{ "id": 4277951, "name": "STATE OF NORTH CAROLINA v. VINCENT EDWARD NORTHINGTON", "name_abbreviation": "State v. Northington", "decision_date": "2013-11-19", "docket_number": "No. COA13-475", "first_page": "575", "last_page": "583", "citations": [ { "type": "official", "cite": "230 N.C. App. 575" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "632 S.E.2d 233", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636291 ], "year": 2006, "pin_cites": [ { "page": "235", "parenthetical": "holding that it was proper to \"utiliz[e] [the defendant's] 1998 conviction for possession of a firearm by a felon as both (1) the underlying felony for his current possession of a firearm prosecution and (2) one of the underlying felonies for his habitual felon indictment\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/632/0233-01" ] }, { "cite": "178 N.C. App. 717", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8379962 ], "year": 2006, "pin_cites": [ { "page": "720", "parenthetical": "holding that it was proper to \"utiliz[e] [the defendant's] 1998 conviction for possession of a firearm by a felon as both (1) the underlying felony for his current possession of a firearm prosecution and (2" } ], "opinion_index": 0, "case_paths": [ "/nc-app/178/0717-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-94", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2011, "pin_cites": [ { "parenthetical": "classifying marijuana as a Schedule IV substance" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 90-95", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2011, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-7.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "parenthetical": "\"[A] felony offense is defined as an offense which is a felony under the laws of the State. . . .\"" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-415.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "parenthetical": "\"Prior convictions . . . -under this section shall only include: (1) Felony convictions in North Carolina that occur before, on, or after December 1, 1995. . . ." }, { "parenthetical": "\"Every person violating the provisions of this section shall be punished as a Class G felon.\"" } ], "opinion_index": 0 }, { "cite": "21 U.S.C. \u00a7 841", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "649 F.3d. 237", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 5714656 ], "opinion_index": 0, "case_paths": [ "/f3d/649/0237-01" ] }, { "cite": "560 U.S. 563", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12454864, 3641562 ], "weight": 2, "year": 2010, "opinion_index": 0, "case_paths": [ "/l-ed-2d/177/0068-01", "/us/560/0563-01" ] }, { "cite": "681 S.E.2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2009, "pin_cites": [ { "page": "804" }, { "page": "806" }, { "page": "806-807" } ], "opinion_index": 0 }, { "cite": "198 N.C. App. 631", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4168838 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "633" }, { "page": "637-38" } ], "opinion_index": 0, "case_paths": [ "/nc-app/198/0631-01" ] }, { "cite": "512 S.E.2d 80", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "85", "parenthetical": "stating that when defendant offered no alternative reason for entering and \"items were missing from the subject premises after defendant broke or entered,\" there was \"no need to instruct the juiy on the lesser included offenses of misdemeanor breaking or entering\"" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 316", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11237688 ], "year": 1999, "pin_cites": [ { "page": "322", "parenthetical": "stating that when defendant offered no alternative reason for entering and \"items were missing from the subject premises after defendant broke or entered,\" there was \"no need to instruct the juiy on the lesser included offenses of misdemeanor breaking or entering\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0316-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-54", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-72", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2011, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "598 S.E.2d 672", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "676" } ], "opinion_index": 0 }, { "cite": "165 N.C. App. 454", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8998154 ], "year": 2004, "pin_cites": [ { "page": "459" } ], "opinion_index": 