Appeal by defendant from judgment entered 18 May 1999 by Judge
Charles C. Lamm, Jr., in Mecklenburg County Superior Court. Heard
in the Court of Appeals 21 September 2000.
In the early morning hours of 21 March 1998, Corey McKinley
Funchess (defendant) was driving his 1982 Datsun on U.S. 74 in
Mecklenburg County, North Carolina. N.C. State Highway Patrol
Trooper T. J. Miles noticed that the Datsun did not have a license
plate, and began to follow it. Trooper Miles activated his bluelights, hazard lights, and flashing blue lights in an effort to get
the Datsun to stop. Defendant responded by accelerating rapidly.
When defendant's vehicle finally came to a stop, defendant
jumped out of the car and attempted to flee on foot, but Trooper
Miles was able to apprehend him after a brief chase. Shortly
thereafter, defendant attempted to flee a second time but Trooper
Miles again apprehended him. During the struggle to take defendant
into custody, Trooper Miles suffered minor injuries to his elbow
and knees. In addition, his uniform and shoes had to be replaced,
his radio had to be repaired, and his gun was damaged.
After Trooper Miles handcuffed defendant, the trooper
searched the Datsun and found marijuana. He also smelled the odor
of marijuana on defendant's person and formed the opinion that
defendant was physically and mentally impaired. Trooper Miles
advised defendant of his
Miranda rights and asked him to take a
blood test, but defendant refused to have his blood drawn for
testing. Defendant and Trooper Miles were then taken to Carolinas
Medical Center because they were both bleeding from their earlier
struggle.
Defendant was tried at the 17 May 1999 Session of Mecklenburg
County Superior Court on charges of felonious speeding to elude
arrest, driving while impaired, two counts of resisting arrest by
a public officer, and damage to personal property. Defendant
elected to represent himself on the charges, and the trial court
appointed an Assistant Public Defender as standby counsel. The
trial court dismissed the charge of damage to property, and the
jury convicted defendant on the remaining charges. The trial courtimposed an active sentence of 10 to 12 months' imprisonment and
defendant appealed.
Attorney General Michael F. Easley, by Special Deputy Attorney
General Isaac T. Avery, III, for the State.
Haakon Thorsen for defendant appellant.
HORTON, Judge.
Defendant argues that the trial court committed plain error in
its jury instructions. Specifically, defendant contends that the
instructions allowed the jury to convict him by less than a
unanimous verdict; permitted him to be convicted of felonious
speeding to elude arrest without requiring proof of all the
elements of that crime; and failed to define an essential element
of the crime, thereby allowing "speculation" as to what satisfied
that element. We disagree with each of defendant's arguments, and
affirm his conviction.
Defendant did not object to the jury instructions at trial,
nor did he submit proposed instructions to the trial court. Rule
10(b)(2) of our Rules of Appellate Procedure provides that
[a] party may not assign as error any portion
of the jury charge or omission therefrom
unless he objects thereto before the jury
retires to consider its verdict, stating
distinctly that to which he objects and the
grounds of his objection; provided, that
opportunity was given to the party to make the
objection out of the hearing of the jury, and,
on request of any party, out of the presence
of the jury.
N.C.R. App. P. 10(b)(2) (2000).
Thus, defendant has not preserved any of the assigned errors
unless he can obtain the benefit of the "plain error" doctrine.Under that doctrine, an appellate court may review errors which
affect substantial rights despite a defendant's failure to bring
the error to the attention of the trial court, provided defendant
can show that the error asserted is "so fundamental as to amount to
a miscarriage of justice or which probably resulted in the jury
reaching a different verdict than it otherwise would have reached."
State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987),
cert. denied by Bagley v. North Carolina, 485 U.S. 1036, 99 L. Ed.
2d 912 (1988). Therefore, for each of the three errors urged by
defendant, we must first determine whether the trial court's jury
instructions were erroneous. If error be found, we must then
determine whether it rises to the level of plain error.
I. Lack of a Unanimous Verdict
[1]This appeal requires us to construe for the first time the
amendment to N.C. Gen. Stat. § 20-141.5, which created the offense
of felonious speeding to elude arrest. As amended, N.C. Gen. Stat.
§ 20-141.5 (1999) provides that:
(a) It shall be unlawful for any person
to operate a motor vehicle on a street,
highway, or public vehicular area while
fleeing or attempting to elude a law
enforcement officer who is in the lawful
performance of his duties. Except as provided
in subsection (b) of this section, violation
of this section shall be a Class 1
misdemeanor.
