IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA23-890-2
Filed 4 March 2026
Robeson County, Nos. 19 CR 050642-770, 22 CR 001726-770
STATE OF NORTH CAROLINA
v.
GRANT LEE HUNT, Defendant.
Appeal by Defendant from judgments entered 24 March 2023 by Judge James
G. Bell in Robeson County Superior Court. Heard in the Court of Appeals 14 August
2024, decision filed 15 October 2024. Vacated and remanded by the Supreme Court
on 23 May 2025 in light of State v. Reber, 386 N.C. 153 (2024).
Attorney General Jeff Jackson, by Special Deputy Attorney General Thomas J. Campbell, for the State.
Attorney Daniel M. Blau, for Defendant–Appellant.
MURRY, Judge.
On remand by order of the North Carolina Supreme Court on 23 May 2025 in
State v. Hunt, 296 N.C. App. 245 (2024), vacating and remanding this Court’s decision
filed 15 October 2024. Grant L. Hunt (Defendant) appeals from a judgment entered
upon a jury verdict finding him guilty of assault with a deadly weapon inflicting
serious injury (AWDWISI) and injury to personal property. For the reasons below,
this Court holds that the trial court (1) did not plainly err by allowing Trooper STATE V. HUNT
Opinion of the Court
Covington’s lay-opinion testimony; (2) did not err by permitting the State to complete
its closing argument without an ex mero motu intervention; (3) did not plainly err by
deviating from pattern jury instructions on evidentiary weight; (4) did err by
incorporating the defective habitual-felon indictment into Defendant’s total sentence;
and (5) did err by relying on insufficiently supportive evidence to reach its restitution
award for the victim. This Court also holds that Defendant did not receive
ineffective-assistance-of-counsel (IAC) due to his counsel’s failure to object to Trooper
Covington’s testimony.
As a result of these holdings, this Court vacates and remands the trial court’s
sentencing and restitution orders for further proceedings not inconsistent with this
opinion. We recite only the facts and procedural posture relevant to this issue on
remand, noting that State v. Hunt, 296 N.C. App. 245 (2024), vacated and remanded
per curiam, 387 N.C. 537 (2025), summarizes additional underlying facts.
I. Background
On 25 January 2019, Defendant veered off the road and struck Timothy Todd
(the victim) with his Ford F-250 truck while the victim was riding an ATV in his
driveway, causing multiple injuries and leaving the victim unconscious for six weeks.
On 6 July 2020, a Robeson County grand jury indicted Defendant for assault with a
deadly weapon with intent to kill inflicting serious injury (AWDWIKISI) and injury
to personal property. On 3 January 2023, the grand jury also indicted him for
attaining habitual-felon status based on the following prior-felony convictions: (1)
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forgery and uttering on 10 September 1996; (2) AWDWISI on 31 May 1994; and (3)
breaking and entering on 5 January 1994. This matter came on for trial on 22 March
2023 in Robeson County Superior Court.
At trial, the victim’s neighbor, Quinten Oxendine, testified to witnessing the
following events while riding ATVs with the victim:
OXENDINE: I was on my ATV. The victim was on his ATV in front of me. We were about to leave out of the driveway. That’s when that—the white truck comes by, crossed the double yellow lines. Hits the ATV. It ends up in the ditch.
STATE: Did you hear any noise as Defendant approached?
OXENDINE: I heard the truck rev up.
....
OXENDINE: So I jumped off my ATV and I heard Defendant say, “Where’s that motherf***er at?”
(Quotation modified.) Oxendine testified to hearing Defendant yell after the collision,
“Y’all motherf[***]ers w[ere] in my yard.” He did not hear or see Defendant check on
the victim’s wellbeing after the collision.
North Carolina State Trooper Kyle Covington responded to the scene. He
testified that, upon arrival, he observed an ATV off the roadway in a yard and a
pickup truck partially in the roadway. Trooper Covington opined the collision was
“intentional” as follows:
STATE: Okay. And based upon your observations, did you form an opinion whether this was an accidental or intentional act?
