Opinion
No. COA09-512.
Filed February 16, 2010.
Lincoln County No. 07CRS53730.
Appeal by defendant from judgment entered 20 November 2008 by Judge James W. Morgan in Lincoln County Superior Court. Heard in the Court of Appeals 26 October 2009.
Attorney General Roy Cooper, by Assistant Attorney General Sarah L. Buthe, for the State.
Leslie C. Rawls, for Defendant.
Defendant Larry Rashawn Woodruff (Defendant) appeals from a judgment sentencing him to a minimum of sixty months and a maximum of eighty-one months imprisonment in the custody of the North Carolina Department of Correction and recommending that he be ordered to pay restitution in the amount of $574.75 to William Mars as a condition of post-release supervision or work release based upon jury verdicts convicting him of assault by pointing a gun and robbery with a dangerous weapon. We find no error in part, reverse in part, and remand.
I. Factual Background A. Substantive Facts
On 8 December 2007, a number of people were working the evening shift at Fox's Pizza Den in Denver, including the owner, William Mars, Matthew Kwiatkowski, Rachael Wright, and Amy Forney. According to Mars, "a man [came] in[,] . . . walked directly to me[,] and stuck [a gun] to the side of my head." After Mars complied with the gunman's command to "open the cash register," "[the gunman] took the money out of [the register]." The gunman also "found a blue money bag" containing cash, which he took as well. Moreover, the gunman took "a black change box [containing] some paper money." As they left, the gunman and an accomplice took Wright's cell phone.
Similarly, Kwiatkowski stated that a "person came in[to] [Fox's Pizza Den] with a gun held drawn to the owner." Kwiatkowski said the man "had his gun held up screaming, don't [f***ing] play[;] give me the money." As Kwiatkowski ran "out the back door," he "looked up at the top of the monitor" and saw "another person come inside" the restaurant." Kwiatkowski testified that the perpetrators were not wearing masks.
A video surveillance camera captured the robbery. Mars described both perpetrators as African American males and testified that the gunman was "wearing . . . a dark shirt" and "a black baseball cap" with "a little pin or something on the bill." Mars also "noticed he had little . . . rhinestone or diamond things in his ears."
As Kwiatkowski exited the building, he noticed "a car sitting there," which he described as a "silver four-door sedan." Kwiatkowski "quickly turned around and ran all the way down to the opposite end [of the street]," where he entered a bar and grill to ask that someone "call 911 for" him. After reporting the robbery on a borrowed cell phone, Kwiatkowski saw the "car take off from [Fox's Pizza Den.]"
Kwiatkowski "started walking toward [Mars][,]" who had exited the restaurant after the perpetrators departed. As Mars spoke to the 911 operator on the borrowed cell phone, he "noticed [Forney], [the] delivery driver[,] trying to turn in." At that point, Mars "dropped the phone and . . . hollered for her to follow that car."
As Forney waited to turn in to Fox's Pizza Den, she heard Mars yell at her to follow a car that had just left the parking lot. According to Forney, the car was a tan or champagne-colored Mercury Sable or Ford Taurus containing two African American males. As soon as she began her pursuit, Forney called 911 on her cell phone.
The car Forney was following turned onto South Little Egypt Road, where one of the men threw certain items on the side of the road. The car then turned around and headed past Forney in the direction of the main road. After stopping briefly at an intersection, the car ran a red light. Forney got the car's license plate number and gave it to 911. Once the light turned green, Forney was unable to regain contact with the car.
After losing the car at the traffic signal, Forney returned to South Little Egypt Road and found an empty cardboard box and Wright's cell phone. On the following day, Forney and Mars found two or three $20 bills.
Detective Lester White of the Lincoln County Sheriff's Department testified that he got a tag number for the suspect vehicle. The registered owner of the vehicle, which was a peanut butter and tan Ford Taurus, was Lamar Stevens. Detective White "spoke with Mr. Stevens and also [Yulonda] Woodruff," Defendant's mother. Woodruff stated that "her son was in possession of the vehicle about 7:00 p.m., which was about an hour and fifteen/twenty minutes . . . before the robbery."
