An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA05-579


Filed: 7 March 2006


     v .                              Forsyth County
                                     Nos. 04 CRS 054015,
MICHAEL HIAWATHA MARTIN                     04 CRS 016989

    Appeal by defendant from judgments entered 2 December 2004 by Judge W. Douglas Albright in Forsyth County Superior Court. Heard in the Court of Appeals 30 November 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General Gayl M. Manthei, for the State.

    Daniel F. Read for defendant appellant.

    McCULLOUGH, Judge.

    Defendant Michael Hiawatha Martin appeals from a conviction for felonious breaking or entering and from a judgment sentencing him as an habitual felon for this offense, and also from a conviction and judgment for misdemeanor larceny. We hold that defendant received a fair trial, free from prejudicial error, and we affirm the trial court's judgments with exception of the order of restitution. On the issue of restitution, we remand for resentencing.

    At approximately 11:00 a.m. on 30 March 2004, the owner of a retail book store in Winston-Salem noticed a black male walk past the house at 129 Wheeler Street, then turn around, run up to thehome, and jump into a window. The store owner called the police.     Officers Freeman and Bowens with the Winston-Salem Police Department were dispatched to 129 Wheeler Street, and they called for assistance. As Officer Freeman walked around the house, he heard someone moving around inside and using obscenities. He then saw a black male, whom he later identified as defendant, run out of the house. Officer Freeman pursued this individual, and following a struggle, apprehended him. A search of defendant's person revealed that he was in possession of a piece of a table saw at the time he was apprehended. Defendant told Officer Freeman that he needed money to purchase crack and that he had gone into the house to get money for himself and his “girl.” Another officer, Officer Giles, also responded to the scene and noticed a table saw sitting on a windowsill and protruding from a window to the home.
    The house at 129 Wheeler Street was not occupied and was being renovated by a home repairman named Michael Conrad. Conrad informed Officer Giles that he kept his tools in the home and that some of them were missing, including a nail gun, an air compressor, a miter saw, a power drill, a jigsaw, a hammer, a screwdriver, a kerosene heater, a fuel container, a portable heater, and other hand tools. He identified the table saw protruding from the window as his and the piece of the saw which had been found on defendant as being part of the saw.
    A Forsyth County jury convicted defendant of felonious breaking or entering and misdemeanor larceny, and in a subsequent proceeding, found that defendant was an habitual felon. The trialcourt sentenced defendant as an habitual felon for the breaking or entering to a term of 144 to 182 months of imprisonment and sentenced defendant to a consecutive term of 120 days of imprisonment for the larceny. Defendant now appeals.
    In his first argument on appeal, defendant contends that the trial court erred by allowing a juror to ask a question of Officer Robertson during the officer's testimony. Given the facts of the instant case, we discern no prejudicial error arising from the juror's questioning of the officer.
    A juror may be permitted to ask a question of a trial witness if a trial judge in his discretion so allows. State v. Howard, 320 N.C. 718, 725-26, 360 S.E.2d 790, 794 (1987). However, jurors are likely to be unfamiliar with the Rules of Evidence and may ask prejudicial questions, in which case the defendant “is placed in the untenable position of having to choose between not objecting and letting the possibly prejudicial testimony in or objecting to the question and risking offending the juror.” Id. Accordingly, our Supreme Court has noted that
        the better practice is for the juror to submit written questions to the trial judge who should have a bench conference with the attorneys, hearing any objections they might have. The judge, after ruling on any objections out of the presence of the jury, should then ask the questions of the witness. Questions should ordinarily be for clarification and the trial judge should exercise due care to see that juror questions are so limited.
Id. at 726, 360 S.E.2d at 795.
    In the instant case, the trial court permitted a juror to ask the following questions of Officer Robertson:
        [JUROR TWO]:    At one time you said that [defendant] jumped the front fence and you jumped over the fence while he was trying to get up and you just pushed him back down.

        [OFFICER ROBERTSON]: Yes, ma'am.

        [JUROR TWO]:    But there was another time when you said he jumped the front fence and headed around the front of the house, and I was just wondering--

        [OFFICER ROBERTSON]: No--no, ma'am, I did not say that. He--he jumped the front fence; and when he went over the fence, he fell down into the yard.

        [JUROR TWO]: Okay. I misunderstood.

        [OFFICER ROBERTSON]: Okay.

        THE COURT: Does that answer your question?

        JUROR TWO: Yes.

