Opinion
No. COA10-1272
Filed 7 June 2011 This case not for publication
Appeal by Defendant from Judgment entered 29 October 2008 by Judge W. Douglas Albright in Randolph County Superior Court. Heard in the Court of Appeals 23 March 2011.
Attorney General Roy Cooper, by Special Deputy Attorney General Victoria L. Voight, for the State. Anne Bleyman, for Defendant.
Randolph County No. 06 CRS 057124.
Terry Ann Wood ("Defendant") appeals from her conviction for felony assault with a deadly weapon inflicting serious injury. Defendant argues that the trial court committed plain error by permitting an expert to testify as to a legal conclusion at trial and failing to provide jurors with an instruction as to self-defense. Because a review of the record reveals that the expert's testimony was not likely to have had an impact on the jury's finding of guilt and that Defendant was not entitled to a self-defense instruction, we find no plain error was committed with respect to those arguments. However, because there is insufficient evidence in the record to support the trial court's restitution order, we vacate the order and remand for a rehearing on the issue of restitution.
On 13 October 2006, Willa Lambeth and her son, Todd Lambeth, were employed at Century Hosiery located in Denton, North Carolina. Following the completion of their shift, the pair drove to the home of Donald Hewlin in order to repay a loan he had given Willa Lambeth earlier in the week. Upon arriving at Hewlin's trailer, Todd Lambeth noted a green truck parked outside. Willa and Todd Lambeth entered the trailer and found Donald Hewlin inside along with Donnie McClure.
Donnie McClure left shortly after Willa Lambeth and Todd Lambeth arrived. Willa Lambeth returned the money that she owed Donald Hewlin and left. The transaction was brief, taking no longer than ten minutes. When exiting Donald Hewlin's trailer, Willa Lambeth noticed that a green truck had pulled up behind her car, blocking any exit.
Willa Lambeth walked over to the driver's side door of her car and got in. Defendant exited the green truck and approached Willa Lambeth with a knife in her hand. Defendant opened the car door and began poking Defendant in the neck with her hands, demanding that Willa Lambeth return her "stuff." At the same time, Donnie McClure approached the passenger side of the car and detained Todd Lambeth at knife point. Frightened, Willa Lambeth "laid down in the car and started kicking" at Defendant to keep her away. While shouting threats, Defendant used the knife that she was holding to cut Willa Lambeth's right leg.
After she was cut, Willa Lambeth reached into her vehicle, retrieved a pool cue in a case, and attempted to strike Defendant with the case. Defendant, Donnie McClure, and a third unidentified man retreated to the green truck and drove away. Todd Lambeth placed his mother in the car and transported her to the Silver Valley Fire Department. After Todd Lambeth arrived at the Fire Department, Willa Lambeth was transported to a local hospital, treated for a laceration to her leg and released the following day.
Following an investigation, Defendant was indicted for the offense of felony assault with a deadly weapon inflicting serious injury. At her trial, Defendant offered a different account of the events leading to Willa Lambeth's injury. Defendant explained that on 13 October 2006 Defendant went to the home of Donald Hewlin to obtain prescription muscle relaxants. While waiting outside, Defendant observed Willa Lambeth leave the trailer and get into her car.
Believing that Willa Lambeth was in possession of a number of her personal items that she had left at the home of her previous boyfriend, Defendant walked over to confront Willa Lambeth about the missing items. An argument ensued and Willa Lambeth retrieved a knife from her vehicle. Defendant struggled with Willa Lambeth in an effort to obtain control of the knife. It was during this struggle that Willa Lambeth received the laceration to her right leg. Defendant was unaware of exactly how Willa Lambeth's injury occurred and stopped fighting once she noticed that Willa Lambeth was bleeding.
The jury found Defendant guilty of the charged offense. Defendant was sentenced to a minimum of 48 months and a maximum of 67 months in the custody of the North Carolina Department of Correction. Additionally, Defendant was required to pay restitution in the amount of $4,900.65. Following a motion from Defendant, this Court granted Defendant's petition for a writ of certiorari. Before this Court, Defendant argues that: (I) the trial court erroneously permitted an expert witness to testify as to a legal conclusion; (II) the trial court erroneously failed to instruct jurors on self-defense; and (III) the trial court committed error in determining the amount of restitution that she was required to pay.
I.
At Defendant's trial, Dr. Eric Lance ("Dr. Lance") testified as an expert in the field of general surgery. Defendant first argues that the trial court committed plain error by permitting Dr. Lance to testify as to a legal conclusion at trial. We disagree.
Because Defendant failed to object to the testimony of the medical expert at trial, we review for plain error. See State v. Brigman, 178 N.C. App. 78, 91, 632 S.E.2d 498, 507 (2006) (explaining that "[t]he plain error rule provides that the Court may review alleged errors affecting substantial rights even though defendant failed to object to the admission of the evidence at trial."). When reviewing a trial proceeding for plain error, our Supreme Court has explained that:
the plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a "fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done," or "where [the error] is grave error which amounts to a denial of a fundamental right of the accused," or the error has "resulted in a miscarriage of justice or in the denial to appellant of a fair trial" or where the error is such as to "seriously affect the fairness, integrity or public reputation of judicial proceedings" or where it can be fairly said "the instructional mistake had a probable impact on the jury's finding that the defendant was guilty."