Woodruff brought Defendant to the Lincoln County Sheriff's Department on 9 December 2008. Although Defendant did not make a statement, he authorized Sergeant White to "take a Polaroid picture of" him.
B. Procedural Facts
On 18 December 2007, a Warrant for Arrest was issued charging Defendant with robbery with a dangerous weapon. On 28 January 2008, the Lincoln County grand jury returned a bill of indictment charging Defendant with robbery with a dangerous weapon and assault by pointing a gun. On 14 November 2008, Defendant filed a Motion to Suppress Evidence seeking the entry of an order suppressing "any identification made by any witness as a result of an improper eyewitness identification procedure, and any evidence, statements or testimony gained as a result of an improper identification."
The case against Defendant came on for trial before the trial court and a jury at the 17 November 2008 criminal session of the Lincoln County Superior Court. Prior to trial, the trial court conducted a hearing concerning the issues raised by Defendant's suppression motion. At the conclusion of the suppression hearing, the trial court entered an order denying Defendant's motion in which it found and concluded that:
After considering all of the evidence presented and the arguments of counsel I would find that while the pre-trial identification procedure used at the second, I guess, showing of a photo, was somewhat suggestive[,] I do not find it impermissibly suggestive such that there is a substantial likelihood of irreparable misidentification and the motion to suppress will be denied.
On 21 November 2008, the jury returned verdicts convicting Defendant of assault by pointing a gun and robbery with a dangerous weapon. After accepting the jury's verdict, the trial court entered a judgment in which it consolidated the two offenses of which Defendant had been convicted for judgment and sentenced Defendant to a minimum of sixty months and a maximum of eighty-one months imprisonment in the custody of the North Carolina Department of Correction, with a recommendation that Defendant make restitution in the amount of $574.75 to Mars "as a condition of post release supervision, if applicable, or from work release earnings, if applicable." Defendant noted an appeal to this Court from the trial court's judgment.
II. Legal Analysis A. Motion to Suppress
First, Defendant challenges the trial court's denial of his motion to suppress Mars' testimony identifying him as one of the perpetrators of the robbery of Fox's Pizza Den. After carefully reviewing the record evidence in light of the applicable law, we conclude that, while the identification procedures employed by investigating officers were impermissibly suggestive, the use of these procedures did not create a substantial risk of irreparable misidentification. For that reason, we conclude that the trial court did not err by denying Defendant's suppression motion.
1. Standard of Review
In considering whether a trial court erroneously granted or denied a motion to suppress, our review on appeal is "strictly limited to determining whether the trial court's findings of fact are supported by competent evidence, in which case they are binding on appeal, and in turn, whether those findings support the trial court's conclusions of law." State v. Corpening, 109 N.C. App. 586, 587-88, 427 S.E.2d 892, 893 (1993) (citing State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982); State v. Fleming, 106 N.C. App. 165, 168, 415 S.E.2d 782, 784 (1992)). "While it is preferable that the trial judge make detailed findings of fact after a hearing to determine whether out-of-court identification procedures were impermissibly suggestive, failure to do so is not error when there is no conflict in the evidence presented at such a hearing." State v. McGuire, 49 N.C. App. 70, 73, 270 S.E.2d 526, 529, appeal dismissed and disc. review denied, 301 N.C. 529, 273 S.E.2d 457 (1980) (citing State v. Dunlap, 298 N.C. 725, 259 S.E.2d 893 (1979); State v. Covington, 290 N.C. 313, 226 S.E.2d 629 (1976); State v. Russell, 22 N.C. App. 156, 205 S.E.2d 752, cert. denied and appeal dismissed, 285 N.C. 667, 207 S.E.2d 764 (1974)). When a trial judge fails to make findings of fact in addressing a motion to suppress identification evidence, this Court may look to the entire record to determine whether the identification procedure was impermissibly suggestive in the event that the evidence presented at the suppression hearing was not in conflict. State v. Thompson, 110 N.C. App. 217, 222, 429 S.E.2d 590, 593 (1993). As a result, since the evidence relevant to the issues raised by Defendant's suppression motion is not in conflict and since the trial court did not make findings of fact at the time that it ruled on Defendant's suppression motion, we review the entire record in order to determine whether the identification procedures employed in this case were impermissibly suggestive and whether any suggestive pretrial identification procedures created a substantial likelihood of irreparable misidentification.
