{ "id": 4034133, "name": "STATE OF NORTH CAROLINA v. JIMRECO ROCHELL ANDERSON", "name_abbreviation": "State v. Anderson", "decision_date": "2012-08-07", "docket_number": "No. COA12-6", "first_page": "138", "last_page": "146", "citations": [ { "type": "official", "cite": "222 N.C. App. 138" } ], "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": "640 S.E.2d 757", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637759 ], "year": 2007, "pin_cites": [ { "page": "761", "parenthetical": "citations and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/640/0757-01" ] }, { "cite": "651 S.E.2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639492 ], "year": 2007, "pin_cites": [ { "page": "875" } ], "opinion_index": 0, "case_paths": [ "/se2d/651/0867-01" ] }, { "cite": "644 S.E.2d 615", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638420 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "623", "parenthetical": "quotation and citation omitted" }, { "page": "623-24", "parenthetical": "quotations and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/644/0615-01" ] }, { "cite": "650 S.E.2d 29", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639310 ], "year": 2007, "pin_cites": [ { "page": "33", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/650/0029-01" ] }, { "cite": "181 N.C. App. 579", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8375468 ], "year": 2007, "pin_cites": [ { "page": "584", "parenthetical": "citations and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/181/0579-01" ] }, { "cite": "308 S.E.2d 494", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "498", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "65 N.C. App. 107", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522320 ], "year": 1983, "pin_cites": [ { "page": "111", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/65/0107-01" ] }, { "cite": "254 S.E.2d 199", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "201", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "41 N.C. App. 171", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548327 ], "year": 1979, "pin_cites": [ { "page": "174", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/41/0171-01" ] }, { "cite": "426 S.E.2d 692", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "697", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "333 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2546948 ], "year": 1993, "pin_cites": [ { "page": "440", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0431-01" ] }, { "cite": "74 L. Ed. 2d. 513", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1982, "opinion_index": 0 }, { "cite": "459 U.S. 1018", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6468801, 6468547, 6469476, 6468711, 6469608, 6469353, 6468967, 6468624, 6468240, 6468465, 6469044, 6468343, 6469144, 6469246 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/us/459/1018-07", "/us/459/1018-04", "/us/459/1018-13", "/us/459/1018-06", "/us/459/1018-14", "/us/459/1018-12", "/us/459/1018-08", "/us/459/1018-05", "/us/459/1018-01", "/us/459/1018-03", "/us/459/1018-09", "/us/459/1018-02", "/us/459/1018-10", "/us/459/1018-11" ] }, { "cite": "676 F.2d 995", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 562145 ], "year": 1982, "pin_cites": [ { "page": "1002" } ], "opinion_index": 0, "case_paths": [ "/f2d/676/0995-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "378", "parenthetical": "quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d. 513 (1982)" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "660", "parenthetical": "quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d. 513 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "172 L. Ed. 2d 58", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2008, "opinion_index": 0 }, { "cite": "555 U.S. 835", "category": "reporters:federal", "reporter": "U.S.", "year": 2008, "opinion_index": 0 }, { "cite": "361 N.C. 610", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3739107 ], "year": 2007, "pin_cites": [ { "page": "622" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0610-01" ] }, { "cite": "183 N.C. App. 514", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8204534 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "526", "parenthetical": "quotation and citation omitted" }, { "page": "527", "parenthetical": "quotations and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/183/0514-01" ] }, { "cite": "674 S.E.2d 805", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "812", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "196 N.C. App. 56", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4166163 ], "year": 2009, "pin_cites": [ { "page": "66", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/196/0056-01" ] }, { "cite": "723 S.E.2d 583", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "opinion_index": 0 }, { "cite": "148 L. Ed. 2d 150", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2000, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "531 U.S. 890", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9564641, 9565507, 9564931, 9565413, 9565127, 9565834, 9565727, 9565933, 9565644, 9565235, 9564441, 9564731, 9564539, 9564829, 9565023 ], "year": 2000, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/us/531/0890-03", "/us/531/0890-11", "/us/531/0890-06", "/us/531/0890-10", "/us/531/0890-08", "/us/531/0890-14", "/us/531/0890-13", "/us/531/0890-15", "/us/531/0890-12", "/us/531/0890-09", "/us/531/0890-01", "/us/531/0890-04", "/us/531/0890-02", "/us/531/0890-05", "/us/531/0890-07" ] }, { "cite": "526 S.E.2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "455", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "351 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155599 ], "year": 2000, "pin_cites": [ { "page": "378", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0373-01" ] }, { "cite": "186 N.C. App. 57", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8154614 ], "year": 2007, "pin_cites": [ { "page": "62", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/186/0057-01" ] }, { "cite": "410 S.E.2d 61", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 10, "year": 1991, "pin_cites": [ { "page": "63", "parenthetical": "citations and quotations omitted" }, { "page": "179" }, { "page": "63-64" }, { "page": "179" }, { "page": "64" }, { "page": "177" }, { "page": "62" }, { "page": "180" }, { "page": "64" } ], "opinion_index": 0 }, { "cite": "330 N.C. 174", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2508634 ], "year": 1991, "pin_cites": [ { "page": "178", "parenthetical": "citations and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0174-01" ] }, { "cite": "543 S.E.2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "848", "parenthetical": "\"/D/e novo review is ordinarily appropriate in cases where constitutional rights are implicated.\" (citations omitted)" } ], "opinion_index": 0 }, { "cite": "353 N.C. 343", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135972 ], "year": 2001, "pin_cites": [ { "page": "348", "parenthetical": "\"/D/e novo review is ordinarily appropriate in cases where constitutional rights are implicated.\" (citations omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0343-01" ] }, { "cite": "694 S.E.2d 766", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "363 N.C. 857", "category": "reporters:state", "reporter": "N.C.", "year": 2010, "opinion_index": 0 }, { "cite": "683 S.E.2d 437", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "444" } ], "opinion_index": 0 }, { "cite": "200 N.C. App. 204", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4171907 ], "year": 2009, "pin_cites": [ { "page": "214" } ], "opinion_index": 0, "case_paths": [ "/nc-app/200/0204-01" ] } ], "analysis": { "cardinality": 909, "char_count": 20944, "ocr_confidence": 0.745, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1266444491551438 }, "sha256": "635c27a33dc4f18f2abd3b20b7fb2c25c16baf2bba2ff8d2e7a184242e407c0c", "simhash": "1:036ac02835770ce6", "word_count": 3421 }, "last_updated": "2023-07-14T20:23:21.020165+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge HUNTER, JR., Robert N., concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JIMRECO ROCHELL ANDERSON" ], "opinions": [ { "text": ". ELMORE, Judge.\nJimreco Rochell Anderson (defendant) appeals from a judgment entered upon a jury conviction of felony assault with a deadly weapon inflicting serious injury. The judgment (1) sentenced him to 23 to 37 months imprisonment, suspended upon completion of 48 months of supervised probation and (2) ordered him to pay $4,327.43 in restitution. After careful consideration, we find no error in part and remand in part.\nAt trial, the State\u2019s evidence showed that defendant began living in the home of his second cousin, James Johnson in November or December 2009. At that time, defendant told Johnson that he had nowhere else to live. At some point between then and February 2010, defendant\u2019s two friends, \u201cTone\u201d and \u201cRed Man\u201d, also moved into Johnson\u2019s home. The relationship between defendant and Johnson then began to deteriorate. Johnson was bothered that defendant had other guests in the home, claiming, \u201c[i]t was just like he was taking over.\u201d\nJohnson asked defendant and his friends to move out several times, but the men did not leave. On 7 February 2010, Johnson was arguing with \u201cTone\u201d when defendant arrived home and joined the argument. The argument further escalated until defendant retrieved a revolver from his room and said to Johnson, \u201cYou didn\u2019t know I had this, did you?