life

imprisonment     without       the    possibility       of   parole    based    upon

Defendant’s     conviction       for    first     degree     murder    and     to    a

consecutive term       of 38 to        55 months imprisonment          based upon

Defendant’s conviction for conspiracy to commit robbery with a

dangerous weapon.        Defendant noted an appeal to this Court from

the trial court’s judgments.

                       II. Substantive Legal Analysis

                  A. Failure to Conduct Jury Inquiry

    In his initial challenge to the trial court’s judgments,

Defendant   argues      that    the    trial    court    erred    by   failing      to

investigate the extent to which members of the jury had been

subjected to improper external influences.                   More specifically,

Defendant contends that the trial court erroneously failed to

conduct an inquiry into the extent to which the other members of

the jury had been subject to improper external influences after
                                              -6-
one juror had expressed concern about having been stared at by

members of the gallery and approached in the parking lot by a

trial spectator and indicated that other members of the jury had

discussed and expressed concern about the conduct of the members

of the gallery.          We do not believe that Defendant is entitled to

relief     from    the     trial       court’s        judgments        based       upon    this

argument.

                                1. Standard of Review

       “Due process requires that a defendant have ‘a panel of

impartial, “indifferent” jurors.’”                     State v. Williams, 330 N.C.

579,     583,     411    S.E.2d        814,     817        (1992)     (citing      State     v.

Rutherford, 70 N.C. App. 674, 677, 320 S.E.2d 916, 919, disc.

review denied, 313 N.C. 335, 327 S.E.2d 897 (1985) (quoting

Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 1642, 6 L. Ed.

2d 751, 755 (1961)).             “The trial court has the duty to insure

that   jurors      for    the    case     being       tried        remain   impartial      and

uninfluenced by outside persons.”                      Williams, 330 N.C. at 583,

411 S.E.2d at 817 (citing Rutherford, 70 N.C. App. at 677, 320

S.E.2d    at    919).       However,          “[a]n    examination          is   ‘generally’

required    only    ‘where       some    prejudicial          content       is   reported.’”

State v. Harrington, 335 N.C. 105, 115, 436 S.E.2d 235, 240-41

(1993)    (quoting       State    v.    Drake,        31    N.C.    App.    187,    192,    229

S.E.2d 51, 54 (1976)).            “Whether alleged misconduct has affected
                                          -7-
the    impartiality      of     a    particular        juror    is    a    discretionary

determination for the trial court[,]” State v. Clark, 138 N.C.

App. 392, 398, 531 S.E.2d 482, 487 (2000), cert. denied, 353

N.C. 730, 551 S.E.2d 108 (2001), with this determination to be

made    based    upon    an    analysis    of    the     facts       and   circumstances

present in the case under consideration.                        Rutherford, 70 N.C.

App. at 677, 320 S.E.2d at 919.                    “‘The determination of the

existence and effect of juror misconduct is primarily for the

trial    court     whose      decision    will     be    given       great    weight   on

appeal.’”       Williams, 330 N.C. at 583, 411 S.E.2d at 817 (quoting

State v. Bonney, 329 N.C. 61, 83, 405 S.E.2d 145, 158 (1991)).

                                    2. Relevant Facts

       At the beginning of the sixth day of Defendant’s trial,

shortly before the jury instruction conference, the trial court

received a letter from a member of the jury in which she stated

that she was being stared at by certain gallery members, that

this conduct made her fear for her safety, and that she would be

unable to reach a fair and impartial verdict in light of her

concerns.        After receiving the juror’s letter and consulting

with    counsel    for     both      parties,    the    trial     court      cleared   the

courtroom of everyone with the exception of court personnel,

Defendant,        his    trial        counsel,     the         prosecutors,      and    a
                                -8-
representative from the Charlotte-Mecklenburg Police Department

and brought the juror into the courtroom.

     In response to the trial court’s inquiry, the juror in

question stated that the letter that she had transmitted to the

trial court stemmed from two separate incidents.         In the first

of   these   incidents,   members   of   the   gallery    sitting   on

Defendant’s side of the courtroom had been staring at her in

what she believed to be an effort to intimidate her.           In her

letter, the juror specified that the conduct of two women, in

particular, had made her uncomfortable and fearful, so that she

was “scared to death” when she left the courtroom.

     The second incident occurred as the juror walked to her car

after leaving the courtroom at the end of the day’s proceedings.