2. Admissibility
"Identification evidence must be suppressed on due process grounds where the facts show that the pretrial identification procedure was so suggestive as to create a very substantial likelihood of irreparable misidentification." State v. Powell, 321 N.C. 364, 368, 364 S.E.2d 332, 335, cert. denied, 488 U.S. 830, 102 L. Ed. 2d 60 (1988) (citing State v. Wilson, 313 N.C. 516, 330 S.E.2d 450 (1985)). In determining whether evidence of an identification should be suppressed, "`the Court must [first] determine whether the identification procedures were impermissibly suggestive. . . . If so, the Court must then determine whether the [suggestive] procedures created a substantial likelihood of irreparable misidentification.'" State v. Rogers, 355 N.C. 420, 432, 562 S.E.2d 859, 868 (2002) (quoting State v. Fowler, 353 N.C. 599, 617, 548 S.E.2d 684, 698 (2001), cert. denied, 535 U.S. 939, 152 L. Ed. 2d 230 (2002)). In undertaking the second inquiry, we must examine whether, "under the totality of circumstances surrounding the crime itself[,] `the identification possesses sufficient aspects of reliability.'" State v. Oliver, 302 N.C. 28, 45, 274 S.E.2d 183, 195 (1981) (citing Neil v. Biggers, 409 U.S. 188, 198, 34 L. Ed. 2d 401, 410 (1972)). The "totality of the circumstances" test requires the court to balance the following factors against the biasing effect of any impermissibly suggestive pretrial identification procedures:
In his suppression motion, Defendant cited N.C. Gen. Stat. § 15A-284.52(b)(5)c, which requires that "[a]t least five fillers shall be included in a photo lineup, in addition to the suspect." However, N.C. Gen. Stat. § 15A-284.52(b)(5)c did not become effective until 1 March 2008, and only applies to offenses committed on or after that date. 2007 N.C. Sess. L. c. 421, s. 2. Since Defendant allegedly robbed Fox's Pizza Den on 8 December 2007, the requirements of N.C. Gen. Stat. § 15A-284.52(b)(5)c do not apply to this case.
(1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness' degree of attention, (3) the accuracy of the witness' prior description of the criminal, (4) the level of certainty demonstrated at the confrontation, and (5) the time between the crime and confrontation.
Powell, 321 N.C. at 369, 364 S.E.2d at 335 (citing State v. Hannah, 312 N.C. 286, 322 S.E.2d 148 (1984); State v. Headen, 295 N.C. 437, 245 S.E.2d 706 (1978)).
In this case, Detective White stated that he showed a six item photographic line-up to Mars three days after the robbery. The line-up consisted of "photos from the DMV" which could have been taken "any time during their current driver's license," which meant that those photographs could have been from one day to five to seven years old. Detective White described the procedures that he utilized in presenting the photographic lineup to Mars as follows:
I handed [six pictures] to Mr. Mars. I said the person [who] robbed the store may or may not be in the lineup. See if you can pick him out. And he went through the lineup and was unable to pick him out. . . . I [then] showed each employee . . . separately in the front lobby of the store.
None of the other employees working at Fox's Pizza Den at the time of the robbery picked Defendant out of the photographic lineup either.
