State v. Buchanan

423 S.E.2d 819 (1992)

108 N.C. App. 338

STATE of North Carolina v. Max Arthur BUCHANAN, Jr.

No. 9127SC743.

Court of Appeals of North Carolina.

December 15, 1992.

*820 Attorney Gen. Lacy H. Thornburg by Asst. Atty. Gen. Elaine A. Dawkins, Raleigh, for the State.

Childers, Fowler & Childers, P.A. by David C. Childers, Mount Holly, for defendant-appellant.

WALKER, Judge.

Defendant brings forth two assignments of error on appeal: (1) the trial court erred by repeating part of the prior instruction to the jury dealing with acting in concert. and did so without consulting counsel prior to the reinstruction; and (2) the court erred by requiring that defendant pay his ratable portion of restitution as a condition precedent to work release, early release or parole.

In support of defendant's first assignment of error, he directs attention to the fact that, after deliberating one hour, the jury requested reinstruction on the law as it pertains to acting in concert. The court complied with this request without consulting counsel for either the State or defendant, and approximately fifteen minutes later the jury returned with a guilty verdict. Defendant thereby contends that these facts indicate that he was prejudiced by the court's reinstruction to the jury, which unduly emphasized the principle of acting in concert to the exclusion of the other instructions in the case. Additionally, he asserts that it was error for the trial *821 court not to consult with counsel prior to repeating the instruction.

Absent some error in the charge, the trial court may repeat instructions previously given to the jury in its discretion. State v. Bartow, 77 N.C.App. 103, 334 S.E.2d 480 (1985). It is recognized, however, that a needless repetition of instructions is undesirable and may be held to be erroneous. State v. Dawson, 278 N.C. 351, 180 S.E.2d 140 (1971). In the instant case, the jury requested "a restatement of the law pertaining to the responsibility of individuals in a group crime." The trial court's reinstruction in this regard was almost verbatim that of the original instruction and stated:

If two or more persons act together with a common purpose to commit an assault with a deadly weapon inflicting serious injury, each of them is held responsible for the acts of the other done in the commission of the assault with a deadly weapon inflicting serious injury. So I instruct that, if you find from the evidence beyond a reasonable doubt that on or about January 1, 1990, Max Arthur Buchanan, Jr., and David Kale, Jr., acting either by themselves or acting with other persons, did commit an assault with a deadly weapon inflicting serious injury, it would be your duty to return a verdict of guilty to the charge. If you do not so find or cannot say where the truth lies, it will be your duty to return a verdict of not guilty.

We do not find this instruction to be erroneous nor do we find its repetition to be needless, in light of the fact that it was specifically requested by the jury. Furthermore, an instruction which is repeated at the jury's request does not constitute an additional instruction within the meaning of N.C.G.S. § 15A-1234(c), such that the trial court did not err in failing to consult with counsel prior to the reinstruction. State v. Farrington, 40 N.C.App. 341, 253 S.E.2d 24 (1979).

Defendant's second assignment of error asserts that the trial court erred by requiring that he pay his ratable portion of restitution as a condition precedent to work release or parole. We note at the outset that the trial court orally mandated payment of restitution as a condition of work release or parole at the sentencing hearing. However, the judgment and commitment form states payment of restitution only as a recommendation. We find the written judgment and commitment form to be controlling, as it modifies anything earlier ordered by the trial court. See State v. Oakley, 75 N.C.App. 99, 330 S.E.2d 59 (1985). Defendant's sentence thereby recommends restitution as a condition of work release or parole and is not inconsistent with the laws of this State. See N.C.G.S. § 148-33.2(c); N.C.G.S. § 15A-1343(d).

Defendant argues that there is insufficient evidence to support the amount awarded as restitution, as the sum ordered was based solely on the prosecutor's statements that, "As through today's date, we have receipts for medical bills that total $5,275.45" and that the victim "was out of work for six months as a result of this and has lost wages of $6,600.00." In the absence of an agreement or stipulation between defendant and the State, evidence must be presented in support of an award of restitution. Further, it is elementary that a trial court's award of restitution must be supported by competent evidence in the record. N.C.G.S. § 15A-1343(d); State v. Easter, 101 N.C.App. 36, 398 S.E.2d 619 (1990). In the instant case, an exhaustive review of the record reveals that no evidence was presented at trial or at sentencing which supports the figures offered by the State. The trial court therefore based the amount of restitution only upon the unsworn statements of the prosecutor, which does not constitute evidence and cannot support the amount of restitution recommended. Cf. State v. Canady, 330 N.C. 398, 410 S.E.2d 875 (1991) (trial court may not find aggravating factor where the only evidence to support it is the prosecutor's mere assertion that the factor exists). Accordingly, we vacate that portion of the judgment recommending the payment of restitution as a condition of work release or parole.

*822 In the trial of this matter we find:

NO ERROR. VACATED AND REMANDED AS TO THE RECOMMENDATION OF RESTITUTION.

GREENE and WYNN, JJ., concur.