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) (other internal quotation marks omitted). "[T]he test for "plain error" places a much heavier burden upon the defendant than that imposed upon those defendants who have preserved their rights on appeal by timely objection." State v. Waddell, 351 N.C. 413, 419, 527 S.E.2d 644, 649 (2000).
N.C. Gen. Stat. § 14-32(b) (2009) prohibits an assault on another person with a deadly weapon that causes serious bodily injury and punishes the crime as a felony. "`The elements of a charge under G.S. § 14-32(b) are (1) an assault (2) with a deadly weapon (3) inflicting serious injury (4) not resulting in death.'" State v. Ryder, 196 N.C. App. 56, 66, 674 S.E.2d 805, 812 (quoting State v. Aytche, 98 N.C. App. 358, 366, 391 S.E.2d 43, 47 (1990)). To satisfy the "serious injury" element there must be a physical or bodily injury. State v. Walker, ___ N.C. App., ___, 694 S.E.2d 484, 494-95 (2010). "`Whether a serious injury has been inflicted is a factual determination within the province of the jury.'" Id. (quoting State v. Morgan, 164 N.C. App. 298, 303, 595 S.E.2d 804, 808-09 (2004)).
"Factors to be considered in determining if an injury is serious include pain, loss of blood, hospitalization, and time lost from work." State v. Wallace, 197 N.C. App. 339, 347, 676 S.E.2d 922, 928 (2009). In contrast, "serious bodily injury" is a type of bodily injury "that creates a substantial risk of death, or that causes serious permanent disfigurement, coma, a permanent or protracted condition that causes extreme pain, or permanent or protracted loss or impairment of the function of any bodily member or organ, or that results in prolonged hospitalization." N.C. Gen. Stat. § 14-32.4(a) (2009). The "serious bodily injury" element requires proof of injuries more severe than those described in the "serious injury" element of any other assault offenses. State v. Rouse, 198 N.C. App. 378, 382, 679 S.E.2d 520, 523 (2009).
In this case, the trial court did not commit plain error by permitting an expert witness to testify as to a legal conclusion. It has been well established that "an expert may not testify that a particular legal conclusion or standard has or has not been met, at least where the standard is a legal term of art which carries a specific legal meaning not readily apparent to the witness." State v. Ledford, 315 N.C. 599, 617, 340 S.E.2d 309, 321 (1986) (citing State v. Smith, 315 N.C. 76, 337 S.E.2d 833 (1985)). Typically, where the conclusion drawn by an expert witness does not incorporate a precise legal conclusion utilizing elements of intent and action, or encompasses a legal meaning that varies from a commonly used definition of the term, the testimony is not an impermissible legal conclusion. See State v. Jennings, 333 N.C. 579, 599-601, 430 S.E.2d 188, 197-98 (1993) (holding that use of the phrases "sexual assault" and "torture" are not legal conclusions because the terms do not carry precise legal definitions involving elements of intent and action, nor do they have a legal meaning that varies from the common understanding of the terms).
Dr. Lance generally provided testimony as to the severity of Willa Lambeth's injury, the manner in which he treated the injury, and the long term complications associated with laceration injuries. During the course of his testimony, Dr. Lance responded to a question from the trial court and agreed that Willa Lambeth's knife could be characterized as a "serious bodily injury." Defendant asserts that Dr. Lance's response to the State's inquiry was an impermissible legal conclusion.
Arguably, the legal definition of "serious bodily injury" differs from a common understanding of the phrase. However, despite the potential erroneous nature of Dr. Lance's testimony, his statement did not rise to the level of plain error. In fact there was an abundance of trial testimony indicating that Willa Lambeth suffered from a "serious injury." Dr. Lance testified that he treated Willa Lambeth for a laceration on her right leg "on the inside of the leg above the knee extending down into the muscle but not through the muscle." The wound was cleaned, the deep tissues were surgically reapproximated, and the skin was closed with staples. Dr. Lance opined that Willa Lambeth could expect to suffer from pain and numbness following the injury and that he did not release Willa Lambeth to return to work until several weeks following her injury. Moreover, Willa Lambeth testified that as of the time of trial, she still experienced pain associated with her injury and that she lost her job because she was unable to remain in a standing position for extended periods of time.
Based on the abundance of evidence presented at trial, it is unlikely that Dr. Lance's testimony impacted the jury's finding of guilt. Accordingly, Defendant's first argument on appeal is without merit.
II.
Defendant next argues that the trial court committed plain error in failing to instruct the jury on self-defense. We disagree.