We reiterate that it would have been preferable for the trial court to hold a brief bench conference regarding the question and then ask the question of the witness himself. However, there was nothing objectionable about the question posed by the juror. Further, the question concerned the circumstances surrounding defendant's capture and was unrelated to the substantive offenses for which defendant was being tried. Accordingly, we are entirely unpersuaded that defendant suffered any prejudice from the juror posing the question to the officer.
    Defendant also contends that the trial court erred by denying his motion to dismiss the felony breaking or entering charge. Specifically, defendant argues that there was no evidence that he intended to commit a larceny. We disagree.
    A trial court should deny a motion to dismiss if, considering the evidence in the light most favorable to the State and giving the State the benefit of every reasonable inference, “there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.” State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996). “[T]he rule for determining the sufficiency of evidence is the same whether the evidence is completely circumstantial, completely direct, or both.” State v. Wright, 302 N.C. 122, 126, 273 S.E.2d 699, 703 (1981).
    The essential elements of felonious breaking or entering are (1) the breaking or entering (2) of any building (3) with the intent to commit any felony or larceny therein. N.C. Gen. Stat. § 14-54(a) (2005); State v. Gray, 322 N.C. 457, 460, 368 S.E.2d 627, 629 (1988). “Intent is a mental attitude seldom provable by direct evidence. It must ordinarily be proved by circumstances from which it may be inferred.” State v. Bell, 285 N.C. 746, 750, 208 S.E.2d 506, 508 (1974).
    In the instant case, defendant stated that he was in the house because he was trying to get money for crack, and a piece of atable saw that was being stored in the home was found on his person. Based upon this evidence, the jury could permissibly infer
that defendant intended to commit a larceny when he entered the home at 129 Wheeler Street. Accordingly, the trial court properly denied defendant's motion to dismiss.
    Defendant next contends that the trial court erred by granting the prosecution's motion to correct the certification of the felonies upon which defendant's habitual felon indictment was premised. As defendant notes, a Stokes County Assistant Clerk of Superior Court mistakenly indicated that the certification was executed on 17 June 1904 when, in fact, the certification was executed by the Assistant Clerk on 17 June 2004, and the trial court corrected the certification to reflect the correct date.
    “[A] court of record has the inherent power and duty to make its records speak the truth. It has the power to amend its records, correct the mistakes of its clerk or other officers of the court, or to [rectify] defects or omissions in the record.” State v. Broadway, 259 N.C. 243, 245, 130 S.E.2d 337, 338 (1963) (per curiam). We discern no error in the trial court's decision to exercise this power to correct the erroneous certification.
    Defendant next contends that the trial court erred by granting the prosecutor's motion to amend the habitual felon indictment to include the correct date for defendant's prior felony convictions. This Court has held that an habitual felon indictment may beamended to correct erroneously listed conviction dates because “it is the fact that another felony was committed, not its specific date, which is the essential question in the habitual felon indictment.” State v. Hargett, 148 N.C. App. 688, 693, 559 S.E.2d 282, 286 (citing State v. Locklear, 117 N.C. App. 255, 260, 450 S.E.2d 516, 519 (1994)), disc. review improvidently allowed, 356 N.C. 423, 571 S.E.2d 583 (2002). Accordingly, the trial court did not err by ordering the present defendant's habitual felon indictment to be amended to include accurate conviction dates.
    Defendant next contends that the trial court erred by conducting an habitual felon hearing and by sentencing him as an habitual felon, because at the time defendant pled guilty to the most recent prior felony listed in the habitual felon indictment, he was not informed that his guilty plea would expose him to punishment as an habitual felon. Defendant's assertion is inaccurate inasmuch as he avers that his plea of guilty to the most recent felony listed in his habitual felon indictment exposed him to punishment as an habitual felon. Rather, it was the felony breaking or entering conviction at issue in the instant case that exposed defendant to enhanced punishment as an habitual felon. Had defendant committed no additional crimes after the felonies listed in his habitual felon indictment, he would not have been exposed to enhanced punishment. See N.C. Gen. Stat. § 14-7.2 (2005) (providing that a person must be convicted of a felony after attaining the status of an habitual felon to be punished as an habitual felon). Accordingly, we reject defendant's argument that he could not be convicted of being, or sentenced as, an habitual felon unless he was informed of this potential consequence at the time he pled guilty to the most recent prior felony listed in his habitual felon indictment.
    Defendant next contends that the sentence he received as an habitual felon constituted cruel and unusual punishment in violation of the federal and state constitutions. This argument is contrary to the opinions of this Court affirming enhanced sentences for habitual felons. See, e.g., State v. Clifton, 158 N.C. App. 88, 95-96, 580 S.E.2d 40, 45-46 (affirming a judgment sentencing a defendant as an habitual felon where he had committed a class H felony), cert denied, 357 N.C. 463, 586 S.E.2d 266-67 (2003). Accordingly, we reject defendant's argument that his sentence was unconstitutionally severe.
    In his final argument on appeal, defendant contends that the trial court erred by ordering him to pay $2,560.00 in restitution where the evidence did not support a finding as to this amount. We agree.
    “[R]estitution is intended to compensate victims for loss or damage, and not as a punitive measure against defendants. A trial court's [restitution order] may easily fall into this latter . . . [category] when there is no basis to support it.” State v. Hunt, 80 N.C. App. 190, 195, 341 S.E.2d 350, 354 (1986). Accordingly, anorder of restitution “must be supported by the evidence before the trial court.” Id.
    In the instant case, the trial court merely accepted the restitution worksheets prepared by the owner of the home at 129 Wheeler Street, whose windows had been damaged by defendant, and repairman Michael Conrad, whose tools had been stolen by defendant. The homeowner estimated that he was owed $260.00 in restitution, and Conrad estimated that he was owed $2,300.00 in restitution. However, the homeowner did not provide testimony or present an affidavit detailing the value of the broken windows or the cost of repair. Likewise, Conrad presented testimony as to the value of only some of his stolen tools. Specifically, Conrad testified that his table saw was worth approximately $200.00, that his jigsaw was worth $50.00, that his miter saw was worth $220.00, that his air compressor was worth approximately $240.00, that his nail gun was worth approximately $79.00, and that he had lost numerous miscellaneous tools for which he did not state a value. Even considered in a favorable light, there was insufficient evidence to justify a total award of restitution in the amount of $2,560.00.
    The trial court's order of restitution is vacated, and this case is remanded for resentencing on the issue of restitution.
    We have reviewed the remaining assignments of error brought forward in defendant's brief and have found them to be without merit.
    No error in defendant's trial; no error in part with respectto judgment; remanded for resentencing on the issue of restitution only.
    Judges HUNTER and GEER concur.
    Report per Rule 30(e).

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