                             NO. COA14-158

                  NORTH CAROLINA COURT OF APPEALS

                          Filed: 7 October 2014


STATE OF NORTH CAROLINA

    v.                                Buncombe County
                                      No. 11 CRS 64716, 64719
JOHN BURTON EDMONDS, JR.
     Defendant.
_________________________________

STATE OF NORTH CAROLINA

    v.

JAMES RYAN EDMONDS,
     Defendant.


    Appeal by defendants from judgments entered 25 July 2013 by

Judge James U. Downs in Buncombe County Superior Court.         Heard

in the Court of Appeals 27 August 2014.


    Attorney General Roy Cooper, by Special         Deputy   Attorney
    General Heather Freeman, for the State.

    Appellate  Defender   Staples  S.  Hughes,   by  Assistant
    Appellate Defender Paul M. Green, for defendant James Ryan
    Edmonds.

    Russell J. Hollers III, for defendant John B. Edmonds.


    ELMORE, Judge.


    On 5 March 2012, the Buncombe County grand jury returned

bills of indictment against defendant John Burton Edmonds, Jr.
                                                -2-
(“defendant John”) for robbery with a dangerous weapon in 11 CRS

64719,    and    against    his        son,      James   Ryan     Edmonds        (“defendant

James”) for robbery with a dangerous weapon in 11 CRS 64716.                                 On

18 April 2013, the State filed a Motion for Joinder, requesting

that the trial court join the cases for trial.                               The motion was

granted and the case came on for trial on 5 June 2013.                              The jury

found    both    men    guilty        of    robbery      with     a    dangerous       weapon.

Defendant John admitted the aggravating factor that he committed

the offense while on pretrial release, and he was sentenced to

97 to 129 months imprisonment with a 28-day credit.                                Defendant

James    also    admitted       that       he   committed       the    offense      while   on

pretrial    release.            He    was       sentenced    to       73   to    100     months

imprisonment with a 10-day credit.                          Both defendant John and

defendant       James   (collectively            “defendants”)         now      appeal   their

convictions.            After        careful      consideration,           we     find    that

defendant John received a trial free from error and defendant

James received a trial free from prejudicial error.                              However, we

remand for a correction of clerical errors in defendant John’s

Judgment and Commitment form.

                                       I.         Background

    At trial, the State called Leslie Pruitt, customer service

manager at Forrest Hills Commercial Bank.                         Ms. Pruitt testified
                                           -3-
that in September 2011, defendant John opened a bank account at

Forrest Hills Commercial Bank that was funded by loan proceeds

in the amount of $65,000.00.                Ms. Pruitt testified that after

this account was opened, large amounts of cash were withdrawn

daily   until    the      account    was    overdrawn.         The   bank’s     fraud

detection system flagged the account as “a suspect of suspicious

activity.”       Ms.      Pruitt     tracked       the   account     activity    and

recommended     it   be    closed.     In        November   2011,    Forrest    Hills

Commercial Bank closed the account.

    Anne Garrett, customer service representative at Forrest

Hills   Commercial     Bank,    testified         that   she   was   familiar   with

defendant John because he frequented the bank and called “all of

the time” regarding his account.                  On 7 December 2011, one day

before the robbery, defendant John and defendant James arrived

together at the bank at 1:33 p.m.                   Ms. Garrett testified that

the men approached her desk and defendant John took a seat.                      The

surveillance video showed that defendant James stood to the side

of Ms. Garrett’s desk before moving behind it.                         Ms. Garrett

testified that she particularly remembered defendant James that

afternoon because he encroached on the personal space behind her

desk.
                                        -4-
    On 8 December 2011, the day of the robbery, Ms. Garrett saw

defendant John enter the bank on three separate occasions.                       At

11:00 a.m., defendant John first entered the bank and paced the

lobby while talking on his cell phone. He did not speak to any

bank employee.      According to Ms. Garrett, it was customary for

defendant John to be on his phone when he entered the bank.                       At

12:20   p.m.,   defendant   John    entered     the    bank    once    more.     He

adamantly asked bank personnel to open an account for him.                       He

left after being informed that he could not open an account.

