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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