\u201d Defendant then shot Johnson once below the knee, causing Johnson to fall back into a recliner. Defendant then shot him again, directly in the knee. At this time, Johnson tried to stand up from the recliner, but defendant shot him a third time, just above the knee. Johnson then again tried to stand up and to retrieve a phone from his bedroom to call for help, but defendant told him that if he left the recliner he would shoot him again. At this time, Tone and Red Man began collecting their belongings, and after approximately ten minutes they, along with defendant, left the residence. As defendant was leaving, he tossed a phone to Johnson, who was still in the recliner.\nJohnson called 911, and he was transported to Lincoln Medical Center in Lincolnton. He was then later transported from Lincolnton to Carolinas Medical Center in Charlotte to undergo surgery to remove a bone fragment from his knee. He remained in the hospital for two days, after which he was released with medication to manage the pain from his injuries and surgery.\nWhile still at the first medical center, Johnson told detectives that defendant had shot him. He then gave the detectives defendant\u2019s name and phone number. One of the detectives tried calling this phone number several times, but he was unsuccessful in reaching defendant. Police officers searched for defendant that' evening at several locations, including one where they had previously received \u201cdomestic calls\u201d from a girl defendant had dated. But the officers were unable to locate him. A warrant for defendant\u2019s arrest was issued the following day, 8 February 2010.\nOfficers continued to search for defendant for the next month at several different locations, but they were unsuccessful in their attempts to locate him. On 8 March 2012, defendant surrendered. He was charged with assault with a deadly weapon inflicting serious injury.\nDefendant\u2019s jury trial began on 19 July 2011. Defendant was present for the first day of trial. At the end of the first day, the trial court announced that the proceedings would resume at 9:30 AM the next morning. Defendant agreed to meet his attorney at 9:00 AM. However, defendant never arrived the next day. The trial court gave defendant\u2019s attorney time to locate him, but when defendant could not be located, the trial proceeded without him.\nDuring the second day of trial, the State called Sergeant Lee Keller of the Lincoln County Sheriff\u2019s Department to testify regarding the early stages of the investigation. Keller testified as to the various locations where officers looked for defendant on the night of the shooting. In explaining the search, Keller noted that officers had checked \u201cone location off of Campground Road that they knew he had \u2014 one point in time dated a girl \u2018cause they answered domestic calls out there.\u2019 We went over there and attempted to locate him there.\u201d Defendant\u2019s attorney did not object to this statement.\nFollowing the close of the State\u2019s evidence on the second day of trial, defendant\u2019s attorney moved to continue the proceedings. He argued that the trial should be delayed so that defendant \u201ccould exercise his constitutional rights to testify[].\u201d The trial court denied the motion. Defendant\u2019s attorney then moved to dismiss the case for insufficiency of the evidence. The trial court again denied the motion. Next, the trial court asked \u201c[e]vidence for [] defendant?\u201d and defendant\u2019s attorney replied \u201c[n]o, Sir.\u201d\nShortly after jury deliberations began, defendant\u2019s attorney received a note from his associate, indicating that a friend of defendant\u2019s, Stacie Wilson, had called to inform the trial court that defendant had been in the hospital that day suffering from stomach pains. The trial court then asked defendant\u2019s attorney \u201cdo you know who Stacie Wilson is[?]\u201d and defendant\u2019s attorney replied \u201cI don\u2019t. . . . I\u2019m assuming it\u2019s a family member.\u201d The trial court then allowed the information into the record, but noted that \u201cthat there was no documentation, no information as to who Stacie Wilson is, or what hospital the defendant was in, or is in, or any other information.\u201d The jury then returned, and rendered a guilt verdict.\nThe proceedings then resumed the following day for sentencing. Defendant was present on the third day. Prior to sentencing, defendant\u2019s attorney again made a motion to dismiss, arguing that defendant was \u201covercome with what he says has been a recurring abdominal gastrological pains\u201d causing him to miss trial and proceed to the hospital on the day prior. Defendant\u2019s attorney then presented the trial court with documentation of defendant\u2019s hospital visit. This documentation was a note reading, \u201cThank you for visiting the Presbyterian Hospital at Huntersville Emergency Department and he was evaluated by (phonetic) Franklin Tremirus, P.A. for abdominal pain, gastritis, abnormal creatin.\u201d However, the trial court noted that \u201cthere is not a date or time of admission on this.