Ms. Garrett testified that defendant John entered the bank for a

third time at approximately 1:20 p.m.              Defendant approached Ms.

Garrett’s desk, and she opened her cash drawer to put her work

away.   Defendant   John    took   a    seat   despite       the   fact   that   Ms.

Garrett was on the phone and there were other customer service

representatives     available      to     assist      him.         Shortly     after

defendant John sat down, Ms. Garrett testified that the bank

door flung open and a masked man brandishing a gun ran directly

to her with “no hesitation at all.”                The robber grabbed Ms.

Garrett’s cash drawer—forcing her hands off of it.                    He took the

cash and ran out the door.

    In a statement made to Detective Kevin Briggs after the

robbery, Ms. Garrett noted that the robber wore a blue mask and
                                             -5-
was about 5’7” tall.            She also stated she believed the gun was

fake   because    it     had    an     orange      cap.     At   trial,      Ms.   Garrett

testified that she no longer thought the gun was fake.                                 Ms.

Garrett testified that the robber’s build resembled defendant

James’.    She testified, “[a]s soon as everything happened and we

closed the doors, I said that’s [] John’s son.”                              Ms. Garrett

also   recognized        that    the     robber      wore    the      same   shoes    that

defendant James had worn to the bank the previous day.

       Sergeant    Mark     Allen       with    the       Town   of    Biltmore      Police

Department testified on behalf of the State at trial.                                 On 8

December 2011, Sergeant Allen responded to a bank robbery at

Forest Hills Commercial Bank at approximately 1:22 p.m.                              As he

approached the bank, defendant John was leaving.                        Sergeant Allen

ordered him to stop.              Defendant John informed Sergeant Allen

that he was a patron of the bank and that it had just been

robbed.    Defendant John stated that he chased the robber out of

the bank, that the robber was Hispanic, wore a black shirt and

black mask, and fled across the parking lot into the wooded area

behind    the    bank.         Based    on     the    information       defendant      John

provided, Sergeant Allen set up a perimeter and radioed for a

tracking K-9 unit.
                                         -6-
    After      viewing    the     surveillance      video     of    the     robbery,

Sergeant Allen named defendant John a suspect because (1) the

direction defendant John said the robber fled did not match the

video, (2)the robber’s mask was not black, and (3) defendant

John acted eager to leave the scene.

    Jamie      Johnson,      defendant          James’     former     girlfriend,

testified     for   the   State       over    defense    counsels’    objections.

Jamie   Johnson     stated      she    and     defendant    James    were    living

together in December 2011, at which time she was eight months

pregnant with his child. Jamie Johnson testified that she drove

a gold 2001 Mazda Tribute in December 2011, which defendant

James frequently borrowed.            This testimony was relevant because

the bank’s surveillance video from 8 December 2011 showed a gold

Mazda Tribute pass defendant John in the bank’s parking lot

after   the    robbery.         The    same     vehicle    was     shown    on   the

surveillance video on 7 December 2011 after the men left the

bank.    Jamie Johnson alleged that defendant James frequently

borrowed her vehicle and that he had done so on 8 December 2011.

    On 7 December 2011 at 1:15 p.m., defendant James sent Jamie

Johnson the following text message:                “Jamie, if you want me to

have money in the morning, I have have [sic] all the gas that’s

in your car to be able to do everything I have to, so if you run
                                          -7-
any gas out we really will be f-----.”                     Jamie Johnson alleged

that on the evening of 8 December 2011, defendant James and

defendant John arrived at her home with $2,000 cash and pills.

Jamie   Johnson     admitted    that        she    was   addicted    to   oxycodone.

Jamie   Johnson     also    admitted    that       she   threw   defendant    James’

shoes into the river the following day per his request.                         Jamie

Johnson also stated that defendant James kept a black Taurus

revolver in his night stand.

       Sergeant    John    Thomas    of      the    Buncombe     County    Sheriff’s

Department      testified     that     he     obtained     search    warrants      for

defendant James, defendant John, and Jamie Johnson’s cell phone

records.     The records evidence multiple calls between defendants

on 8 December 2011, including calls originating at 1:17 p.m.,

1:18 p.m., and 1:19 p.m., each utilizing cell towers near the

bank.     The surveillance video shows the robber entering the bank

at 1:22 p.m.       The next call between defendants occurred at 1:31

p.m.    There were subsequent calls exchanged at 1:36 p.m., 1:46

p.m., 1:52 p.m., and 1:53 p.m.