0, "case_paths": [ "/nc-app/165/0454-01" ] }, { "cite": "187 S.E.2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "714" } ], "opinion_index": 0 }, { "cite": "281 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573594 ], "year": 1972, "pin_cites": [ { "page": "13-14" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0001-01" ] }, { "cite": "572 S.E.2d 767", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "771" } ], "opinion_index": 0 }, { "cite": "356 N.C. 556", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511555 ], "year": 2002, "pin_cites": [ { "page": "561" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0556-01" ] }, { "cite": "675 S.E.2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "149" } ], "opinion_index": 0 }, { "cite": "196 N.C. App. 458", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4166318 ], "year": 2009, "pin_cites": [ { "page": "466" } ], "opinion_index": 0, "case_paths": [ "/nc-app/196/0458-01" ] } ], "analysis": { "cardinality": 707, "char_count": 19983, "ocr_confidence": 0.716, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1435743937194794 }, "sha256": "b5daf5f2bb1d9432e4077baf92a5e80705b90b7d9db4ec9ed3fa49aba3e2aba4", "simhash": "1:8bbb7f2a4447b8dd", "word_count": 3247 }, "last_updated": "2023-07-14T21:27:10.360096+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER, ROBERT C., and BRYANT concur." ], "parties": [ "STATE OF NORTH CAROLINA v. VINCENT EDWARD NORTHINGTON" ], "opinions": [ { "text": "STEELMAN, Judge.\nWhere there was positive evidence as to each and every element of felonious possession of stolen property and felonious breaking and entering, the trial court did not err by denying defendant\u2019s request for instructions on lesser included offenses. Where both Class H and Class I felonies carry two sentencing points for the computation of defendant\u2019s prior felony record level, the trial court\u2019s designation of an out-of-state conviction as a Class H felony was not prejudicial. Where possession of marijuana with the intent to sell and deliver and possession of a firearm by a felon are felonies under North Carolina law, the trial court had jurisdiction to try, convict, and sentence defendant for possession of a firearm by a felon, and sentence defendant as an habitual felon.\nI. Factual and Procedural Background\nOn 24 September 2010, Tricia Brady (Brady) called 911 to report a breaking and entering of her residence in Jacksonville, North Carolina. Brady had returned to her home that afternoon and found glass everywhere, her dogs locked inside her bedroom, and blood on the door to the master bedroom. Officer Kimberly Carnes (Carnes) responded, processed the crime scene with photographs, and collected blood evidence from the doorframe. Brady told Carnes that her father\u2019s shotgun was missing from the closet in her bedroom. She also stated that a couple pieces of jewelry, $100.00, and prescription medication were missing. Detective Barbara Evanson (Evanson) was assigned to the case on 27 September 2010 and confirmed with Brady the items that were missing, including the single barrel bolt-action shotgun. Brady told Evanson that she believed her son, Anthony Asay (Asay), and his friend Tyler Boutwell (Boutwell) were involved in the break-in.\nOn 3 October 2010, Jacksonville Police Officer Brian Pacilli (Pacilli) conducted a traffic stop of Bryan Goldman\u2019s (Goldman) vehicle. Goldman gave Pacilli consent to search the vehicle, and Pacilli found various items including a 12-gauge bolt-action shotgun, an orange prescription bottle belonging to Boutwell, drugs, and the North Carolina Identification card of Vincent E. Northington (defendant). Brady later identified the shotgun as being the shotgun that was taken from her home. She also identified a gun cloth case that was retrieved from the book bag found in Goldman\u2019s vehicle. Evanson obtained DNA samples from Asay and Boutwell and sent the samples to the North Carolina State Bureau of Investigations Lab for comparison to the DNA sample taken from Brady\u2019s residence. They did not match the DNA blood evidence taken at Brady\u2019s residence. About a year later, Evanson was notified of a match to the DNA sample taken from the 24 September 2010 break-in to defendant in the Combined DNA Index System. Defendant\u2019s DNA was then taken, sent to the lab where it was tested, and the test confirmed it was a match with the blood evidence.