An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA05-531


Filed: 21 March 2006


v .                         Sampson County
                            Nos. 03 CRS 52963-64

    Appeal by defendant from judgments entered 20 August 2004 by Judge Charles Henry in Sampson County Superior Court. Heard in the Court of Appeals 20 February 2006.

    Roy Cooper, Attorney General, by Tiare B. Smiley, Special Deputy Attorney General, for the State.

    Staples Hughes, Appellate Defender, by Matthew D. Wunsche, Assistant Appellate Defender, for defendant-appellee.

    MARTIN, Chief Judge.

    Richard Marlo Melvin (“defendant”) appeals from judgments sentencing him as a habitual felon to consecutive terms of 282 to 348 months imprisonment and 107 to 138 months imprisonment for, respectively, one count of second-degree murder and one count of discharging a firearm into occupied property. We find no error.
    The State's evidence at trial tended to show that on 10 July 2003, Kenny Melvin, Dion Melvin and A.J. Boykin (“Boykin”) spent the day visiting friends, where they consumed alcohol and smoked marijuana. Later in the evening, about 9:45 p.m., they drove to defendant's house where defendant was sitting in his yard with Jermaine Butler (“Butler”) and Andrew Kemp (“Kemp”). Defendant was drinking a beer.    After everyone exchanged greetings, defendant offered Dion Melvin, Boykin, and Kenny Melvin a beer. After he had finished his drink, Boykin asked defendant where to dispose of the empty can, and defendant told him to throw it in the yard and slapped it out of his hand. Boykin and defendant got angry with each other, and defendant began waiving a handgun and demanded that the three leave. After approximately four to five minutes of arguing, Dion Melvin, Boykin, and Kenny Melvin returned to their car and started getting in to leave. As Boykin was entering the vehicle, defendant kicked the car door, requiring Boykin to stop it with his hand to avoid being struck in the face.
    After driving away, Kenny Melvin turned the car around and passed defendant's house, at which time Melvin and Boykin yelled at defendant from the car window. Kenny Melvin drove further up the road and turned around. As they were passing defendant's house again, they heard gunshots. Boykin began yelling and Kenny Melvin, who was driving, slumped in his seat. Boykin and Dion Melvin moved him to the back seat and drove to Sampson Memorial Hospital. Kenny Melvin sustained a gunshot wound that entered the left side and exited the right side of his head; he died without regaining consciousness on 11 July 2003. Neither Kenny Melvin nor his friends possessed a weapon on the night of the shooting, and no shots were fired from his vehicle at any time prior or in response to defendant's shots.
    Defendant presented evidence. Jermaine Butler testified that after Dion Melvin, Boykin, and Kenny Melvin arrived, Boykin anddefendant got into a verbal confrontation; however, he did not know what precipitated the confrontation. Butler recalled that defendant slapped a beer can out of Boykin's hand after he asked where to put it and that defendant repeatedly asked the three men to leave his yard. When Boykin refused to leave and continued to argue with defendant, defendant got a handgun from Kemp's truck. When Boykin continued to argue with defendant at their vehicle, defendant pushed the door and told him, “Look, I told you to get out of my yard.” Defendant also told Boykin, “I ought to hit you in the mouth with the butt of this pistol.” Hollering, “That's bull****,” Boykin left with Dion Melvin and Kenny Melvin. Shortly thereafter, the three drove slowly by defendant's house. When they passed the house a second time, they pulled the vehicle partially off the road and stopped, and Butler heard someone yell, “We going to get you, Marlo.” Subsequently, defendant began firing, and Butler testified that it appeared he was shooting at an angle up into the air but not straight up and in the direction of the vehicle.
    Defendant testified on his own behalf. Defendant stated he retrieved a handgun when the three men arrived because of a recent altercation between him and Dion Melvin at a club, during which Kenny Melvin had threatened to “go home and get my gun and shoot you.” According to defendant, after the three men arrived at his home, he got them a drink. Boykin, who had previously purchased a motorcycle from defendant, demanded his money back because he had problems with the motorcycle. When defendant refused to refund thepurchase price, Boykin said, “You going to give me the money or I'm going to take it out [on] your black ass.” As the argument continued, defendant heard someone say, “I'm going to get my gun and I'm going to shoot you.” At that point, defendant asked them to leave multiple times, but they refused. Boykin threatened to hit defendant, and Kenny Melvin repeatedly stated “he was going to get a gun and shoot [defendant.]” At that point, defendant drew his gun and demanded that they leave, and the three men tried to surround defendant. Boykin asked what he was to do with the beer can, and defendant replied that he did not care but that they had to “[g]et out [of his] yard.” Boykin repeatedly stated that he was going to “f**k [defendant] up” and called him a “punk mother f**ker[,]” at which point defendant kicked the door near where Boykin was standing and told him to go home.
    Defendant confirmed that the victim and his friends left but drove back by the house two separate times, “yelling” and “cussing [defendant] out.” When defendant observed the car returning, he testified he believed they were coming back to shoot at him both because of the statements that had been made and because of an unrelated incident when he had been shot by another individual in the back approximately five years previously. When the vehicle stopped in front of defendant's house, Kenny Melvin yelled, “Come on out, Marlo. We got something for your ass.” Defendant stepped out and shot in the air. He testified he did not intend to kill the victim but was merely trying to “scare them off.” Defendant further stated he was shooting in the air and did not intend toshoot into the vehicle, but he was “scared they were coming back and drive by and shoot my house and shoot my friends.”
    Defendant was charged with first-degree murder and discharging a firearm into occupied property. During trial and without objection, the State elicited testimony from defendant that he had driven while his license was revoked. During the charge conference, defendant requested that the jury be instructed on self-defense and accident. The trial court refused to give the requested instructions, and defendant duly excepted. The jury returned verdicts of guilty of second-degree murder and discharging a firearm into occupied property. Defendant also pled guilty to having attained the status of habitual felon. Defendant was sentenced to consecutive terms of 282 to 348 months imprisonment and 107 to 138 months imprisonment in the North Carolina Department of Correction. Defendant was additionally ordered to pay restitution in the amount of $16,807.18. Defendant appeals, asserting the trial court (I) erred in denying the requested instructions for self-defense and accident, (II) committed plain error in allowing the State to elicit testimony from defendant that he drove while his license was revoked, and (III) erred in its order of restitution because the amount ordered was not supported by the evidence.

