State v. McPhail ( 2014 )


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  • An unpublished opinion of the North Carolina Court of Appeals does not constitute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
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    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
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    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).