\nOn 11 September 2012, defendant was indicted for possession of stolen goods and conspiracy to break and enter to commit larceny. On the same date, defendant was also indicted for felony breaking and entering, and larceny. Finally, defendant was indicted for possession of a firearm by a convicted felon. Defendant was also indicted for having attained habitual felon status.\nThe matter came on for trial at the 5 November 2012 session of Superior Court for Onslow County. Prior to jury selection, the State decided not to prosecute the conspiracy charge. At trial, Goldman testified that he was friends with defendant and that they had shot the shotgun together a number of times. Goldman testified that he didn\u2019t know who the owner of the gun was, but that he believed the gun belonged to defendant. At the conclusion of evidence, the State indicated that it would rely on the shotgun and the fabric gun case as items of stolen property. The State also elected not to proceed in the charge of larceny after breaking and entering.\nThe jury found defendant guilty of possession of stolen property, breaking and entering, and possession of a firearm by a felon. Defendant entered a plea of no contest to having achieved habitual felon status for all three offenses. The trial court sentenced defendant as a Level IV offender to two consecutive active terms of imprisonment of 108 to 139 months.\nDefendant appeals.\nII. Jury Instructions\nIn his first argument, defendant contends that the trial court erred by denying his request that the jury be instructed on the lesser included offenses of non-felonious possession of stolen goods and non-felonious breaking and entering. We disagree.\nA. Standard of Review\n\u201c[Arguments] challenging the trial court\u2019s decisions regarding jury instructions are reviewed de novo by this Court.\u201d State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009).\nB. Analysis\n\u201cAn instruction on a lesser-included offense must be given only if the evidence would permit the jury rationally to find defendant guilty of the lesser offense and to acquit him of the greater.\u201d State v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d 767, 771 (2002). \u201c[W]hen the State\u2019s evidence is positive as to each and every element of the crime charged and there is no conflicting evidence relating to any element of the charged crime,\u201d an instruction on lesser included offenses is not required. State v. Harvey, 281 N.C. 1, 13-14, 187 S.E.2d 706, 714 (1972).\n1. Possession of Stolen Goods\nThe essential elements of felonious possession of stolen property are: (1) possession of personal property, (2) which was stolen pursuant to a breaking or entering, (3) the possessor knowing or having reasonable grounds to believe the property to have been stolen pursuant to a breaking or entering, and (4) the possessor acting with a dishonest purpose.\nState v. McQueen, 165 N.C. App. 454, 459, 598 S.E.2d 672, 676 (2004). Misdemeanor possession of stolen goods is \u201cthe receiving or possession of stolen goods knowing or having reasonable grounds to believe them to be stolen, where the value of the property or goods is not more than one thousand dollars.\u201d N.C. Gen. Stat. \u00a7 14-72(a) (2011). Defendant contends that there was no direct evidence that the property was stolen pursuant to a breaking or entering and therefore, the instruction on misdemeanor possession of stolen goods should have been given.\nIn the instant case, the State presented positive evidence as to each element of the offense of felonious possession of stolen goods. Brady testified that on 24 September 2010, her residence was broken into and that items were stolen, including a shotgun that was taken from her closet. She further testified that she found blood on the doorframe of the bedroom when she returned home. The blood was determined to match defendant\u2019s DNA profile. Defendant\u2019s friend, Goldman, testified that he first saw the shotgun about a week before 3 October 2010, that he and defendant occasionally shot the gun together, and that he believed the shotgun belonged to defendant. Upon our review of the record, there is no conflicting evidence as to the element of whether the shotgun was taken pursuant to the breaking and entering. We hold that defendant was not entitled to jury instructions on the lesser included offense of misdemeanor possession of stolen goods because all evidence at trial tended to show that there was a breaking and entering at Brady\u2019s residence; that the shotgun was taken as a result of that breaking and entering; that defendant\u2019s DNA profile matched a sample of blood found on the doorframe in Brady\u2019s residence; and defendant\u2019s friend stated he believed the gun belonged to defendant.