TROOPER COVINGTON: My opinion is it was an intentional act.
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STATE: Why is that, sir?
TROOPER COVINGTON: Just the markings on the roadway. The— what Defendant said he was doing and why he was doing it. Where he placed the ATV. And . . . just that was not possible in itself. There was also a video that showed Defendant’s actions prior to and it didn’t match his story either. And everything on scene depicted it that it was an intentional act.
(Brackets omitted.) Defendant did not object to Trooper Covington’s testimony. The
State introduced photographs depicting damage consistent with a high-force collision,
including: (1) Defendant’s tire marks leaving the road, (2) Defendant’s truck angled
towards the victim’s ATV, (3) an absence of brake marks in Defendant’s tire path,
and (4) the damage to both vehicles.
Additionally, the victim testified to incurring approximately $525,000 and
$42,000 in medical and air-flight bills, respectively. No party offered additional
evidence to corroborate the victim’s accounting of these bills. During closing
arguments, the State argued:
There’s no debris in the roadway. No skid marks in the roadway. What do we hear from [Defendant]? I told my wife I just hit [the victim]. Then he says about getting out of the truck and going to check on [the victim]. And seeing his torso sticking out from underneath the truck. And then he gets back in the truck and he backs out over his legs? Did you hear any testimony that anybody moved [the victim]? Did he get one last shot at him? Okay. I got you now, bro. You’re not gonna walk. You’re not gonna ride that [ATV]. You’re never gonna bother me again if you’re still alive. You’re not gonna get on a[n ATV].
Defendant did not object to these arguments at any point.
At the charge conference, the parties agreed that the trial court would instruct
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the jury on weighing the evidence as follows: “You are the sole judges of the weight
to be given any evidence. If you decide that certain evidence is believable[,] you must
then determine the importance of that evidence in light of all other believable
evidence in the case.” N.C.P.I.—Crim. 101.20 (emphasis added). During the actual
jury charge, the trial court deviated from the pattern jury instruction as follows: “You
are the sole judges of the weight to be given any evidence—to any evidence. You must
decide that certain evidence is believable. You must then determine the importance of
that evidence in light of all the other believable evidence in the case.” (Emphasis
added). Defendant objected to neither of these instruction iterations.
On 24 March 2023, the jury convicted Defendant of the lesser-included charge
of AWDWISI and injury to personal property. The trial court sentenced Defendant as
a habitual felon to 120–156 months’ imprisonment with recommended work release.
At the sentencing hearing, the State quantified the victim’s medical bills as “over half
a million dollars in medical bills and $40,000 life flight.” It then remarked “that there
was $550,000 in medical bills and $42,000 in life flight,” and asked for a restitution
award of $592,000. The trial court then entered a civil judgment for $592,000.
Defendant timely appealed.
II. Jurisdiction
The North Carolina Supreme Court remanded Defendant’s appeal for further
consideration in light of State v. Reber, 386 N.C. 153 (2024), to this Court, which has
jurisdiction over Defendant’s appeal of a final judgment of the trial court under
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N.C.G.S. §§ 7A-27, 15A-1444. See N.C.G.S. § 7A-27(b)(1) (2025) (final judgment of
trial court); id. § 15A-1444(a) (pleaded not guilty but found guilty). IAC claims
generally “should be considered through motions for appropriate relief and not on
direct appeal.” State v. Stroud, 147 N.C. App. 549, 553 (2001). But because “the cold
record reveals that no further investigation is required,” this Court also has
jurisdiction to determine Defendant’s IAC claim on direct review. State v. Fair, 354
N.C. 131, 166 (2001).