\u201d The trial court then concluded that \u201cassuming that [defendant] was sick yesterday, . . . [t]his case went to the jury approximately 12:15 and there is not sufficient evidence to indicate to the Court that the defendant lacked the ability to reach he [sic] attorney or to reach the clerk to advise them of his medical condition.\u201d The trial court then denied the motion to dismiss.\nDefendant was then sentenced to 23 to 37 months imprisonment, suspended upon completion of 48 months probation. He was also ordered to pay $4,327.43 in restitution. Defendant now appeals.\nII. Arguments\nA. Motion to dismiss\nDefendant first argues that his absence from court on the second day of trial was sufficient to sustain a motion to dismiss on constitutional grounds, because he was deprived of his right to confront his accusers. Defendant specifically argues that he satisfied his burden of explaining his absence, and that he did not waive his right to confrontation. We disagree.\n\u201cThe standard of review for alleged violations of constitutional rights is de novo. \u2019\u2019State v. Graham, 200 N.C. App. 204, 214, 683 S.E.2d 437, 444 (2009), appeal dismissed and disc. review denied, 363 N.C. 857, 694 S.E.2d 766 (2010); see also Piedmont Triad Reg\u2019l Water Auth. v. Sumner Hills, Inc., 353 N.C. 343, 348, 543 S.E.2d 844, 848 (2001) (\u201c/D/e novo review is ordinarily appropriate in cases where constitutional rights are implicated.\u201d (citations omitted)).\nIn noncapital felony trials, [the] right to confrontation is purely personal in nature and may be waived by a defendant. A defendant\u2019s voluntary and unexplained absence from court subsequent to the commencement of trial constitutes such a waiver. Once trial has commenced, the burden is on the defendant to explain his or her absence; if this burden is not met, waiver is to be inferred.\nState v. Richardson, 330 N.C. 174, 178, 410 S.E.2d 61, 63 (1991) (citations and quotations omitted).\nIn Richardson, our Supreme Court upheld the trial court\u2019s determination that the defendant failed to satisfy his burden to explain his absence from trial. There, the trial had begun before the defendant went missing. Id. at 179, 410 S.E.2d at 63-64. \u201c[A] friend of [the] defendant\u2019s telephoned the Clerk to inform the court that [the] defendant was absent due to back problems.\u201d Id. at 179, 410 S.E.2d at 64. However, \u201c[t]he trial court found that such contact... did not suffice as an explanation^]\u201d Id. The defendant then later appeared at the trial and \u201cpresented records showing that he had been treated at Halifax Memorial Hospital for head injuries resulting from a fall, but the time of treatment was not noted.\u201d Id. at 177, 410 S.E.2d at 62. Again, the trial court found that the defendant proved \u201cno satisfactory explanation\u201d for his absence. Id. at 180, 410 S.E.2d at 64.\nHere, defendant was missing from the courtroom after the trial had commenced on the second day. Thus, like the defendant in Richardson, defendant here carried the burden of explaining his absence. Defendant attempted to explain his absence by offering the following evidence: (1) a phone call from Stacie Wilson, a person who failed to provide any information as to who she was or what hospital defendant was in and (2) a note from Presbyterian Hospital indicating that defendant had been treated there at some point, but which lacked any indication of the date or time of treatment. Thus, under the precedent established by Richardson, we conclude that this evidence was insufficient to satisfy defendant\u2019s burden to explain his absence. Accordingly, we conclude that defendant waived his right to confrontation.\nFurther, we note that here defendant has only chosen to appeal the denial of his motion to dismiss and not the denial of his motion to continue. \u201cThis Court reviews the trial court\u2019s denial of a motion to dismiss de novo.\u201dState v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted). When ruling on a motion to dismiss, the court only addresses \u201cwhether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant\u2019s being the perpetrator of such offense. If so, the motion is properly denied.\u201d State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455, cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000) (citation omitted). \u201c \u2018Substantial evidence\u2019 is relevant evidence that a reasonable person might accept as adequate to support a particular conclusion.\u201d State v. Royal, 723 S.E.2d 583 (N.C. Ct. App. 2012). The essential elements of assault with a deadly weapon inflicting serious injury are \u201c(1) an assault (2) with a deadly weapon (3) inflicting serious injury (4) not resulting in death.\u201d State v. Ryder, 196 N.C. App. 56, 66, 674 S.E.2d 805, 812 (2009) (citation omitted). \u201cAssault is an overt act or attempt, with force or violence, to do some immediate physical injury to the person of another, which is sufficient to put a person of reasonable firmness in fear of immediate physical injury.