An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 December 2005
STATE OF NORTH CAROLINA
v. Forsyth County
Nos. 04 CRS 025564
ANTHONY RAYVON WOODS
04 CRS 059215
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.
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
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.
The issues on appeal are whether the trial court erred by:
(1) finding defendant had attained habitual felon status when there
was a fatal variance between prior felonies alleged and the State
failed to establish the same underlying felonies had not been used
in defendant's prior habitual felon conviction; and (2) sentencing
defendant to 151 to 191 months imprisonment in violation of his
constitutional protections against disproportionate punishment.
Defendant raises no assignment of error to his conviction for
possessing a stolen motor vehicle.
III. Habitual Felon Status
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
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
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)
(citations omitted). This Court has also
[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
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.
IV. Prior Habitual Felon Status
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
Defendant's argument is not properly before us and is
V. Cruel and Unusual Punishment
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.
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. §
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.
The trial court did not err in finding defendant had attained
habitual felon status and entering a presumptive sentence thereon.
Defendant received a fair trial free from prejudicial error.
Judges MCCULLOUGH and ELMORE concur.
Report per Rule 30(e).
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