An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-200

NORTH CAROLINA COURT OF APPEALS

Filed: 6 April 2004

STATE OF NORTH CAROLINA

v .                             Nash County
                                No. 98 CRS 5348
COREY NICHOLAS DUGGINS

    Appeal by defendant from judgment entered 12 November 1999 by Judge Quentin T. Sumner in Superior Court, Nash County. Heard in the Court of Appeals 24 February 2004.

    Attorney General Roy Cooper, by Assistant Attorney General J. Douglas Hill, for the State.

    Jeffrey Evan Noecker for defendant appellant.

    WYNN, Judge.

    Corey Nicholas Duggins, Defendant, appeals from judgment of the trial court based on his conviction of robbery with a dangerous weapon. Defendant contends the trial court erred by (I) denying his motion to dismiss; (II) omitting the name of the victim in its instructions to the jury; and (III) sentencing him at a prior record level III. We hold the trial court erred in sentencing Defendant where the State presented insufficient evidence of Defendant's prior convictions and remand this case for a new sentencing hearing. We otherwise find no prejudicial error.
    At Defendant's trial, witnesses on behalf of the Statetestified that on the evening of 1 April 1998, Defendant fatally shot Vernon Tabron, then removed approximately fifty dollars from Tabron's pockets. Defendant denied killing Tabron, stating he was elsewhere at the time Tabron was shot. Defendant testified he committed a separate robbery earlier that evening, for which he was currently imprisoned. Upon conclusion of presentation of the evidence, the jury found Defendant guilty of robbery with a dangerous weapon.
    Neither the State nor Defendant presented evidence at the sentencing hearing. A prior record level worksheet, signed by the trial court, is included in the record on appeal. The worksheet calculates Defendant's prior record level as level III, based on Defendant's alleged prior convictions for misdemeanor larceny and common law robbery. The trial court sentenced Defendant to a term of 103 months' minimum imprisonment, and a maximum term of 133 months. Defendant appealed.
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    Defendant contends the trial court erred by (I) denying his motion to dismiss; (II) omitting the name of the victim in its instructions to the jury; and (III) sentencing him at a prior record level of three. We agree that the trial court erred in sentencing Defendant where there was insufficient evidence of Defendant's prior convictions as a matter of law. We otherwise find no error by the trial court.
    Defendant argues the trial court erred in denying his motion to dismiss the charge of armed robbery, in that there was a fatalvariance between the indictment and the evidence presented at trial. Defendant based his motion to dismiss solely on the basis of insufficiency of the evidence, however, and not on fatal variance. This assignment of error was therefore not properly preserved. See N.C.R. App. P. 10(b)(1) (2003) (requiring a party to present the trial court with a timely request, objection or motion, stating the specific grounds for the ruling sought if the specific grounds are not apparent in order to preserve a question for appellate review); State v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991) (stating that “[t]his Court will not consider arguments based upon matters not presented to or adjudicated by the trial tribunal”).
    Even if the error were properly preserved, we would hold this argument to be without merit. The indictment at issue charges Defendant with “Robbery with a Dangerous Weapon” and states in pertinent part as follows:
        The jurors for the State upon their oath present that on or about the date of [the] offense shown and in the county named above the defendant named above unlawfully, willfully and feloniously did attempt to steal, take, and carry away another's personal property, an unknown amount of United States Currency from the presence, and person of Vernon Tabron. The defendant committed this act having in his possession and with the use and threatened use of a dangerous weapon, a firearm, to wit: a handgun, whereby the life of Vernon Tabron was endangered and threatened.

