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Criminal Practice – Assaults – Self-Defense Claim – Aggressor – Jury Instructions – Restitution

Where defendant’s own testimony, as well as that of other eyewitnesses and video footage, showed that (1) defendant was waiting for victim Robert Noeth in the parking lot outside the Walmart in which defendant had just seen Robert, (2) defendant retrieved a loaded gun from his vehicle when he saw other victims drive up in their SUV, and (3) defendant put a gun up to one victim’s eye and struck another in the face with the gun before anyone else acted, the evidence showed that defendant was the aggressor.

We affirm the trial court’s denial of defendant’s motion to dismiss based on his claim of self-defense. We dismiss his argument regarding jury instructions. We vacate the restitution order and remand.

Where the defendant failed to object to the jury instructions at trial, and where he has not alleged plain error, we dismiss the portion of defendant’s appeal related to jury instructions.

Although the state presented some outdated evidence about the hospital bills of victim James Noeth, the evidence indicated that that bill had been “written off.” No testimony or documentation was submitted to support an award based on the remaining doctors’ bill. We vacate the $1,962.80 restitution award.

State v. Buchanan (Lawyers Weekly No. 011-254-18, 14 pp.) (Rick Elmore, J.) Appealed from Lee County Superior Court (Gale Adams, J.) LaShawn Piquant for the state; M. Gordon Widenhouse Jr. for defendant. N.C. App.

 

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