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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA12-325 NORTH CAROLINA COURT OF APPEALS Filed: 4 December 2012 STATE OF NORTH CAROLINA v. TERRENCE TERMAINE OAKLEY Guilford County Nos. 10 CRS 84056 10 CRS 24667

Appeal by Defendant from judgment entered 11 October 2011 by Judge L. Todd Burke in Guilford County Superior Court. in the Court of Appeals 11 September 2012. Roy Cooper, Attorney General, by Joseph Ellis Special Deputy Attorney General, for the State. Daniel F. Read for the defendant. THIGPEN, Judge. Terrence Termaine Oakley ("Defendant") appeals from a Herrin, Heard

judgment entered convicting him of assault with a deadly weapon inflicting serious injury, possession of a firearm by a felon and of having attained the status of an habitual felon, arguing the following constitutes reversible error: (1) that the trial

court erroneously allowed an amendment to the habitual felon

-2indictment, the admission of allegedly irrelevant evidence

relating to a firearm, and the excusal of an alternate juror prior to the habitual felon proceeding; (2) that the trial court committed plain error by failing to act, sua sponte, when the State introduced allegedly irrelevant evidence relating to a

firearm and evidence that Defendant had previously pled guilty to second degree murder; and (3) that the trial court erred by entering a judgment convicting Defendant of assault with a

deadly weapon inflicting serious injury when the jury acquitted Defendant of this charge. We find error in the judgment, which

convicts Defendant of assault with a deadly weapon inflicting serious injury, despite his acquittal thereof. However, our

review reveals no prejudicial error at trial, and Defendant's remaining arguments are meritless. We thus vacate Defendant's

conviction of assault with a deadly weapon inflicting serious injury and remand the case to the Superior Court for entry of an amended judgment consistent with the jury's verdicts. The evidence of record tends to show the following: In the

evening hours of 25 July 2010, Defendant forced his way into an apartment on Tillman Street in Greensboro, North Carolina, where Jamie Walker ("the victim") and three other people were

visiting.

At the time of Defendant's forced entry, the victim

-3was asleep on a couch inside the apartment. Defendant

approached the victim and began hitting the victim on the head, face and shoulders with a handgun

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