               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-520

                                 Filed: 17 April 2018

Onslow County, No. 14CRS057467

STATE OF NORTH CAROLINA

              v.

COREY ALEXANDER THOMAS


        Appeal by defendant from judgment entered 17 June 2016 by Judge Ronald L.

Stephens in Onslow County Superior Court. Heard in the Court of Appeals 9 January

2018.


        Attorney General Joshua H. Stein, by Special Deputy Attorney General Patrick
        S. Wooten, for the State.

        Rudolf Widenhouse, by M. Gordon Widenhouse, Jr., for defendant-appellant.


        BRYANT, Judge.


        Where the proffered expert testimony would not provide insight to the trier of

fact beyond the conclusions that jurors could readily draw from their ordinary

experience, the trial court did not abuse its discretion in excluding the testimony.

Where there was evidence that defendant was the aggressor, the trial court did not

err in instructing the jury on the aggressor doctrine as it relates to self-defense.

Where there was insufficient evidence to support restitution in the amount of

$3,360.00 in funeral expenses to Ward’s family, we vacate and remand this portion of

the trial court’s order.
                                   STATE V. THOMAS

                                   Opinion of the Court



       On 23 July 2014, Ronnie Williams was in the muffler shop that he ran on Bell

Fork Road in Jacksonville, North Carolina, when he heard four gunshots. Williams

testified that he could not recall the exact time of day he heard the gunshots, but that

he believed it was in the afternoon.       The first three shots were fired in rapid

succession followed by a short pause before the fourth shot. Williams looked outside

behind the shop and saw a man running from the area where the shots had been

fired. A car pulled up, and the man got into the car. As gunfire was common in the

area, Williams went back to work. Just before 7:00 p.m., Williams walked into the

field behind his shop to retrieve a hoe he had left outside. He found a body and had

his wife call the police.

       Around 7:00 p.m., the first officer responded to the scene. He discovered a male

body with blood visible on his back and around the body. He also noticed a shell

casing near the victim’s head. The victim had been shot in the upper chest, shoulder,

abdomen, right flank, and twice in the back. Later, more shell casings were found,

all from a 9mm weapon.

       Jennifer Hankins arrived at the scene and related that she was the girlfriend

of the deceased, Robert Ward. Ward, who was known to buy and sell drugs, had

worked as an informant for one of the detectives who identified Ward as the victim

at the scene and informed Hankins of the deceased’s identity. Hankins told officers

that at about 6:30 p.m. that day, Ward indicated he was going out with Antonio Best



                                          -2-
                                     STATE V. THOMAS

                                     Opinion of the Court



to rob a target, and as he did so, he put a 9mm pistol into the pocket of his waistband.

Ward and Best hoped to steal as much as $20,000.00 from their target, defendant

Corey Alexander Thomas. Hankins also recalled that Ward had put $80.00 in “flash

money” in his pocket. Officers obtained an arrest warrant for Best, charging him

with conspiring with Ward to commit robbery with a dangerous weapon.

       Meanwhile, during the afternoon of 23 July 2014, defendant had been to the

Liberty Inn to visit Lia Cassell, his sometime-roommate and sexual partner and to

whom he also sold heroin. Later, defendant called Cassell asking her to call him a

cab but refusing to tell her where he was. Defendant sounded very panicky and said

he had shot somebody.

       Ten to fifteen minutes after the phone call, defendant showed up at Cassell’s

motel room very disheveled, panicky, and with blood on him. Surveillance video from

the Liberty Inn showed a Yellow Cab arrive at the rear of the motel around 7:26 p.m.

       Defendant went into the bathroom and cleaned up. He then told Cassell that

he had shot someone multiple times and was sure the person was dead. Defendant

told Cassell he “wanted to go on the run” and that he wanted Cassell to come with

him.   Cassell refused and told him she would only help him turn himself in.

Defendant left, and Cassell went to the police, told them what she had heard, helped

police identify the likely places to which defendant might have run, and allowed

officers to search her motel room.



                                            -3-
                                  STATE V. THOMAS

                                  Opinion of the Court



      Defendant was ultimately located and arrested in a motel parking lot in

Havelock, North Carolina.     The officer who took him into custody testified that

defendant complained of a shoulder injury and had a .32-caliber Kel-Tec semi-

automatic handgun concealed in his front pocket.