       Beau Dean, a network switch engineer for U.S. Cellular,

testified for the State regarding defendants’ cell phone usage

on the requisite dates.              His testimony corroborated Sergeant

Thomas’    in     that    defendants        exchanged     numerous    calls   on    8
                                             -8-
December 2011 while utilizing cell towers in close proximity to

the bank.

                                            II. Analysis

  A. Objection to Jamie Johnson’s testimony

    Defendant              James   argues    that    the   trial   court   erred   in

overruling       his       objection    to    the    hearsay   testimony   of   Jamie

Johnson.         Specifically,          defendant      James   argues   that     Jamie

Johnson’s testimony regarding alleged statements that Detective

Briggs    made    to        her    constitutes      inadmissible   hearsay     opinion

testimony    of        a    law    enforcement      officer    regarding   defendant

James’ guilt.          We disagree.

    “The North Carolina Rules of Evidence define ‘hearsay’ as a

statement, other than one made by the declarant while testifying

at the trial or hearing, offered in evidence to prove the truth

of the matter asserted.”                N.C. Gen. Stat. § 8C–1, Rule 801(c)

(2013).     “Out-of-court statements that are offered for purposes

other than to prove the truth of the matter asserted are not

considered hearsay.”                State v. Gainey, 355 N.C. 73, 87, 558

S.E.2d 463, 473 (2002).                The erroneous admission of hearsay is

not always so prejudicial as to require a new trial.                         State v.

Sills, 311 N.C. 370, 378, 317 S.E.2d 379, 384 (1984).
                                 -9-
    At trial, Jamie Johnson testified on direct examination for

the State as follows:

         Q. On December 9th of 2011, did Detective
         Briggs attempt to have an interview with
         you?

         A. I think that he came to my house.      I
         think that’s the day that he came to my
         house with my mother and his partner, and
         they told me that I should leave my house,
         that it probably wasn’t safe and to come
         down—I think that he wanted me to come down
         to the station or somewhere and have an
         interview with him at that point, yeah. And
         I told him that I would rather wait.

         Q.   You were nervous and upset, anxious at
         that time, right?

         A.   Yes.

         Q.   Didn’t really want to talk to Detective
         Briggs; isn’t that true?

         A.   No. He had come into my house with my
         mom. I had told my mom what was going on
         with the bank robbery. And he called her
         and, I think, went to her house, and they
         rode together over to my house.     And he
         basically told me that [defendant James]
         robbed a bank, that it was for sure; and
         that he had opened up my eyes to a very
         dangerous man.

         DEFENSE COUNSEL: Objection.

         THE COURT: Overruled.

    Defendant James argues it was error for the trial court to

overrule his objection to the admission of the above testimony,
                                               -10-
particularly        the       statement        made      by   Detective        Briggs        “that

[defendant        James]       robbed      a   bank,      that   it    was       for   sure[.]”

Relying on State v. Turnage, 190 N.C. App. 123, 129, 660 S.E.2d

129, 133 (2008), defendant notes that law enforcement witnesses

are   prohibited         from       expressing      an    opinion      as    to    defendant’s

guilt as that would impermissibly invade the province of the

jury.       Defendant         James     avers,      “[b]y     overruling         [defendant’s]

proper      objection         to    inadmissible         evidence,       the      trial      judge

erroneously allowed the jury to consider, without limitation,

the opinion of a Detective with twenty-two years of experience

investigating major crimes[.]”

      Defendant James is misguided.                      Here, it was Jamie Johnson,

not Detective Briggs, who was testifying, and Detective Briggs

did   not    advance          his    opinion     as      to   defendant        James’     guilt.

