An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-959
                             NORTH CAROLINA COURT OF APPEALS

                                     Filed: 6 May 2014


STATE OF NORTH CAROLINA

      v.                                            Onslow County
                                                    Nos. 11 CRS 53063
NICHOLAS TAVARES WEST,                                   11 CRS 53064
          Defendant.


      Appeal by defendant from judgments entered 3 April 2013 by

Judge Charles H. Henry in Onslow County Superior Court.                            Heard

in the Court of Appeals 22 January 2014.


      Attorney General Roy Cooper, by Special                        Deputy   Attorney
      General Belinda A. Smith, for the State.

      Sue Genrich Berry for defendant-appellant.


      GEER, Judge.


      Defendant Nicholas Tavares West appeals his convictions of

possession        of     a    firearm    by    a    felon,   possession       of   drug

paraphernalia, possession of up to one-half ounce of marijuana,

and resisting a public officer.                    On appeal, defendant primarily

argues     that    the       trial   court    erred   in   denying    his   motion   to

dismiss the charge of possession of a firearm by a felon because

the State failed to present substantial evidence that defendant
                                         -2-
constructively possessed the handgun located in the trunk of the

car defendant was driving.               Given    the State's evidence that

defendant was the driver and sole occupant of the car, together

with other circumstantial evidence that defendant constructively

possessed the handgun, we hold the trial court properly denied

defendant's motion.

                                     Facts

       The State's evidence tended to show the following facts.

At about 9:45 p.m. on 8 May 2011, Officer Joshua Porter of the

Jacksonville Police Department and his partner were driving in a

marked patrol car with their windows down in an alleyway in a

high     drug-trafficking        neighborhood         in    Jacksonville,     North

Carolina.      The    officers     noticed       an    "overwhelming"     smell   of

burning marijuana and saw there was an occupied Buick LeSabre

nearby.     They parked and approached the Buick to investigate the

smell.      One of the Buick's windows was down and, as he got

closer,     Officer     Porter    determined          the   Buick   was    "without

question" the source of the smell.                     Officer Porter had seen

defendant     driving    the     Buick    on     several      occasions,    and    a

subsequent search revealed that, on 8 May 2011, the Buick was

registered to defendant.

       Defendant was sitting in the driver's seat of the Buick and

was the only occupant.            The officers had defendant exit the
                                               -3-
Buick       and   asked     defendant         where       the    marijuana        was    located.

Defendant denied smoking marijuana, pointed to another car in

the   area,       and   claimed        someone       in    the   other      car    was    smoking

marijuana.          When both officers looked toward the other car,

defendant fled on foot.                     The officers ran after defendant and

eventually         overtook          him.       After        being     caught,          defendant

continued to physically struggle with the officers to the point

that Officer Porter's partner tased defendant to subdue him.

       Officers         then        searched    the        Buick     and,     on    the     front

passenger side floorboard, discovered a hand-rolled cigar filled

with marijuana and charred at one end.                             Officers also found a

metal pipe used to smoke marijuana in a duffel bag in the back

seat;       between 20 and 50 clear plastic sandwich bags, which are

often used to package marijuana,                          in the center console;                and

marijuana residue on the floorboard of the rear passenger side

seat.       There were several articles of mail in defendant's name

located in the front passenger-side seat.

       Upon       looking      in    the    trunk,        officers    immediately         saw   in

plain view a shiny silver .25 caliber handgun that had a round

in the chamber and rounds in the magazine.                           In "close proximity"

to    the    handgun,       officers         found    a    purple     pouch       containing     a

digital scale on which marijuana and white powder residue was

found, and a silver bottle of GNC Inositol powder.                                  There were
                                           -4-
very   few      other   items   in   the    trunk.        Officers    also      searched

defendant's person and, in his wallet, found a pack of cigarette

rolling papers that can be used to smoke marijuana.

       Defendant was arrested and informed of the charges against

him, including possession of a firearm by a felon.                        Later, while

awaiting a bond determination, defendant told the officers that

"he learned his lesson last time, and this time I'm taking the

plea."

       On 10 July 2012, defendant was indicted for possession of a

firearm by a felon, possession with intent to sell or deliver a

counterfeit controlled substance, possession of between one-half

ounce and one and one-half ounces of marijuana, possession of

drug   paraphernalia,       resisting       a    public    officer,       and   being    a

habitual     felon.       Prior      to   trial,     defendant     pled     guilty      to

possession of less than one-half ounce of marijuana, a lesser

included offense of the indicted charge,                     and to resisting a

public officer.          Also prior to trial, the State dismissed the

charge     of     possession      with     intent     to    sell     or     deliver      a

counterfeit controlled substance.