Ten days after the robbery, Detective White returned with the photograph that he had taken of Defendant on the night of the robbery. At that time, he told Mars, "I ha[ve] a possible suspect[,]" showed Mars Defendant's photograph, and asked, "does this guy look familiar[?]" Mars said, "[he] was the one [who] had the gun." According to Detective White, "[a]s soon as I placed [the picture] in front of [Mars,] he said, that's the guy [who] had the gun." Detective White explained that "the reason I brought [the second picture] is [that] [Defendant] fits the description of the guy in the [surveillance] video[;] . . . [he wore] the same type of pants and the same type of shoes." Detective White did not show the photograph to any other employee of Fox's Pizza Den.
In State v. Knight, the Supreme Court stated that:
[T]he evidence adduced on voir dire discloses that the pretrial photographic identification procedure used here was impermissibly suggestive since the photographic showing was of only one picture and was accompanied by the statement `we've got a man, is this the one?'
Knight, 282 N.C. 220, 226, 192 S.E.2d 283, 287 (1972). The facts surrounding the presentation of Defendant's photograph to Mars are almost identical to those at issue in Knight. At the time that he presented Defendant's photograph for Mars' inspection, Detective White told Mars, "I ha[ve] a possible suspect," and asked, "does this guy look familiar[?]" We are unable to identify any material distinction between the pretrial identification procedures employed in Knight and those utilized in this case and conclude, for that reason, that the pretrial identification procedures used here were impermissibly suggestive. See Id., 282 N.C. at 226, 192 S.E.2d at 287; United States v. Wade, 388 U.S. 218, 234, 18 L. Ed. 2d 1149, 1161 (1967) (noting that a single-suspect identification procedure can "clearly convey[] the suggestion to the witness that the one presented is believed guilty by the police"); State v. Yancey, 291 N.C. 656, 661, 231 S.E.2d 637, 640 (1977) (stating that "[o]ur courts have widely condemned the practice of showing suspects singly to persons for the purpose of identification").
As we have already noted, however, "[i]t is the strong probability of misidentification which violates a defendant's right to due process," so that "[u]nnecessarily suggestive circumstances alone do not require the exclusion of identification evidence." State v. McCraw, 300 N.C. 610, 615, 268 S.E.2d 173, 177 (1980) (citing State v. Nelson and Jolly, 298 N.C. 573, 601, 260 S.E.2d 629, 649 (1979); State v. Green, 296 N.C. 183, 250 S.E.2d 197 (1978)). For that reason, we must next determine whether, "under the totality of circumstances, the identification [of Defendant] was reliable." McCraw, 300 N.C. at 615, 268 S.E.2d at 177 (citing Manson v. Brathwaite, 432 U.S. 98, 53 L. Ed. 2d 140 (1977)). "Even though a pretrial procedure is found to be unreliable, [a reliable] in-court identification of independent origin is admissible." State v. McMillian, 147 N.C. App. 707, 710, 557 S.E.2d 138, 142 (2001), disc. review denied, 355 N.C. 219, 560 S.E.2d 152 (2002) (citing Headen, 295 N.C. at 439, 245 S.E.2d at 708); see also Oliver, 302 N.C. at 45, 274 S.E.2d at 194-95 (1981). "In-court identifications are generally admissible, yet they may be excluded `if tainted by a prior confrontation in circumstances shown to be unnecessarily suggestive and conducive to irreparable mistaken identification.'" State v. Smith, 134 N.C. App. 123, 128, 516 S.E.2d 902, 907 (1999) (quoting State v. Caporasso, 128 N.C. App. 236, 239, 495 S.E.2d 157, 160, appeal dismissed, 347 N.C. 674, 500 S.E.2d 91 (1998) (internal citations omitted)); see also McCraw, 300 N.C. at 614-15, 268 S.E.2d at 176. As a result, we now examine the extent to which the impermissibly suggestive pretrial procedures utilized in this case created a substantial likelihood of irreparable misidentification such that the trial court erred by failing to exclude evidence of Mars' identification of Defendant.
