State v. Hunter ( 1984 )


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  • EAGLES, Judge.

    Defendant has assigned error to several portions of the trial court’s instructions to the jury. She argues that the trial court erred by failing to submit “guilty of simple assault” to the jury as a possible verdict. The basis of defendant’s argument is the assertion that the jury should have been permitted to find that the essential element of the deadly character of the weapon was absent in this case. There was sufficient evidence at trial from which the jury could find that the three-inch lock-blade knife used by the defendant was a deadly weapon. The trial judge properly instructed the jury on the manner of determining whether the pocketknife used by the defendant was a deadly weapon. State v. Randolph, 228 N.C. 228, 45 S.E. 2d 132 (1947). Moreover, the State by showing that the defendant was the aggressor and that she stabbed Ward with a three-inch blade, complied with the mandate of State v. Hall, 305 N.C. 77, 84, 286 S.E. 2d 552, 556 (1982). There the court said: “When the State’s evidence is positive as to each and every element of the crime charged and there is no conflicting evidence relating to any element, no instruction on a lesser included offense is required.” Therefore, we reject the defendant’s argument that she was prejudiced by the court’s failure to instruct on the issue of simple assault.

    The defendant next argues that the trial judge erred in failing to instruct the jury on the law pertaining to self-defense. The *605evidence is uncontradicted that the defendant left Ward’s presence for some time and then went to his table holding a knife. While Ward’s earlier behavior towards the defendant could be described as assaultive, there is absolutely no evidence that the defendant had a reasonable apprehension as to personal safety which would require self-protection by stabbing Ward. In fact, defendant was able to walk away, “see some dude” and get a knife. She then went to see Ward, apparently with retribution in mind. State v. Moses, 17 N.C. App. 115, 193 S.E. 2d 288 (1972). The defendant maintains that we should not consider the stabbing as being isolated from the earlier confrontations between Ward and the defendant and that her action of approaching Ward with an open knife was simply an attempt to dissuade him from future assaults. Since there was no evidence to show that Ward had done anything to warrant the defendant’s use of a deadly weapon in self-defense, we find this assignment without merit.

    Finally, defendant argues that the trial court erred in awarding restitution for medical expenses and attorney’s fees as a condition of probation without making proper findings of fact and conclusions of law.

    G.S. 15A-1343(d) requires the trial court to take into consideration the resources of the defendant, her ability to earn and her obligation to support dependents as well as any other matters that pertain to her ability to make restitution or reparation prior to ordering restitution or reparation as a special condition of probation.

    The trial court ordered defendant to pay a total of $919.25 for the medical expenses of the victim Ward. The trial court made no findings of fact or conclusions of law as to defendant’s ability to earn, her resources, her obligation to support dependents or any other matters that might affect her ability to make restitution. By the clear terms of G.S. 15A-1343(d) this was error.

    The trial court also ordered defendant to pay $200.00 attorney’s fees under the supervision and direction of her probation officer. Both the State and defendant argue that G.S. 7A-455 controls the awarding of attorney’s fees in this case. G.S. 7A-455 states, in pertinent part:

    *606(a) If, in the opinion of the Court, an indigent person is financially able to pay a portion, but not all, of the value of the legal services rendered for him by . . . the public defender . . . [the Court] shall order the partially indigent person to pay such portion to the Clerk of Superior Court for transmission to the State treasury. [Emphasis added.]

    Here, the trial court made it clear in the record that the fee awarded to counsel was $200.00. This was the total fee which was ordered to be paid in restitution to the State for the services provided by the Assistant Public Defender, Robert L. Shoffner. G.S. 7A-455 by its terms applies only when an indigent person is determined by the court to be able to pay some but not all of the value of legal services rendered by a public defender. Here, it appears that the entire amount was ordered paid as a part of the costs as a condition of probation.

    The award of attorney’s fees was restitution to the State of North Carolina for the costs of a public defender pursuant to G.S. 15A-1343(a)(10). As such, the attorney’s fees were part of the regular conditions of probation and did not require inquiry into defendant’s ability to pay. We find no error in the ordering of payment of attorney’s fees as restitution to the State of North Carolina as a condition of probation. Defendant’s remaining assignments of error are without merit.

    We reverse and remand for rehearing concerning the award of restitution for medical expenses against the defendant.

    Judge Braswell concurs. Judge Webb dissents.

Document Info

Docket Number: No. 843SC204

Judges: Braswell, Eagles, Webb

Filed Date: 12/4/1984

Precedential Status: Precedential

Modified Date: 11/11/2024