       At trial, defendant introduced into evidence a certificate

of title showing defendant transferred title of the Buick to his

mother, Angela West Hunter, in January 2011.                         Defendant also

presented the testimony of his wife, Angel West, and his mother
                                        -5-
that tended to show the following.               Defendant bought the Buick

for Ms. Hunter because he had ruined her former car, and Ms.

Hunter actually owned the Buick on 8 May 2011.                Ms. Hunter often

drove    the     Buick,       and   defendant,     defendant's       wife,    and

defendant's daughter each occasionally drove the Buick during

the spring of 2011.

    On 5 May 2011, Ms. Hunter was going through boxes belonging

to her late stepmother when she found the silver handgun at

issue in this case.       She put the gun in the trunk of the Buick

with the intention of giving it to a family member.                    However,

after   Ms.    Hunter   was    unable   to    deliver   the   gun   because   the

family member was not at home, she forgot about it.                  Ms. Hunter

never told defendant the gun was in the trunk.                 Ms. Hunter was

familiar with the purple pouch in the trunk, but she did not put

it in the trunk, she never saw defendant with it, and she did

not remember where she had seen it.               Ms. Hunter had never seen

the digital scale prior to trial.

    On 8 May 2011,            defendant,      his wife, and their children

drove together to Ms. Hunter's house for a Mother's Day dinner.

Ms. West left by 7:30 p.m. with the children, and defendant

stayed to watch basketball with his father.                   Ms. Hunter gave

defendant permission to drive the Buick home and, on his way

home, defendant delivered a plate of food to Ms. Hunter's friend
                                             -6-
who   lived     on   the   street       where      the    officers   found      defendant

parked.    Nobody besides Ms. Hunter drove the Buick between 5 May

and 8 May 2011, and Ms. Hunter never opened the trunk after

placing the gun in it.

      The jury found defendant guilty of possession of a firearm

by a felon and possession of drug paraphernalia.                          Defendant then

admitted      his    status   as    a    habitual        felon.      The    trial      court

consolidated the offenses of possession of a firearm by a felon

and possession of drug paraphernalia and sentenced defendant to

a presumptive-range term of 88 to 118 months imprisonment.                              The

trial court further consolidated the offenses of possession of

up to one-half ounce of marijuana and resisting a public officer

and   sentenced       defendant         to   a     concurrent      term    of     60    days

imprisonment.        Defendant timely appealed to this Court.

                                              I

      Defendant       first   argues         that    the     trial   court      erred    in

denying his motion to dismiss the charge of possession of a

firearm    by   a    felon.        "This     Court       reviews   the    trial    court's

denial of a motion to dismiss de novo."                         State v. Smith, 186

N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007).

      "'Upon defendant's motion for dismissal, the question for

the Court is whether there is substantial evidence (1) of each

essential element of the offense charged, or of a lesser offense
                                        -7-
included therein, and (2) of defendant's being the perpetrator

of such offense.       If so, the motion is properly denied.'"                 State

v.   Fritsch,    351   N.C.    373,   378,     526    S.E.2d    451,    455   (2000)

(quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918

(1993)).     "Substantial evidence is such relevant evidence as a

reasonable      mind   might     accept       as     adequate     to    support    a

conclusion."        State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d

164, 169 (1980).       In making its determination, the trial court

considers all the evidence "in the light most favorable to the

State,     giving    the   State      the     benefit    of     every    reasonable

inference and resolving any contradictions in its favor."                      State

v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994).

      "There are two elements to possession of a firearm by a

felon: '(1) defendant was previously convicted of a felony; and

(2) thereafter possessed a firearm.'"                   State v. Mitchell, ___

N.C. App. ___, ___, 735 S.E.2d 438, 442-43 (2012) (quoting State

v. Best, 214 N.C. App. 39, 45, 713 S.E.2d 556, 561 (2011)),

appeal dismissed and disc. review denied,                     366 N.C.    578, 740

S.E.2d 466 (2013).         The only issue in this case is whether the

State presented substantial evidence that defendant possessed a

firearm.

