STATE v. BRAWLEY (2018)

This case comes to us on remand from the Supreme Court of North Carolina, which reversed this Court's prior decision, for the purpose of considering Defendant's arguments concerning the restitution ordered by the trial court. On remand, after carefully reviewing Defendant's argument, we remand for further proceedings regarding restitution.

I. Background

In 2015, Defendant stole multiple items of clothing from a Belk's department store. After a jury trial, the trial court entered judgment convicting Defendant of larceny from a merchant. The trial court ordered Defendant to pay $134.50 to Belk's as restitution for the stolen clothing.

This background is provided for the understanding of the issues addressed in this opinion. Additional information regarding this case may be found in this Court's prior opinion. Brawley, ––– N.C. App. ––––, 807 S.E.2d 159.

II. Analysis

Defendant contends that the trial court erred in ordering him to pay the amount of $134.50 in restitution to Belk's because no evidence was presented in support of the prosecution's request for restitution. The State offers no evidence in its brief on appeal supporting the trial court's calculations. The State notes that Defendant did not object to the valuation at trial, but otherwise essentially concedes that there was insufficient evidence to support the ordered restitution.

“[T]he amount of restitution recommended by the trial court must be supported by evidence adduced at trial or at sentencing.” State v. Wilson, 340 N.C. 720, 726, 459 S.E.2d 192, 196 (1995). “[N]o objection is required to preserve for appellate review issues concerning the imposition of restitution.” State v. Smith, 210 N.C. App. 439, 443, 707 S.E.2d 779, 782 (2011) (citing State v. Mumford, 364 N.C. 394, 402-03, 699 S.E.2d 911, 917 (2010)). Review of a restitution award is a fact-specific inquiry with “two general approaches: (1) when there is no evidence, documentary or testimonial, to support the award, the award will be vacated, and (2) when there is specific testimony or documentation to support the award, the award will not be disturbed.” State v. Moore, 365 N.C. 283, 285, 715 S.E.2d 847, 849 (2011) (emphasis in original).

Here, the State presented the same number as a valuation for the stolen clothes at each stage of Defendant's prosecution. The $134.50 total appeared on the arrest warrant, the indictment, and the restitution worksheet. However, the only evidence offered in support of this valuation was the unsworn statement of the prosecutor. The “restitution worksheet, unsupported by testimony or documentation[,] is insufficient to support an order of restitution[,]” State v. Davis, 206 N.C. App. 545, 552, 696 S.E.2d 917, 922 (2010), and “[t]he unsworn statement of the prosecutor is insufficient to support the amount of restitution ordered.” State v. Shelton, 167 N.C. App. 225, 233, 605 S.E.2d 228, 233 (2004). Though “the quantum of evidence needed to support a restitution award is not high[,]” there must be some sufficient evidence. Moore, 365 N.C. at 285, 715 S.E.2d at 849. Absent sufficient evidence as to the value of the stolen clothing, the trial court's valuation was insufficient to support an order of restitution.

We vacate the order of restitution entered by the trial court, and we remand for additional proceedings on restitution consistent with both the Supreme Court's opinion and this opinion.

VACATED AND REMANDED.

Report per Rule 30(e).

DILLON, Judge.

Judges HUNTER, JR., and ARROWOOD concur.