III. Analysis
In addition to the issue on remand, Defendant asserts several challenges not
addressed in this Court’s prior majority opinion in State v. Hunt. Defendant contends
that: (1) he received IAC due to his counsel’s failure to object to Trooper Covington’s
testimony; (2) the trial court erred by failing to intervene ex mero motu during the
State’s closing argument; (3) the trial court erred by misstating the jury instructions
during the jury charge; (4) his habitual felon indictment was fatally defective; (5) the
trial court erred by sentencing him as a habitual felon; (6) he received IAC due to his
counsel’s failure to challenge his habitual-felon indictment; and (7) the trial court
erred by entering a restitution order unsupported by the evidence. For the reasons
below, we hold that Defendant did not receive IAC and that the trial court reversibly
erred only in entering its sentencing and restitution orders. We thus vacate only those
two orders and remand them for further proceedings not inconsistent with this
opinion.
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A. Lay-Witness Testimony
On remand, Defendant argues that the trial court plainly erred by allowing lay
witness Trooper Covington to give “an expert opinion about how the accident
happened[,] and that [Defendant] intentionally hit the victim.” For the following
reasons, we disagree and hold that the trial court did not plainly err.
1. Post-Reber Plain Error
As a threshold matter, we note Defendant’s failure to preserve his argument
for appellate review by not objecting during Trooper Covington’s opinion testimony.
See N.C. R. App. P. 10(a)(1). But we may “review unpreserved issues for plain error
when they involve (1) errors in the judge’s instructions to the jury[ ] or (2) rulings on
the admissibility of evidence,” State v. Gregory, 342 N.C. 580, 584 (1996), provided
that the appellant also “specifically and distinctly” argues plain error to this Court,
see State v. Frye, 341 N.C. 470, 496 (1995); N.C. R. App. P. 10(a)(4). Accordingly, we
review the challenged portion of Trooper Covington’s testimony for plain error.
Our Supreme Court recently clarified the plain-error rule in State v. Reber, 386
N.C. 153, 158 (2024), under which a defendant must satisfy a three-part test. First,
he must establish the trial court’s “fundamental error.” Id. Second, he must
demonstrate “that the error had a ‘probable impact’ on the outcome, meaning that
‘absent the error, the jury probably would have returned a different verdict.’ ” Id.
(quoting State v. Lawrence, 365 N.C. 506, 518–19 (2012)). This “probable impact”
standard requires the possibility of a different verdict to be “significantly more likely
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than not,” i.e., “almost certain[ ]” or “doubtless.” Id. at 159 (first quoting Probably,
New Oxford American Dictionary (3d ed. 2010); and then quoting Probably, Merriam-
Webster’s Collegiate Dictionary (11th ed. 2007)). Third, he must show “that the error
is an ‘exceptional case’ that warrants plain[-]error review, typically by showing that
the error seriously affects ‘the fairness, integrity or public reputation of judicial
proceedings.’ ” Id. (quoting Lawrence, 365 N.C. at 518); see State v. Odom, 307 N.C.
655, 660 (1983) (plain-error review should be “applied cautiously and only in the
exceptional case” where “grave error” “amounts to a denial of a fundamental right of
the accused,” resulting “in a miscarriage of justice”).
a. “Fundamental Error” Prong
Defendant attempts to distinguish this case from Reber by focusing on the
“probable impact” prong and characterizing Trooper Covington’s testimony as “the
State’s strongest evidence on the central questions before the jury.” Applying Reber’s
plain-error test, we first consider whether Defendant demonstrated a “fundamental
error” at trial. Reber, 286 N.C. at 158. Generally, a lay witness may not opine on a
defendant’s state of mind or intent because that testimony requires him to draw
inferences and conclusions based upon perceived facts. State v. Sanders, 295 N.C.
361, 369 (1978). But the North Carolina Rules of Evidence allow a lay witness to opine
on a matter “rationally based on [his] perception” which is “helpful to a clear
understanding of his testimony or the determination of a fact [at] issue.” N.C. R. Evid.
701 [hereinafter Rule]. This latter testimony includes “[c]ommon inferences derived
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from the appearance, condition, or mental or physical state of persons,” State v.
Hedgepeth, 350 N.C. 776, 791 (1999), of which the witness has “personal knowledge,”
State v. Givens, 95 N.C. App. 72, 79 (1989). And under Rule 704, “[t]estimony in the
form of an opinion or inference is not objectionable because it embraces an ultimate
issue to be decided by the trier of fact.” Rule 704.
