{ "id": 3821706, "name": "STATE OF NORTH CAROLINA v. GINA NICHELE SMITH", "name_abbreviation": "State v. Smith", "decision_date": "2011-03-15", "docket_number": "No. COA10-504", "first_page": "439", "last_page": "447", "citations": [ { "type": "official", "cite": "210 N.C. App. 439" } ], "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": "324 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "249" } ], "opinion_index": 0 }, { "cite": "312 N.C. 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753359 ], "year": 1985, "pin_cites": [ { "page": "563" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0553-01" ] }, { "cite": "483 S.E.2d 462", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "466-67", "parenthetical": "internal citations omitted" }, { "page": "466-67" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 30", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11708343 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "37", "parenthetical": "internal citations omitted" }, { "page": "37" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0030-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-32", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "369 S.E.2d 813", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2517600 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0506-01" ] }, { "cite": "313 S.E.2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "527-28", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "310 N.C. 541", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2402840 ], "year": 1984, "pin_cites": [ { "page": "546", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0541-01" ] }, { "cite": "688 S.E.2d 774", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2010, "pin_cites": [ { "page": "778", "parenthetical": "citation omitted" }, { "page": "778" }, { "page": "778" }, { "page": "778" } ], "opinion_index": 0 }, { "cite": "459 S.E.2d 192", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1995, "pin_cites": [ { "page": "196", "parenthetical": "citation omitted" }, { "page": "196", "parenthetical": "citation omitted" }, { "page": "196" } ], "opinion_index": 0 }, { "cite": "340 N.C. 720", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790161 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "726", "parenthetical": "citation omitted" }, { "page": "727" } ], "opinion_index": 0, "case_paths": [ "/nc/340/0720-01" ] }, { "cite": "699 S.E.2d 911", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2010, "pin_cites": [ { "page": "917" }, { "page": "917", "parenthetical": "\"Issues at a sentencing hearing may be established by stipulation of counsel if that stipulation is 'definite and certain.' \"" } ], "opinion_index": 0 }, { "cite": "364 N.C. 394", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4152635 ], "weight": 2, "year": 2010, "pin_cites": [ { "page": "402-03" }, { "page": "403" } ], "opinion_index": 0, "case_paths": [ "/nc/364/0394-01" ] }, { "cite": "696 S.E.2d 917", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "921" } ], "opinion_index": 0 }, { "cite": "605 S.E.2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "233" } ], "opinion_index": 0 }, { "cite": "167 N.C. App. 225", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8411020 ], "year": 2004, "pin_cites": [ { "page": "233" } ], "opinion_index": 0, "case_paths": [ "/nc-app/167/0225-01" ] }, { "cite": "674 S.E.2d 467", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "476" } ], "opinion_index": 0 }, { "cite": "196 N.C. App. 220", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4166846 ], "year": 2009, "pin_cites": [ { "page": "232" } ], "opinion_index": 0, "case_paths": [ "/nc-app/196/0220-01" ] }, { "cite": "543 S.E.2d 878", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "351 N.C. 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155590, 1155784, 1155950, 1155612, 1155742 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/351/0644-03", "/nc/351/0644-02", "/nc/351/0644-01", "/nc/351/0644-04", "/nc/351/0644-05" ] }, { "cite": "524 S.E.2d 63", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "66" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 92", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11238396 ], "year": 1999, "pin_cites": [ { "page": "97-98" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0092-01" ] }, { "cite": "570 S.E.2d 262", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "266" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 455", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250387 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc-app/153/0455-01" ] } ], "analysis": { "cardinality": 862, "char_count": 20470, "ocr_confidence": 0.746, "pagerank": { "raw": 5.207966869300525e-08, "percentile": 0.3277150521130769 }, "sha256": "fa900295aeb9259d68c5cededcfb4484290c50e646c2bef160663225de703882", "simhash": "1:474f076a067e4fe0", "word_count": 3345 }, "last_updated": "2023-07-14T21:51:45.819483+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER, JR. and BEASLEY concur." ], "parties": [ "STATE OF NORTH CAROLINA v. GINA NICHELE SMITH" ], "opinions": [ { "text": "McGEE, Judge.