{ "id": 8524198, "name": "STATE OF NORTH CAROLINA v. MAX ARTHUR BUCHANAN, JR.", "name_abbreviation": "State v. Buchanan", "decision_date": "1992-12-15", "docket_number": "No. 9127SC743", "first_page": "338", "last_page": "342", "citations": [ { "type": "official", "cite": "108 N.C. App. 338" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "94 ALR2d 270", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "410 S.E.2d 875", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "parenthetical": "trial court may not find aggravating factor where the only evidence to support it is the prosecutor's mere assertion that the factor exists" } ], "opinion_index": 0 }, { "cite": "330 N.C. 398", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2512114 ], "year": 1991, "pin_cites": [ { "parenthetical": "trial court may not find aggravating factor where the only evidence to support it is the prosecutor's mere assertion that the factor exists" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0398-01" ] }, { "cite": "398 S.E.2d 619", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "101 N.C.App. 36", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527233 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc-app/101/0036-01" ] }, { "cite": "330 S.E.2d 59", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "75 N.C.App. 99", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524999 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/75/0099-01" ] }, { "cite": "253 S.E.2d 24", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "40 N.C.App. 341", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550387 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/40/0341-01" ] }, { "cite": "180 S.E.2d 140", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 351", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560496 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0351-01" ] }, { "cite": "334 S.E.2d 480", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "77 N.C.App. 103", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520662 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/77/0103-01" ] } ], "analysis": { "cardinality": 468, "char_count": 8419, "ocr_confidence": 0.779, "pagerank": { "raw": 3.0143838327902206e-07, "percentile": 0.8534281342271306 }, "sha256": "3a8a14c7a8b4e1fb268b9182351cd32d4301608313e9d719bbf4bbb6c7512998", "simhash": "1:d1ed4126372edfe6", "word_count": 1382 }, "last_updated": "2023-07-14T21:33:37.144077+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE AND WYNN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. MAX ARTHUR BUCHANAN, JR." ], "opinions": [ { "text": "WALKER, Judge.\nDefendant 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.\nIn support of defendant\u2019s 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\u2019s 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 court not to consult with counsel prior to repeating the instruction.\nAbsent 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 \u201ca restatement of the law pertaining to the responsibility of individuals in a group crime.\u201d The trial court\u2019s reinstruction in this regard was almost verbatim that of the original instruction and stated:\nIf 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.\nWe 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\u2019s request does not constitute an additional instruction within the meaning of N.C.G.S. \u00a7 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).\nDefendant\u2019s 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\u2019s 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. \u00a7 148-33.2(c); N.C.G.S. \u00a7 15A-1343(d).\nDefendant argues that there is insufficient evidence to support the amount awarded as restitution, as the sum ordered was based solely on the prosecutor\u2019s statements that, \u201cAs through today\u2019s date, we have receipts for medical bills that total $5,275.45\u201d and that the victim \u201cwas out of work for six months as a result of this and has lost wages of $6,600.00.\u201d 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\u2019s award of restitution must be supported by competent evidence in the record. N.C.G.S. \u00a7 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\u2019s 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.\nIn the trial of this matter we find:\nNO ERROR. VACATED AND REMANDED AS TO THE RECOMMENDATION OF RESTITUTION.\nJudges GREENE AND WYNN concur.", "type": "majority", "author": "WALKER, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General Elaine A. Dawkins, for the State.", "Childers, Fowler & Childers, P.A., by David C. Childers, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MAX ARTHUR BUCHANAN, JR.\nNo. 9127SC743\n(Filed 15 December 1992)\n1. Criminal Law \u00a7\u00a7 868, 869 (NCI4th)\u2014 repetition of instruction \u2014 request by jury \u2014consultation with counsel not required\nWhere the jury during deliberations requested a restatement of the law of acting in concert, the trial court\u2019s re-instruction which was almost verbatim of the original, proper instruction on acting in concert was not needlessly repetitious or erroneous. Furthermore, the trial court was not required to consult with counsel prior to giving the reinstruction because an instruction repeated at the jury\u2019s request is not an additional instruction within the meaning of N.C.G.S. \u00a7 15A-1234(c).\nAm Jur 2d, Trial \u00a7\u00a7 1108, 1109.\nGiving, in accused\u2019s absence, additional instruction to jury after submission of felony case. 94 ALR2d 270.\n2. Criminal Law \u00a7\u00a7 1599, 1600 (NCI4th)\u2014 restitution \u2014 condition of work release or parole \u2014amount unsupported by evidence\nThe written judgment and commitment recommending restitution as a condition of work release or parole controlled over the court\u2019s statement at the sentencing hearing mandating restitution, and such a recommendation was proper. However, the amount recommended by the court as restitution was not supported by competent evidence where the trial court based the amount on unsworn statements by the prosecutor as to the victim\u2019s medical expenses and lost wages. N.C.G.S. \u00a7\u00a7 14833.2(c), 15A-1343(d).\nAm Jur 2d, Pardon and Parole \u00a7 80.\nAppeal by defendant from judgment entered 14 May 1991 by Judge Loto G. Caviness in Gaston County Superior Court. Heard in the Court of Appeals 14 October 1992.\nOn the morning of 1 January 1990, defendant, Charles Harrison and several others were involved in a fight in the parking lot of a convenience store. The State\u2019s evidence showed that defendant struck Charles Harrison about his body and approximately ten to fifteen times in the face while using brass knuckles. As a result, Mr. Harrison\u2019s upper jaw was crushed, some teeth were lost, and his shoulder was dislocated. Mr. Harrison was required to undergo extensive medical work to repair his teeth and jaw and is now required to wear a brace to hold the remaining teeth. He has had constant pain from his teeth and problems with gum infections and bleeding, in addition to problems with his shoulder. The defendant offered evidence that although he was present at the convenience store during the fight, he did not participate in it. C'o-defendant David Kale\u2019s testimony corroborated defendant\u2019s story.\nDefendant was convicted of assault with a deadly weapon inflicting serious injury and was sentenced to ten years imprisonment. The court also recommended that \u201cdefendant be required to pay, as a condition of parole if parole is granted, or from his earnings if work release is granted\u201d his ratable share of $11,875.45 as restitution.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Elaine A. Dawkins, for the State.\nChilders, Fowler & Childers, P.A., by David C. Childers, for defendant appellant." }, "file_name": "0338-01", "first_page_order": 366, "last_page_order": 370 }