Converted WP file 050671-1

Appeal by defendant from judgment entered 7 February 2005 by Judge Ronald E. Spivey in Forsyth County Superior Court. Heard in the Court of Appeals 2 December 2005.

Attorney General Roy Cooper, by Assistant Attorney General Tina A. Krasner, for the State.

Don Willey, for defendant-appellant.

TYSON, Judge.

Anthony Rayvon Woods (“defendant”) appeals from judgment entered after a jury found him to be guilty of possession of a stolen motor vehicle and obtaining habitual felon status. We find no error.

On 11 October 2004, defendant was indicted for possessing a stolen motor vehicle, a 1994 Honda Accord owned by Ruby Albert (“Albert”). Albert, her daughter, and mother had driven from South Carolina to visit her sister in Winston-Salem. Albert reported her vehicle stolen between 9:00 p.m. on 23 July 2004 and 9:00 a.m. on 24 July 2004 from the parking lot of her sister's home. Defendant was also indicted for attaining the status of being an habitualfelon. On 7 February 2005, a jury found defendant to be guilty of possession of a stolen motor vehicle and having attained the status of being an habitual felon . The trial court sentenced defendant in the presumptive range as a Level VI offender with twenty-one prior record points to a term of 151 to 191 months imprisonment. Defendant appeals.

     Defendant first argues his conviction as an habitual felon must be vacated due to a fatal variance between the prior felonies alleged in the indictment and the evidence introduced at trial. The indictment alleged that on 14 April 1993, defendant was convicted in 93 CRS 4984 of felony breaking and entering. However, defendant was convicted of felony breaking and entering a motor vehicle.
    N.C. Gen. Stat. § 14-7.3 (2003) provides:
        An indictment which charges a person with being an habitual felon must set forth thedate that prior felony offenses were committed, the name of the state or other sovereign against whom said felony offenses were committed, the dates that pleas of guilty were entered to or convictions returned in said felony offenses, and the identity of the court wherein said pleas or convictions took place.

This Court has stated:
        An indictment must set forth each of the essential elements of the offense. Allegations beyond the essential elements of the offense are irrelevant and may be treated as surplusage and disregarded when testing the sufficiency of the indictment. To require dismissal any variance must be material and substantial and involve an essential element.

State v. Pelham, 164 N.C. App. 70, 79, 595 S.E.2d 197, 203 (2004) (emphasis supplied) (citations omitted). This Court has also stated:
        [t]he purpose of an habitual felon indictment is to provide a defendant 'with sufficient notice that he is being tried as a recidivist to enable him to prepare an adequate defense to that charge,' and not to provide the defendant with an opportunity to defend himself against the underlying felonies.

State v. Briggs, 137 N.C. App. 125, 130, 526 S.E.2d 678, 681 (2000) (quoting State v. Cheek, 339 N.C. 725, 729, 453 S.E.2d 862, 864 (1995)).
    Here, the indictment correctly stated: (1) defendant was charged as an habitual felon; (2) the prior felony offense was committed on 10 February 1993; (3) the offenses were committed against the State of North Carolina; (4) he was convicted on 14 April 1993; and (5) he was convicted in Forsyth County Superior Court. In addition, the indictment also identified the file numberfor each prior conviction. N.C. Gen. Stat. § 14-7.3 does not specifically require the prior convictions be identified in the indictment. The indictment alleged the essential elements of an habitual felon indictment. We conclude that despite the alleged error in identifying the offense in the indictment, defendant was on notice of the prior felony convictions asserted by the State for the jury to convict him as an habitual felon. Any variance or omission was immaterial and harmless. A fter careful review of the record, briefs, and contentions of the parties, we find no error.

Defendant additionally argues that his conviction must be vacated because the State failed to prove the prior felonies used in this case were not used in his prior habitual felon conviction. However, defendant did not raise this argument at trial or preserve this alleged error for our review.
An appellate court will not consider a different theory on appeal from the one presented to the trial court. State v. Benson, 323 N.C. 318, 322, 372 S.E.2d 517, 519 (1988). “ Defendant may not swap horses after trial in order to obtain a thoroughbred upon appeal.” Id. (citing Weil v. Herring, 207 N.C. 6, 175 S.E. 836 (1934)). Defendant's argument is not properly before us and is dismissed.

    Finally, defendant argues that the trial court imposed cruel and unusual punishment by sentencing him as an habitual felon. Defendant contends that his sentence was grossly disproportionateto the offense. We disagree.
    N.C. Gen. Stat. § 14-7.1 through § 14-7.6 provide that a person who has three prior felony convictions may be convicted and sentenced as an habitual felon. Defendant contends his sentence as an habitual felon was “grossly disproportionate” to the crime of possessing a stolen motor vehicle. We disagree.
    This Court has stated that “'only in exceedingly unusual non-capital cases will the sentences imposed be so grossly disproportionate as to violate the Eighth Amendment's proscription of cruel and unusual punishment.'” State v. Clifton, 158 N.C. App. 88, 94, 580 S.E.2d 40, 45 (2003) (citations omitted). We conclude that the facts here “do not meet the standard of an 'exceedingly rare' and 'extreme' case, in which the 'grossly disproportionate' principle would be violated.” Id.
    Defendant was sentenced in the presumptive range for possessing a stolen motor vehicle in violation of N.C. Gen. Stat. § 20-106, a Class H felony. Without consideration of the Habitual Felon Act, the presumptive sentence is a minimum of sixteen to twenty months to a maximum of twenty-nine to thirty-three months, given a prior record level of VI. See N.C. Gen. Stat. § 15A-1340.17.
    Under the North Carolina Habitual Felon Act, defendant's sentence would be as a Class C felon. Defendant could be sentenced in the presumptive range to a minimum of 135 to 168 months to a maximum of 171 to 211 months, given a prior record level of VI. Defendant's sentence lies in the midpoint of the presumptiveranges. This Court has upheld a defendant's sentence as an habitual felon where the defendant was convicted of an underlying Class H or I felony. State v. Flemming, ___ N.C. App. ___, ___, 615 S.E.2d 310, 314 (2005). Moreover, “when deciding whether a sentence is grossly disproportionate, 'we must place on the scales not only [a defendant's] current felonies, but also his . . . history of felony recidivism.'” Clifton, 158 N.C. App. at 96, 580 S.E.2d at 46 (quoting Ewing v. California, 538 U.S. 11, 29, 155 L. Ed. 2d 108, 122 (2003)). This assignment of error is overruled.