(b) If two or more of the following
aggravating factors are present at the time
the violation occurs, violation of this
section shall be a Class H felony.
(1) &nbs
p; Speeding in excess of 15 miles per
hour over the legal speed limit.
&
nbsp; (2) Gross impairment of the person'sfaculties while driving due
to:
&
nbsp;a. Consumption of an impairing
substance; or
&
nbsp;b. A blood alcohol concentration
of 0.14 or more within a
relevant time after the
driving.
(3) &nbs
p; Reckless driving as proscribed by
G.S. 20-140.
(4) &nbs
p; Negligent driving leading to an
accident causing:
&
nbsp;a. Property damage in excess of
one thousand dollars ($1,000);
or
b. Personal injury.<
br>
(5) &nbs
p; Driving when the person's drivers
license is revoked.
(6) &nbs
p; Driving in excess of the posted
speed limit, during the days and
hours when the posted limit is in
effect, on school property or in an
area designated as a school zone
pursuant to G.S. 20-141.1, or in a
highway work zone as defined in G.S.
20-141(j2).
(7) &nbs
p; Passing a stopped school bus as
proscribed by G.S. 20-217.
(8) &nbs
p; Driving with a child under 12 years
of age in the vehicle.
Defendant's indictment for felonious speeding to elude arrest
alleged that "[a]t the time of the violation, the defendant was
speeding in excess of fifteen (15) miles per hour over the legal
speed limit, the defendant was driving recklessly in violation of
G.S. 20-140, and the defendant was driving while the defendant's
driver's license was revoked." Thus, the indictment alleges the
presence of statutory factors (1), (3), and (5), three of theaggravating factors set out in N.C. Gen. Stat. § 20-141.5(b).
The trial court charged the jury in this case that
the State must prove beyond a reasonable doubt
that two or more of the following factors are
present at [the time of speeding to elude
arrest]: one, speeding in excess of fifteen
miles per hour over the legal speed limit;
two, reckless driving, which consist[s] of
driving a motor vehicle without due caution
and circumspection, and in a manner so as to
endanger or is likely to endanger any person
or property; or, three, driving while driver's
license is revoked.
Thus, the trial court properly charged the jury, using the
language of the pattern jury instruction, that it had to find that
at least two of the three aggravating factors set out in the bill
of indictment were present in order to convict defendant of
felonious speeding to elude arrest. N.C.P.I., Crim. 270.54A
(1998). Defendant argues, however, that the trial court erred in
failing to instruct the jury that its members must unanimously
agree on the same two factors, and that the trial court's failure
to do so was plain error.
Article I, § 24 of the North Carolina Constitution states that
"[n]o person shall be convicted of any crime but by the unanimous
verdict of a jury in open court." N.C. Const. art. I, § 24. See
also N.C. Gen. Stat. § 15A-1237(b) (1997) (requiring unanimous jury
verdicts). Defendant's argument characterizes the eight aggravating
factors set out in N.C. Gen. Stat. § 20-141.5(b) as a list of
separately chargeable, discrete criminal activities. Defendant
further contends that the jury should have been required to agree
on which of those eight particular factors were present in his
case. The State, on the other hand, argues that the statutoryfactors are merely alternative ways of proving the crime of
felonious speeding to elude arrest. For the reasons set forth
below, we agree with the State's interpretation and overrule
defendant's assignment of error.
In
State v. Diaz, 317 N.C. 545, 346 S.E.2d 488 (1986), our
Supreme Court
reviewed the trial court's instructions to the jury
in a case in which defendant was charged with a violation of N.C.
Gen. Stat. § 90-95(h)(1). The Court in
Diaz found that
§ 90-95(h)(1) punishes anyone who "sells, manufactures, delivers,
transports, or possesses more than 50 pounds of marijuana . . . ."
Diaz, 317 N.C. at 547, 346 S.E.2d at 490; N.C. Gen. Stat. § 90-
95(h)(l) (Cum. Supp. 1983). In its instruction, the trial court
used the disjunctive "or" to instruct the jury to return a verdict
of guilty if it found beyond a reasonable doubt that defendant
"knowingly possessed
or knowingly transported" the requisite amount
of marijuana.
Diaz, 317 N.C. at 554, 346 S.E.2d at 494 (emphasis
added). The Supreme Court found that the trial court committed
reversible error in its ambiguous instruction, because not one but
two possible crimes were submitted to the jury in a single issue.
The erroneous instruction prevented the jury from reaching a
unanimous verdict, and defendant was granted a new trial.
Id. at
553-54, 346 S.E.2d at 494.
