An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-157
                       NORTH CAROLINA COURT OF APPEALS

                           Filed:     16 September 2014


STATE OF NORTH CAROLINA

      v.                                      Sampson County
                                              Nos. 11 CRS 53012, 52998
GEORGE ANTHONY GRAHAM



      Appeal by defendant from judgment entered 18 September 2013

by Judge Arnold Jones, II in Sampson                  County Superior Court.

Heard in the Court of Appeals 13 August 2014.


      Attorney General Roy Cooper, by Special                   Deputy    Attorney
      General Karen A. Blum, for the State.

      Appellate Defender Staples Hughes, by Assistant Appellate
      Defender John F. Carella, for defendant-appellant.


      CALABRIA, Judge.


      George Anthony Graham (“defendant”) appeals from a judgment

entered    upon    jury   verdicts     finding     him   guilty    of    felonious

possession of stolen goods and possession of a firearm by a

convicted     felon    that   includes     his   guilty     plea   to    attaining

habitual felon status.           We find no error at trial, but remand

for resentencing.
                                         -2-
                                    I. Background

      On 27 October 2011, Allen Starling (“Starling”) left his

residence on Pine Forest School Road in Roseboro, North Carolina

(“Starling’s residence”) at approximately 5:45 a.m.                       A few hours

later, one of Starling’s neighbors, Marcus Parker (“Parker”),

observed defendant leaving Starling’s residence carrying several

firearms wrapped in a white sheet.                    Parker notified Starling’s

landlords,      who    in     turn        notified     both     Starling        and     law

enforcement.          When    Starling       returned     to    his     residence,       he

noticed    several     firearms          missing   from   the     gun    case    in     his

bedroom.      The missing items included a semiautomatic SKS rifle,

a Maverick 12-gauge pump action shotgun, a .44 black powder

pistol, and a Marksman automatic BB pellet pistol.

      After    defendant          left    Starling’s      residence,      he     rode     a

bicycle to the home of Stephanie McDougald (“Ms. McDougald”),

his father’s girlfriend.             Someone reported to the Sampson County

Sheriff’s Department (“SCSD”) that a house had been broken into

and a black male holding two firearms in each hand was going in

the   direction       of    Ms.    McDougald’s        residence.        SCSD     Officer

Anthony    Keith      Barefoot      (“Officer        Barefoot”)    arrived       at     Ms.

McDougald’s residence to investigate.                     Ms. McDougald informed

Officer Barefoot that she and defendant were the only people at

home, and consented to a search of her home.
                             -3-
    During Officer Barefoot’s search of Ms. McDougald’s house

and curtilage, he encountered defendant sitting on an overturned

bucket     outside      the   house.         Officer    Barefoot   discovered       a

Marksman automatic BB pellet pistol, shotgun shells for a 12-

gauge shotgun, and ammunition for an SKS rifle in defendant’s

bedroom.     He also found a Maverick 12-gauge pump action shotgun

and semiautomatic SKS rifle located in the “pump house” in Ms.

McDougald’s       backyard.         Starling    later    identified      the    items

discovered in Officer Barefoot’s search as the items stolen from

his residence.

    Defendant          was    subsequently      arrested     and   indicted       for

felonious breaking and entering, felonious larceny pursuant to

breaking    and       entering,    felonious    possession    of   stolen      goods,

possession of a firearm by a convicted felon, and                         attaining

habitual felon status.              At trial     in Sampson County Superior

Court,    Parker,       Starling,    Officer    Barefoot,    and   Ms.    McDougald

testified for the State.              Parker testified that defendant was

the person he observed leaving Starling’s residence with the

firearms.       The jury returned verdicts finding defendant guilty

of felonious possession of stolen goods and possession of a

firearm    by     a    convicted    felon.      Defendant    subsequently       pled

guilty to attaining habitual felon status.

    At sentencing, the trial court determined that defendant
                               -4-
had a prior record level of VI. The trial court also found as a

mitigating factor that defendant had accepted responsibility for

his conduct on the possession of a firearm by a convicted felon

offense.       The    trial    court    then   sentenced    defendant      in   the

mitigated range to a minimum term of 90 months and a maximum

term of 120 months in the custody of the Division of Adult

Correction.     Defendant appeals.

                              II. Jury Instruction

      Defendant argues that the trial court erred in omitting an

element of the felonious possession of stolen goods offense in

the   jury   instructions.        Specifically,        defendant   contends     the

trial court omitted the critical element that “the defendant

knew or had reasonable grounds to believe that the property was

stolen pursuant to a breaking or entering.”

      As an initial matter,            the trial court listed the pattern

jury instructions it intended to give, and both the State and

defendant were given an opportunity to change or object to the

instructions.         Defendant   did    not   request     any   change    to   the

instruction on the felonious possession of stolen goods offense,

and agreed to the pattern instruction.                 In addition, defendant

did   not    object    after    the    trial   court    instructed   the    jury.