In full context, Trooper Covington testified to his personal knowledge of the
scene where he observed the victim’s ATV in a ditch, tire marks departing the
roadway, a lack of brake marks, and Defendant’s damaged truck. This Court has held
similar testimony admissible where the lay witness bases his testimony on “rational”
knowledge and observations. See, e.g., State v. Howard, 215 N.C. App. 318, 325 (2011)
(holding police officer’s lay-opinion testimony admissible as “based on . . . [his]
rational observation” that “represented nothing more than an instantaneous
conclusion . . . reached after observing” scene); State v. McVay, 174 N.C. App. 335,
339 (2005) (holding police officer’s lay-opinion testimony that defendant “tried to kill”
the victim admissible because it “amounted to nothing more than shorthand
statements of fact based on their knowledge and observations”). Likewise, Trooper
Covington based his opinion of the collision’s intentionality on his contemporaneous
“rational” observations and “instantaneous conclusion[s]” at the scene. Howard, 215
N.C. App. at 325. Thus, Defendant fails to satisfy Reber’s first prong by showing a
“fundamental error.” Reber, 386 N.C. 158.
b. “Probable Impact” Prong
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Defendant also fails to satisfy Reber’s second prong by showing a “probable
impact” on the verdict in light of the State’s other evidence tending to show that
Defendant intentionally collided with the victim’s ATV. Had the trial court excluded
Trooper Covington’s testimony, the jury would still have heard Oxendine’s testimony
that he saw Defendant’s truck accelerate, rev its engine, cross the yellow centerline,
and swerve toward the victim’s ATV. The jury would have also seen photographic
evidence showing Defendant’s truck departing the roadway, leaving no break marks,
and veering towards the victim’s ATV. See State v. Buie, 194 N.C. App. 725, 734
(2009) (holding police officer’s testimony was harmless error—not the higher
plain-error standard—since “sufficient evidence . . . support[ed] the jury’s decision,
independent from the testimony”).
To accept Defendant’s version, the jury would have had to believe that a Ford
F-250 truck struck an ATV, turned into the point of impact, and pushed it across the
opposite lane into the ditch without leaving debris or tire marks on Defendant’s side
of the road. Thus, Defendant fails to satisfy Reber’s second prong by demonstrating
that, without Trooper Covington’s testimony, the jury “probably would have returned
a different verdict.” Reber, 386 N.C. at 158 (emphasis added).
c. “Exceptional Case” Prong
Finally, Defendant fails to satisfy Reber’s third prong by showing that this is
an “exceptional case . . . seriously affect[ing] the fairness, integrity[,] or public
reputation of judicial proceedings.” Id. at 158. On appeal, a defendant must offer
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support for each element of plain error, including the “necessary reasons or
arguments as to why the alleged error . . . is an exceptional case or why this will
seriously affect the fairness, integrity, or public reputation of judicial proceedings.”
State v. Patterson, 269 N.C. App. 640, 645 (2020). Because Defendant fails to argue
how this case “seriously affects the fairness, integrity or public reputation of judicial
proceedings,” Reber, 386 N.C. at 158, “we cannot impart any meaningful review for
plain error,” Patterson, 269 N.C. at 645. Thus, Defendant fails to satisfy Reber’s third
prong by establishing this case’s exceptionality. See Reber, 386 N.C. at 162.
Defendant cannot demonstrate plain error. See id. at 158. Considering the
ample evidence supporting the State’s theory that Defendant intentionally caused the
collision, we conclude that any error in admitting Trooper Covington’s testimony
would be nonprejudicial at worst. See State v. Harshaw, 138 N.C. App. 657, 662 (2000)
(holding improper testimony nonprejudicial where other evidence supported State’s
theory of premeditation and deliberation). Therefore, the trial court did not plainly
err.