\nThis argument is without merit.\n2. Breaking and Entering\nN.C. Gen. Stat. \u00a7 14-54 provides that \u201c[a]ny person who breaks or enters any building with intent to commit any felony or larceny therein shall be punished as a Class H felon\u201d and \u201c[a]ny person who wrongfully breaks or enters any building is guilty of a Class 1 misdemeanor.\u201d N.C. Gen. Stat. \u00a7 14-54 (2011). Defendant argues that there was no evidence of his intent at the time of the entering of Brady\u2019s residence and therefore, he was entitled to the instruction on the lesser included offense of non-felonious breaking and entering.\nEvidence of missing items after a breaking or entering can be sufficient to prove intent to commit a larceny and dispose of the necessity to instruct on misdemeanor breaking and entering. See State v. Hamilton, 132 N.C. App. 316, 322, 512 S.E.2d 80, 85 (1999) (stating that when defendant offered no alternative reason for entering and \u201citems were missing from the subject premises after defendant broke or entered,\u201d there was \u201cno need to instruct the juiy on the lesser included offenses of misdemeanor breaking or entering\u201d).\nIn the instant case, defendant argues that the evidence did not include testimony from Brady about \u201cwhen, in relation to the break-in, she had last seen the shotgun and its case in her bedroom closet.\u201d Brady testified that when she left her residence on 24 September 2010, the shotgun was in the fabric gun case in her closet, and that the shotgun was taken from her residence on 24 September 2010. Carnes testified that Brady reported to her that the shotgun was missing after the break-in, and Evanson testified that Brady confirmed to her that the shotgun had been stolen from her residence as a result of the breaking and entering. This testimony was more than sufficient to establish that items were missing after the breaking and entering. There was no evidence presented that supported any alternate theory as to why the items were missing or that gave another explanation for the unauthorized entry. Ingenuity of counsel on appeal does not constitute evidence supporting an instruction on misdemeanor breaking or entering. Under our holding in Hamilton, the trial court was not required to submit the lesser charge of misdemeanor breaking and entering to the jury.\nThis argument is without merit.\nIII. Prior Record Level\nIn his second argument, defendant contends that the trial court erred in sentencing him as a prior felony record level IV offender. We disagree.\nA. Standard of Review\n\u201cThe determination of an offender\u2019s prior record level is a conclusion of law that is subject to de novo review on appeal.\u201d State v. Bohler, 198 N.C. App. 631, 633, 681 S.E.2d 801, 804 (2009).\nB. Analysis\nBy default, a prior conviction for a crime that another jurisdiction classifies as a felony will count as a Class I felony for determining defendant\u2019s prior record level. N.C. Gen. Stat. \u00a7 15A-1340.14(e) (2011). The State or defendant may seek a departure from this default classification by presenting evidence that the offense is substantially similar to an offense in North Carolina that has a different offense classification. Id.\n[W]hile the trial court may not accept a stipulation to the effect that a particular out-of-state conviction is \u201csubstantially similar\u201d to a particular North Carolina felony or misdemeanor, it may accept a stipulation that the defendant in question has been convicted of a particular out-of-state offense and that this offense is either a felony or a misdemeanor under the law of that jurisdiction.\nBolder, 198 N.C. App. at 637-38, 681 S.E.2d at 806.\nIn the instant case, the prior record level worksheet included Tennessee convictions for \u201caggravated assault-felony,\u201d designated as a Class I felony, and \u201ctheft over $1,000,\u201d designated as a Class H felony. Defendant stipulated to these prior convictions. On appeal, defendant contends the State did not prove by a preponderance of the evidence that defendant\u2019s out-of-state conviction of \u201ctheft over $1,000\u201d was substantially similar to a Class H offense under North Carolina law.