Although defendant claims the trial court’s error in omitting

the fourth element was not harmless, we disagree.
                              -5-
     When a trial court promises to give a jury instruction and

then deviates from that instruction, errors arising from the

court’s later changes to the promised instruction are preserved.

See State v. Allen, 360 N.C. 297, 314, 626 S.E.2d 271, 285

(2006)    (issue      of   trial   court’s    deviation      from    promised

instruction properly preserved for appellate review despite lack

of an objection after the instruction was given); see State v.

Keel, 333 N.C. 52, 56-57, 423 S.E.2d 458, 461 (1992) (issue of

jury instruction preserved for review without an objection where

trial court’s actual instruction differed from the agreed upon

pattern instruction).         “[A] trial court must instruct the jury

on every essential element of an offense[.]”              State v. Ramos,

363 N.C. 352, 355, 678 S.E.2d 224, 226 (2009) (quoting State v.

Hunt,    339   N.C.    622,    649,   457    S.E.2d   276,    292    (1995)).

Therefore, defendant has preserved this issue for appeal.

     Generally, a jury instruction “must be construed as a whole

in the same connected way in which it was given.                    When thus

considered, if it fairly and correctly presents the law, it will

afford no ground for reversing the judgment, even if an isolated

expression should be found technically inaccurate.”                 State v.

Francis, 341 N.C. 156, 162, 459 S.E.2d 269, 272 (1995) (citation

and internal quotation marks omitted).
                             -6-
    In the instant case, the trial court instructed the jury,

in pertinent part, as follows:

         The    defendant  has  been    charged  with
         felonious possession of stolen goods, which
         is   possession   of  property    which  the
         defendant knew or had reasonable grounds to
         believe had been stolen pursuant to a
         breaking or entering.   For you to find the
         defendant guilty of this offense, the State
         must prove five things beyond a reasonable
         doubt:    First, that the SKS semiautomatic
         rifle, the Maverick 12-gauge pump shotgun
         were stolen.

              Property   is  stolen   and  taken  and
         carried away without the owners’s [sic]
         consent by someone who intends at the time
         to deprive the owner of its use permanently
         and knows he is not entitled to take it.

              Second,   this   property   was   stolen
         pursuant to a breaking or entering.

              Third, that the defendant possessed the
         property.

              One has possession of property when one
         has both the power and intent to control its
         disposition or use.

              And—excuse me—I said five things; but
         it’s four things.

              And,   fifth,  that  the  defendant
         possessed it with a dishonest purpose.
         Converting it to his own use would be a
         dishonest purpose.

              So, ladies and gentlemen, if you find
         from the evidence beyond a reasonable doubt
         that the SKS semiautomatic rifle and the
         Maverick 12-gauge pump shotgun were stolen
         pursuant to a breaking or entering, and that
                                   -7-
              on or about October 27, 2011 the defendant
              possessed this property knowing or having
              reasonable grounds to believe that the
              property was stolen pursuant to a breaking
              or entering; that the defendant possessed it
              for a dishonest purpose, then it would be
              your duty to return a verdict of guilty of
              felonious possession of stolen goods.

       Defendant contends that the trial court erred by omitting

the fourth element, that “the defendant knew or had reasonable

grounds    to      believe”     the   property     was     stolen      pursuant    to   a

breaking      or    entering,     from   the      enumerated        elements.        See

N.C.P.I.—Criminal         216.48A.         The     trial      court’s     instruction

initially appears to omit the fourth element, enumerating the

third and fifth elements.              However, the trial court correctly

included all the essential elements of the offense both in the

introductory and concluding paragraphs.                      More importantly, the

fourth    element,     that     the   jury   must      find     that    defendant    had

reasonable      grounds    to    believe     that      the    property    was     stolen

pursuant to a breaking or entering in order to return a guilty

verdict,    was     specifically       included.         When    construed      in   its

entirety,     the    instruction      fairly     and     correctly      presented    the

law,   even     though    the    trial   court’s       isolated        expression    was

technically inaccurate.           Francis, 341 N.C. at 162, 459 S.E.2d at

272.     Therefore, the trial court instructed the jury on every

essential element of the offense.                This argument is overruled.
                                      -8-
                               III. Jury Question

      Defendant      also     argues   that    the       trial    court      erred   in

declining to clarify the law in response to a written question

from the jury during deliberations.            We disagree.

      During deliberations, the jury submitted written questions

to   the    trial    court,    including:     “Is    a    BB     gun   considered     a

firearm?”      The trial court discussed the jury’s question with

counsel:

             Number 1: Is a BB gun considered a firearm?
             You want to be heard on that?

             [Defense Counsel]: We say no.

             THE COURT: Well I’m sure your opponent says
             yes. That’s not my question.

                  I’m not going to give them a “yes” or a
             “no.” I think, you know, they need to rely
             on their common sense and listen to the
             evidence that they heard and make a –
             they’re the triers of fact, not me.