At trial, when asked what he recognized about the photograph of Defendant that was presented for his examination, Mars stated that he recognized "his facial features . . . the eyes." In addition, Mars testified that:
[PROSECUTOR]:. . . . [W]as this a picture in which you were able to give an identification?
A: Yeah. I told [Detective White] — when I saw it I said that's the man with the gun.
Q: And, Mr. Mars, do you see the person in court today who held that gun up to your head at Fox's Pizza —
A: Yes, I do.
Q: — and got the money from you that night?
A: Yes, I do.
Q: Okay. And can you point him out?
[DEFENSE COUNSEL]: Objection.
. . . .
THE COURT: Overruled.
. . . .
A: It's the man in the white shirt sitting there at the table (indicating).
Q: Okay. And you are pointing over to the defense table at Mr. Woodruff?
A: Yes, ma'am.
[PROSECUTOR]: Your Honor, for the record the victim indicated Mr. Woodruff.
The Court: So reflected.
Q: Do you have any doubt in your mind Mr. Mars —
A: No, ma'am.
Q: — about that identification?
A: No, ma'am.
After carefully analyzing the record in light of the relevant legal standard, we do not believe that the trial court erred by allowing the admission of Mars' identification testimony.
Although the robbery occurred at approximately 8:20 p.m., the "fluorescent" lights were on in Fox's Pizza Den. According to Mars, the perpetrator remained in the restaurant for approximately three to four minutes. The perpetrator entered the restaurant with a gun and "walked immediately right to [Mars.]" Mars testified that the perpetrator "came right up to me and basically looked me in the face." The perpetrator was not "wearing a mask" and did not have anything "covering his face." Thus, Mars had ample opportunity to view the perpetrator at the time of the robbery.
Although Mars admitted that he was "a little panicked" during the robbery, he was still able to "get a good look at" the perpetrator." In fact, Mars "watch[ed] . . . the gunman" so closely that he "didn't really get to observe" the second participant in the robbery. In light of this evidence, we conclude that Mars' degree of attention, as far as the individual carrying the gun during the robbery is concerned, was quite high.
Mars described the gunman as an African American male who wore a "black ballcap[,]" "diamond earrings[,]" and "dark clothing." This description matches the individual captured on film by the surveillance camera. As a result, the description given by Mars is consistent with the photographic evidence of the perpetrator's appearance at the time of the robbery.
Defendant argues that the descriptions of the clothing worn by Defendant given by the eyewitnesses and the clothing worn by Defendant in the photograph utilized in the pretrial identification procedure conducted by Detective White are not the same. However, we do not believe that the discrepancy upon which Defendant places such emphasis reflects a correct application of the balancing test that we are required to apply, since that test should focus on the suspect's appearance at the time of the commission of the alleged crime rather than on some subsequent occasion. Powell, 321 N.C. at 368, 364 S.E.2d at 335.
When asked "how [he] [was] able to make [the] identification[,]" Mars responded, "[h]is face, just his face." Mars looked at the photo and recognized Defendant "[j]ust instantly[;]" he knew without "any doubt in [his] mind whatsoever" that the person in the picture was the man "who held the gun to my head [on 8 December 2007] and took the money." At trial, Mars did not express any doubt about the accuracy of his identification of Defendant. Thus, Mars demonstrated a high degree of certainty in the accuracy of his identification testimony.
Finally, only ten days had elapsed between the robbery and the date upon which Detective White showed Mars the picture of Defendant from which Mars made his identification. For this reason, we conclude that a relatively short period of time elapsed between the date upon which the robbery occurred and the date upon which Mars identified Defendant.
