Appeal by defendant from judgments entered 2 July 2004 by
Judge Abraham P. Jones in Durham County Superior Court. Heard in
the Court of Appeals 8 June 2005.
Attorney General Roy Cooper,
by Assistant Attorney General
Douglas Hill, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate
Defender Barbara S. Blackman, for defendant-appellant.
In this case, although defendant Robert Eugene Matthews was
convicted of felonious larceny, the jury could not reach a verdict
on felonious breaking and entering. Because the jury did not make
any finding that the value of goods taken during the larceny was
more than $1,000.00, we are required under State v. Keeter, 35 N.C.
App. 574, 241 S.E.2d 708 (1978) to vacate the felonious larceny
judgment and remand for entry of a sentence consistent with a
verdict of guilty of misdemeanor larceny. Further, since defendant
was sentenced in the aggravated range based on judicially-found
aggravating factors, we are also compelled to remand for a new
sentencing hearing in accordance with State v. Allen, 359 N.C. 425,
615 S.E.2d 256 (2005).
On 20 April 2003, Clintina Docher was cooking breakfast for
her fiancée, Christopher Cofield, and her baby when a man knocked
on the back door. Docher asked who it was, but received no
response. Docher then heard a knock on the front door, and, when
she asked who it was, a man responded "Rock." Cofield recognized"Rock" as someone he had seen involved in an altercation on a bus
a month earlier. Cofield went to the door, and "Rock" asked if he
had any cigarettes. Cofield responded that he did not, but that he
would be going to the store soon.
After Cofield left, Docher heard another knock on the front
door, and the person again identified himself as "Rock." When
Docher tried to open the door, Rock grabbed her by the throat and
pushed her back into the house. A second man, who Rock called
Daniel, also entered the house. Both men were armed with guns.
Daniel put his gun to the baby's head, while Rock pointed his gun
at Docher's head. Rock threatened that he would kill the baby if
Docher moved or if he did not find what he wanted in the house.
Rock told Daniel to go upstairs and check every room.
After Daniel went upstairs, Rock put his gun up against the
back of the baby's head and again threatened to kill her. When
Rock turned his head away, Docher jumped over a coffee table,
grabbed her baby out of her stroller, and tried to run out the
door. Rock pulled Docher back inside and threatened to kill her if
she tried anything again. The two men closed all of the windows
and shades and tried to tie up Docher and her baby and put them in
During a search of the house, Rock and Daniel found $260.00.
The men then made sandwiches, drank some orange juice, took a 40-
ounce beer, and walked out the back door. Daniel immediately
returned, grabbed Docher by the face, and threatened that if she
told anyone what had happened, he would kill her and her family. After the men were gone, Docher ran to a neighbor's apartment,
and the neighbor called the police. When Docher later told another
neighbor, China Townsend, what had happened, Townsend showed Docher
a picture of defendant loading a gun. Docher identified the person
in the picture as "Rock."
On 24 April 2003, defendant was arrested on a failure to
appear charge and brought in for questioning. After waiving his
rights, defendant stated that he had been at his mother's
funeral on the day of the robbery. Defendant's mother was,
however, still alive on the date of the robbery and, in fact, was
seen in the courthouse on the first day of defendant's trial.
Defendant was indicted for (1) robbery with a dangerous
weapon, (2) felony breaking and entering, (3) felony larceny, (4)
assault by pointing a gun, (5) communicating threats, (6) two
counts of second degree kidnapping, (7) conspiracy to commit
robbery with a dangerous weapon, and (8) possession of a firearm by
a felon. The trial court granted a mistrial on the felony breaking
and entering charge because the jury was unable to reach a
unanimous verdict. The jury found defendant guilty on each of the
During sentencing, the trial judge found six aggravating
factors and no mitigating factors. Based on those aggravating
factors, the trial judge sentenced defendant to consecutive
aggravated sentences of 129 to 164 months for robbery with a
dangerous weapon, 42 to 60 months for conspiracy to commit robbery
with a dangerous weapon, 42 to 60 months for each second degreekidnapping conviction, 20 to 24 months for possession of a firearm
by a felon, 12 to 15 months for felony larceny, 75 days for assault
by pointing a gun, and 45 days for communicating threats.
 With respect to all of his convictions, defendant argues
that the trial court committed plain error by failing to exclude
certain evidence under Rule 404(b) of the Rules of Evidence,
including: (1) the photograph of defendant loading a gun shown by
Townsend to Docher; (2) testimony by Townsend regarding statements
she made to defendant and regarding her taking of the photograph;
(3) Christopher Cofield's testimony that he had witnessed defendant
in an altercation on a bus in March 2003; and (4) testimony by
police investigator G. K. Coats that defendant had been arrested
for failing to appear. Since defendant's counsel did not object to
the admission of the challenged evidence, defendant asks us to
review the admission of the evidence for plain error.