      A defendant has possession of contraband when he has "both

the power and intent to control its disposition or use."                       State
                                              -8-
v.   Dow,   70   N.C.     App.     82,    85,       318    S.E.2d          883,      885   (1984).

"Possession      may    be     either         actual       or        constructive."              Id.

"Constructive possession exists when there is no actual personal

dominion    over    the    [contraband],            but        there      is    an    intent     and

capability to maintain control and dominion over it."                                 Id.

      Evidence that a defendant owns a vehicle can give rise to

an   inference     of   constructive           possession            of    items      within     it.

Id., 318 S.E.2d at 886 ("Had the defendant, in the instant case,

owned the automobile, an inference that he was in constructive

possession of the controlled substance found therein would have

been permissible.").              Here, the State presented evidence that

the Buick was registered to defendant and Officer Porter had

previously       seen     defendant           driving          the        Buick      on    several

occasions.       While defendant's evidence tended to show defendant

transferred title of the Buick to his mother roughly four months

prior to the search, it is well established that "defendant's

evidence     rebutting       the     inference            of     guilt         is    not    to   be

considered [on a motion to dismiss] except to the extent that it

explains,    clarifies       or    is    not     inconsistent              with      the   State's

evidence[.]"       State v. Walker, 332 N.C. 520, 530, 422 S.E.2d

716, 722 (1992).

      In addition to the presumption arising from the State's

evidence    that    the      Buick      was    registered            to     defendant,       "[a]n
                                        -9-
inference    of     constructive      possession        can    also        arise   from

evidence which tends to show that a defendant was the custodian

of the vehicle where the [contraband] was found."                      Dow, 70 N.C.

App. at 85, 318 S.E.2d at 886.                   Our courts have consistently

held that "the 'driver of a borrowed car, like the owner of the

car, has the power to control the contents of the car[,]'" and

"power to control the automobile where [contraband] was found is

sufficient, in and of itself, to give rise to the inference of

knowledge and possession sufficient to go to the jury."                             Id.

(quoting State v. Glaze, 24 N.C. App. 60, 64, 210 S.E.2d 124,

127    (1974)).     Since    there    is    no     dispute    in    this    case   that

defendant was the driver and sole occupant of the Buick on the

evening of 8 May 2011, those facts were sufficient, in the light

most    favorable    to     the    State,     to     permit    an     inference     of

defendant's constructive possession of the handgun in the trunk.

See id. at 83-84, 85, 318 S.E.2d at 885, 886 (holding State

presented    substantial       evidence     of     constructive      possession      of

marijuana    in   car   when      State's   evidence     showed      defendant      was

driver of car also occupied by two other men at time of stop and

marijuana was located on and under rear floor mat of car, and

defendant's evidence showed he borrowed car three days prior to

stop and had custody of it until time of stop).
                                           -10-
       Moreover,        the     State's     evidence       showed        defendant      told

officers,       after     being      informed       that    he     was     charged      with

possession of a firearm by a felon, that "he learned his lesson

last time" and this time he would plead guilty; there was mail

in    defendant's       name    in   the    passenger       seat    of    the    car;    and

defendant fled from the officers and physically struggled with

them to avoid arrest, leading him to plead guilty to resisting a

public officer.          See State v. Bagley, 183 N.C. App. 514, 521,

644 S.E.2d 615, 620 (2007) ("[E]vidence of flight is admissible

if    offered     for     the    purpose     of     showing        defendant's       guilty

conscience as circumstantial evidence of guilt of the crime for

which he is being tried . . . .").

       Additionally,          defendant     pled     guilty        to     possession      of

marijuana, and the State's evidence showed a marijuana smoking

pipe was found in the back seat of the car in the same duffel

bag    that     contained       men's     clothes    in     defendant's         size;    the

digital scale showing marijuana residue in the trunk was in

"close proximity" to the shiny silver handgun located in plain

view; there were between 20 and 50 plastic bags in the center

console    of    the     Buick    and     those    items     are    commonly      used    to

package    marijuana;          marijuana    residue        was   found     on    the    rear

floorboard of the car; and the handgun was a cheap "throw-away

gun" commonly used by drug-dealers.                   There were few other items
                                         -11-
in the trunk, and Ms. Hunter testified she had never before seen

the digital scale.           This evidence tended to show defendant was

involved in drug transactions, put the digital scale in the

trunk, and either personally put the gun in the trunk or was at

least aware of its presence when driving the car on 8 May 2011.