Nevertheless, on appeal defendant James cites cases, including,

inter alia, Turnage, supra, State v. White, 154 N.C. App. 598,

572 S.E.2d 825 (2002), and State v. Carrillo, 164 N.C. App. 204,

595   S.E.2d      219     (2004),         wherein     our     courts    have      held    it   is

impermissible           for    a    law    enforcement         officer      to    express       an

opinion      as    to    a     defendant’s       guilt.          These      cases      are     not

applicable to the situation at bar.
                                         -11-
    We note that Jamie Johnson’s testimony was not offered for

the truth of the matter asserted—that Detective Briggs believed

defendant James committed the robbery.                  Thus, Jamie Johnson’s

statement was admissible as it was merely offered to illustrate

how Detective Briggs purportedly influenced her into making a

statement in the case.           Assuming arguendo that Jamie Johnson’s

testimony constituted inadmissible hearsay testimony, defendant

James   has   likewise       neglected    to    argue   that     he   was    in   fact

prejudiced by the admission of this testimony.                        See State v.

Hickey, 317 N.C. 457, 473, 346 S.E.2d 646, 657 (1986) (“The

defendant     must     still     show     that     there     was      a    reasonable

possibility that a different result would have been reached at

trial if the error had not been committed.”).                    Defendant James’

argument is overruled.

  B. Mistrial

    Defendant        James    argues     that    “the   trial      court    erred   by

allowing the State to put prejudicial hearsay before the jury by

means of questions containing facts not in evidence.”                             More

specifically,    the    crux    of     defendant    James’      argument     is   best

summarized as follows: defendant contends that the trial court

erred in failing to declare a mistrial ex mero motu in response
                                              -12-
to   acts       of   prosecutorial       misconduct      during    his    trial.        We

disagree.

       A trial court’s decision not to intervene ex mero motu to

declare a mistrial on the basis of a prosecutor’s questions to a

witness “will not be disturbed on appeal unless the trial court

clearly has abused its discretion.”                    State v. Jaynes, 342 N.C.

249, 280, 464 S.E.2d 448, 467 (1995).                         Where a prosecutor’s

questions are improper, the trial court has the authority to

provide     a    curative        instruction     to   the   jury   or    to   declare    a

mistrial.        See, e.g., State v. Norwood, 344 N.C. 511, 537, 476

S.E.2d 349, 361 (1996).               This is true even where, as here, the

defendant never asked the trial court to declare a mistrial.

See Jaynes, 342 N.C. at 280, 464 S.E.2d at 467 (considering

whether there was error in the trial court’s failure to declare

a    mistrial        ex   mero    motu   on    the    basis   of   alleged     improper

questions by the prosecutor despite the fact that the defendant

made no motion for a mistrial).

       Here, both defendants joined in a motion in limine prior to

trial, each seeking to exclude “all testimony from Jamie Johnson

relating to a gun being thrown in a river or her hearing a

splash, [and] any mention of the gun in particular[.]”                              The
                                  -13-
trial court denied the motion in limine.        The State questioned

Jamie Johnson as follows:

         PROSECUTOR:   State  whether or not, Ms.
         Johnson, you and [Detective Briggs] were
         talking about a gun?

         DEFENSE COUNSEL: Objection.

         THE COURT: Sustained.

         DEFENSE COUNSEL: Move to strike.

         THE COURT: Allowed.     Don’t consider that,
         members of the jury, without any further
         foundation other than what you’ve got now.

         . . .

         PROSECUTOR: Did you tell [Detective Briggs]
         that you had heard the gun being thrown into
         the river?

         MR. SMITH     [Attorney    for   Defendant    John]:
         Objection.

         DEFENSE COUNSEL: Objection.

         THE COURT: I can’t hear you talking             when
         you’re walking with your back –

         PROSECUTOR: I’m sorry, Your Honor. The time
         that you were speaking to Detective Briggs,
         state whether or not you had told him you
         had heard a gun being thrown into the river.

         MR. SMITH: Objection.

         DEFENSE COUNSEL: Objection.

         THE COURT: Sustained.

         PROSECUTOR:    So   if   Detective   Briggs    would
                                      -14-
           have   documented  that  through   an  audio
           conversation with you and him and then also
           now a transcription, which would be more
           correct about you hearing a gun being thrown
           in the river, what you’re saying now or what
           you said then?

           MR. SMITH: Objection.

           DEFENSE COUNSEL: Objection.

           THE   COURT:   Sustained.  It   hasn’t                 been
           established what she said then.