      On 6 June 2015, defendant was indicted by an Onslow County grand jury for

first-degree murder. The case came on for trial during the 6 June 2016 session, the

Honorable Ronald L. Stephens, Superior Court Judge presiding. Defendant testified

at length about the events of 23 July 2014. Among other things, defendant testified

that upon meeting Ward and Best, he knew he was being robbed. According to

defendant, Ward struck defendant across the head with his pistol and, after a

struggle, defendant got control of the gun and “three shots let off in succession: Pow!

Pow! Pow!” while Ward was on his knees reaching for the gun. Defendant emptied

Ward’s pockets taking “everything that looked like it belonged to [defendant].”

      The trial court submitted the case to the jury on second-degree murder and

voluntary manslaughter. Defendant was convicted of voluntary manslaughter and

sentenced to an active term of imprisonment for sixty-five months minimum to ninety

months maximum. Restitution in the amount of $3,360.00 was entered as a civil

judgment to be paid as a condition of post-release supervision or work release, if

applicable. Defendant appeals.

           _________________________________________________________



                                         -4-
                                   STATE V. THOMAS

                                   Opinion of the Court



      On appeal, defendant argues the trial court erred (I) in excluding the testimony

of a forensic psychologist about the phenomenon of “fight or flight”; (II) in overruling

defendant’s objection to an instruction that he would not be entitled to a claim of self-

defense if he was the aggressor where no evidence supported such an instruction; and

(III) by imposing $3,360.00 in restitution where this amount was not supported by

the evidence.

                                            I

      Defendant argues the trial court erred in excluding the expert opinion

testimony of a forensic psychologist about the phenomenon of “fight or flight” as it

was relevant to defendant’s defense to the charge of voluntary manslaughter.

Specifically, defendant contends the trial court incorrectly ruled that this evidence

was not relevant or reliable and that it would not assist the jury and that the trial

court’s exclusion of this testimony violated his constitutional rights. We disagree.

      In contending that the trial court’s exclusion of this testimony violated his

constitutional rights, defendant argues the standard of review on appeal should be

de novo.   However, this Court has previously addressed and rejected such an

argument. See State v. McGrady (McGrady I), 232 N.C. App. 95, 105–06, 753 S.E.2d

361, 369–70 (2014) (disagreeing with the defendant’s contention that the exclusion of

his witness’s testimony under Rule 702 violated his constitutional right to present a

defense under the Sixth Amendment of the United States Constitution and Article I,



                                          -5-
                                         STATE V. THOMAS

                                         Opinion of the Court



section 23 of the N.C. Constitution), aff’d 368 N.C. 880, 787 S.E.2d 1 (2016)

(“McGrady II”).1 As such, we review for abuse of discretion. See infra.

       “[T]he trial judge is afforded wide latitude of discretion when making a

determination about the admissibility of expert testimony.” State v. Bullard, 312

N.C. 129, 140, 322 S.E.2d 370, 376 (1984). “The trial court’s decision regarding what

expert testimony to admit will be reversed only for an abuse of discretion.” State v.

Alderson, 173 N.C. App. 344, 350, 618 S.E.2d 844, 848 (2005) (citing State v. Holland,

150 N.C. App. 457, 461–62, 566 S.E.2d 90, 93 (2002)).

       In affirming this Court’s opinion in McGrady II, our Supreme Court set forth

the grounds on which an abuse of discretion may be found when a trial court admits

or excludes expert testimony:

                      The trial court then concludes, based on these
               findings, whether the proffered expert testimony meets
               Rule 702(a)’s requirements of qualification, relevance, and
               reliability. This ruling “will not be reversed on appeal
               absent a showing of abuse of discretion.” And “[a] trial
               court may be reversed for abuse of discretion only upon a
               showing that its ruling was manifestly unsupported by
               reason and could not have been the result of a reasoned
               decision.” State v. Riddick, 315 N.C. 749, 756, 340 S.E.2d
               55, 59 (1986). The standard of review remains the same
               whether the trial court has admitted or excluded the
               testimony—even when the exclusion of expert testimony
               results in summary judgment and thereby becomes
               “outcome determinative.”