      We    hold     the     State     presented      substantial        evidence      of

defendant's constructive possession of the handgun in the trunk.

Consequently, the trial court did not err in denying defendant's

motion to dismiss the charge of possession of a firearm by a

felon.

                                            II

      Defendant next contends that the indictment charging him as

a habitual felon was fatally defective since the alleged date of

the offense for one of the three predicate felony convictions

differed from the date of offense shown on the prior judgment

submitted       to   the    trial    court     as   proof    of   that    conviction.

Defendant argues that, as a result of the defective indictment,

the   trial     court      lacked    subject     matter     jurisdiction      over    the

habitual felon charge.

      Defendant was indicted for being a habitual felon, which is

defined    as    "[a]ny     person    who    has    been    convicted    of    or    pled

guilty to three felony offenses in any federal court or state

court . . . ."             N.C. Gen. Stat. § 14-7.1 (2013).                   N.C. Gen.
                                  -12-
Stat. § 14-7.3 (2013) provides that an indictment charging a

defendant as a habitual felon          "must set forth," among other

things, "the date that prior felony offenses were committed."

    Defendant's indictment for being a habitual felon provides

in relevant part that defendant was convicted of the sale and

delivery of marijuana in Onslow County on 31 October 1995 and

that the date of offense was "05/31/1995."          As a factual basis

for defendant's guilty plea, the State presented the judgment

for defendant's sale and delivery of marijuana conviction that

provided    the   same   information   as   defendant's   habitual   felon

indictment, except that the date of offense was provided as "05-

12-1995."     Defendant's argument on appeal is based solely on

this discrepancy.

    In State v. Taylor, 203 N.C. App. 448, 453, 691 S.E.2d 755,

760 (2010), cert. denied, 366 N.C. 408, 736 S.E.2d 180 (2012),

the defendant similarly argued that his indictment for being a

habitual felon was fatally defective because the date of offense

for a predicate felony alleged in his habitual felon indictment,

"'12/8/1992,'" differed from the date of offense shown on the

relevant judgment presented by the State at trial, "'12/18/92.'"

The Court explained that "'the date alleged in the indictment is

neither an essential nor a substantial fact as to the charge of

habitual felon . . . .'"      Id. at 454, 691 S.E.2d at 761 (quoting
                                              -13-
State v. Locklear, 117 N.C. App. 255, 260, 450 S.E.2d 516, 519

(1994)).      Instead, it is "'the fact that another felony was

committed,       not    its     specific      date,      which    [i]s    the    essential

question    in    the        habitual    felon       indictment.'"         Id.     (quoting

Locklear, 117 N.C. App. at 260, 450 S.E.2d at 519).

    The habitual felon indictment in Taylor "provided notice of

the three prior felonies being used to support the indictment,

the dates the felonies were committed, the jurisdiction in which

they were committed, the dates of convictions, the court in

which the convictions took place, and the file numbers of the

cases."       Id.       at     455,     691     S.E.2d     at     761.       Under      those

circumstances, the Court held that the habitual felon indictment

was sufficient on its face to support the charged offense.                               Id.,

691 S.E.2d at 761-62.

    Here, as in Taylor, the habitual felon indictment provided

defendant    notice      of     the     three    prior     felonies       supporting      the

indictment,       the        dates      the     felonies        were     committed,      the

jurisdiction       in    which        they      were     committed,       the    dates    of

conviction, and the court in which the convictions took place.

There can be no question that defendant had notice of the prior

felonies     alleged          against     him,         since     prior    to     entry     of

defendant's      plea    to     being     a    habitual        felon,    defense     counsel

expressly     stipulated         to      "the     three        convictions      which    are
                                          -14-
identified     in    the   [habitual      felon]    indictment,"       stating     that

they "[were], in fact, correct and do apply to [defendant]."

Defense counsel based his stipulation on his assertion that he

"[had] actually checked the judgments [himself]."                       Accordingly,

"[d]espite      the     discrepancy        regarding        the     date     defendant

committed      the    prior   [relevant]         offense,    the     habitual     felon

indictment . . . provided defendant with adequate notice of the

prior felonies supporting the indictment in order for defendant

to prepare a defense."              Id. at 455, 691 S.E.2d at 761.                  The

indictment, therefore, sufficiently charged defendant with being

a   habitual    felon,     and     the    trial     court    had    subject     matter

jurisdiction over the charge.