\nGina Nichele Smith (Defendant) was convicted by a jury of assault with a deadly weapon inflicting serious injury. Based on Defendant\u2019s prior record Level I, the trial court sentenced her to twenty-five months to thirty-nine months in prison. The trial court then suspended Defendant\u2019s sentence, placing her on forty-eight months of supervised probation.\nThe State\u2019s evidence at trial tended to show that Joe Nunn (Nunn) was driving his mother\u2019s car on the night of 20 July 2008. Nunn and a friend were driving around southeast Raleigh at approximately 11:30 p.m., when Nunn saw Defendant sitting in her front yard with two friends. Nunn stopped the car in front of Defendant\u2019s house, got out, and approached Defendant and her friends. Defendant told Nunn to leave; there was an altercation, and Nunn pushed Defendant to the ground. Defendant got up off the ground and went into her house. Nunn then left Defendant\u2019s house and dropped his friend off a few streets away. When he dropped off his friend, he remained to talk to a man called Lawrence. As they talked, Nunn remained in the car and Lawrence stood outside the car. Nunn heard gunshots behind him. However, he did not pay too much attention to the gunshots because the music playing in the car was loud. Then Lawrence said, \u201coh, s \u2014 \u201d and ran off. At that point, Nunn looked around and saw Defendant shooting at him from close range. Nunn was shot three times in his side and neck. Nunn apparently realized he had been shot, but because he had been drinking alcohol and smoking marijuana, his wounds did not hurt initially. Nunn drove off and returned to his mother\u2019s house, where he lived. Nunn testified about being shot:\nSo when I [drove] off, I was like, damn, I\u2019m f-------shot. When it didn\u2019t hurt, I\u2019m thinking I\u2019m about to die, you know what I\u2019m saying, I don\u2019t know what\u2019s going on. So I get home, and I lay on the couch. I just lay there like five, ten minutes. I\u2019m like damn. I got wheezy. I\u2019m like, let me call my mom.\nNunn called his mother who was upstairs and she drove him to the hospital where he had emergency surgery. However, one bullet remained lodged in his neck. Nunn was released the next day. He testified that he was given pain medication at the hospital, but that he was not really in pain that night after the surgery. Nunn also testified that his neck still hurt where the bullet lodged. He showed the jury the scars on his neck and torso.\nDetective Sean Hoolan (Detective Hoolan) of the Raleigh Police Department testified that he investigated the shooting and questioned Defendant while Nunn was in surgery because Nunn had made comments implicating Defendant. Detective Hoolan visited Nunn in the hospital the morning after the shooting. Detective Hoolan testified, without objection, that Nunn told him he had known Defendant for a long time, and that Nunn was certain it was Defendant who had shot him. Detective Hoolan said he interviewed others that day, including Alantrics Loftin (Loftin), whose recitation of events involving the actual shooting mostly corroborated Nunn\u2019s. Loftin stated she saw Defendant \u201cget out of the car and pull a long silver gun from the center of her waist.\u201d [Tp 104] Loftin described the gun as longer in the barrel than the gun Detective Hoolan was carrying when he questioned her. Loftin said that \u201cshe heard [Defendant] say, [\u2018]M-------------, I told you I\u2019d shoot the s\u2014 out of you,[\u2019] and [Defendant] fired three times when [Defendant] was next to [Nunn].\u201d Loftin told Detective Hoolan she was \u201ca hundred percent\u201d certain it was Defendant who shot Nunn, as Loftin knew Defendant from high school.\nDetective Hoolan also interviewed Rhonda Debnam (Debnam), who stated that she saw the shooting. Debnam said the gun used was \u201ctwo or three inches longer than [Detective Hoolan\u2019s], and she thought it was silver.\u201d Debnam \u201cremembered hearing . . . [\u2018]Naw, m---------------------, do something now, m-----------------,[\u2019] and [the woman] shot three times.\u201d Debnam did not know the shooter, but she gave Detective Hoolan a description that matched Defendant.\nAt trial, Loftin testified that she saw Defendant drive up to the car Nunn was in, jump out, and shoot Nunn three times. However, Debnam, in her testimony, gave a different account of events that night, stating she never witnessed a shooting. When asked if she remembered the contradictory statement she gave to Detective Hoolan, Debnam testified that she did not remember telling Detective Hoolan those things.\nThe jury was instructed on assault with a deadly weapon with intent to kill inflicting serious injury and the lesser-included offense of assault with a deadly weapon inflicting serious injury. The jury returned a verdict of guilty on the lesser offense. Defendant was sentenced to a presumptive range of twenty-five to thirty-nine months in prison, suspended, and an intermediate level sentence was entered. Pursuant to the intermediate sentence, Defendant was ordered to pay $3,422.00 in restitution and $2,550.00 in attorney\u2019s fees, and was given a suspended sentence of forty-eight months of supervised probation, including an active term of six months with recommended immediate work release. Defendant appeals. Additional relevant facts will be discussed in the body of the opinion.