An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-694


Filed: 21 March 2006


v .                         Forsyth County
                            Nos. 04 CRS 28545;60629

    Appeal by defendant from judgment entered 1 March 2005 by Judge Michael E. Helms in Forsyth County Superior Court. Heard in the Court of Appeals 11 January 2006.

    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).

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