       1  The Supreme Court of North Carolina handed down its decision in McGrady II on 10 June
2016, on the fifth day of trial in the instant case. State v. McGrady (“McGrady II”), 368 N.C. 880, 880,
787 S.E.2d 1, 1 (2016).

                                                 -6-
                                     STATE V. THOMAS

                                     Opinion of the Court



368 N.C. at 893, 787 S.E.2d at 11 (alteration in original) (internal citations omitted).

“In addition, even if expert scientific testimony might be reliable in the abstract, to

satisfy Rule 702(a)’s relevancy requirement, the trial court must assess ‘whether that

reasoning or methodology properly can be applied to the facts in issue.’ ” State v.

Babich, ___ N.C. App. ___, ___, 797 S.E.2d 359, 362 (2017) (quoting Daubert v. Merrell

Dow Pharm., Inc., 509 U.S. 579, 593, 125 L. Ed. 2d 469, 482 (1993)). “This ensures

that ‘expert testimony proffered in the case is sufficiently tied to the facts of the case

that it will aid the jury in resolving a factual dispute.’ ” Id. (quoting Daubert, 509

U.S. at 591, 125 L. Ed. 2d at 481). “The Supreme Court in Daubert referred to this

as the ‘fit’ test.” Id. (citation omitted).

       Rule 702(a) states as follows:

              If scientific, technical or other specialized knowledge will
              assist the trier of fact to understand the evidence or to
              determine a fact in issue, a witness qualified as an expert
              by knowledge, skill, experience, training, or education, may
              testify thereto in the form of an opinion, or otherwise, if all
              of the following apply:

                     (1) The testimony is based upon sufficient facts or
                         data.

                     (2) The testimony is the product           of reliable
                         principles and methods.

                     (3) The witness has applied the principles and
                         methods reliably to the facts of the case.




                                              -7-
                                         STATE V. THOMAS

                                         Opinion of the Court



N.C. Gen. Stat. § 8C-1, Rule 702(a) (2015), amended by N.C. Sess. Laws 2017-212, §

5.3, eff. June 28, 2017. However,

                [w]hile “[Rule] 702 imposes a special obligation upon a trial
                judge to ensure that any and all scientific testimony . . . is
                not only relevant, but reliable,” “Daubert did not work a
                seachange [sic] over . . . evidence law, and the trial court’s
                role as gatekeeper is not intended to serve as a replacement
                for the adversary system.”

State v. Hunt, ___ N.C. App. ___, ___, 792 S.E.2d 552, 560 (2016) (alterations in

original) (internal citation omitted) (quoting Fed. R. Evid. 702 (2012) (Advisory

Committee notes)).

        In McGrady,2 the defendant appealed from his conviction for first-degree

murder and argued the trial court abused its discretion in excluding the expert

testimony offered by the defendant regarding the doctrine of “use of force,” McGrady

I, 232 N.C. App. at 98, 753 S.E.2d at 365, and the sympathetic nervous system’s “fight

or flight” response, McGrady II, 368 N.C. at 894, 787 S.E.2d at 11,3 violating his right

to present a defense. This Court disagreed, noting that the expert witness “was not

even able to cite a single specific study, merely referring to the existence of studies

and their authors generally[,]” “admitted that he knew nothing about the [relevant




        2  We refer to both McGrady I and McGrady II collectively as “McGrady.”
        3  McGrady I referred more generally to the proffered expert’s testimony as “Expert Witness
Testimony on Use of Force,” State v. McGrady (“McGrady I”), 232 N.C. App. 95, 98, 753 S.E.2d 361,
365 (2014), whereas McGrady II addressed the more specific aspects of the proffered witness’s
testimony, including the expert’s intention to testify about the “the sympathetic nervous system’s ‘fight
or flight’ response[.]” 368 N.C. at 894, 787 S.E.2d at 11.

                                                  -8-
                                   STATE V. THOMAS

                                   Opinion of the Court



‘rate of error’] or how it related to his opinions[,]” “completely lacked medical

credentials,” and that the expert’s testimony “was firmly within the realm of common

knowledge and would not be helpful to the jury.” McGrady I, 232 N.C. App. at 105,

753 S.E.2d at 369–70. Thus, this Court held that the trial court’s decision to exclude

his testimony “was well-reasoned, especially given the Daubert requirements invoked

by amended Rule 702.” Id. at 106, 753 S.E.2d at 370.