Defendant contends the indictment charges him only with “attempted armed robbery.” The essential elements of robbery with a dangerous weapon are: “(1) an unlawful taking or an attempt to take personalproperty from the person or in the presence of another, (2) by use or threatened use of a firearm or other dangerous weapon, (3) whereby the life of a person is endangered or threatened.” State v. Call, 349 N.C. 382, 417, 508 S.E.2d 496, 518 (1998) (emphasis added); see also N.C. Gen. Stat. § 14-87(a) (2003). Because the definition of robbery with a dangerous weapon includes an attempt to take personal property, the bill of indictment properly charged Defendant with robbery with a dangerous weapon. See State v. Cherry, 29 N.C. App. 599, 601, 225 S.E.2d 119, 121 (1976) (concluding there was no fatal variance between an indictment charging the defendant with armed robbery and evidence tending to show an attempted armed robbery because “'an attempt to rob another of personal property, made with the use of a dangerous weapon, whereby the life of a person is endangered or threatened, is, itself, a completed crime and is punishable to the same extent as if the property had been taken as intended'”) (quoting State v. Price, 280 N.C. 154, 157, 184 S.E.2d 866, 869 (1971)); State v. Kinsey, 17 N.C. App. 57, 59, 193 S.E.2d 430, 431 (1972) (concluding there was no fatal variance between an indictment charging the defendant with armed robbery and evidence showing a mere attempt, because where “'all of the elements [of armed robbery] are present, the offense is complete whether the taking is successful or amounts only to an attempt to take personalty from the victim'”) (quoting State v. Parker, 262 N.C. 679, 682, 138 S.E.2d 496, 499 (1964)), cert. denied, 282 N.C. 674, 194 S.E.2d 153 (1973).
    Defendant next argues the trial court committed plain error byomitting the name of the victim from its instructions on robbery with a dangerous weapon. The trial court utilized the pattern jury instructions, which did not include the name of the victim, Vernon Tabron. Although Defendant concedes that error does not generally arise from “a trial court's use of essentially verbatim jury instructions,” he nevertheless argues the omission of the victim's name was fatally defective because (1) the jury acquitted Defendant of the murder of Vernon Tabron and (2) Defendant testified he committed a second, separate robbery earlier that evening. Defendant contends there is a logical inconsistency in the jury's verdict finding him guilty of robbery with a dangerous weapon but not murder. According to Defendant, this inconsistency arises from the jury's confusion between the two robberies allegedly committed by Defendant on the same day. By omitting the name of the victim in its instructions on robbery with a dangerous weapon, Defendant argues the trial court allowed the jury to mistakenly convict him of robbery with a dangerous weapon based on evidence of the second earlier robbery for which Defendant was not charged. We are not persuaded.
    First, Defendant concedes he did not object to the jury instruction and is therefore limited to arguing plain error only. “Under the plain error rule, defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993). Second, Defendant testified that he pled guilty to common law robbery of a personnamed “Amp” and was currently serving a sentence of thirteen to sixteen months' imprisonment. Finally, although the trial court did not name the victim of the robbery in its instructions, it specifically instructed the jury concerning the second earlier robbery as follows:
            Evidence has been received tending to show that the defendant, Corey Nicholas Duggins, committed the offense of common law robbery of a person named, Amp, on or about April 1st, 1998.
            This evidence was received solely for the purpose of showing that there existed in the mind of the defendant a plan, scheme, system or design involving the crimes charged in the case.
            If you believe this evidence you may consider it, but only for the limited purpose for which it was received.