             [Defense Counsel]: And, Your Honor, I think
             the most appropriate response would be
             probably be [sic] to just indicate to them
             that they have heard all the evidence.

      The    trial    court     subsequently        instructed         the   jury    in

response to the question:

             THE COURT: The first one [question] is: Is a
             BB gun considered a firearm?

             FOREPERSON: Yes, sir.

             THE COURT: I’ll answer that one first.
                                     -9-

            FOREPERSON: Okay.

            THE COURT: Members of the jury, all                the
            evidence has been presented.    It is             your
            duty to decide from the evidence what              the
            facts are, and to apply the law that I            gave
            you to those facts.

     Defendant contends that this issue has been preserved for

appeal   because    “a   request     for    instructions     constitutes    an

objection.”     State v. Rowe, ___ N.C. App. ___, ___, 752 S.E.2d

223, 227 (2013).     Therefore, we will treat this as an objection.

     When defense counsel stated “[w]e say no” in response to

the court’s question regarding whether she wanted to be heard

regarding     the   jury’s   question,      the    trial    court    responded

“[t]hat’s not my question.          I’m not going to give them a “yes”

or a “no.” I think, you know, they need to rely on their common

sense and listen to the evidence that they heard and make a –

they’re the triers of fact, not me.”              Rather than disagree with

the trial court, defense counsel then indicated that “the most

appropriate response would be probably be [sic] to just indicate

to   [the   jury]    that    they    have    heard    all   the     evidence.”

Therefore, defendant has waived his objection.                 However, the

plain error standard applies.           See State v. Conley, ___ N.C.

App. ___, ___, 724 S.E.2d 163, 169 (2012) (“Where trial counsel

fails to object to the trial court’s instructions in response to
                            -10-
a question from the jury seeking clarification, we review for

plain error.”).          Under plain error review, a defendant “must

convince this Court not only that there was error, but that

absent      the   error,    the    jury     probably     would    have   reached    a

different result.”             State v. Jordan, 333 N.C. 431, 440, 426

S.E.2d 692, 697 (1993).

       The    State     presented     evidence      that     defendant      was     in

possession of a semiautomatic SKS rifle and a Maverick 12-gauge

pump action shotgun as well as the BB gun.                       Specifically, the

State presented evidence that defendant was seen carrying the

firearms away from Starling’s residence in a white sheet, and

the stolen firearms were later found in the pump house behind

Ms. McDougald’s residence shortly after his arrival.                     Ammunition

for both an SKS rifle and a shotgun were found in defendant’s

bedroom      at   Ms.    McDougald’s        residence.      Although     the      jury

specifically asked whether the BB gun was considered a firearm,

there is nothing in the record indicating that the jury failed

to    consider    all    the     evidence    presented     regarding     the   other

firearms and only considered defendant’s possession of the BB

gun    in    rendering     its    verdict.       Furthermore,       there   was     no

objection to the State’s evidence regarding the other firearms,

and the jury returned a verdict of guilty for the possession of

a firearm by a convicted felon.                 Defendant fails to show that
                              -11-
the jury probably would have reached a different result had the

trial court answered the jury’s question differently.                        See id.

This argument is overruled.

                              IV. Sentencing

    Defendant     further    argues    that       the     trial    court    erred     by

sentencing defendant to a maximum of 120 months when the correct

maximum sentence under the applicable sentencing guidelines was

117 months.   We agree.

    The Justice Reinvestment Act of 2011, in pertinent part,

amended   sentencing    guidelines     for        Class     B1    through    Class     E

felonies.     2011    N.C.   Sess.    Laws       192,   §   2(f).        Prior   to    1

December 2011, N.C. Gen. Stat. § 15A-1340.17(e) (2010) provided

for a minimum sentence of 90 months in the mitigated range and a

maximum sentence of 117 months.              See N.C. Sess. Laws 192, § 2

(stating 1 December 2011 as effective date of amendment).

    In the instant case, defendant’s offense occurred on 27

October   2011,   a   date   prior    to     1    December       2011.      Defendant

contends, and the State concedes, that the trial court erred in

sentencing defendant to a maximum of 120 months imprisonment.

Therefore, this case should be remanded to the trial court to

resentence defendant to a maximum term of 117 months.

                               V. Conclusion
                            -12-
    Although the trial court deviated from the promised jury

instruction, when construed as a whole, it fairly and correctly

presented the law.     Since the State presented evidence regarding

more than one firearm in addition to the BB gun, defendant has

failed to show that the jury only considered the BB gun when

rendering the verdict for possession of a firearm by a felon.

While there was no error at trial, we remand the case to the

trial   court   to   correct   the   judgment.   Defendant   shall   be

resentenced to a maximum term of 117 months, consistent with the

applicable law at the time of defendant’s offenses.

    No error; remand for resentencing.

    Judges ELMORE and STEPHENS concur.

    Report per Rule 30(e).