      In McGrady II, the North Carolina Supreme Court noted the “[d]efendant

testified at trial that he did not remember the number of shots that he fired” and “all

of his attention was focused on the threat.” 368 N.C. at 896, 787 S.E.2d at 13. “[The

expert’s] testimony on stress responses was therefore intended to show that the state

of [the] defendant’s memory and [the] defendant’s description of what he experienced

were consistent with having perceived a threat to his life and the life of his son.” Id.

      However,

             [t]he trial court excluded this portion of [the expert’s]
             testimony because it concluded that he was not “qualified
             to talk about how something affects the sympathetic
             nervous system.” [The expert] testified at voir dire that he
             was not a medical doctor but that he had studied “the
             basics” of the brain in general psychology courses in
             college. He also testified that he had read articles and been
             trained by medical doctors on how adrenalin affects the
             body, had personally experienced perceptual narrowing,
             and had trained numerous police officers and civilians on
             how to deal with these stress responses.
                    Though Rule 702(a) does not create an across-the-
             board requirement for academic training or credentials, it
             was not an abuse of discretion in this instance to require a


                                          -9-
                                   STATE V. THOMAS

                                   Opinion of the Court



             witness who intended to testify about the functions of an
             organ system to have some formal medical training.

Id. (internal citation omitted).

      As a result, the North Carolina Supreme Court affirmed this Court’s opinion

in McGrady II, stating that “because [the expert] lacked medical or scientific

training[,]” “he was far less qualified to testify about the sympathetic nervous

system.” Id. As a result, “[i]n [that] context, it was not ‘manifestly without reason’

for the trial court to exclude [the expert’s] testimony . . . .” Id. (emphasis added). In

other words, the North Carolina Supreme Court determined that the proffered

expert’s testimony in McGrady was not improperly excluded where the expert in

question—who intended to testify about human physiology specifically—“lacked

medical or scientific training.” Id.

      Like the excluded expert testimony at issue in McGrady, in the instant case,

the excluded expert testimony focused on forensic psychologist Dr. Amy D. James’s

opinions as to “fight or flight response.” Defendant argues the trial court applied

McGrady in a “rote manner without carefully examining the proffered testimony and

its scientific underpinning.”

      Dr. James testified that she is licensed to practice as a psychologist in the State

of North Carolina, and she has a bachelor’s degree in psychology, a master’s degree

in clinical psychology, and a PhD in clinical psychology. She testified that she is

employed in private practice, consulting in forensic and clinical psychological


                                          - 10 -
                                   STATE V. THOMAS

                                   Opinion of the Court



evaluations. Dr. James also testified that she has a specialization within “the field

of forensic psychology, as well as police and public safety psychology.” During her

voir dire, Dr. James testified in relevant part about the “fight or flight response of the

sympathetic nervous system,” the principles and methods used, the facts or data upon

which they were based, and how she applied these principles in her work as follows:

             I reviewed the processes and procedures by which these
             research articles were published, to include experiments on
             animals dating back to 1915, 1920, by Walter Cannon, to
             admit analyses that were conducted just in 2011, to
             summarize what the plasma level changes of stress
             hormones were following stressful events. I reviewed post-
             event research on victims of crime and on military
             personnel and law enforcement officers who responded to
             threats. Situations where they looked at the physiological
             changes during that time. And applied them to the changes
             that occurred in animals. There wasn’t any research
             available where we subjected humans to acute stressful
             situations. . . .

                    ....

                   Q. . . . And what studies or experiments have been
             done to establish that this fight or flight response is an
             accepted theory or doctrine in the field of psychology?

                    A. Walter Cannon, who was a physiologist at
             Harvard University . . . subjected live animals to stressful
             situations and measured empirically their response to that.
             That is where the fight or flight research began. Since then,
             an individual named . . . Selye . . . applied it to humans.
             Walter Cannon generalized it to humans.
                    In the past 30 to 40 years, the fight or flight response
             has been studied more in the military communities. It has
             been studied on through the Center for Violence Policy
             through multiple schools. . . .


                                          - 11 -
                                    STATE V. THOMAS

                                    Opinion of the Court



                  So the research has been ongoing for approximately
            90 years. There are hundreds of studies in that area. There
            are books on that. There’s books by Mr. Grossman who has
            published on combat and on killing. There are people who
            study only that field of science.