Plain error is "a fundamental error, something so basic, so
prejudicial, so lacking in its elements that justice cannot have
been done; or grave error that amounts to a denial of a fundamental
right of the accused; or error that has resulted in a miscarriage
of justice or in the denial to appellant of a fair trial." State
, 342 N.C. 580, 586, 467 S.E.2d 28, 32 (1996). Although
the State argues that plain error review cannot be used in this
instance because the admission of this evidence was in the
discretion of the trial judge, this Court has previously held that
the admission or exclusion of evidence under Rule 404(b) may bereviewed for plain error. See, e.g.
, State v. Berry
, 143 N.C. App.
187, 194-95, 546 S.E.2d 145, 151-52, disc. review denied
, 353 N.C.
729, 551 S.E.2d 439 (2001).
Rule 404(b) of the North Carolina Rules of Evidence provides:
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident. . . .
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2003). This rule is a "'clear
general rule of inclusion
of relevant evidence,'" and evidence is
excluded under this rule only when its sole probative value is to
show that defendant had the propensity to commit the crime. State
, 340 N.C. 264, 284, 457 S.E.2d 841, 852 (quoting State v.
, 326 N.C. 268, 278, 389 S.E.2d 48, 54 (1990)), cert. denied
516 U.S. 994, 133 L. Ed. 2d 436, 116 S. Ct. 530 (1995). "The list
of permissible purposes for admission of 'other crimes' evidence is
not exclusive, and such evidence is admissible as long as it is
relevant to any fact or issue other than the defendant's propensity
to commit the crime." Id.
, 457 S.E.2d at 852-53.
After reviewing the record, we hold that the disputed evidence
was not precluded by Rule 404(b). The photograph showing defendant
loading a gun and Townsend's testimony regarding the taking of that
photograph was admissible because (1) the evidence was relevant to
show that defendant possessed a gun for the charge of possession of
a firearm by a felon, and (2) the photograph was the means by which
Docher first identified defendant as the perpetrator. See State v.Thibodeaux
, 341 N.C. 53, 64, 459 S.E.2d 501, 509 (1995) (upholding
admission of photograph of the defendant carrying gun that was
murder weapon); State v. Hanton
, 140 N.C. App. 679, 688, 540 S.E.2d
376, 382 (2000) ("His photograph [from a police file] was used to
prove identity, which is permissible under Rule 404(b)."); State v.
, 78 N.C. App. 68, 71, 337 S.E.2d 81, 83-84 (1985)
(upholding admission of photographs of defendant standing next to
marijuana plants as evidence of where defendant lived). Similarly,
Cofield's testimony that he had seen defendant in an altercation
establishes how Cofield was able to identify defendant.
 Defendant also challenges testimony by Townsend that she
told defendant that he could visit her son at her house so long as
he did not take anything. This testimony does not, however, refer
to prior crimes, wrongs, or acts of defendant and, therefore, falls
outside of the scope of Rule 404(b). Thibodeaux
, 341 N.C. at 63,
459 S.E.2d at 508 (holding that trial court did not err in
admitting testimony that defendant had indicated he might solve his
financial difficulties by robbing a bank when "[t]he testimony at
issue did not relate to any prior crime, wrong or act of the
 Finally, the officer's testimony regarding defendant's
failure to appear was offered to show how the police came to
question defendant about this crime. As such, it is admissible.
See State v. McCree
, 160 N.C. App. 19, 27-28, 584 S.E.2d 348, 354
(testimony by officer that the defendant was stopped while driving
a car that had been reported stolen did not violate Rule 404(b)because it was offered to explain the defendant's presence in a
photographic lineup), appeal dismissed and disc. review denied
N.C. 661, 590 S.E.2d 855 (2003); State v. Riley
, 137 N.C. App. 403,
409, 528 S.E.2d 590, 594 (allowing evidence of officer's
interrogation of defendant in connection with another offense in
part to justify officer's initial contact with defendant), appeal
dismissed, disc. review denied, and cert. denied
, 352 N.C. 596, 545
S.E.2d 217-18 (2000), cert. denied
, 531 U.S. 1082, 148 L. Ed. 2d
681, 121 S. Ct. 785 (2001).