\u201d State v. Bagley, 183 N.C. App. 514, 526, 644 S.E.2d 615, 623 (2007) (quotation and citation omitted). \u201cA pistol or a revolver is a deadly weapon per se.\u201d Id (citation omitted). \u201cSerious injury is \u2018physical or bodily injury resulting from an assault with a deadly weapon[.]\u2019 \u201d Id (citation omitted).\nHere, the State presented evidence showing that (1) defendant assaulted Johnson by shooting him three times in the leg with a revolver and (2) that Johnson suffered injuries requiring hospitalization and surgery. We conclude that this evidence is sufficient to overcome a motion to dismiss. Accordingly, we conclude that the trial court did not err with regards to this issue.\nB. Character evidence\nDefendant next argues that the trial court committed plain error by allowing a witness for the State, Sergeant Lee Keller, to testify that police searched for defendant at a particular location because he was involved in a previous domestic incident there. We disagree.\nFirst, we note that defendant\u2019s attorney did not object to Sergeant Keller\u2019s statement at trial.\nIn criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.\nN.C.R. App. P. 10(a)(4); see also State v. Goss, 361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007), cert. denied, 555 U.S. 835, 172 L. Ed. 2d 58 (2008). Here, defendant has specifically alleged plain error in his brief. Thus, we will review accordingly.\nPlain error arises when the error is \u201c \u2018so basic, so prejudicial, so lacking in its elements that justice cannot have been done[.]\u2019 \u201d State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d. 513 (1982)). \u201cUnder the plain error rule, defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.\u201d State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993) (citation omitted).\nHere, Sergeant Keller testified that while searching for defendant following the shooting, officers checked an address off of Campground Road because at one point the police \u201canswered domestic calls out there\u201d involving defendant and a girl he was dating. Defendant contends that he was prejudiced by this testimony because it implied that he was involved in some prior act of violence. Defendant classifies this statement to be inadmissible character evidence, and he further alleges that if the testimony had been excluded, the jury would have reached a different verdict. We disagree.\nWith regard to defendant\u2019s first contention, our General Statutes provide that \u201c[e]vidence of a person\u2019s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion[.]\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 404 (2011). But \u201c[w]here evidence is relevant for some purpose other than proving character, it is not inadmissible because it incidentally reflects upon character.\u201d State v. Barnett, 41 N.C. App. 171, 174, 254 S.E.2d 199, 201 (1979) (citation omitted).\nHere, it is clear from the record that the testimony at issue was not admitted to prove conformity. Rather, the record shows that the statement was only admitted for the sole purpose of explaining why officers searched for defendant at a particular location.\nFurther, we are not persuaded by defendant\u2019s argument that he would not have been convicted by the jury had this testimony been excluded. The State presented overwhelming evidence of defendant\u2019s guilt, including detailed testimony from Johnson regarding how and when defendant shot him. Defendant did not present any evidence or any witnesses to suggest an alternate theory of events. Thus, we conclude that the trial court did not err with regards to this issue.\nC. Jury Instructions\nDefendant next argues that the trial court committed plain error when it added to the pattern jury instructions that three gunshot wounds to the leg was a serious injury. Specifically, defendant contends that whether three gunshot wounds was a serious injury was an issue for the jury to decide. We disagree.\nThis Court has held that\nthe trial court may remove the element of serious injury from consideration by the jury by peremptorily declaring the injury to be serious. However, such a declaration is appropriate only when the evidence is not conflicting and is such that reasonable minds could not differ as to the serious nature of the injuries inflicted.\nState v. Bagley, 183 N.C. App. 514, 527, 644 S.E.2d 615, 623-24 (2007) (quotations and citations omitted). \u201cFactors our courts consider in determining if an injury is serious include pain, loss of blood, hospitalization[,] and time lost from work.\u201d State v. Owens, 65 N.C. App. 107, 111, 308 S.E.2d 494, 498 (1983) (citation omitted).