                   Q. Are there any variables that would make the
            straightforward application of the fight or flight response
            of the sympathetic nervous system unreliable? I mean, are
            there things that -- yeah -- inaccurate? Are there things
            that would make the application of this doctrine
            unreliable? Any variables you can think of?

                   A. To this specific case or to any case?

                   Q. In general.

                   A. In general. There would be situations in which
            someone may, you know, call me up and say, Hey, I think
            this is what’s going on. But when I reviewed that
            individual’s case record and their history, I would exclude
            it.

                   ....

                  A. . . . The fight or flight response is only activated if
            the person perceived a situation as threatful [sic]. And
            what one person perceives as a threat is different than
            what another person perceives as a threat. And if someone
            has been trained to exclude particular situations as a
            threat and then they wanted to say their fight or flight
            response kicked in in response to a threat they had trained
            to push through, I would question whether or not it could
            be applied.

When asked if she had an opinion as to whether defendant “used more force than

reasonably appeared to be necessary” on the date of the shooting, she responded that

she believed defendant’s “perception was that he did what he needed to do to


                                           - 12 -
                                  STATE V. THOMAS

                                  Opinion of the Court



eliminate the threat.”

      In excluding Dr. James’s expert witness testimony, the trial court made the

following findings:

                     THE COURT: . . . The Court is going to make the
             following findings in regards to the objection of the State,
             both in the motion in limine and in the trial itself in regard
             to certain aspects of this witness’[s] Dr. James, testimony.
                     The Court rules that Dr. Amy D. James’[s] testimony
             regarding the fight or flight response doctrine and the
             sympathetic nervous system and her opinion of the
             defendant’s response based on that doctrine, or those
             doctrines, does not meet the standard of admissibility set
             forth in Rule 702(a) of the North Carolina Rules of
             Evidence. The Court determines that Dr. James’[s]
             testimony, to the extent that it would be considered
             scientific testimony or evidence, is not relevant or reliable.
             The Court determines that Dr. James’[s] testimony is not
             based upon sufficient facts or data, number one; number
             two, nor is the testimony the product of reliable principles
             and methods; and number three, nor has the witness
             applied the principles and method reliably to the facts of
             this case.
                     The Court further find [sic] that the expert’s
             proffered method of proof is not scientifically reliable as an
             area for expert testimony nor is the expert’s testimony
             relevant in this case.
                     The Court further finds that Dr. James -- Dr.
             James’[s] testimony is not based on scientific, technical, or
             other specialized knowledge that will assist the trier of
             fact, the jury here, to better understand the evidence or to
             determine a fact in issue. The testimony does not meet the
             minimum standard for logical relevance required by Rule
             401 of the Rules of Evidence. Dr. James’[s] testimony as an
             expert witness does not provide insight beyond the
             conclusions that jurors can readily draw from their own
             ordinary experiences in their own lives.
                     Therefore, the Court determines that Dr. James’[s]


                                         - 13 -
                                  STATE V. THOMAS

                                  Opinion of the Court



             testimony does not meet the three-prong reliability test
             mandated by the North Carolina Supreme Court in State
             v. McGrady. And discussed in that opinion and earlier
             opinions is the Daubert decision, which requires that
             testimony most be, one, based upon sufficient facts or data;
             number two, it must be the product of reliable principles
             and methods; and number three, the witness must have
             applied the principles and methods reliably to the facts of
             the case. The Court determines that Dr. James’[s]
             testimony would not assist the jury as required by Rule
             702(a) of the North Carolina Rules of Evidence, and is
             therefore inadmissible as to an expert opinion in this area.

“As with other findings of fact, these findings will be binding on appeal unless there

is no evidence to support them.” McGrady II, 368 N.C. at 893, 787 S.E.2d at 11 (citing

State v. King, 366 N.C 68, 75, 733 S.E.2d 535, 540 (2012)).