As the juror passed a car      parked on the same level of the

parking deck as the one in which her car was parked, a man

sitting in that vehicle said, “hey, how are you doing?”             The

juror believed that the man who had spoken to her had been

sitting in the back of the courtroom on Defendant’s side during

part of the trial.   Although the juror was already scared by the

conduct of the women who had stared at her in the courtroom,

this incident frightened her even more.

     After describing these two incidents, the juror informed

the trial court that she felt unsafe and feared that someone
                                         -9-
might attempt to harm her if she failed to return a verdict in

Defendant’s favor.      For that reason, the juror stated that, even

if the State proved Defendant’s guilt beyond a reasonable doubt,

she would still refrain from returning a guilty verdict.3                      In

response to the trial court’s inquiry concerning whether she had

shared any of her concerns with other members of the jury, the

juror denied having done so.             However, the juror did inform the

trial court that other jurors had mentioned that members of the

gallery   had    been   staring     at    them   and   that   one    juror    had

expressed a desire to have an escort at the time that he or she

left the courtroom at the end of the day.

    At the conclusion of this discussion, the trial court sent

the juror to a room other than the one in which the other

members   of    the   jury   were    waiting     and   gave   each    party    an

opportunity to be heard with respect to the issue of whether the

juror should remain a member of the jury.                Although the State

argued that the juror should be excused, Defendant expressed

concern about excusing a juror at such a late stage of the trial
    3
      In her letter to the trial court, the juror attempted to
explain why these incidents were so disturbing, stating that
“[a]dding to my anxiety is the memory of the time I tried to get
a restraining order from the court against my ex-boyfriend and
was sent away with nothing since not enough damage had been done
yet.”    She further stated that, “[a]lthough I returned soon
after with enough damage to get the order, . . . I know that the
court lets things go too far out of hand before acting on them”
and “I can’t allow this to become another incident like that in
my life.”
                                               -10-
and     noted       that    a    decision        to   replace      the      juror    with     an

alternative         would       exhaust    the    supply      of     available      alternate

jurors.       After reviewing the letter and hearing from the juror

and counsel for both parties, the trial court determined that

the juror should be excused and replaced by an alternate juror

given    the    juror’s         expression       of   doubt     about    her       ability   to

return a fair and impartial verdict in accordance with the law

and the facts.

       Having       made    this    decision,         the   trial     court    stated       that

“[t]he    second        issue      is     my   concern       about    what     [the    juror]

described and what [the juror] heard from the other jurors.”

Although the trial court expressed doubt to the parties “that

it’s in anyone’s best interest to approach that subject with

other jurors,” it stated that “I’ll certainly let you speak to

that if you think that it’s necessary.”                        Neither party dissented

from    the     trial      court’s       logic    with      respect    to     the    issue   of

whether       the    other      jurors     should      be    brought     in    for    further

questioning.

       Subsequently, the trial court addressed the issue of what

steps    should       be    taken       concerning     the    behavior        of    spectators

during the remainder of the trial.                       On the one hand, the State

argued that the courtroom should be closed for the remainder of

the trial to ensure that no additional problematic incidents
                                               -11-
occurred.       On the other hand, Defendant objected to any decision

to close the courtroom.               At the conclusion of this discussion,

the trial court decided to refrain from closing the courtroom

during    the    remaining       trial     proceedings.             However,      the   trial

court also decided to address the gallery outside the presence

of the jury concerning the manner in which they should behave in

the courtroom.         Both the State and Defendant expressed agreement

with the manner in which the trial court proposed to proceed.

                                    3. Legal Analysis

      Although Defendant contends that the trial court abused its

discretion by failing to make inquiry of the other members of

the   jury     concerning      the      extent,        if    any,   to   which    they     had

knowledge       of     incidents      or       had     concerns      similar      to    those

expressed by the excused juror, the fact that the excused juror

denied having mentioned her concerns to any other member of the

jury,    the    fact    that     none     of    the    other     jurors    had    expressed

similar    concerns,       and      the    fact       that    the   record      contains    no

indication that any other member of the jury lacked the ability

to return a fair and impartial verdict raises serious doubts

about    the    validity       of    Defendant’s             argument    that    the    trial

court’s decision to refrain from making an inquiry of the other

members of the jury concerning the extent to which they had been

subject to improper external influences constituted an abuse of
                                         -12-
discretion.         However, we need not reach this issue given the

fact   that     Defendant      neither    objected    to     the      trial    court’s

decision      to     refrain    from     conducting   such       an    inquiry        nor

requested that such an inquiry be conducted.                    State v. Najewicz,

112 N.C. App. 280, 291, 436 S.E.2d 132, 139 (1993) (holding

that, given the defendant’s failure to make any                         “motion for

mistrial   or       request    for   other   court    action       based      upon    the

alleged juror misconduct,” he had waived his right to challenge

the trial court’s failure to act on appeal).