\nI.\nDefendant contends in her first argument that the trial court committed plain error in ordering her to pay restitution because the State failed to present evidence to support the amounts of restitution ordered. We agree.\nWe first address the State\u2019s argument that this issue was not preserved for appellate review. The State cites State v. Canady, 153 N.C. App. 455, 570 S.E.2d 262 (2002), which states:\nHowever, \u201c[i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make[.]\u201d N.C.R. App. P 10(b)(1). Where a defendant fails to object to the judgment or the amount of restitution ordered at the sentencing hearing or to a trial court\u2019s order that a defendant make restitution, an appeal concerning the appropriateness of an imposition of restitution is not properly before this Court. State v. Hughes, 136 N.C. App. 92, 97-98, 524 S.E.2d 63, 66 (1999), disc. review denied, 351 N.C. 644, 543 S.E.2d 878 (2000).\nId. at 460, 570 S.E.2d at 266, see also State v. Best, 196 N.C. App. 220, 232, 674 S.E.2d 467, 476 (2009). The State also states that contrary authority has been published by this Court.\nAt the sentencing hearing, defendant failed to object to the order of restitution. However, it is well established that a restitution order may be reviewed on appeal despite no objection to its entry. State v. Shelton, 167 N.C. App. 225, 233, 605 S.E.2d 228, 233 (2004); see also N.C. Gen. Stat. \u00a7 15A-1446(d)(18) (2009).\nState v. Davis,-N.C. App.-,-, 696 S.E.2d 917, 921 (2010).\nOur Supreme Court recently resolved this issue, stating that N.C. Gen. Stat. \u00a7 15A-1446(d)(18) (2009), relied upon by Davis, is not in conflict with N.C.R. App. P. 10(a)(1), and therefore no objection is required to preserve for appellate review issues concerning the imposition of restitution. State v. Mumford, 364 N.C. 394, 402-03, 699 S.E.2d 911, 917 (2010). We therefore address Defendant\u2019s argument.\n\u201c[T]he amount of restitution recommended by the trial court must be supported by evidence adduced at trial or at sentencing.\u201d State v. Wilson, 340 N.C. 720, 726, 459 S.E.2d 192, 196 (1995) (citation omitted). Unsworn statements made by the State are insufficient to support a restitution amount. Id. at 727, 459 S.E.2d at 196 (citation omitted). \u201cThis Court has held . . . that a restitution worksheet, unsupported by testimony or documentation, is insufficient to support an order of restitution.\u201d State v. Mauer,-N.C. App.-, \u2014, 688 S.E.2d 774, 778 (2010) (citation omitted).\nWe first address the trial court\u2019s order requiring Defendant to pay $385.00 in restitution for fees related to her house arrest. After the trial court had pronounced its sentence ordering Defendant to pay restitution for hospital bills in the amount of $3,037.00, plus $2,550.00 in court appointed attorney\u2019s fees, the State interjected the following:\n[THE STATE]: Judge, one thing. A representative from house arrest is here. Apparently there was $385.00 in house arrest fees, and I can add that information to the restitution work sheet.\nTHE COURT: With respect to the money owed for $385.00 [house arrest] fees, it is also ordered.\nThis was the first time the State had brought up the issue of house arrest fees and was the sole pronouncement from the State on the matter. Though there was apparently a representative at the sentencing hearing who could have presented some evidence in support of the amount of $385.00 for house arrest fees, the State did not call that person as a witness. The State presented nothing beyond its own unsworn statement to support this amount. We therefore vacate the trial court\u2019s order of $385.00 in house arrest fees and remand for rehearing on the issue. Mauer,-N.C. App. at-, 688 S.E.2d at 778.\nWe next address Defendant\u2019s argument that the State failed to present sufficient evidence in support of the award of $3,037.00 in restitution for Nunn\u2019s hospital expenses. At the sentencing hearing, the State made the following statement: \u201cThere are some substantial medical bills in the case. The only amount we have, we have from Mr. [Njunn\u2019s confirmation was around $3,000 when we talked to him about it yesterday.\u201d The State then presented the restitution worksheet and indicated that further information concerning the medical bills could be obtained from Nunn or the hospital. The worksheet provided the addresses for both Nunn and the hospital. The trial court asked Defendant\u2019s attorney if he wanted to ask Defendant \u201cabout the amount of the restitution being $3,037[,]\u201d to which Defendant\u2019s attorney answered: \u201cNO.