After carefully considering all of the relevant factors, we conclude that, despite the fact that the identification procedure conducted by Detective White was impermissibly suggestive, the fact that the prosecutor showed the same photograph to Mars during his trial testimony, and the fact that Mars did not select Defendant's photograph from the first photographic lineup, the trial court did not err by concluding that "there is [not] a substantial likelihood of irreparable misidentification." In reaching this conclusion, we note the undisputed evidence that Mars had an opportunity to view the perpetrator's unmasked face under adequate lighting for several minutes; that Mars observed the perpetrator closely during the robbery; that Mars' description of the perpetrator matched the pictures of the gunman shown on the surveillance video; that Mars demonstrated complete certainty that Defendant was one of the perpetrators of the robbery at the time of his pretrial and in-court identification of Defendant; and that a relatively short period of time elapsed between the robbery and the date upon which Mars identified Defendant. All of this evidence leads us to conclude that, despite the countervailing factors upon which Defendant relies in his brief, the impermissibly suggestive pretrial identification procedures utilized in this case do not necessitate the exclusion of Mars' identification testimony.
Our conclusion that the trial court did not err in denying Defendant's suppression motion and in allowing Mars to identify Defendant as one of the perpetrators of the robbery at trial is fully consistent with the prior decisions of the Supreme Court and this Court. The mere fact that Mars did not identify Defendant when presented with the first photographic lineup does not necessitate the suppression of his identification testimony. State v. Alvarez, 168 N.C. App. 487, 496, 608 S.E.2d 371, 376-77 (2005) (stating that, despite various deficiencies in the identification evidence offered by the State, including the fact that the victim "failed to identify defendant from a similar line-up ten days after the crime," these discrepancies "are for the jury to weigh and consider in determining [the witness'] credibility"). Although Defendant relies on State v. Al-Bayyinah, 356 N.C. 150, 156-57, 567 S.E.2d 120, 123-24 (2002), and Headen, 295 N.C. at 439, 245 S.E.2d at 708, both of these decisions are distinguishable from this case, given that the Supreme Court did not apply the five-factor balancing test in Al-Bayyinah and given that Headen involved a lengthy time interval between the crime and the identification, a much more uncertain and less attentive eyewitness, and much more suggestive law enforcement conduct. As we understand the record, the facts of this case are much closer to the numerous cases in which identification testimony has been held to be admissible. Rogers, 355 N.C. at 434, 562 S.E.2d at 869 (holding that identification testimony was admissible where the witness viewed the perpetrator on two occasions from a distance of approximately forty feet for several seconds under adequate lighting, was paying close attention, and provided a detailed description to investigating officers); State v. Lawson, 159 N.C. App. 534, 538, 583 S.E.2d 354, 357-8 (2003) (holding that identification evidence was admissible where, during a robbery that lasted about twenty-five seconds, the perpetrator stood directly in front of the victim, the victim looked right at the perpetrator, the victim paid special attention to the perpetrator's eyes and described the upper portion of the perpetrator's face and the perpetrator's clothing, and the defendant was arrested while wearing clothing like that described by the victim); McMillian, 147 N.C. App. at 711, 557 S.E.2d at 142 (holding that identification testimony was admissible where the victim was fifteen feet away from his assailant, the victim saw the assailant's face for one to two minutes in a well lit parking lot, and the victim stated that his identification was based on what he saw on the night of the incident rather than on a subsequent show-up); Smith, 134 N.C. App. at 128, 516 S.E.2d at 906 (holding that identification testimony was admissible since the perpetrator got within a few feet of the witness each time the perpetrator entered a car, the witness had been trained to have a high degree of attention while observing suspects, the witness gave a detailed description of the perpetrator, and the witness exhibited a high level of certainty when she identified the defendant as the perpetrator). As a result, we hold that, despite the impermissibly suggestive nature of the pretrial identification employed in this case, an examination of the totality of the circumstances establishes that the events surrounding Mars' pretrial and in-court identification of Defendant did not result in a substantial likelihood of irreparable misidentification. Thus, the trial court did not err by denying Defendant's motion to suppress and admitting evidence of Mars' identification of Defendant as one of the perpetrators of the Fox's Pizza Den robbery.