      Defendant      James      contends     that   the     State’s       line    of

questioning “appears to have been a deliberate tactic to inform

the jury through questions what could not be proved through

admissible evidence” and “[q]uestions that place inadmissible

information before the jury are improper.”

      We disagree.         The prosecutor did not place inadmissible

information before the jury.               Again, we note that defendants’

motion in limine was denied.               Our Supreme Court has held that

“[q]uestions       asked   on    cross-examination        will    be     considered

proper unless the record shows they were asked in bad faith.”

State v. Lovin, 339 N.C. 695, 713, 454 S.E.2d 229, 239 (1995).

There is nothing in the record to indicate that the prosecutor’s

questions were asked in bad faith.             In addition, the trial court

sustained the objections, struck one question from the record,

and   issued   a    curative     instruction.       As    such,   there     was   no
                                      -15-
prejudicial evidence introduced in response to the prosecutor’s

questions.        The    trial   judge’s       action   in   sustaining      the

objections was sufficient to remedy any harm that resulted from

the asking of the questions.            See Jaynes, 342 N.C. at 280, 464

S.E.2d     at   467   (holding   that    the    trial   court’s    actions    in

sustaining the defendant’s objections were sufficient to remedy

any possible harm resulting from the mere asking of the three

questions by the prosecutor); cf. State v. McLean, 294 N.C. 623,

634-35, 242 S.E.2d 814, 821 (1978) (holding that the trial court

did not abuse its discretion in denying defendant’s motion for

mistrial where the trial court sustained defendant’s objections

to a question by the prosecutor containing improper information

and instructed the jury to disregard the question).                We overrule

defendant James’ argument.        We note that defendant John advances

the same argument on appeal.          For the foregoing reasons, we also

overrule defendant John’s argument.

C.   Exclusion of evidence of cell phone use

      Defendant James next argues that the trial court’s limiting

of   his   cross-examination     of   the    State’s    witness,   Beau   Dean,

constitutes reversible error.         We disagree.

      In North Carolina, a “trial court has broad discretion over

the scope of cross-examination.”             State v. Call, 349 N.C. 382,
                                         -16-
411, 508 S.E.2d 496, 514 (1998) (citation omitted).                       The trial

court’s ruling regarding the scope of cross-examination “will

not be held in error in the absence of a showing that the

verdict was improperly influenced by the limited scope of the

cross-examination.”            State v. Woods, 307 N.C. 213, 221, 297

S.E.2d 574, 579 (1982).

      During     Beau        Dean’s    cross-examination,        defendant        John

attempted to elicit testimony regarding the total number of cell

phone minutes he and defendant James used during the 28 October

to 27 November 2011 billing cycle.                Defense counsel asked Beau

Dean, “how many minutes were used in this billing cycle?”                         The

State objected, and the trial court sustained the objection.                       On

appeal,      defendant       James    contends   the    trial   court     erred    in

sustaining the State’s objection to this question because “the

outstanding feature of the State’s case was the extraordinary

frequency of cell phone communications between [defendant John

and defendant James] at and around the time of the robbery[,]”

and the excluded evidence was therefore relevant to show that

the   high    level     of    communication      by    each   defendant    was    not

peculiar to the day of the robbery.

  Here, both the cell phone records entered into evidence and

the testimony of Beau Dean established that defendant James and
                                          -17-
defendant       John    used   their      cell    phones     to    communicate       with

persons besides each other on 8 December 2011.                      In addition, two

bank employees, Anne Garrett and Judy Price, testified that it

was not uncommon for defendant John to be on the phone when he

entered       the    bank.     Finally,        defendants’    cell    phone     records

spanning from 5 December 2011 to 9 December 2011 were entered

into evidence.          Thus, there was evidence before the jury that

illustrated         defendants’    cell    phone     usage    habits.       Defendant

James has failed to establish that the trial judge’s limitation

on    Beau     Dean’s     cross-examination         improperly       influenced       the

verdict in his case.

     D. Admission of aggravating factor


     Defendant James argues he is entitled to a new sentencing

hearing because the trial court failed to address him personally

and comply with the procedures set forth under N.C. Gen. Stat. §

15A-1022.1(b) and N.C. Gen. Stat. § 15A-1022.1(a) (2013).                              We

agree that the trial court erred.                   However, we hold that the

error is harmless.

