STATE OF NORTH CAROLINA
v
.
Forsyth County
Nos. 04 CRS 28545;60629
WILLIAM DALE EVANS
Attorney General Roy Cooper, by Assistant Attorney General
Karen Ousley Boyer, for the State.
John T. Hall for the defendant.
CALABRIA, Judge.
William Dale Evans (“defendant”) appeals from a judgment
entered upon a jury verdict finding him guilty of larceny of
property valued at $1,000 or more. Defendant pled guilty to
attaining the status of an habitual felon.
The State presented evidence tending to show the following:
Candy Kennedy (“the victim”) parked her 2003 Toyota Camry (“the
vehicle”) license plate number RRB-1675 in her garage on the
evening of 24 August 2003 at approximately 9:00 p.m.. The victim
testified she left the garage door slightly ajar so that her cat
could come and go during the evening. The victim kept a second key
to the vehicle in the vehicle's console. The victim entered herhome from the garage (the victim's garage and home are one unit)
and several hours later when there was no sight of her cat, she
locked the door adjoining the garage and her home. At
approximately 7:30 a.m. on 25 August 2003, the victim entered her
garage and noticed the vehicle was missing. The victim immediately
called 911 and reported the vehicle stolen.
Patrolman William S. Witherall (“Officer Witherall”) responded
to a 911 call at approximately 1:40 p.m. on 25 August 2003
directing him to 2400 Ringwood Street in Charlotte, North Carolina.
Upon arrival, Officer Witherall noticed a Toyota Camry license
plate number RRB-1675 in the driveway. Noting the driver's side
door was open, Officer Witherall approached the vehicle from the
passenger's side. Officer Witherall then observed defendant in the
driver's seat and, believing him to be asleep, attempted to arouse
him. Officer Witherall also noted a strong odor of alcohol in the
vehicle as well as damage to the vehicle's front left tire and
quarter panel. Officer Witherall placed defendant in custody that
afternoon. Officer Witherall identified the Toyota Camry as
belonging to the victim. The victim was informed of the above
events at approximately 9:30 p.m. that evening. Defendant
presented no evidence.
On 25 October 2004, defendant was indicted for first degree
burglary and felonious larceny. An indictment charging defendant
with attaining the status of an habitual felon was returned on the
same date. At trial, the court granted defendant's motion to
dismiss the first degree burglary charge and instead reduced thatcharge to felonious breaking and entering. The jury found
defendant guilty of larceny of property valued at $1000 or more
(felony larceny) and not guilty of felonious breaking and entering.
Defendant pled guilty to attaining the status of an habitual felon.
The trial court determined defendant's prior record points totaled
nineteen points which corresponds to a prior record level of VI.
Eighteen of the nineteen prior record points were classified as
felony convictions and an additional prior record point, calculated
by the trial court, was added because the defendant committed the
instant offense while on probation for a previous violation.
Defendant was sentenced to a minimum term of 158 months to a
maximum term of 191 months in the North Carolina Department of
Correction. Defendant appeals.
Defendant first argues the trial court erred by directing the
bailiff to conduct an ex parte communication with the jury. We
disagree. N.C. R. App. P. 10(b)(1) (2005) states, in pertinent
part, “[i]n order to preserve a question for appellate review, a
party must have presented to the trial court a timely request,
objection or motion, stating the specific grounds for the ruling
the party desired to make if the specific grounds were not apparent
from the context.” Defendant failed to object to the alleged
improper trial court directive asking the bailiff to communicate
with the jury. Thus, according to 10(b)(1), supra, this assignment
of error is overruled.
Defendant next argues the trial court erred by entering
judgment against the defendant for “larceny after break/enter”because the judgment does not reflect either the allegations of the
indictment or the verdict of the jury.
Though we recognize the indictment caption reads “larceny
after break/enter,” substantively, the text of the indictment
states “defendant...unlawfully, willfully and feloniously did
steal, take and carry away a 2003 Toyota Camry...having the value
of approximately $20,000.” Thus, the substantive text of the
indictment comports with N.C. Gen. Stat. § 14-72(a) (felony
larceny) and not § 14-72(B)(2) (larceny after break/enter).
Moreover, the jury found defendant guilty of “larceny of property
valued at $1,000 or more,” “a Class H felony.” See N.C. Gen. Stat.
§ 14-72(a) (2005). Consequently, defendant was convicted of felony
larceny and not, as the judgment sheet reads, “larceny after
break/enter.” Thus, on remand we suggest the trial court correct
the clerical error on the judgment sheet to conform with the jury
verdict.
“It is the settled rule that the evidence in a criminal case
must correspond with the allegations of the indictment which are
essential and material to charge the offense.” State v. Simmons,
57 N.C. App. 548, 551, 291 S.E.2d 815, 817 (1982) (citation and
internal quotation marks omitted). Further,
[t]he general rule that allegations and proof
must correspond is based upon the obvious
requirements (1) that the accused shall be
definitely informed as to the charges against
him, so that he may be enabled to present his
defense and not be taken by surprise by the
evidence offered at the trial; and (2) that he
may be protected against another prosecution
for the same offense.
Id. (citation omitted).
Our Supreme Court has stated
[t]o convict of felony-larceny, the indictment
must allege and the State must prove beyond a
reasonable doubt, as an essential element of
the crime, that the value of the property
exceeded [$1,000] dollars....
State v. Benfield, 278 N.C. 199, 209, 179 S.E.2d 388, 395 (1971)
(emphasis added).
In the instant case and in accordance with Benfield, supra,
the indictment had to allege the value of the property stolen to
exceed $1,000. In the instant case, the indictment expressly
alleged “the defendant...unlawfully, willfully, and feloniously did
steal, take, and carry away a 2003 Toyota Camry...such property
having a value of approximately $20,000.” Therefore, because the
indictment correctly listed the value of the property stolen
exceeded $1,000, defendant's guilty verdict for felony larceny
correctly reflected the allegations in the indictment. This
assignment of error is overruled.
Defendant next argues the trial court erred by sentencing him
as a prior record level VI, Class C felon. Defendant contends the
basis for adding the nineteenth point was found by a judge and not
a jury and furthermore, because this same basis was neither a prior
conviction or admitted to by defendant, defendant's resulting
punishment as a level six and not level five offender violated
Blakely v. Washington. We agree.
“'This Court has recently held that a defendant's probationary
status, used to increase a defendant's prior record level, was afact other than a prior conviction and therefore was required to be
submitted to a jury and proved beyond a reasonable doubt.'” State
v. Shine, __ N.C. App. __, __, 619 S.E.2d 895, 901 (2005) (quoting
State v. Wissink, __ N.C. App. __, 617 S.E.2d 319 (2005), temp.
stay allowed, 360 N.C. 77, 620 S.E.2d 527, 2005 WL 2277377 (Sept.
1, 2005) (No. 484P05)). We are bound by the decision of a panel of
this Court. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d
30, 37 (1989). Therefore, “the trial court erred 'by adding a
point to defendant's prior record level without first submitting
the issue to a jury.'” Id. (quoting Wissink, __ N.C. App. at __,
617 S.E.2d at 325). Thus, we must remand this case to the trial
court for resentencing.
No error in part; remanded for correction of clerical error;
remanded for resentencing.
Judges BRYANT and SMITH concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***