\u201d The State indicated that \u201c[f]rom a review of the medical records and my experience I would ... imagine that the actual amount of money that [Nunn] or Wake Med is out for his treatment is substantially more than that. I would venture a guess in the probably $20,000 range, but I don\u2019t have documentation. \u201d\nNunn was not at the sentencing hearing and did not testify concerning the amount of his hospital bills. As far as we can tell from the record, no documentation concerning the amount of Nunn\u2019s hospital bills was entered into evidence, and all the trial court had to rely on in coming up with the $3,037.00 amount was the unsworn testimony of the prosecutor and the restitution worksheet prepared by the State. Neither of these is competent evidence to support the award of restitution in the amount of $3,037.00. Wilson, 340 N.C. at 727, 459 S.E.2d at 196; Mauer, \u2014 N.C. App. at-, 688 S.E.2d at 778. We do not consider Defendant\u2019s silence or lack of objection to the restitution amount to constitute a \u201cdefinite and certain\u201d stipulation as required by North Carolina law. Mumford, 364 N.C. at 403, 699 S.E.2d at 917 (\u201cIssues at a sentencing hearing may be established by stipulation of counsel if that stipulation is \u2018definite and certain.\u2019 \u201d) (citations and quotation marks omitted). We therefore vacate the trial court\u2019s order of $3,037.00 in restitution for hospital expenses and remand for rehearing on the issue. Mauer,-N.C. App. at-, 688 S.E.2d at 778.\nII.\nIn Defendant\u2019s second argument she contends that the trial court erred in basing its decision to impose a longer period of probation than necessary upon consideration of improper factors. We agree.\nDefendant argues that the trial court erred in requiring forty-eight months of supervised probation pursuant to N.C. Gen. Stat. 15A-1343.2(d) (2009) based upon the restitution to be paid and nature of the offense. Defendant first argues that the trial court\u2019s \u201cconsideration of the amount of restitution . . . was improper because . . . the State presented no evidence to support [the amount of] restitution[.]\u201d Having 'determined that the State failed to present sufficient evidence in support of the amounts of restitution ordered for house arrest fees and hospital expenses, we must remand on this issue as well. The trial court shall reconsider the length of Defendant\u2019s probationary period in light of new evidence concerning the amount of restitution, if any, presented on rehearing.\nIII.\nDefendant contends that the trial court committed plain error \u201cwhen it peremptorily instructed the jury that \u2018multiple gunshot wounds in the upper body would constitute a serious injury.\u2019 \u201d We disagree.\nWe will find plain error only\n\u201cin the exceptional case where, after reviewing the entire record, it can be said the claimed error is a \u2018fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,\u2019 or \u2018where [the error] is grave error which amounts to a denial of a fundamental right of the accused,\u2019 or the error has \u2018 \u201cresulted in a miscarriage of justice or in the denial to appellant of a fair trial\u201d \u2019 or the error is such as to \u2018seriously affect the fairness, integrity or public reputation of judicial proceedings\u2019 or where it can fairly be said \u2018the instructional mistake had a probable impact on the jury\u2019s finding that the defendant was guilty.\u2019 \u201d\nState v. Murray, 310 N.C. 541, 546, 313 S.E.2d 523, 527-28 (1984) (citations omitted), overruled on other grounds by State v. White, 322 N.C. 506, 369 S.E.2d 813 (1988).\nA trial court may peremptorily instruct the jury on the serious injury element if \u201cthe evidence \u2018is not conflicting and is such that reasonable minds could not differ as to the serious nature of the injuries inflicted.\u2019 \u201d In Hedgepeth, the victim was shot through the ear, causing a wound requiring six or seven stitches to close. She bled profusely, suffered a bruise and bums, and required emergency medical treatment. At the time of trial, she still suffered a ringing in her ear. This Court determined, based on that evidence, that \u201creasonable minds could not differ as to the seriousness\u201d of the physical injuries.\nIn this case, evidence showed that the bullet entered Woodbury\u2019s leg from the side into the top part of his calf and exited out of the bottom of the calf muscle. His leg went numb and then began burning and throbbing. Woodbury needed assistance to leave the building and was taken to the hospital for treatment. Based on this evidence, we decline to disturb the trial court\u2019s determination that Woodbury\u2019s injury was \u201cserious\u201d within the meaning of N.C. Gen. Stat. \u00a7 14-32(a) and that reasonable minds could not differ as to the seriousness of his injuries. Thus, the trial court was not required to submit the lesser-included offense of assault with a deadly weapon to the jury.\nState v. Crisp, 126 N.C. App. 30, 37, 483 S.E.2d 462, 466-67 (1997) (internal citations omitted).\nIn the present case, Nunn required emergency surgery, was left with scars on his chest, shoulder, back and neck, and testified that a bullet remained in his neck and that it caused him continuing pain. We hold it was not error, and certainly not plain error, for the trial court to peremptorily instmct the jury that the three gunshot wounds Nunn received to his neck and torso constituted a serious injury as contemplated by N.C. Gen. Stat. \u00a7 14-32 (2009). This argument is without merit.\nIV.\nDefendant also contends the trial court committed plain error when it failed to instruct the jury on the lesser-included offense of assault with a deadly weapon. We disagree.