       Under North Carolina’s Blakeley Act, codified in N.C. Gen.

Stat. § 15A-1022.1 (2013), we recognize that a defendant may

admit    to    the     existence   of     an    aggravating       factor   or   to    the

existence of a prior record level point under N.C. Gen. Stat. §
                                 -18-
15A-1340.14(b)(7) before or after the trial of the underlying

felony. N.C. Gen. Stat. § 15A-1022.1(d).        In all cases in which

a defendant admits to the existence of an aggravating factor,

N.C. Gen. Stat. § 15A-1022.1 provides that the trial court shall

comply with the provisions of N.C. Gen. Stat. § 15A-1022(a).

    Under N.C. Gen. Stat. § 15A-1022(a),

           a superior court judge may not accept a plea
           of guilty or no contest from the defendant
           without first addressing him personally and:
           (1) Informing him that he has a right to
           remain silent and that any statement he
           makes   may   be  used   against   him;  (2)
           Determining that he understands the nature
           of the charge; (3) Informing him that he has
           a right to plead not guilty; . . .


N.C. Gen. Stat. § 15A-1022 (2013).         The trial court must also

address the defendant personally and advise the defendant that

he or she (1) is entitled to have a jury determine the existence

of any aggravating factors or points under N.C. Gen. Stat. §

15A-1340.14(b)(7); and (2) has the right to prove the existence

of any mitigating factors at a sentencing hearing before the

sentencing judge.    N.C. Gen. Stat. § 15A-1022.1(b) (2013).

    During defendant James’ sentencing hearing, defense counsel

admitted   the   following   statutory   aggravator   under   N.C.   Gen.

Stat. § 15A-1340.16(d)(12): that defendant James committed the

offense while on pretrial release.
                     -19-
THE STATE: regarding the defendant, James
Ryan Edmonds, in 11-CRS-64716, it’s been
alleged on the indictment returned March the
5th of 2012 for robbery with a dangerous
weapon that occurred on or about December
the 8th of 2011 that Mr. James Ryan Edmonds
committed allegedly the robbery with a
dangerous weapon offense while on pretrial
release on another charge.     Does he admit
the existence of the aggravating factor
listed on the indictment beyond a reasonable
doubt or does he deny the existence of the
aggravating   factor  that   he   committed--
allegedly committed this offense while on
pretrial release on another charge?

DEFENSE COUNSEL: Your Honor, . . . we would
admit that at the time of the offense
[defendant James] was on pretrial release
for   another    offense;  again,  maintain
innocence in terms of this charge, but we
would admit that at the time we were on
pretrial release.

. . .

THE COURT: All right. Does [defendant James]
waive any further notice of that aggravating
factor?

DEFENSE COUNSEL: He would.

THE COURT: Has he had sufficient notice that
it exists?

DEFENSE COUNSEL: He has.

THE COURT: And that the State intended to
proceed on it?

DEFENSE COUNSEL: He has.

THE COURT:   And   that   if   admitting   it,   it
could
                                     -20-
            enhance the punishment against him?

            DEFENSE COUNSEL: Yes, sir.

            THE COURT: And increase the punishment he
            could receive?

            DEFENSE COUNSEL: Yes, sir.

            THE COURT: Does he desire to have a jury determine it?

            DEFENSE COUNSEL: No, sir.

    The crux of defendant’s argument is that his stipulation or

admission of the aggravating factor was not made knowingly and

voluntarily given that the trial court failed to address him

personally and conduct the colloquy required by N.C. Gen. Stat.

§§ 15A-1022.1(b) and 15A-1022(a).

    We recognize that North Carolina’s Blakely Act requires the

trial court to address defendants personally, advise them that

they are entitled to a jury trial on any aggravating factors,

and ensure that their admission is the result of an informed

choice.     N.C. Gen. Stat. §§ 15A–1022.1(b), (c) (2013).             A review

of the transcript in the instant case shows that the trial court

neglected to follow this procedure.               We review such errors for

harmlessness. State v. Blackwell, 361 N.C. 41, 49, 638 S.E.2d

452, 458 (2006).         “In conducting harmless error review, we must

determine    from   the    record   whether       the   evidence   against   the

defendant    was    so    overwhelming      and    uncontroverted    that    any
                                          -21-
rational fact-finder would have found the disputed aggravating

factor beyond a reasonable doubt.”                 Id. (citation and quotations

omitted).