\nDefendant was permitted to stipulate to his conviction of \u201ctheft over $1,000\u201d and that such conviction was a felony under the laws of Tennessee; however, he was not permitted to stipulate that this conviction was substantially similar to a Class H offense under North Carolina law. Id. The State relied on defendant\u2019s stipulation and did not submit any additional evidence during sentencing establishing defendant\u2019s prior record level. The State had previously submitted certified copies of defendant\u2019s out-of-state convictions to the trial court as evidence of defendant\u2019s habitual felon status; however, at no time did the State present evidence that the \u201ctheft over $1,000\u201d was substantially similar to a Class H offense in North Carolina.\nWhile it was error to accept defendant\u2019s stipulation of the substantial similarity of the Tennessee conviction for \u201ctheft over $1,000\u201d to a Class H felony, this error did not affect the computation of defendant\u2019s prior felony record level. See id. at 638, 681 S.E.2d at 806-807 (holding that the trial court\u2019s error in classifying out-of-state convictions as Class H felonies, rather than Class I felonies, was not prejudicial because both are assigned two points under N.C. Gen. Stat. \u00a7 15A-1340.14(b) (4)). Because a Class H felony and a Class I felony are both assigned two points under N.C. Gen. Stat. \u00a7 15A-1340.14(b)(4), any possible error did not affect defendant\u2019s prior record level, and we hold there was no prejudicial error in sentencing defendant.\nThis argument is without merit.\nIV. Prior Felony Conviction\nIn his fourth and fifth arguments, defendant contends that the trial court was without jurisdiction (1) to try, convict, and sentence defendant for possession of a firearm by a felon, and (2) to sentence defendant as an habitual felon, because the State failed to allege proper qualifying prior felony convictions. We disagree.\nDefendant\u2019s 2006 conviction for possession of a firearm by a felon in 04 CRS 54531 was alleged as the predicate felony for the charge of possession of a firearm by a felon. It was also one of the three prior convictions alleged as supporting the habitual felon indictment.\nDefendant\u2019s argument on appeal is that the 04 CRS 54531 conviction inappropriately relied upon defendant\u2019s North Carolina conviction in 2003 for possession with intent to sell and deliver marijuana as the predicate felony element of that crime. Defendant argues that because he \u201ccould not have received a sentence of greater than one year for the underlying prior conviction for possession with intent to sell and deliver marijuana . . . that prior conviction is not a qualifying predicate prior.\u201d In support of this contention, defendant relies on two federal cases, Carachuri-Rosendo v. Holder, 560 U.S. 563, 177 L. Ed. 2d 68 (2010) and United States v. Simmons, 649 F.3d. 237 (4th Cir.2011), which clarify the definition of \u201caggravated felony\u201d for the purposes of cancellation of removal pursuant to the Immigration and Nationality Act, 8 U.S.C. \u00a7 1229b, and the definition of \u201cfelony drug offense\u201d for the purposes of sentencing pursuant to the Controlled Substances Act, 21 U.S.C. \u00a7 841.\nThe determination of whether a prior conviction constitutes a felony under the possession of a firearm by a felon offense, N.C. Gen. Stat. \u00a7 14-415.1, and the habitual felon statute, N.C. Gen. Stat. \u00a7 14-7.1, is a question of North Carolina state law, nol; federal law. See N.C. Gen. Stat. \u00a7 14-415.1 (2011) (\u201cPrior convictions . . . -under this section shall only include: (1) Felony convictions in North Carolina that occur before, on, or after December 1, 1995. . . .); N.C. Gen. Stat. \u00a7 14-7.1 (2011) (\u201c[A] felony offense is defined as an offense which is a felony under the laws of the State. . . .\u201d). Both the 2003 conviction of possession of marijuana with intent to sell and deliver, and the conviction in 04 CRS 54531 of possession of a firearm by a felon are felonies under the laws of North Carolina. See N.C. Gen. Stat. \u00a7 90-95(b) (2011) (noting that a controlled substance classified in Schedule III, IV, V, or VI shall be punished as a Class I felon); see also N.C. Gen. Stat. \u00a7 90-94 (2011) (classifying marijuana as a Schedule IV substance); N.C. Gen. Stat. \u00a7 14-415.1 (\u201cEvery person violating the provisions of this section shall be punished as a Class G felon.