2. Ineffective Assistance of Counsel
Defendant also claims that he received IAC because his counsel failed to object
to Trooper Covington’s testimony. To successfully bring an IAC claim, Defendant
must show both that (1) his counsel’s deficient performance “fell below an objective
standard of reasonableness” and (2) “the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984); accord State v.
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Braswell, 312 N.C. 553, 562–63 (1985) (lockstepping N.C.’s constitutional standard
for IAC claims with Strickland test). We review IAC claims de novo. See State v.
Wilson, 236 N.C. App. 472, 475 (2014). For the following reasons, we disagree and
hold that Defendant did not receive ineffective assistance.
Notably, “while an analysis of plain error may inform an analysis of prejudice
under the ineffective assistance of counsel test, it should not be determinative.” State
v. Lane, 271 N.C. App. 307, 313–314 (2020) (recognizing that while “both the
ineffective assistance of counsel test and the plain error standard require a showing
of prejudice,” the tests “are not so similar that a finding of no error always precludes
a finding of ineffective assistance of counsel”). To satisfy IAC’s prejudice requirement,
a defendant “must show . . . a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” State
v. Allen, 360 N.C. 297, 316 (2006) (quoting Strickland, 466 U.S. at 694). A reasonable
probability is that which is “sufficient to undermine confidence in the outcome,”
Strickland, 466 U.S. at 694, for which “a different result must be substantial, not just
conceivable,” Lane, 271 N.C. App. at 313–14 (quotation omitted). Thus, “[i]f it is easier
to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,”
this Court need not decide whether counsel’s performance was deficient. Strickland,
466 U.S. at 697.
Here, Defendant fails to show a “reasonable probability” of a different outcome
had his counsel objected to Trooper Covington’s testimony. Allen, 360 N.C. at 316. As
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discussed above, even without Trooper Covington’s testimony, the State offered
ample additional evidence through Oxendine’s eye-witness testimony that he saw
Defendant’s truck accelerate towards the victim’s ATV and photographic evidence
corroborating his testimony. Therefore, any failure by defense counsel to object to
Trooper Covington’s testimony would not have “undermine[d] confidence” in the
jury’s verdict, Strickland, 466 U.S. at 694, or created “a reasonable probability” of a
different result, Allen, 360 N.C. at 316. Thus, Defendant has failed to show prejudice.
Accordingly, we hold that he did not receive IAC on this point.
B. Closing Arguments
Next, Defendant claims that the trial court erred by failing to intervene ex mero
motu during the State’s closing argument when it stated that Defendant got “back in
the truck and he backs out over [the victim’s] legs.” We disagree.
As noted above, a defendant’s failure to object to an alleged error at trial
ordinarily prevents our review. N.C. R. App. P. 10(a)(1). A defendant cannot “sit back
in silence during closing arguments but then claim error whenever a trial court fails
to address or otherwise correct a misstatement of the evidence.” State v. Parker, 377
N.C. 466, 474 (2021). That is, absent timely objection, a “trial court is not required to
intervene ex mero motu unless the argument strays so far from the bounds of
propriety as to impede defendant’s right to a fair trial.’“ Id. (quotation omitted).
Because Defendant did not object, our “review is limited to an examination of whether
the argument was so grossly improper that the trial [court] abused [its] discretion in
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failing to intervene ex mero motu.” State v. Smith, 357 N.C. 604, 614 (2003)
(alterations in original; quotation omitted).
To show gross impropriety, a defendant must demonstrate “comments so
infected . . . with unfairness that they rendered the conviction fundamentally unfair.”
State v. Davis, 349 N.C. 1, 23 (1998). Gross impropriety is an “exceedingly high bar,”
surmountable only when the State’s remarks go “so far beyond the parameters of
propriety” that the trial court must “intervene to protect the rights of the parties and
the sanctity of the proceedings.” Reber, 386 N.C. at 163. Even if the State’s remarks
were improper, we must still determine whether they were prejudicial by considering
“the likely impact of any improper argument in the context of the entire closing.”