    In his first argument, defendant asserts the trial court erroneously failed to instruct the jury on self-defense. “'Where the defendant's or the State's evidence when viewed in the lightmost favorable to the defendant discloses facts which are “legally sufficient” to constitute a defense to the charged crime, the trial court must instruct the jury on the defense.” State v. Allen, 141 N.C. App. 610, 618, 541 S.E.2d 490, 496 (2000), disc. review denied, 353 N.C. 382, 547 S.E.2d 816 (2001) (quoting State v. Marshall, 105 N.C. App. 518, 522, 414 S.E.2d 95, 97 (1992)).
    A defendant is completely excused for the killing of another person by reason of self-defense where four conditions are met:
        (1) it appeared to defendant and he believed it to be necessary to kill the deceased in order to save himself from death or great bodily harm; and (2) defendant's belief was reasonable in that the circumstances as they appeared to him at the time were sufficient to create such a belief in the mind of a person of ordinary firmness; and (3) defendant was not the aggressor in bringing on the affray, i.e., he did not aggressively and willingly enter into the fight without legal excuse or provocation; and (4) defendant did not use excessive force, i.e., did not use more force than was necessary or reasonably appeared to him to be necessary under the circumstances to protect himself from death or great bodily harm.
State v. Maynor, 331 N.C. 695, 699, 417 S.E.2d 453, 455 (1992) (citations omitted). However, where the evidence negates the existence of either of the first two factors, “a self-defense instruction should not be given.” State v. Bush, 307 N.C. 152, 160-61, 297 S.E.2d 563, 569 (1982). Thus, where the evidence reveals that, at the critical time, a defendant “meant to scare or warn and did not intend to shoot anyone[,] [and] . . . no evidence in the record [shows] that [a] defendant had formed a belief that it was necessary to kill in order to save himself from death orgreat bodily harm[,]” a trial court need not instruct on self- defense. State v. Lyons, 340 N.C. 646, 662, 459 S.E.2d 770, 779 (1995).
    In the instant case, defendant expressly testified he (1) was merely trying to scare off the victim and his friends, (2) did not intend to kill the victim, and (3) was shooting in the air and did not intend to shoot into the vehicle. Such evidence is sufficiently similar to that considered by our Supreme Court in Lyons to command the same result. This argument is rejected.
    In his second argument, defendant asserts the trial court erroneously failed to give a jury instruction on accident. “The defense of accident [which negates the mens rea element of homicide] is triggered in factual situations where a defendant, without premeditation, intent, or culpable negligence, commits acts which bring about the death of another.” State v. Lytton, 319 N.C. 422, 425-426, 355 S.E.2d 485, 487 (1987). “Culpable negligence is defined as an act or omission evidencing a disregard for human rights and safety.” State v. James, 342 N.C. 589, 595, 466 S.E.2d 710, 714 (1996).
    In the instant case, although the victim's car slowed or stopped near defendant's house at the time he fired, no shots were fired by the victim or from the vehicle. According to Butler, the victim and his friends would have had a difficult time seeing defendant due to his location and the darkness, and, indeed, defendant testified that the only action they took on their second trip past defendant's home was to invite him to “come out[.]” Nonetheless, defendant intentionally opened fire on an occupied vehicle, and the testimony of the forensic firearms analysis expert as to his bullet trajectory analysis indicated the fatal shot “originat[ed] from the left