State v. Thomas , 259 N.C. App. 198 ( 2018 )

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 -