State v. Copley, 374 N.C. 224, 230 (2020) (citation modified).
Here, the State either misstated or overstated the evidence by arguing
Defendant had intentionally backed over the victim’s legs. See Parker, 377 N.C. at
474. We caution the State to avoid such conduct, which may trigger a mistrial or
result in a new trial. Nonetheless, these statements—measured against the
argument’s entirety—were not so grossly improper as to prejudicially warrant
Defendant a new trial. See id. Thus, we hold that the trial court did not err by
declining to intervene ex mero motu.
C. Jury Instructions
Next, Defendant argues that the trial court erred by deviating from the pattern
instructions on evidentiary weight by stating that the jury “must decide that certain
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evidence is believable” instead of “if you decide that certain evidence is believable”—
an iteration to which the parties had agreed at the charge conference. We disagree.
Where “a trial court agrees to give a requested pattern instruction, an
erroneous deviation from that instruction is preserved for appellate review without
further” objection. State v. Lee, 370 N.C. 671, 676 (2018). A party’s “request for an
instruction at the charge conference . . . sufficient[ly] compli[es] with” Appellate Rule
10(b)(2) to merit review if it “is subsequently promised but not given, notwithstanding
any failure to bring the error to the trial judge’s attention at the end of the
instructions.” State v. Ross, 322 N.C. 261, 265 (1988). Because the trial court agreed
to instruct the jury in accordance with N.C.P.I.—Crim. 101.20 by saying, “if you
decide that certain evidence is believable,” but instead said, “you must decide that
certain evidence is believable,” this issue is preserved for our review. See N.C.G.S.
§ 15A-1443(a).
This deviation prejudicially “requires a new trial only if there is a reasonable
possibility that,” but for “the error in question, “a different result would have been
reached at trial.” State v. Castaneda, 196 N.C. App. 109, 116 (2009) (citation modified;
emphasis added). If the instructions construed as a whole clearly show “no reasonable
cause to believe that the jury was misled or misinformed,” we “will not sustain[ ]”
“any exception even though the instruction could have been more aptly worded.” State
v. Williams, 362 N.C. 628, 652 (2008) (ellipses omitted). “Isolated expressions of the
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trial court, standing alone, will not warrant reversal when the charge as a whole is
correct.” State v. Graham, 287 N.C. App. 477, 486–87 (2023).
Here, although the trial court’s error deviated from the agreed-upon jury
instructions, it did not have a probable impact on Defendant’s guilt when read in
context. Accord State v. Williams, 315 N.C. 310, 327–28 (1986). In other words, the
trial court’s variance was not so fundamental that the jury would have reached a
different result. See Lawrence, 365 N.C. at 518. The trial court quickly followed the
isolated phrasing with the correct language instructing the jury to evaluate which
evidence it found believable and to weigh that evidence against the rest. It did not
direct jurors to believe any particular witness or class of evidence. Therefore, this
Court holds that the trial court did not commit plain error resulting in a probable
impact on the jury’s finding of guilt. See Reber, 386 N.C. at 186.
D. Habitual-Felon Indictment
Next, Defendant argues that his habitual-felon indictment was fatally
defective since two of the referenced convictions do not meet the statutory definition
in N.C.G.S. § 14-7.1. The State concedes error on this point. For the following reasons,
we agree and remand for resentencing.
Felony pleadings must state all essential elements of the crime. See N.C.G.S.
§ 15A-924(a)(5); State v. Palmer, 293 N.C. 633, 639 (1977) (both indictments and
warrants must “allege lucidly and accurately all the essential elements of the offense
endeavored to be charged”). Section 14-7.1 allows the trial court to charge a defendant
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as a habitual felon if he “has been convicted of or pled guilty to three felony offenses.”
State v. Blakney, 233 N.C. App. 516, 521 (2014) (quotation omitted); see N.C.G.S.
§ 14-7.1. Our Supreme Court has long required that the three predicate felonies be
sequential and non-overlapping, i.e., each subsequent felony must be committed after
conviction of the preceding felony. See State v. Allen, 292 N.C. 431, 433 (1977).