B. Restitution
Secondly, Defendant contends that the trial court erred by recommending that he be required to pay restitution in the amount of $574.75 to Mars as a condition of post-release supervision or work release on the grounds that this component of the trial court's judgment was not supported by the evidence. The State, with commendable candor, concedes that the trial court erred by including this recommendation in its judgment, and we agree.
Although Defendant did not object to the trial court's restitution recommendation, his failure to lodge such an objection does not preclude him from challenging this component of the trial court's judgment on appeal. State v. Shelton, 167 N.C. App. 225, 233, 605 S.E.2d 228, 233 (2004) (stating that, although "defendant did not specifically object to the trial court's entry of an award of restitution, this issue is deemed preserved for appellate review under N.C. Gen. Stat. § 15A-1446(d)(18)") (citing State v. Reynolds, 161 N.C. App. 144, 149, 587 S.E.2d 456, 460 (2003)). In addition, the fact that the Secretary of Correction is not obligated to follow the trial court's restitution recommendation, State v. Wingate, 149 N.C. App. 879, 881, 561 S.E.2d 911, 914 (2002), and the fact that Defendant is entitled to be heard before the Secretary of Correction requires Defendant to actually make restitution, State v. Wilson, 340 N.C. 720, 726-27, 459 S.E.2d 192, 196 (1995), does not deprive Defendant of the right to challenge the trial court's restitution recommendation on appeal. State v. Daye, 78 N.C. App. 753, 757, 338 S.E.2d 557, 560 (1986), disc. rev. allowed, 316 N.C. 554, 344 S.E.2d 11 (1986), aff'd per curiam, 318 N.C. 502, 349 S.E.2d 576 (1986) (stating that, "even though recommendations of restitution are not binding, we see no reason to interpret the statutes of this State to allow judges to make specific recommendations that cannot be supported by the evidence before them"). As a result, the merits of Defendant's claim are properly before us.
"[T]he amount of restitution recommended by the trial court must be supported by evidence adduced at trial or at sentencing." Wilson, 340 N.C. at 726, 459 S.E.2d at 196 (citing Daye, 78 N.C. App. at 756, 338 S.E.2d at 560). "The unsworn statement of the prosecutor is insufficient to support the amount of restitution ordered." Shelton, 167 N.C. App. at 233, 605 S.E.2d at 234 (citing State v. Buchanan, 108 N.C. App. 338, 341, 423 S.E.2d 819, 821 (1992) (stating that "the unsworn statements of the prosecutor . . . [do] not constitute evidence and cannot support the amount of restitution recommended")). In this case, the only support for the trial court's restitution recommendation was the unsworn statement of the prosecutor. As a result, since the record does not contain any competent evidence that supports the amount of restitution recommended by the trial court and since the parties do not appear to have stipulated to an amount of restitution to be awarded to Mars, the trial court erred by recommending that Defendant make restitution to Mars in the amount of $574.75 as a condition of post-release supervision or work release. Thus, we reverse that portion of the trial court's judgment that contains the restitution recommendation and remand this case to the trial court with instructions to rehear the restitution issue.
The record does contain a Restitution Worksheet, Notice and Order indicating that William Mars of Fox's Pizza Den was requesting $574.75 in restitution. However, since the restitution worksheet does not appear to have been sworn to, the fact that it appears in the record does not provide the evidentiary support necessary for a valid award of restitution. State v. Tuck, 191 N.C. App. 768, 775, 664 S.E.2d 27, 31 (2008)
III. Conclusion
As a result, for the reasons stated above, we find no error in the proceedings that led to Defendant's convictions for assault by pointing a gun and robbery with a dangerous weapon. However, since the trial court's restitution recommendation lacks the necessary evidentiary support, we reverse that portion of the trial court's judgment containing the restitution recommendation and remand this case to the Lincoln County Superior Court with instructions to rehear the restitution issue.
NO ERROR, in part; REVERSED in part, and REMANDED.
Chief Judge MARTIN and Judge JACKSON concur.
Report per Rule 30(e).