                                          III

      Defendant additionally argues that questions to his wife

and   mother    on    cross-examination          attempted   to     elicit    improper

evidence    regarding      his     criminal      history.      Defendant      contends

that the questions violated his rights to due process under the

Fourteenth      Amendment     to    the    United     States       Constitution    and

Article I, Section 19 of the North Carolina Constitution, as

well as Rules 401 and 404 of the Rules of Evidence.

      During cross-examination of defendant's wife, Ms. West, the

following occurred:
                     -15-
     Q.   Ms.   West,  you   said  you   and
[defendant] have been married since 2000; is
that right?

    A.    Yes.

     Q.   Okay.    And have      you     shared   a
residence that entire time?

    A.    Off and on.

     Q.   Okay.   And when it was off, what
was happening?

    A.    When it was off?

     Q.   When   you   weren't         sharing    a
residence, what was going on?

    A.    Just marital problems.

     Q.   Okay.   And was there ever a time
where your husband couldn't be in the
marital residence with you?

    A.    Meaning?

     Q.   As in did he ever have to live or
stay somewhere else other than for marital
problems?

     A.   2001 or '2, whenever the charges
that you brought up earlier.

     Q.   Okay.   And is that because he was
in prison at that time?

    A.    Yes.

     Q.   Okay. Did he ever go to prison on
any other occasions while you were married?

    [DEFENSE COUNSEL]: Objection.

    THE COURT: Sustained.
                                    -16-
                Q.   (By [prosecutor]) Were there ever
           any other times when he was outside of the
           marital home?

                  [DEFENSE COUNSEL]: Objection.

                THE COURT: You need to confine yourself
           to the time of May of 2011 and thereabouts.

    The    cross-examination        testimony   regarding     defendant's

prison sentence during 2001 or 2002 appears to be a reference to

defendant's sentence for his prior conviction of assault with a

deadly   weapon   inflicting   serious     injury   that   served   as   the

predicate felony for his charge of possession of a firearm by a

felon.    During its case-in-chief, the State presented evidence

of the judgment for that conviction.

    In addition, the State cross-examined defendant's mother,

Ms. Hunter, in relevant part as follows:

                Q.   Okay.   Ms. Hunter, had you ever
           known your son to have a handgun before?

                  A.   No, ma'am.

                Q.  Okay. What about in 2000, when he
           used one for the assault with a deadly
           weapon inflicting serious injury against
           someone?

                  A.   What about it?

                Q.   Were you aware that he used              a
           similar-caliber handgun in that case?

                A.     No, ma'am.     I never seen him with
           no gun.
                                    -17-
The indictment underlying defendant's 2001 conviction of assault

with a deadly weapon inflicting serious injury, also presented

to the jury during the State's case-in-chief, alleged defendant

committed the assault with a "22 handgun."

    Defendant         did   not   object   to    the   challenged     cross-

examination of Ms. West on constitutional grounds and did not

object to the challenged cross-examination of Ms. Hunter on any

grounds.      Generally,     "[c]onstitutional    issues    not   raised   and

passed upon at trial will not be considered for the first time

on appeal."      State v. Gainey, 355 N.C. 73, 87, 558 S.E.2d 463,

473 (2002).      See N.C.R. App. P. 10(a)(1).          Defendant does not

assert that admission of the challenged testimony constituted

plain error.     Although defendant asks this Court to invoke Rule

2 of the Rules of Appellate Procedure in order to review the

merits of his argument, we see no cause for invoking Rule 2 in

order to "prevent manifest injustice to a party, or to expedite

decision in the public interest" in this case.

    We, therefore, do not address defendant's constitutional

arguments   as   to    cross-examination   of    either    witness.    Given

defendant's failure to object on any grounds                and failure to

argue plain error, we also decline to address defendant's Rules

401 and 404 arguments with respect to Ms. Hunter.
                                            -18-
      To the extent defendant challenges on appeal the cross-

examination of Ms. West prior to defendant's objections, he has

not preserved his argument for appeal and has not argued plain

error.       Further, the trial court sustained both of defendant's

objections during the relevant cross-examination of Ms. West,

and    Ms.    West     did        not,    therefore,       answer       the    challenged

questions.       Defendant          nonetheless         argues   that    the    questions

themselves were sufficiently prejudicial to warrant a new trial.

      Assuming       the   State's        attempted      cross-examination        of   Ms.