 Defendant also argues that the evidence, even if
admissible, should have been excluded under Rule 403. Defendant
contends that the evidence's probative value was limited because it
was cumulative, while its prejudicial effect was substantial. We
note that the trial court acted affirmatively to limit the State's
examinations with respect to information that risked violating Rule
404(b). Based on our review of the record, we cannot agree with
defendant that the trial court abused its discretion under Rule
403. Nor are we able to conclude, as required for plain error,
that the admission of the evidence tilted the scales sufficiently
to cause defendant to be convicted. See State v. Childress
N.C. 226, 234, 362 S.E.2d 263, 268 (1987) ("in order to invoke the
plain error rule this Court must determine that the alleged error
'tilted the scales' and caused the jury to reach its verdict"). To
the extent defendant contends he was prejudiced by the lack of
limiting instructions, his failure to request such instructions
precludes review of that issue on appeal. State v. Stager
, 329N.C. 278, 310, 406 S.E.2d 876, 894 (1991). Accordingly, this
assignment of error is overruled.
 Defendant also argues that the trial court erred by
entering judgment and sentencing him on felony larceny when the
jury did not find either that defendant was guilty of felonious
breaking and entering or that the value of the goods taken was more
than $1,000.00. Although the State argues that defendant has
waived this argument by failing to object at trial, a defendant
need not object to a sentencing error at trial in order to preserve
the issue for appellate review. State v. Hargett
, 157 N.C. App.
90, 92, 577 S.E.2d 703, 705 (2003) ("Our Supreme Court has held
that an error at sentencing is not considered an error at trial for
the purpose of N.C. Rule 10(b)(1) of the North Carolina Rules of
Under N.C. Gen. Stat. § 14-72 (2003), defendant's larceny
could be considered a felony, rather than a misdemeanor, only if
the value of the property he took was more than $1,000.00 or if he
committed the larceny in the course of a felonious breaking and
entering. In this case, the jury made no finding regarding the
value of the stolen property and the jury failed to convict
defendant of felonious breaking and entering.
This Court addressed this precise situation in Keeter
Our Courts have repeatedly held that
where a defendant is tried for breaking or
entering and felonious larceny and the jury
returns a verdict of not guilty of feloniousbreaking or entering and guilty of felonious
larceny, it is improper for the trial judge to
accept the verdict of guilty of felonious
larceny unless the jury has been instructed as
to its duty to fix the value of the property
stolen; the jury having to find that the value
of the property taken exceeds $200.00 [now
$1,000.00] for the larceny to be felonious. .
We are presented with the question of
whether the rule . . . should be extended to
the case at bar. That is, whether a case in
which the jury is unable to reach a verdict on
a charge of felonious breaking or entering
precludes the acceptance of a guilty verdict
of felonious larceny. We hold that [the rule]
does apply. . . . [I]f the jury does not find
the defendant guilty of felonious breaking or
entering, it cannot find him guilty of
felonious larceny based on the charge of
felonious breaking or entering.
Keeter, 35 N.C. App. at 575, 241 S.E.2d at 709. Under Keeter, the
trial court in this case erred in sentencing defendant for
felonious larceny. The judgment of felonious larceny must be
vacated and the case must be "remanded for entering a sentence
consistent with a verdict of guilty of misdemeanor larceny." Id.
 Finally, defendant argues that the trial court erred,
under Blakely v. Washington
, 542 U.S. 296, 159 L. Ed. 2d 403, 124
S. Ct. 2531 (2004), in imposing aggravated sentences because (1) no
aggravating factors were pled in the indictments, and (2) the trial
judge himself, not the jury, found the factors in aggravation. We
agree that this case must be remanded for resentencing.
Our Supreme Court addressed the impact of Blakely
in State v.
, 359 N.C. 425, 615 S.E.2d 256 (2005), holding that "[o]ther
than the fact of a prior conviction, any fact that increases thepenalty for a crime beyond the prescribed presumptive range must be
submitted to a jury and proved beyond a reasonable doubt." Id.
437, 615 S.E.2d at 265 (citing Blakely
, 542 U.S. at 303-04, 159 L.
Ed. 2d at 413_14, 124 S. Ct. at 2537; Apprendi v. New Jersey
U.S. 466, 490, 147 L. Ed. 2d 435, 455, 120 S. Ct. 2348, 2362
(2000)). The failure to do so constitutes structural error and is
reversible per se
at 449, 615 S.E.2d at 272.
Because the trial court in this case based defendant's
sentences on aggravating factors that it, rather than a jury, had
found, we must vacate the sentence and remand for resentencing in
accordance with Blakely
. With respect, however, to
defendant's argument that the aggravating factors should have been
alleged in the indictment, the Supreme Court rejected that argument
at 438, 615 S.E.2d at 265.
Vacated and remanded in part, no error in part, and remanded
for re-sentencing on all convictions.
Judges CALABRIA and ELMORE concur.
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