       In apparent recognition of his failure to properly preserve

this   issue       for   appellate     review,   Defendant      contends       that    we

should reach the merits of his “external influence” claim in

reliance upon N.C. R. App. P. 2 in the event that we conclude

that this issue is not properly before us.                 As the Supreme Court

has indicated, however, an appellate court should only utilize

its authority to overlook appellate rule violations under N.C.

R. App. P. 2 “when necessary to prevent manifest injustice to a

party or to expedite decision in the public interest,” with the

presence      of    “exceptional       circumstances”      in    the    case     under

consideration being the critical factor in determining whether

we should act in the manner that Defendant recommends.                         Dogwood

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

196, 657 S.E.2d 361, 364 (2008) (citing State v. Hart, 361 N.C.
                                     -13-
309, 315-17, 644 S.E.2d 201, 205-06 (2007), and Steingress v.

Steingress, 350 N.C. 64, 66, 511 S.E.2d 298, 299-300 (1999)

(internal quotations omitted)).         We see nothing in the present

record    establishing        that    there        are     any     “exceptional

circumstances” present in this case that suffice to support the

invocation of our authority to overlook Defendant’s failure to

properly preserve this issue for appellate review pursuant to

N.C. R. App. P. 2.         As a result, Defendant is not entitled to

relief   from   his   convictions     based   upon       this    aspect   of   his

challenge to the trial court’s judgments.

                          B. Right to Public Trial

    Secondly, Defendant argues that the trial court erred by

temporarily     closing    the   courtroom    to    the   public    during     the

questioning of the excused juror.            More specifically, Defendant

contends that the trial court erred by closing the courtroom to

members of the public during the inquiry concerning the issues

raised by the excused juror without                making findings of fact

sufficient to support this decision.               Once again, we conclude

that Defendant is not entitled to relief from the trial court’s

judgments on the basis of this argument.

                           1. Standard of Review

    A criminal defendant is entitled to a “public trial.”                      U.S.

Const. amend. VI; State v. Rollins, __ N.C. App. __, __ 729
                                              -14-
S.E.2d 73, 76-77 (2012).                As a result, a claim that a defendant

was denied the right to an open and public trial is an assertion

of constitutional magnitude.                      We review alleged constitutional

violations de novo.             State v. Comeaux, __ N.C. App. __, __, 741

S.E.2d 346, 349 (2012), disc. review denied, 366 N.C. 584, 739

S.E.2d 853 (2013).

                                 2. Courtroom Closure

      “‘In clearing the courtroom, the trial court must determine

if the party seeking closure has advanced an overriding interest

that is likely to be prejudiced, order closure no broader than

necessary     to        protect        that       interest,       consider           reasonable

alternatives       to     closing           the    procedure,       and       make    findings

adequate to support the closure.’”                        State v. Starner, 152 N.C.

App. 150, 154, 566 S.E.2d 814, 816–17 (quoting State v. Jenkins,

115   N.C.   App.       520,    525,        445    S.E.2d    622,      625,    disc.     review

denied, 337 N.C. 804, 449 S.E.2d 752 (1994) (citing Waller v.