West regarding times defendant was in prison other than as a

result of his prior conviction for assault with a deadly weapon

inflicting serious injury was improper, our Supreme Court "has

held that the mere asking of a question, followed by a sustained

objection, is not prejudicial to a defendant."                        State v. Brewer,

325 N.C. 550, 569-70, 386 S.E.2d 569, 580 (1989).                               Moreover,

with respect to the possession of a firearm by a felon charge,

the jury was properly shown that defendant had a prior felony

conviction, and we have already addressed the substantial weight

of    evidence    that       tended       to   show       defendant      constructively

possessed the handgun in the trunk.

      With     respect       to     the    possession       of   drug     paraphernalia

charge,      defendant       pled     guilty       to    possession      of    marijuana;

defendant appeared to have been smoking marijuana immediately
                                          -19-
prior to his encounter with the officers; the officers found a

marijuana pipe in the Buick located in a duffel bag in the back

seat that contained men's clothes in defendant's size and "men's

grooming products"; there is no dispute that defendant was the

driver and sole occupant of the car; defendant fled from the

officers when they asked him about the marijuana; and Ms. Hunter

denied having ever seen the digital scale located in the trunk

that showed marijuana residue.                   Given this evidence, and the

trial    court's      prompt    sustaining        of      defendant's      objections,

defendant   cannot      show    prejudice        from     any    impropriety      in    the

State's cross-examination of Ms. West.

                                           IV

    Finally, defendant contends that the trial court erred in

calculating his sentence.            Defendant first argues that the trial

court,    in     determining            defendant's        prior      record      level,

erroneously     relied    upon      a    prior    conviction,        which     had     been

consolidated with another prior conviction that was used as a

predicate felony for defendant's habitual felon conviction.

    N.C.       Gen.    Stat.    §    14-7.6      (2013)         provides   that      "[i]n

determining      the    prior       record       level,     convictions        used     to

establish a person's status as an habitual felon shall not be

used."    N.C. Gen. Stat. § 15A-1340.15(b) (2013) provides: "If an

offender is convicted of more than one offense at the same time,
                                         -20-
the court may consolidate the offenses for judgment and impose a

single judgment for the consolidated offenses.                       The judgment

shall contain a sentence disposition specified for the class of

offense and prior record level of the most serious offense . . .

."

     In this case, a single, consolidated judgment was entered

against defendant in 2001 for separate convictions of robbery

with a dangerous weapon and conspiring to commit robbery with a

firearm.    The two offenses were committed on the same date.                  The

State    used    the    conspiracy    to   commit    robbery   with    a    firearm

conviction as a predicate felony for defendant's habitual felon

charge.    The prior record level worksheet prepared by the State,

stipulated to by defendant, and apparently relied upon by the

trial    court    in    determining      defendant's    sentence,      added    six

points    for    the    robbery   with     a    dangerous   weapon    conviction.

Defendant contends that when his prior convictions for robbery

with a dangerous weapon and conspiring to commit robbery with a

firearm    were        consolidated      for    sentencing,    those       offenses

"merged" such that it was improper to use one to support his

habitual felon conviction and the other to add prior record

level points.

     This Court rejected defendant's precise argument in State

v. McCrae, 124 N.C. App. 664, 478 S.E.2d 210 (1996).                    There, as
                                     -21-
here, the defendant argued that "the trial court erred when it

determined his prior record level . . . by assigning points for

a prior conviction which was consolidated for judgment with a

conviction already used to constitute defendant as an habitual

felon."     Id.     This     Court   explained   that,   contrary    to   the

defendant's argument, "[c]onsolidation of offenses for judgment

means only that convictions are consolidated for the purpose of

rendering judgment, each conviction still stands."              Id. at 665,

478 S.E.2d at 211.          McCrae controls our decision here, and we

hold that the trial court did not err in assigning prior record

level    points   for   a   conviction   consolidated    with   a   separate

conviction used to indict defendant as a habitual felon.

    Although defendant also argues that the trial court erred

in assigning him a prior record level point based on a finding

that "all the elements of the present offense are included in

any prior offense for which the offender was convicted, whether

or not the prior offense or offenses were used in determining

prior record level," N.C. Gen. Stat. § 15A-1340.14(b)(6) (2013),

defendant concedes that any error was harmless.             Consequently,

we conclude defendant received a trial free from prejudicial

error.


    No error.

    Judges BRYANT and CALABRIA concur.
                         -22-
Report per Rule 30(e).