      After a thorough review, we cannot say the trial court abused its discretion

when it excluded Dr. James’s proffered testimony regarding the “fight or flight”

response. The expert testimony excluded in McGrady was excluded largely because

the expert “lacked medical or scientific training[,]” Id. at 896, 787 S.E.2d 13, and

while Dr. James held several degrees, including a PhD in psychology, as well as a

license to practice psychology in North Carolina, these were not medical or scientific

degrees. Therefore, the trial court determined that her testimony

             [was] not based on scientific, technical, or other specialized
             knowledge that [would] assist the trier of fact, the jury
             here, to better understand the evidence or to determine a
             fact in issue. . . . Dr. James’[s] testimony as an expert
             witness does not provide insight beyond the conclusions
             that jurors can readily draw from their own ordinary
             experiences in their own lives.


                                         - 14 -
                                   STATE V. THOMAS

                                   Opinion of the Court




(Emphasis added). The trial court acted well within its discretion to make this

determination. See State v. Campbell, 88 A.3d 1258, 1276–77 (Conn. App. 2014)

(noting that the trial court did not abuse its discretion when it excluded the proffered

testimony of an expert witness regarding “fight or flight” responses where “the jury

would likely be aware of such fight or flight responses as a result of their own

experiences”).

             In order to “assist the trier of fact,” N.C. R. Evid. 702(a),
             expert testimony must provide insight beyond the
             conclusions that jurors can readily draw from their
             ordinary experience. An area of inquiry need not be
             completely incomprehensible to lay jurors without expert
             assistance before expert testimony becomes admissible. To
             be helpful, though, that testimony must do more than
             invite the jury to “substitute[e] [the expert’s] judgment of
             the meaning of the facts of the case” for its own.

McGrady II, 368 N.C. at 889, 787 S.E.2d at 8 (alterations in original) (citation

omitted) (quoting Burell v. Sparkkles Reconstr. Co., 189 N.C. App. 104, 114, 657

S.E.2d 712, 719 (2008)).

      Dr. James’s testimony was not proffered in order for her to explain, for

example, a highly technical and scientific issue in simpler terms for the jury. To the

contrary, her testimony appeared to be proffered in order to cast a sheen of technical

and scientific methodology onto a concept of which a lay person (and jury member)

would probably already be aware. See Campbell, 88 A.2d at 1277. In other words,

we conclude that Dr. James’s proffered expert testimony did not “provide insight


                                          - 15 -
                                   STATE V. THOMAS

                                   Opinion of the Court



beyond the conclusions that jurors can readily draw from their ordinary experience.”

McGrady II, 368 N.C. at 889, 787 S.E.2d at 8.

             Under the abuse of discretion standard, our role is not to
             surmise whether we would have disagreed with the trial
             court, see State v. Lasiter, 361 N.C. 299, 302, 643 S.E.2d
             909, 911 (2007), but instead to decide whether the trial
             court’s ruling was “so arbitrary that it could not have been
             the result of a reasoned decision,” White v. White, 312 N.C.
             770, 777, 324 S.E.2d 829, 833 (1985).

Id. at 899, 787 S.E.2d at 15. The trial court did not abuse its discretion in excluding

defendant’s proffered expert testimony regarding the “fight or flight” response, and

defendant’s argument is overruled.

                                           II

      Defendant next argues the trial court committed reversible error by overruling

defendant’s objection to an instruction that he would not be entitled to a claim of self-

defense if he was the aggressor where, defendant contends, no evidence supported

such an instruction. We disagree.

      “Assignments of error challenging the trial court’s decisions regarding jury

instructions are reviewed de novo by this Court.” State v. Osorio, 196 N.C. App. 458,

466, 675 S.E.2d 144, 149 (2009) (citations omitted).

             [T]he right of self-defense is only available to a person who
             is without fault, and if a person voluntarily, that is
             aggressively and willingly, enters into a fight, he cannot
             invoke the doctrine of self-defense unless he abandons the
             fight, withdraws from it and gives notice to his adversary
             that he has done so.


                                          - 16 -
                                   STATE V. THOMAS

                                   Opinion of the Court




State v. Marsh, 293 N.C. 353, 354, 237 S.E.2d 745, 747 (1977) (citations omitted).

“When there is no evidence that a defendant was the initial aggressor, it is reversible

error for the trial court to instruct the jury on the aggressor doctrine of self-defense.”

