State v. Edmonds

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this account was opened, large amounts of cash were withdrawn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.