\nDefendant contends that the trial court should have instructed on the lesser-included offense, even though Defendant never requested the instruction, because \u201cthe evidence supported a finding that [Nunn\u2019s] injuries were not serious. Having already held that the trial court did not err in peremptorily instructing the jury that Nunn\u2019s injuries were serious, we further hold that the trial court did not err, much less commit plain error, in failing sua sponte to instruct the jury on the lesser-included offense of assault with a deadly weapon. Crisp, 126 N.C. App. at 37, 483 S.E.2d at 466-67. This argument is without merit.\nV.\nIn Defendant\u2019s final argument, she contends her trial counsel provided her ineffective assistance of counsel. We disagree.\n\u201c [I]f a reviewing court can determine at the outset that there is no reasonable probability that in the absence of counsel\u2019s alleged errors the result of the proceeding would have been different, then the court need not determine whether counsel\u2019s performance was actually deficient.\u201d State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d 241, 249 (1985). We have thoroughly reviewed the record, and even assuming arguendo that Defendant\u2019s counsel made errors at trial, there is no reasonable probability the result of the proceeding would have been different absent the alleged errors. Id. We do not factor into our analysis any potential errors related to Defendant\u2019s arguments concerning restitution, as we have granted Defendant a rehearing on those issues. This argument is without merit.\nNo error in part, vacated and remanded in part.\nJudges HUNTER, JR. and BEASLEY concur.\n. We note that our Supreme Court did not reference any Court of Appeals cases in Mumford, or acknowledge the split in authority in our Court. The holding in Mumford, however, makes clear that the Davis line of cases applies the correct law on this issue. Mumford appears to have overruled the Canady line of cases, though Mumford does not expressly do so.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Alexandra M. Hightower, for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for Defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GINA NICHELE SMITH\nNo. COA10-504\n(Filed 15 March 2011)\n1. Appeal and Error\u2014 preservation of issues \u2014 imposition of restitution \u2014 no objection required\nDefendant did not fail to preserve for appellate review the issue of whether the State failed to present evidence to support the amounts of restitution ordered in an assault with a deadly weapon inflicting serious injury case. No objection was required to preserve for appellate review issues concerning the imposition of restitution.\n2. Damages and Remedies\u2014 restitution \u2014 amount ordered unsupported by evidence \u2014 plain error\nThe trial court committed plain error in an assault with a deadly weapon inflicting serious injury case by ordering defendant to pay restitution because the State failed to present evidence to support the amounts of restitution ordered.\n3. Probation and Parole\u2014 period based on improper factors\u2014 restitution\nThe trial court erred in an assault with a deadly weapon inflicting serious injury case by basing its decision to impose a longer period of probation than necessary upon consideration of the restitution to be paid and nature of the offense.\n4. Assault\u2014 deadly weapon inflicting serious injury\u2014 peremptory instruction \u2014 serious injury \u2014 no error\nThe trial court did not commit error or plain error in an assault with a deadly weapon inflicting serious injury case by giving a peremptory instruction to the jury that multiple gunshot wounds in the upper body constituted a serious injury. The victim required emergency surgery, was left with scars on his chest, shoulder, back, and neck, and testified that a bullet remained in his neck and that it caused him continuing pain.\n5. Assault\u2014 deadly weapon inflicting serious injury \u2014 lesser-included offense \u2014 peremptory instruction \u2014 no error\nThe trial court did not commit plain error in an assault with a deadly weapon inflicting serious injury case by failing to instruct the jury on the lesser-included offense of assault with a deadly weapon. The trial court\u2019s peremptory instruction to the jury that the victim\u2019s injuries were serious was correct.\n6. Constitutional Law\u2014 effective assistance of counsel \u2014 no different result\nDefendant\u2019s trial counsel in an assault with a deadly weapon inflicting serious injury case did not provide ineffective assistance of counsel. Even assuming arguendo that defendant\u2019s counsel made errors at trial, there was no reasonable probability the result of the proceeding would have been different absent the alleged errors.\nAppeal by Defendant from judgment entered 16 October 2009 by Judge Ripley E. Rand in Superior Court, Wake County. Heard in the Court of Appeals 26 October 2010.\nAttorney General Roy Cooper, by Assistant Attorney General Alexandra M. Hightower, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for Defendant." }, "file_name": "0439-01", "first_page_order": 447, "last_page_order": 455 }