              The defendant may not avoid a conclusion
              that evidence of an aggravating factor is
              uncontroverted   by   merely   raising   an
              objection at trial.   See, e.g., Neder, 527
              U.S. at 19, 119 S.Ct. 1827.    Instead, the
              defendant must bring forth facts contesting
              the omitted element, and must have raised
              evidence sufficient to support a contrary
              finding.

Id. at 50, 638 S.E.2d at 458 (citations and quotations omitted).

      Here, the aggravating factor found by the trial judge, not

the jury, was that the crime was committed while defendant was

on   pre-trial      release.        Defense      counsel    specifically      admitted

“that    at   the    time    of    the   offense     [defendant     James]     was   on

pretrial release for another offense.”                     Defendant James neither

objected      at   trial    to    this   admission    nor     did   he   present     any

argument or evidence contesting the sole aggravating factor.                          On

appeal, defendant James similarly makes no argument that he was

not in fact on pretrial release on 8 December 2011.                           Thus, he

has raised no evidence to support a contrary finding of the

aggravating factor.              We hold that defendant James’ failure to

object   and       his   failure    to   present     any    argument     or   evidence

contesting the sole aggravating factor constitute uncontroverted
                                        -22-
and overwhelming evidence that defendant committed the present

crimes while on pretrial release for another offense.                         Should

this     case    be   remanded     to     the    trial     court   for    a     jury

determination of this aggravating factor, the State could offer

evidence in support of the aggravator “in the form of official

state documents and the testimony of state record-keepers.”                       Id.

at 51, 638 S.E.2d at 459.          Accordingly, the Blakely error which

occurred    at     defendant     James’    trial     was    harmless     beyond     a

reasonable doubt.

  E. Defendant John’s argument

  Defendant       John   argues,   and     the   State     concedes,     that     his

Judgment and Commitment form contain clerical errors and must be

remanded for correction.         We agree.

       The transcript of defendant John’s sentencing hearing shows

that the trial judge sentenced him as a Prior Record Level IV

offender and ordered him to pay $6,841.50 in attorney’s fees.

However,        defendant   John’s        Judgment    and     Commitment        form

incorrectly lists him as a Prior Record Level II offender and

states that defendant John owes $13,004.45 in attorney’s fees.

This sum is the amount of attorney’s fees owed by defendant

James.     Defendant concedes that his sentence of a minimum 97

months and a maximum of 129 months is correct.
                                              -23-
      Here, the trial court committed a clerical error.                                   See

State v. Taylor, 156 N.C. App. 172, 177, 576 S.E.2d 114, 117-18

(2003) (defining clerical error as “an error resulting from a

minor      mistake      or    inadvertence,          esp.    in   writing     or    copying

something on the record, and not from judicial reasoning or

determination”).             “When,     on        appeal,    a    clerical      error     is

discovered       in     the    trial    court’s          judgment    or    order,    it   is

appropriate to remand the case to the trial court for correction

because of the importance that the record speak the truth.”

State v. Smith, 188 N.C. App. 842, 845, 656 S.E.2d 695, 696-97

(2008)     (citations         and    quotations          omitted).        Accordingly,    we

remand for the correction of the clerical errors described above

in   the    Judgment         and    Commitment       form    (correcting      defendant’s

Prior Record Level from II to IV and correcting the amount of

attorney’s fees owed from $13,004.45 to $6,841.50).

                                      III. Conclusion

      In sum, the sole error the trial court made in defendant

James’ trial was harmless error.                    The trial court did not err in

defendant John’s trial.               However, defendant John’s Judgment and

Commitment       form    contains       a    clerical       error.        Accordingly,    we

remand     for   the     correction          of    the    clerical    errors    described

above.
                         -24-
No prejudicial error in part; no error in part; remanded

for correction of clerical error.

Judges CALABRIA and STEPHENS concur.