Contrary to Defendant's argument, both Defendant and the trial court distinguished between the two robberies. From the evidence and the instructions, the jury understood that (1) Defendant had pled guilty to common law robbery of a person named “Amp” and was imprisoned pursuant to that plea; and (2) the evidence concerning the common law robbery of “Amp” was relevant only for the purpose of showing a plan or scheme. Under these circumstances, it is unlikely the jury confused the two robberies and convicted Defendant of robbery with a dangerous weapon based on evidence of the common law robbery to which he pled guilty. We hold the trial court did not commit plain error by omitting the name of the victim in its instructions to the jury, and we overrule this assignment of error.
    Finally, Defendant argues there was insufficient evidence asa matter of law to allow the trial court to determine his prior record level, and that the trial court thereby erred in sentencing him at a prior record level III. Defendant contends he is entitled to a new sentencing hearing. We agree.
    Section 15A-1340.14(f) of the North Carolina General Statutes requires a prior conviction to be proven by one of the following methods: (1) stipulation of the parties; (2) an original or copy of the court record of the prior conviction; (3) a copy of records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or of the Administrative Office of the Courts; or (4) any other method found by the court to be reliable. See N.C. Gen. Stat. § 15A-1340.14(f) (2003). “The State bears the burden of proving, by a preponderance of the evidence, that a prior conviction exists and that the offender before the court is the same person as the offender named in the prior conviction.” Id. Originals or copies of court records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or of the Administrative Office of the Courts constitute prima facie evidence of a prior conviction. See id. “The prosecutor shall make all feasible efforts to obtain and present to the court the offender's full record.” Id.
    In State v. Goodman, 149 N.C. App. 57, 560 S.E.2d 196 (2002), reversed in part on other grounds, 357 N.C. 43, 577 S.E.2d 619 (2003), this Court held the State failed to prove the defendant's prior record level by a preponderance of the evidence where it submitted no evidence to prove that fact. Noting that “[t]herequirements of proving a prior conviction are not stringent[,]” the Court concluded that “the law requires more than the State's unverified assertion that a defendant was convicted of the prior crimes listed on a prior record level worksheet.” Id. at 71-72, 560 S.E.2d at 205. Although “the trial court [could] accept any method of proof which it deem[ed] reliable,” the trial court failed to make findings regarding the reliability of the information used. Id. at 71, 560 S.E.2d at 205. Without entering evidence of the defendant's prior record level into the record, the State failed to satisfy its burden. Id.; see also State v. Miller, 159 N.C. App. 608, 615, 583 S.E.2d 620, 624 (2003) (remanding for resentencing where the State submitted a prior record worksheet but never tendered to the trial court or offered into evidence the criminal information printouts upon which it asserted the worksheet was based, and where the defendant did not stipulate to the prior record level as calculated on the worksheet), affirmed per curiam, __ N.C. __, 591 S.E.2d 520 (2004); State v. Smith, 155 N.C. App. 500, 515, 573 S.E.2d 618, 628 (2002) (holding the trial court erred where it sentenced the defendant based on a prior record level worksheet submitted by the district attorney without further documentation or stipulation by the defendant), disc. review denied, 357 N.C. 255, 583 S.E.2d 287 (2003).
    There is no evidence in the present record to indicate that the State carried its burden of proving each prior conviction by a preponderance of the evidence. Defendant was not required to object at the sentencing hearing in order to assert theinsufficiency of the evidence as a matter of law to prove his prior convictions by a preponderance of the evidence. See N.C. Gen. Stat. § 15A-1446(d)(5) (2003) (providing that error based on insufficiency of the evidence as a matter of law may be the subject of appellate review without objection or motion below); State v. Mack, 87 N.C. App. 24, 34, 359 S.E.2d 485, 491 (1987), disc. review denied, 321 N.C. 477, 364 S.E.2d 663 (1988); State v. Thompson, 60 N.C. App. 679, 684, 300 S.E.2d 29, 32, modified and affirmed, 309 N.C. 421, 424-25, 307 S.E.2d 156, 159 (1983). The State submitted no records of conviction, no records from the agencies listed in section 15A-1340.14(f)(3), and there is no evidence of a stipulation by the parties as to prior record level. At some point, a prior record level worksheet was provided to the trial judge, who signed the document, but the record does not indicate at what point or by whom the worksheet was prepared. The trial court made no findings regarding the reliability of the information contained in the worksheet. The trial court sentenced Defendant based upon the information provided by the unverified prior record level worksheet. “An unsupported statement by the State that an offender has a [certain number of points], . . . even if uncontested, does not rise to the level sufficient to meet the catchall provision found in N.C.G.S. § 15A-1340.14(f)(4).” State v. Bartley, 156 N.C. App. 490, 502, 577 S.E.2d 319, 326 (2003). We hold the State failed to prove Defendant's prior record level by a preponderance of the evidence and remand for resentencing, at which the State shall prove Defendant's prior convictions by apreponderance of the evidence using any method allowable under section 15A-1340.14(f) or which the trial court deems reliable.
    We find no error in Defendant's conviction of robbery with a dangerous weapon; we remand Defendant's case for resentencing.
    No error in part; remanded in part for resentencing.
    Judges McGEE and TYSON concur.
    Report per Rule 30(e).

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