Georgia, 467 U.S. 39, 48, 104 S. Ct. 2210, 2216, 81 L. Ed. 2d

31,   39   (1984)),      cert.        denied,      356    N.C.    311,     571      S.E.2d    209

(2002).      However,          the    trial       court     is   not    required       to    make

specific     findings      of        fact    in    the    event     that      the     defendant

consents to the closing of the courtroom.                                Id. at 154, 566

S.E.2d at 817.
                                         -15-
       At the time that the courtroom was closed to members of the

public for the purpose of inquiring about the issues raised by

the     excused      juror’s   letter,        the    trial     court      stated     that,

“[a]fter consulting with the attorneys for the State and the

attorney for the defendant, I’ve decided to clear the courtroom

except as to the court personnel, of course the defendant, his

attorney, the State’s attorneys and their representative from

the [Charlotte-Mecklenburg Police Department].”                               After making

this    announcement,       the   trial       inquired       if    either       party    had

“[a]nything before I bring her in?”                        In response, Defendant’s

trial    counsel        responded      “[n]o,       Your    Honor.”           Although   the

consultation between the trial court and counsel for the parties

occurred       off    the   record,     it     is    clear     from      the     materials

presented for our review that Defendant had an opportunity to

object    to    the    closing    of    the     courtroom         on    the    record    and

specifically declined to do so.                 In a remarkably similar case,

we held that the defendant waived the right to object to the

trial court’s decision to close the courtroom to members of the

public without holding a hearing or making adequate findings of

fact    on   the     grounds   that     the     defendant         had   been     given    an

opportunity to object to the trial court’s decision and declined

to take advantage of that opportunity.                     State v. Smith, 180 N.C.

App. 86, 98, 636 S.E.2d 267, 275 (2006).                      As a result, in light
                                                -16-
of     the       complete     absence      of     any     indication    that    Defendant

expressed any disagreement with the trial court’s decision to

close the courtroom despite being given ample opportunity to

lodge      an     objection    to    the    proposed       procedure,4    we   hold    that

Defendant is not entitled to relief from his convictions based

upon       the    trial      court’s    decision         to     temporarily    close   the

courtroom.

                                 C. Restitution Award

       Finally, Defendant contends that the trial court erred by

ordering          him   to     pay     $113,140.52         in     restitution.         More

specifically, Defendant argues that the record developed before

the trial court did not support the amount of the trial court’s

restitution award.            Defendant’s argument has merit.

                                1. Standard of Review

       Although         Defendant       did       not     lodge     a    contemporaneous

objection to the trial court’s restitution award, “no objection

is required to preserve for appellate review issues concerning

the imposition of restitution.”                        State v. Smith, 210 N.C. App.

       4
      In his brief, Defendant points out that he did object to
the State’s suggestion to close the courtroom during closing
arguments and other proceedings subsequent to the inquiry into
the issues raised by the excused juror’s letter. Aside from the
fact that the trial court declined to close the courtroom during
the remaining portions of the trial, the fact that Defendant
objected to closing the courtroom at one point in the trial does
not constitute a valid objection to the trial court’s decision
to close the courtroom at a different stage of the proceedings.
                                      -17-
439, 443, 707 S.E.2d 779, 782 (2011) (citing State v. Mumford,

364 N.C. 394, 402–03, 699 S.E.2d 911, 917 (2010)).                   “The amount

of     restitution    must   be    limited    to    that   supported    by   the

record[.]”      N.C. Gen. Stat. § 15A–1340.36(a).               “Issues at a

sentencing hearing may be established by stipulation of counsel

if that stipulation is ‘“definite and certain.”’”                Mumford, 364

N.C. at 403, 699 S.E.2d at 917 (citing State v. Alexander, 359

N.C. 824, 828, 616 S.E.2d 914, 917 (2005) (quoting State v.

Powell, 254 N.C. 231, 234, 118 S.E.2d 617, 619 (1961) (citations

omitted))).      “In the absence of an agreement or stipulation

between defendant and the State, evidence must be presented in

support of an award of restitution.”                 State v. Buchanan, 108

N.C.    App.   338,   341,   423   S.E.2d    819,    821   (1992).      “Unsworn

statements made by the prosecutor are insufficient to support

the amount of restitution ordered.”                State v. Wright, 212 N.C.

App. 640, 645, 711 S.E.2d 797, 801, disc. review denied, 365

N.C. 351, 717 S.E.2d 743 (2011).             “On appeal, we review de novo

whether the restitution order was ‘supported by evidence adduced

at trial or at sentencing.’”          Wright, 212 N.C. App. at 645, 711

S.E.2d at 801 (quoting State v. Shelton, 167 N.C. App. 225, 233,

605 S.E.2d 228, 233 (2004)).

                             2. Relevant Facts
                                          -18-
       After counsel for the parties addressed the trial court

concerning sentencing-related issues, the State sought the entry

of an order requiring the payment of restitution in the amount

of $113,140.52.         In support of this request, the State presented

medical and funeral bills that totaled this amount to the trial

court.       In response, Defendant stated that the only medical bill

of which he was aware totaled approximately $84,000.00.                         At the

conclusion of the sentencing hearing, the trial court ordered

Defendant to pay, jointly and severally with his codefendants,

restitution in the amount of $113,140.52, with this amount to be

docketed as a “civil lien.”