Defendant failed to raise an objection to the trial court's jury instructions or request a self-defense instruction at trial; therefore, we review for plain error. See State v. Campbell, 340 N.C. 612, 640, 460 S.E.2d 144, 159 (1995) (holding that plain error review is appropriate where the defendant failed to request a jury instruction). A defendant in a criminal action is entitled to have the jury receive a self-defense instruction when there was evidence presented at trial from which a juror could infer that the defendant acted in self-defense. State v. Marsh, 293 N.C. 353, 354, 237 S.E.2d 745, 747 (1977). Articulating the doctrine of self-defense, our Supreme Court has explained that:
[t]he right to act in self defense rests upon necessity, real or apparent, and a person may use such force as is necessary or apparently necessary to save himself from death or great bodily harm in the lawful exercise of his right of self defense. A person may exercise such force if he believes it to be necessary and has reasonable grounds for such belief. The reasonableness of his belief is to be determined by the jury from the facts and circumstances as they appeared to the accused at the time. However, the right of self defense is only available to a person who is without fault, and if a person voluntarily, that is aggressively and willingly, enters into a fight, he cannot invoke the doctrine of self defense unless he first abandons the fight, withdraws from it and gives notice to his adversary that he has done so.
Id. (internal citations and quotation marks omitted). "In determining whether there was any evidence of self-defense presented, the evidence must be interpreted in the light most favorable to defendant." State v. Webster, 324 N.C. 385, 391, 378 S.E.2d 748, 752 (1989).
Because there is no evidence from which the jury could infer that Defendant in this case acted in self-defense, the trial court's failure to provide an instruction on this issue was not plainly erroneous. Defendant explained that she approached Willa Lambeth outside of Donald Hewlin's trailer and asked her about a number of missing clothing items and photographs. An argument ensued and the two began cursing at each other. Defendant testified that Willa Lambeth pulled out a pocket knife and tried to get out of the car. Defendant stopped Willa Lambeth from exiting the car and the two began to struggle over possession of the knife. It was during this struggle that Willa Lambeth "somehow" received the laceration on her leg. Defendant was not aware of the injury and only stopped once she noticed that Willa Lambeth was bleeding.
Defendant did not contend that she injured Willa Lambeth because she reasonably believed it was necessary for her protection, or that she even caused Willa Lambeth's injury. When viewed in a light most favorable to Defendant, the evidence does not reveal the specific circumstances under which Willa Lambeth received her injury. Defendant's evidence at trial suggests that she lacked the requisite mental state to commit the assault offense. However, the evidence does not support Defendant's contention that she injured Willa Lambeth in an effort to protect herself from bodily harm. Accordingly, even when viewed in a light most favorable to Defendant, there was no evidence presented at trial from which a juror could infer that Defendant acted in self-defense.
III.
In her final argument on appeal, Defendant contends that the trial court committed error in its determination of the amount of restitution that she was required to pay. We agree with Defendant's contention.
Though Defendant failed to raise objection to the restitution order at trial, we review Defendant's argument on appeal. See State v. Mumford, 364 N.C. 394, 403-404, 699 S.E.2d 911, 917 (2010). "The amount of restitution ordered by the trial court must be supported by the evidence." State v. Davis, 167 N.C. App. 770, 776, 607 S.E.2d 5, 10 (2005). The restitution order will not be disturbed on appeal where it is supported by some competent evidence adduced at trial or at sentencing. Id.; State v. Wilson, 340 N.C. 720, 726, 459 S.E.2d 192, 196 (1995). "A restitution worksheet, unsupported by testimony, documentation, or stipulation, `is insufficient to support an order of restitution.'" State v. Blount, ___ N.C. App., ___, 703 S.E.2d 921, 926-27 (2011) (quoting State v. Mauer, ___ N.C. App., ___, 688 S.E.2d 774, 778 (2010)).
In this case, there is insufficient record evidence to support the amount of restitution ordered by the trial court. Because an audio recording of the trial proceedings was lost, the transcript included in the record on appeal concludes following the jury instructions. In an attempt to reconstruct the lost portions of the record, Defendant's appellate counsel contacted the trial court and the trial counsel for Defendant and the State. Though all parties responded to the requests of Defendant's appellate counsel, the responses do not indicate that evidence other than a restitution worksheet was presented at the sentencing hearing. Because the restitution worksheet, standing alone, is insufficient to support a restitution order, the State failed to meet its burden of establishing the amount of restitution that Defendant should be required to pay. See State v. Tate, 187 N.C. App. 593, 597, 653 S.E.2d 892, 895 (2007) (holding that though the North Carolina restitution statute does not delineate the appropriate burdens of proof, the North Carolina statute is in accord with the analogous federal provision that requires the attorney for the government to establish the amount of loss suffered by the victim). Accordingly, we vacate the trial court's restitution order and remand for rehearing on this issue.
No error in part; Vacated and remanded in part.
Judges CALABRIA and STEELMAN concur.
Report per Rule 30(e).