\u201d).\nBecause possession of marijuana with intent to sell and deliver is a felony under North Carolina state law, it was appropriately relied upon in defendant\u2019s conviction in 04 CRS 54531. Therefore, it follows that the trial court properly relied on the 04 CRS 54531 conviction as one of defendant\u2019s three prior convictions qualifying defendant for habitual felon status and to satisfy the predicate felony element in the prosecution of possession of a firearm by a felon. The trial court had jurisdiction to try, convict, and sentence defendant for possession of a firearm by a felon and the trial court had jurisdiction to sentence defendant as a habitual felon.\nWe note that while we have addressed defendant\u2019s challenge to his conviction in case 04 CRS 54531, it is not properly before us. The judgment in 04 CRS 54531 was entered 8 August 2006. Any alleged error with this conviction should have been raised by an appeal of that judgment. See N.C. Gen. Stat. \u00a7 15A-1444 (2011) (describing when a defendant may appeal); N.C.R. App. P. 4(a) (denoting the time and manner of a criminal appeal).\nThis argument is without merit.\nNO PREJUDICIAL ERROR.\nJudges HUNTER, ROBERT C., and BRYANT concur.\n. Although not argued on appeal, we note that it was proper to use the previous conviction of possession of a firearm by a felon to support defendant\u2019s current charge of possession of a firearm by a felon and also to support a habitual felon indictment. See State v. Crump, 178 N.C. App. 717, 720, 632 S.E.2d 233, 235 (2006) (holding that it was proper to \u201cutiliz[e] [the defendant\u2019s] 1998 conviction for possession of a firearm by a felon as both (1) the underlying felony for his current possession of a firearm prosecution and (2) one of the underlying felonies for his habitual felon indictment\u201d).", "type": "majority", "author": "STEELMAN, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Hilda Bumett-Baker, for the State.", "Bowen and Berry, PLLG, by Sue Genrich Berry for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. VINCENT EDWARD NORTHINGTON\nNo. COA13-475\nFiled 19 November 2013\n1. Possession of Stolen Property \u2014 breaking and entering \u2014 jury instructions \u2014 sufficient evidence \u2014 lesser-included offenses\u2014 instructions not required\nThe trial court did not err in a felonious possession of stolen property and felonious breaking and entering case by denying defendant\u2019s request for instructions on lesser-included offenses. There was positive evidence as to each and eveiy element of felonious possession of stolen property and felonious breaking and entering.\n2. Sentencing \u2014 prior record level \u2014 out-of-state conviction \u2014 failure to present evidence \u2014 substantially similar\u2014 not prejudicial\nThe trial court did not err in a felonious possession of stolen property and felonious breaking and entering case by sentencing defendant as a prior felony record level IV offender. Although the State failed to present evidence that defendant\u2019s conviction in Tennessee for \u201ctheft over $1,000\u201d was substantially similar to a Class H offense in North Carolina, and the trial court erroneously accepted defendant\u2019s stipulation of the substantial similarity of the Tennessee conviction, this error did not affect the computation of defendant\u2019s prior felony record level. Both Class H and Class I felonies carried two sentencing points for the computation of defendant\u2019s prior felony record level.\n3. Firearms and Other Weapons \u2014 possession by felon \u2014 habitual felon status \u2014 sufficient predicate felonies\nThe trial court had jurisdiction to try, convict, and sentence defendant for possession of a firearm by a felon, and sentence him as an habitual felon, where possession of marijuana with the intent to sell and deliver and possession of a firearm by a felon are felonies under North Carolina law.\nAppeal by defendant from judgments entered 8 November 2012 by Judge Charles H. Henry in Onslow County Superior Court. Heard in the Court of Appeals 9 October 2013.\nAttorney General Roy Cooper, by Special Deputy Attorney General Hilda Bumett-Baker, for the State.\nBowen and Berry, PLLG, by Sue Genrich Berry for defendant-appellant." }, "file_name": "0575-01", "first_page_order": 585, "last_page_order": 593 }