Criminal Practice – Sentencing – Restitution – Insufficient Evidence – Serious Injury – Gunshot Wounds

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State v. Smith. (Lawyers Weekly No. 11-07-0281, 12 pp.) (Linda M. McGee, J.) Appealed from Wake County Superior Court. (Ripley E. Rand, J.) N.C. App. Click here for the full text of the opinion.

Holding: The trial court ordered defendant to pay restitution of $385 related to her house arrest and $3,037 for the victim’s hospital expenses, but the only evidence supporting these amounts were unsworn statements by the prosecutor and a restitution worksheet. We do not consider defendant’ silence or lack of objection to be a stipulation.

We vacate the trial court’s restitution order related to defendant’s house arrest and the victim’s hospitalization. We find no error in her conviction of assault with a deadly weapon inflicting serious injury.

Where the victim required emergency surgery, was left with scars on his chest, shoulder, back and neck, and testified that a bullet remained in his neck and that it caused him continuing pain, it was not error, and certainly not plain error, for the trial court to peremptorily instruct the jury that the three gunshot wounds the victim received to his neck and torso constituted a serious injury as contemplated by G.S. § 14-32.