State v. Juarez, 369 N.C. 351, 358, 794 S.E.2d 293, 300 (2016) (citations omitted); see

State v. Jenkins, 202 N.C. App. 291, 298–99, 688 S.E.2d 101, 106–07 (2010) (ordering

a new trial and holding the trial court erred in instructing the jury that the defendant

could not avail himself of the benefit of self-defense if he was the aggressor where the

victim had been argumentative, “initiated the fray,” ignored the defendant’s request

that he leave, and tackled and choked the defendant before the defendant reached for

a nearby gun and fired one time at the victim).

      “Broadly speaking, the defendant can be considered the aggressor when []he

‘aggressively and willingly enters into a fight without legal excuse or provocation.’ ”

State v. Vaughn, 227 N.C. App. 198, 202, 742 S.E.2d 276, 279 (2013) (quoting State v.

Wynn, 278 N.C. 513, 519, 180 S.E.2d 135, 139 (1971)); see id. at 203–04, 742 S.E.2d

at 280 (holding that evidence presented at trial was insufficient to support the

instruction that the defendant would lose the benefit of self-defense if she were the

aggressor where she fled an altercation with the victim, then armed herself and left

a place of relative safety (a vehicle), but where there was no evidence that she brought

on the original difficulty “or intended to continue the altercation”). Additionally,

where evidence presented at trial “reflects that the victim was shot from the side and


                                          - 17 -
                                   STATE V. THOMAS

                                   Opinion of the Court



from behind,” this may “further support[ ] the inference that [the] defendant shot at

the victim only after the victim had quit the argument and was trying to leave.” State

v. Cannon, 341 N.C. 79, 83, 459 S.E.2d 238, 241 (1995).

      In the instant case, defendant testified that he had a pocketknife with him at

the time of the incident, and that when it fell to the ground, he “immediately picked

it up . . . not[ing], ‘This is my joint.’ ” Defendant testified he said that “in order to

keep the robbers at bay. Like having an ADT sign in front of your house without

having the service. It’s just in order to keep them at bay.” Defendant clarified that

when he said “This is my joint,” he meant he was referring to the pocketknife as a

pistol. Defendant testified that Ward “possibly assumed I had a pistol.” Thus, from

defendant’s own testimony, it was possible for the jury to infer that defendant was

the initial aggressor based on his intent to trick Ward into thinking he had a gun.

Further, like the victim in Cannon, the victim in the instant case was shot twice in

the back, which indicates either that defendant continued to be the aggressor, or shot

the victim in the back during what he contended was self-defense. See id. at 83, 459

S.E.2d at 241. As a result, based “[o]n the evidence before it, the trial court properly

allowed the triers of fact to determine [whether or not] [the] defendant was the

aggressor.” See id. (citing State v. Terry, 329 N.C. 191, 199, 404 S.E.2d 658, 663–64

(1991)). The trial court did not err in instructing the jury based on the aggressor

doctrine. Defendant’s argument is overruled.



                                          - 18 -
                                  STATE V. THOMAS

                                  Opinion of the Court



                                          III

      Lastly, defendant contends there was insufficient evidence to support

restitution in the amount of $3,360.00 in funeral expenses to Ward’s family. Because

no receipts for the funeral costs were presented to the trial court in support of the

restitution worksheet, a point the State concedes, we agree with defendant that this

amount was not supported by the evidence introduced at the sentencing hearing.

      “[T]he amount of restitution recommended by the trial court 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) (quoting State v. Wilson, 340 N.C. 720, 726, 459 S.E.2d 192,

196 (1995)).     This Court “has repeatedly held that ‘a restitution worksheet,

unsupported by testimony or documentation, is insufficient to support an order of

restitution.’ ” Id. (quoting State v. Mauer, 202 N.C. App. 546, 552, 688 S.E.2d 774,

778 (2010)).

      In the instant case, no evidence—documentary or testimonial—supports the

restitution ordered. All that exists in this record is the restitution worksheet, which

is insufficient to support a restitution order. In such a case, the proper remedy is to

“vacate the trial court’s restitution order and remand for rehearing on the issue.”

Mauer, 202 N.C. App. at 552, 688 S.E.2d at 778; see also Moore, 365 N.C. at 286, 715

S.E.2d at 850. Accordingly, we vacate the restitution order and remand for rehearing

on this issue.



                                         - 19 -
                     STATE V. THOMAS

                     Opinion of the Court



NO ERROR IN PART; VACATED AND REMANDED IN PART.

Judges BERGER and MURPHY concur.




                            - 20 -
