State v. Jefferies, 243 N.C. App. 455 (Oct. 6, 2015)

The trial court erred by instructing the jury that it could find that the defendant attained habitual felon status based on a prior conviction for selling cocaine where the indictment did not allege that conviction. The indictment alleged three predicate felonies to establish habitual felon status. However, the trial court instructed the jury on four felonies, the three identified in the indictment as well as sale of cocaine, which was not alleged in the indictment. Because it was impossible for the court to determine whether the jurors relied on the fourth felony not alleged in the indictment, a new hearing on habitual felon was required.