rear of the vehicle, entering the driver's window” and continued forward through to the vehicle's front windshield. Thus, despite defendant's self-serving testimony that he fired into the air, the forensic evidence establishes that defendant intentionally shot into the victim's vehicle, and the bullet originated from the rear of the vehicle. Defendant's minimal testimony that he did not intend to shoot the victim and that he merely fired in the air fails to constitute substantial evidence in the instant case supporting the submission of the defense of accident to the jury. Rather, the evidence demonstrates defendant's intentional act in firing the weapon “at the very least involved culpable negligence”; therefore, “the defense of accident was not a 'substantial factor' in the case and the trial court acted within its discretion in refusing to give the instruction.” State v. Thompson, 118 N.C. App. 33, 38, 454 S.E.2d 271, 274, disc. review denied, 340 N.C. 262, 456 S.E.2d 837 (1995). We note the trial court did properly instruct the jury with respect to involuntary manslaughter. This assignment of error is overruled.
    By his second assignment of error, defendant asserts the trial court committed plain error in allowing the State to elicit, during its cross-examination of defendant, testimony that defendant drove while his license was revoked. “Under plain error review,'reversal is justified when the claimed error is so basic, prejudicial, and lacking in its elements that justice was not done[,]'” see State v. Miller, 357 N.C. 583, 592, 588 S.E.2d 857, 864 (2003) (quoting State v. Prevatte, 356 N.C. 178, 258, 570 S.E.2d 440, 484 (2002)), and, “absent the [claimed] error, the jury probably would have reached a different result.” State v. Jones, 355 N.C. 117, 125, 558 S.E.2d 97, 103 (2002). We review this issue for plain error due to defendant's failure to object at trial.
    Assuming arguendo the challenged testimony was erroneously elicited, such error fails to constitute plain error. Any testimony that defendant drove with a revoked license does not render it likely that the jury would have reached a different conclusion as to whether defendant committed second-degree murder in light of the recounting of events by numerous eye-witnesses to the shooting. This assignment is overruled.
    By his final assignment of error, defendant asserts the trial court erred in its order calculating the amount of restitution. Defendant failed to object at trial to the sufficiency of the evidence supporting the restitution calculation or to the amount of restitution ordered. While this issue is not properly presented to this Court for consideration, see State v. Canady, 153 N.C. App. 455, 460, 570 S.E.2d 262, 266 (2002), we elect to utilize our supervisory power under Rule 2 of the Rules of Appellate Procedure to reach this issue. “In the absence of an agreement or stipulation between defendant and the State, evidence must bepresented in support of an award of restitution.” State v. Buchanan, 108 N.C. App. 338, 341, 423 S.E.2d 819, 821 (1992). The record before this Court reveals, and the State concedes, that the “only evidence before the [trial] court was the unsworn statement of the assistant district attorney contained on the restitution worksheet handed to the trial court.” We have previously held that “the unsworn statements of the prosecutor . . . [do] not constitute evidence and cannot support the amount of restitution recommended.” Id. As in Buchanan, we vacate and remand that portion of the judgment recommending restitution.
    No error. Vacated and remanded as to the recommendation of restitution.
    Judges WYNN and STEPHENS concur.
    Report per Rule 30(e).

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