                               3. Legal Analysis

       Although    the    State     tendered     medical     and      funeral     bills

totaling       $113,140.52    to    the    trial    court        at   the    sentencing

hearing, the bills were never offered or admitted into evidence.

For that reason, we have little choice but to conclude that the

amount of restitution awarded in this case rested upon nothing

beyond the unsworn statement of the prosecutor, a form of proof

that    is    “insufficient    to    support       the    amount      of    restitution

ordered.”        Wright, 212 N.C. App. at 645, 711 S.E.2d at 801.

Thus,    the    trial    court’s    restitution          award    lacks      sufficient

evidentiary support.
                                      -19-
     In seeking to persuade us to reach a different result, the

State     argues   that,   by     failing    to    contest    or    dispute      the

documentary    materials     submitted       to    the    trial    court    at   the

sentencing    hearing,     Defendant       effectively      stipulated      to   the

appropriateness of the restitution amount awarded by the trial

court.5    However, we do not read the record as supportive of the

State’s     contention.         Instead,    when    the    trial    court     asked

Defendant’s counsel if he had seen the bills upon which the

State relied, Defendant’s trial counsel responded, “I guess the

only thing we have is that $84,000 bill from [Carolinas Medical

Center] whether that’s still the same amount . . . [b]ut that’s

all that we’d bring up.”           When read in context, the statement

made by Defendant’s trial counsel simply did not amount to a

“definite and certain” stipulation.                Mumford, 364 N.C. at 403,

699 S.E.2d at 917.         Although Defendant’s trial counsel did not

object to the restitution amount sought by the State in so many

words, his statement cannot be understood as indicating anything

other than an assertion that he had seen a single bill in an

amount substantially less than the award sought by the State and

knew nothing about the other bills upon which the State relied

     5
      The State has not contended that the documents upon which
the trial court relied were admitted into evidence or should
otherwise be deemed properly before the trial court on the basis
of any theory aside from the “stipulation” approach discussed in
the text.
                                             -20-
in support of its restitution request.                         For that reason, we

cannot construe the statement made by Defendant’s trial counsel

as   a    “definite      and       certain”    stipulation       of    the    amount    of

restitution that the trial court was entitled to award.                                See

Smith, 210 N.C. App. at 444-45, 707 S.E.2d at 783 (“We do not

consider     Defendant’s           silence    or    lack    of    objection      to    the

restitution        amount      to    constitute      a     ‘definite    and     certain’

stipulation as required by North Carolina law”).                           As a result,

given that Defendant did not stipulate to the restitution amount

deemed     appropriate       by     the    trial    court      and    given    that    the

evidentiary record did not support the trial court’s restitution

award, the trial court’s judgment in the case in which Defendant

was convicted of first degree murder is vacated and that case is

remanded to the trial court for the purpose of entering a new

judgment     containing        a    properly    calculated       restitution      award.

State v. Moore, 365 N.C. 283, 286, 715 S.E.2d 847, 849–50 (2011)

(stating that “the appropriate course here is to remand for the

trial      court    to   .     .     .    calculate      the     correct      amount    of

restitution”).

                                     III. Conclusion

         Thus, for the reasons set forth above, we conclude that

Defendant’s challenges to his convictions lack merit.                            On the

other hand, we conclude that the trial court erred by awarding
                                        -21-
an   amount       of     restitution    that   lacked       adequate   evidentiary

support.      As a result, although we find no error in Defendant’s

convictions and in the trial court’s judgment in the case in

which Defendant was convicted of conspiracy to commit robbery

with a dangerous weapon, the trial court’s judgment in the case

in which Defendant was convicted of first degree murder should

be, and hereby is, vacated and that case should be, and hereby

is, remanded to the Mecklenburg County Superior Court for the

entry   of    a        new   judgment   containing      a   properly   calculated

restitution award.

     NO ERROR IN PART; VACATED AND REMANDED IN PART.

     Judges McGEE and STEELMAN concur.

     Report per Rule 30(e).