This Court has similarly invalidated indictments where the convictions alleged
fall outside the statute. E.g., State v. Jester, 249 N.C. App. 101, 107–08 (2016)
(defective acceptance of defendant’s stipulation to habitual-felon status absent full
colloquy under § 15A-1022); State v. LePage, 204 N.C. App. 37, 54 (2010) (defective
indictment including controlled substances outside actual Schedule IV); State v.
Barnett, 223 N.C. App. 65, 71 (2012) (defective indictment that failed to allege
defendant was required to register as sex offender).
Here, Defendant’s habitual-felon indictment shows all three of his prior felony
charges and convictions overlapping with one another. The indictment’s dates charge
that Defendant committed the March and April 1993 offenses before his conviction
for the September 1992 offense. Indeed, all three convictions arose from proceedings
that overlapped with rather than succeeded one another. Because the indictment
itself shows the predicate felonies overlapped, it fails to allege the essential element
of sequential, non-overlapping convictions required by N.C.G.S. § 14-7.1. As a result,
the habitual-felon indictment is fatally defective. Thus, we vacate the habitual-felon
judgment and remand for resentencing without the habitual-felon enhancement.
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Because Defendant’s habitual-felon indictment is fatally defective, we need and do
not consider whether sentencing occurred without a plea or jury verdict on that status
or Defendant’s IAC claim premised on counsel’s failure to challenge the habitual-felon
status.
E. Restitution Award
Finally, Defendant argues the evidence does not support the trial court’s
$592,000 restitution award. The trial court must base its restitution award on
sufficient evidence. State v. Mumford, 364 N.C. 394, 403 (2010). Although “the
quantum of evidence needed to support a restitution award is not high,” it must
nevertheless be competent, specific, and reliable. State v. Moore, 365 N.C. 283, 285
(2011). Whether the evidence supports the trial court’s restitution order is a question
of law reviewed de novo on appeal. State v. Wright, 212 N.C. App. 640, 645 (2011).
For the following reasons, we agree with Defendant on this point and remand for a
new hearing.
At trial, the victim testified to medical bills of approximately $525,000 and that
he “thought” his medical-flight bill was $42,000. But at the sentencing hearing, the
State misstated the total to be $550,000. Even crediting the victim’s approximate
testimony, the record supports a maximum award of only $567,000. Neither did the
State offer any evidence supporting any amount of medical costs, much less in the
amount of $592,000. This Court has held that approximate or generalized testimony,
without supporting documentation, cannot sustain a restitution order. See State v.
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Buchanan, 260 N.C. App. 616, 623–24 (2018) (vacating award where victim testified
only to “about $10,000” in bills without corroborating evidence).
Here, while there was at least some evidence supporting an award of
restitution, the evidence lacks the level of “specific[ity] and reliab[ility]” required to
sustain the $592,000 figure. State v. Clagon, 279 N.C. App. 425, 435 (2021). Rather,
the victim’s testimony was approximate, the State misstated the amount, and no
party introduced medical bills or other corroborating records supporting the final
amount. Because the only evidence was either estimated or misstated, and
uncorroborated, it falls short of the “specificity” necessary to support a restitution
order. See id. Accordingly, we vacate the restitution order and remand for a new
hearing to determine the amount of damage proximately caused by Defendant’s
conduct and to calculate the correct amount of restitution.
IV. Conclusion
For the reasons discussed above, this Court holds that (1) the trial court did
not plainly err by allowing Trooper Covington’s testimony; (2) that Defendant did not
receive ineffective assistance of counsel; and (3) that the trial court did not plainly
err in its jury instructions. But this Court does hold that the trial court in rendering
its sentencing and restitution orders and thus vacates and remands them for further
proceedings not inconsistent with this opinion.
NO ERROR IN PART; NO PLAIN ERROR IN PART; ERROR IN PART;
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VACATED IN PART AND REMANDED.
Judges TYSON and STADING concur.
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