An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.


NO. COA02-1677

NORTH CAROLINA COURT OF APPEALS

Filed: 20 January 2004

STATE OF NORTH CAROLINA

v .                         Carteret County
                            No. 02 CRS 1060; 50010
WILLIAM T. MASON,
    Defendant.

    Appeal by defendant from judgment entered 5 September 2002 by Judge James E. Ragan in Carteret County Superior Court. Heard in the Court of Appeals 8 October 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Barbara A. Shaw, for the State.

    Duncan B. McCormick for defendant appellant.

    TIMMONS-GOODSON, Judge.

    The pertinent facts of the instant appeal are as follows. William T. Mason (“defendant”) went to a bar, pulled a gun from his waist, and placed it on top of the bar. Two people testified that they saw defendant place a gun on the bar. Surveillance tape taken from the bar on the night at issue and admitted into evidence showed defendant placing a gun on the bar.
    The State charged defendant with (1) possession of firearm by convicted felon; and, (2) habitual felon. The indictment for the offense of possession of firearm by convicted felon contained a reference to defendant's 1990 conviction for possession with intentto sell and deliver a counterfeit controlled substance. The indictment for the offense of habitual felon included references to three of defendant's prior felony convictions, including a 1990 conviction for the sale and delivery of a counterfeit controlled substance.
    During the trial, defendant stipulated to a prior felony conviction for the “1990 . . . sale and delivery of counterfeit controlled substance in Carteret County,” although defendant's indictment referenced the felony as “possession with intent to sell and deliver a counterfeit controlled substance.” (emphasis added). A jury convicted defendant for the offense of possession of firearm by a felon. Based in part on defendant's conviction of the underlying offense, possession of a firearm by a felon, defendant was further convicted as an habitual felon.

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    The dispositive issue on appeal is whether there was a fatal variance between the indictment and the State's proof at trial. We conclude that the State failed to prove the allegations in the indictment charging defendant with the offense of possession of a firearm by a felon. As the habitual felon offense is ancillary to the underlying charge of possession of a firearm by a felon, we vacate defendant's convictions and remand the case for a new trial.
    A defendant “must be convicted, if at all, of the particular offense alleged in the bill of indictment.” State v. Walston, 140 N.C. App. 327, 334, 536 S.E.2d 630, 635 (2000) (citations omitted). “'The evidence in a criminal case must correspond withthe allegations of the indictment which are essential and material to charge the offense.'” Walston, 140 N.C. App. at 334, 536 S.E.2d at 635 (quoting State v. Simmons, 57 N.C. App. 548, 551, 291 S.E.2d 815, 817 (1982)).
        The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecutionn [sic] for the same offense.

State v. Stevens, 94 N.C. App. 194, 197, 379 S.E.2d 863, 865 (1989) (citations omitted). Where there is a fatal variance between the indictment and evidence at trial, the trial court should vacate the judgment. See State v. Smith, 155 N.C. App. 500, 513, 573 S.E.2d 618, 627 (2002), disc. review denied, 357 N.C. 255, 583 S.E.2d 287 (2003). A challenge to a fatal variance may be raised by a motion to dismiss for insufficient evidence. State v. Pulliam, 78 N.C. App. 129, 132, 336 S.E.2d 649, 651 (1985). In the case sub judice, defendant motioned the trial court to dismiss the charges against him at the close of the State's evidence. The trial court denied defendant's motion.
    In the instant appeal, the indictment for the offense of felon in possession of a firearm reads in pertinent part, “defendant had previously been convicted of the felony of possession with intent to sell and deliver a counterfeit controlled substance . . . .” (emphasis added). The following exchange occurred at trial:
        [STATE]:    I need to know if Ms. Massie isgoing to stipulate to the underlying felony conviction sale and delivery of counterfeit controlled substance, which is the basis for the possession of firearm by a convicted felon. That needs to be established right now.

        [Whereupon Ms. Massie confers with the Defendant.]

        MS. MASSIE:    We would stipulate that he was in fact convicted in 1990 of sale and delivery of counterfeit controlled substance in Carteret County.

Defendant made no objection to the State's reference to the felony alleged in the indictment. The State requested that the trial court present defendant's stipulation to the jury. The trial court explained to the jury that “defendant was convicted here in Carteret County Superior Court on August 8, 1990 for selling and delivering a counterfeit substance . . . .”
    The offenses of 'possession with intent to sell and deliver a counterfeit controlled substance' and 'sale and delivery of a counterfeit controlled substance' are not so factually intertwined that stipulation to one offense is a stipulation to the other. See State v. Wall, 96 N.C. App. 45, 50-51, 384 S.E.2d 581, 584 (1989). “'Possession is not an element of sale and sale is not an element of possession.'” State v. Paul, 58 N.C. App. 723, 726, 294 S.E.2d 762, 763 (1982) (quoting State v. Aiken, 286 N.C. 202, 206, 209 S.E.2d 763, 765 (1974)).
    To establish the offense of possession with the intent to sell and deliver a counterfeit controlled substance, the State must show (i) the unlawful (ii) possession (iii) of a controlled substance (iv) with the intent to sell or deliver it. Pulliam, 78 N.C. App.at 131, 336 S.E.2d at 651. In the case sub judice, defendant stipulated to a previous conviction for “sale and delivery of counterfeit controlled substance.” As defendant did not stipulate to “possession with intent to sell and deliver a counterfeit controlled substance,” and the State failed to prove possession at trial, we conclude that there was a fatal variance between the indictment and the evidence presented. See id. We further conclude that as the offense of habitual felon is ancillary to the underlying felony, which is reversed by this Court, we must also reverse and remand defendant's conviction as an habitual felon for a new trial. See State v. Allen, 292 N.C. 431, 436, 233 S.E.2d 585, 589 (1977); State v. Oakes, 113 N.C. App. 332, 340, 438 S.E.2d 477, 482 (1994).
    Reverse and Remand.
    Judges HUDSON and ELMORE concur.
    Report per Rule 30(e).

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