\nHere, Johnson testified that (1) he was shot three times, (2) he was hospitalized for two days, (3) he had surgery to remove a bone fragment from his leg, and (4) he continued to experience pain from the injuries up through the time of the trial. From this evidence, we conclude that it is unlikely that reasonable minds could differ as to whether the injuries suffered by Johnson were serious in nature. Further, defendant makes no argument on appeal, beyond mere speculation, to support his assertion that it is likely that the jury would have reached a different conclusion if not for the part of the jury instructions to which he takes issue. Thus, we are not persuaded by defendant that the inclusion of this language in the jury instructions rises to the level of plain error. We conclude that the trial court did not err with regard to this issue.\nD. Restitution\nFinally, defendant argues that the trial court erred in ordering him to pay restitution, because the State failed to present any evidence to support the restitution order. We agree.\nThis court has previously held that \u201c[t]he amount of restitution recommended by the trial court must be supported by evidence adduced at trial or at sentencing\u201d and that \u201cthe unsworn statements of the prosecutor... [do] not constitute evidence and cannot support the amount of restitution recommended.\u201d State v. Replogle, 181 N.C. App. 579, 584, 640 S.E.2d 757, 761 (2007) (citations and quotations omitted).\nHere, the State admits in its brief that \u201cthere was no evidence submitted during the trial of the actual medical expenses incurred by [ ] Johnson.\u201d Likewise, upon a review of the record we are unable to find any evidence indicating the precise amount of these expenses. Accordingly, we reverse and remand this issue to the trial court for further proceedings.\nNo error in part, reversed and remanded in part.\nChief Judge MARTIN and Judge HUNTER, JR., Robert N., concur.", "type": "majority", "author": ". ELMORE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General M. A. Kelly Chambers, for the State.", "Assistant Appellate Defender Staples S. Hughes and Assistant Appellate Defender Kristen L. Todd, for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JIMRECO ROCHELL ANDERSON\nNo. COA12-6\n(Filed 7 August 2012)\n1. Constitutional Law \u2014 right to confrontation \u2014 absence from court \u2014 insufficient evidence to explain absence \u2014 waiver\nThe trial court did not err in a felony assault with a deadly weapon inflicting serious injury case by concluding that defendant\u2019s absence from court on the second day of trial was insufficient to sustain a motion to dismiss on constitutional grounds even though defendant contended that he was deprived of his right to confront his accusers. The evidence was insufficient to satisfy defendant\u2019s burden to explain his absence. Thus, defendant waived his right to confrontation.\n2. Evidence \u2014 prior crimes or bad acts \u2014 domestic violence incident \u2014 showing location and not conformity\nThe trial court did not commit plain error in a felony assault with a deadly weapon inflicting serious injury case by allowing an officer to testify that police searched for defendant at a particular location because he was involved in a previous domestic incident there. The testimony was not admitted to prove conformity, but instead for the sole purpose of explaining why officers searched for defendant at a particular location.\n3. Assault \u2014 deadly weapon inflicting serious injury \u2014 addition to pattern jury instruction \u2014 three gunshot wounds to leg a serious injury\nThe trial court did not commit plain error in a felony assault with a deadly weapon inflicting serious injury case when it added to the pattern jury instructions that three gunshot wounds to the leg was a serious injury. It was unlikely that reasonable minds could differ as to whether the injuries suffered by the victim were serious in nature. Further, defendant made no argument on appeal, beyond mere speculation, to support his assertion that it was likely that the jury would have reached a different conclusion absent this instruction.\n4. Damages and Remedies \u2014 restitution\u2014insufficient evidence of amount\nThe trial court erred in a felony assault with a deadly weapon inflicting serious injury case by ordering defendant to pay restitution because the State failed to present any evidence to support the restitution order. This issue was reversed and remanded for additional proceedings.\nAppeal by defendant from judgment entered upon a jury conviction by Judge Marvin P. Pope, Jr., in Lincoln County Superior Court. Heard in the Court of Appeals 5 June 2012.\nAttorney General Roy Cooper, by Special Deputy Attorney General M. A. Kelly Chambers, for the State.\nAssistant Appellate Defender Staples S. Hughes and Assistant Appellate Defender Kristen L. Todd, for defendant." }, "file_name": "0138-01", "first_page_order": 148, "last_page_order": 156 }