An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 3 October 2006
STATE OF NORTH CAROLINA
v. Wake County
Nos. 04 CRS 110490
05 CRS 009816
Appeal by defendant from judgment entered 21 July 2005 by
Judge Ronald L. Stephens in Wake County Superior Court. Heard in
the Court of Appeals 29 September 2006.
Attorney General Roy Cooper, by Special Deputy Attorney
General Thomas R. Miller, for the State.
John T. Hall, for defendant-appellant.
Benjamin Hilliard (defendant) appeals from judgment entered
after a jury found him to be guilty of felonious possession of a
stolen motor vehicle and being an habitual felon
. We find no
The State's evidence tended to show o
n 4 December 2004
Jonathan Lloyd (Lloyd), a driver for Quality Towing, was towing
vehicles to the company's storage lot located at 415 Tryon Road in
Wake County, North Carolina. At approximately 11:30 p.m., Lloyd
was in the truck with his girlfriend, Alicia Littmath (Littmath),
when they observed a large black male run outside of the storage
lot's fence and hide behind a dumpster. They called 911. Lloydshined a spotlight on the dumpster, and the man took off walking
nonchalantally [sic]. Lloyd testified that the man had been
leaning down near an area where approximately fifty catalytic
converters were stored.
After police officers arrived, Lloyd and Littmath provided a
description of the man they had observed. A short time later,
officers brought back an individual for them to identify. Lloyd
and Littmath identified the individual located in the patrol car as
the man they had seen. That person was identified as defendant.
At some point, Lloyd found an old pickup truck parked near the
storage lot's fence. Upon further inspection of the truck, Lloyd
and a Wake County Sheriff's Deputy observed twenty to thirty
catalytic converters, mufflers, and tail pipes laying in the bed of
the truck. Upon further investigation, it was learned the pickup
had been brought to Honeycutt Transmission for repair and had been
removed from their lot without permission.
On 22 February 2005, defendant was indicted for felonious
larceny and being an habitual felon
. Defendant was tried at the 18
July 2005 Criminal Session of Wake County Superior Court.
found defendant guilty of possession of a stolen motor vehicle and
being an habitual felon. Defendant was sentenced to a term of
ninety to 117 months imprisonment.
Defendant argues: (1) the trial court erred by
motion to dismiss the charge of possession of a stolen motor
vehicle; (2) there was a fatal variance between the indictment andthe State's proof at trial
; and (3) the trial court erred by
denying his motion to dismiss the habitual felon charge and by
sentencing him as a Class C, Level V felon
III. Motion to Dismiss
Defendant asserts insufficient evidence was presented that he
either actually or constructively possessed the pickup or defendant
had reason to believe that it was stolen. Defendant also asserts
no testimony was offered regarding the legal identity of the owner
of the truck that was stolen.
After careful review of the record,
briefs, and contentions of the parties, we find no error.
First, we decline to address defendant's arguments concerning
whether the State proved he possessed the stolen vehicle or that he
knew it was stolen. Defendant's assignments of error challenge
whether the State's evidence was sufficient to prove value and
ownership. Defendant did not assign error to the issues of
possession or knowledge. Defendant failed to properly preserve
these issues for appellate review. His assignments of error set
forth different grounds for review than that argued on appeal. See
N.C.R. App. P. 10(a) (2006); N.C.R. App. P.
10(c)(1) (2006); N.C.R.
Defendant has waived these arguments and
they are dismissed.
Defendant's sole argument that is properly before this Court
regards the sufficiency of the evidence to show the legal owner of
the truck. Defendant contends the State failed to prove ownership
or that a fatal variance exists between the allegations in the
indictment and the proof adduced at trial. The name of the ownerof the stolen vehicle is neither an essential element of the
offense, nor does a fatal
variance exist between the indictment's
allegation of ownership of the vehicle and the proof of ownership.
State v. Jones, 151 N.C. App. 317, 327, 566 S.E.2d 112, 119 (2002),
disc. rev. denied, 356 N.C. 687, 578 S.E.2d 320 (2003); State v.
Medlin, 86 N.C. App. 114, 124, 357 S.E.2d 174, 180 (1987). These
assignments of error are overruled.
IV. Habitual Felon
Defendant argues that the trial court erred by denying his
motion to dismiss the habitual felon charge and by sentencing him
as a Class C, Level V felon. Defendant contends the trial court
miscalculated his prior record level when it assigned a point for
defendant being on probation when the offense was committed.
Defendant argues that this fact was neither alleged in the
indictment nor was it found by a jury beyond a reasonable doubt.
Blakely v. Washington, 542 U.S. 296, 301, 159 L. Ed. 2d 403, 412
(2004); Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d
435, 455 (2000).
At trial, the State handed the prior level worksheet to the
judge and stated that defendant had seventeen points, and that 15
of the points are for prior convictions. The State noted two
additional points that would raise the total to seventeen,
including a point for defendant having committed the offense while
on probation, should not count under Blakely without a jury
finding that. Defendant then stipulated to having a prior record
Level V, and the trial court specifically found that defendant had15 points, not 17. Despite defendant's argument to the contrary,
it is clear that he did not receive a point for having committed
the offense while on probation. Defendant's prior record level was
calculated using only his prior convictions. This assignment of
error is overruled.
Defendant waived his arguments on possession or knowledge
element of the crime to challenge the denial of his motion to
dismiss. No fatal variance exists between the indictment and the
State's proof at trial. The trial court did not include
defendant's being on probation at the time of the offense in
determining his prior record points. Defendant received a fair
trial, free from prejudicial errors he preserved, assigned, and
Judges BRYANT and LEVINSON concur.
Report per Rule 30(e).
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