In
State v. Hartness, 326 N.C. 561, 391 S.E.2d 177 (1990), the
Supreme Court clarified its decision in
Diaz. Defendant Hartness
was convicted of three counts of taking indecent liberties with aminor. The trial court instructed the jury in that case that an
indecent liberty was "an immoral, improper, or indecent touching or
act by the defendant upon the child,
or an inducement by the
defendant of an immoral or indecent touching by the child."
Id. at
563, 391 S.E.2d at 178 (emphasis added). Defendant assigned error
to the instruction, contending that it led to his conviction by a
nonunanimous verdict.
Id. The Supreme Court distinguished
Diaz
and stated that
[t]he risk of a nonunanimous verdict does not
arise in cases such as the one at bar because
the statute proscribing indecent liberties
does not list, as elements of the offense,
discrete criminal activities in the
disjunctive in the same manner as does the
trafficking statute [in
Diaz]. . . . Even if
we assume that some jurors found that one type
of sexual conduct occurred and others found
that another transpired, the fact remains that
the jury as a whole would unanimously find
that there occurred sexual conduct within the
ambit of "any immoral, improper, or indecent
liberties." Such a finding would be
sufficient to establish the first element of
the crime charged.
Id. at 564-65, 391 S.E.2d at 179.
The decisions in
Diaz and
Hartness were followed by
State v.
Lyons, 330 N.C. 298, 412 S.E.2d 308 (1991). In
Lyons, the Supreme
Court explained the crucial difference between the underlying
rationales of
Diaz and
Hartness. Our Supreme Court stated that
[t]here is a critical difference between
the lines of cases represented by
Diaz and
Hartness. The former line establishes that a
disjunctive instruction, which allows the jury
to find a defendant guilty if he commits
either of two underlying acts,
either of which
is in itself a separate offense, is fatallyambiguous because it is impossible to
determine whether the jury unanimously found
that the defendant committed one particular
offense. The latter line establishes that if
the trial court merely instructs the jury
disjunctively as to various alternative acts
which will establish an element of the
offense, the requirement of unanimity is
satisfied.
Id. at 302-03, 412 S.E.2d at 312. The
Lyons decision was also
instructive on other key differences between
Diaz and
Hartness.
Lyons explained that in order to determine the "gravamen" of the
offense, a criminal statute must be examined to determine whether
it punishes a single wrong or multiple discrete wrongs.
See State
v. Petty, 132 N.C. App. 453, 461, 512 S.E.2d 428, 434,
appeal
dismissed, disc. review denied, 350 N.C. 598, ___ S.E.2d ___
(1999).
The parties have continually emphasized the differences in
Diaz and
Hartness to support their respective positions.
Succinctly stated, "'[t]he difference [between the
Diaz line and
the
Hartness line] is whether the two underlying acts are separate
offenses or whether they are merely alternative ways to establish
a single offense.'"
State v. Johnston, 123 N.C. App. 292, 297, 473
S.E.2d 25, 29,
disc. review denied, 344 N.C. 737, 478 S.E.2d 10
(1996) (quoting
State v. Almond, 112 N.C. App. 137, 144, 435 S.E.2d
91, 96 (1993)). Defendant relies heavily on
Diaz for the
proposition that N.C. Gen. Stat. § 20-141.5(b) punishes multiple
discrete wrongs. Conversely, the State relies on
Hartness to argue
that the same statute punishes a single wrong. Despite factual differences, we believe the case before us
falls within the parameters of
Hartness, so that we are bound by
the holding of that case. N.C. Gen. Stat. § 20-141.5 seeks to
punish a single wrong: attempting to flee in a motor vehicle from
a law enforcement officer in the lawful performance of his duties.
Violation of the statute is at least a Class 1 misdemeanor. Where
at least two of the eight aggravating factors set out in the
statute are present, however, the offense is a Class H felony.
Although many of the enumerated aggravating factors are in fact
separate crimes under various provisions of our General Statutes,
they are not separate offenses as in
Diaz, but are merely alternate
ways of enhancing the punishment for speeding to elude arrest from
a misdemeanor to a Class H felony. We therefore hold that the
trial court's instructions, which tracked the language of the
pattern jury instructions, were correct, and overrule this
assignment of error.
II. The Indictment and the State's Burden of Proof
[2]The indictment against defendant read in pertinent part:
At the time of the violation, the defendant
was speeding in excess of fifteen (15) miles
per hour over the legal speed limit, the
defendant was driving recklessly in violation
of G.S. 20-140,
and the defendant was driving
while the defendant's driver's license was
revoked.
(Emphasis added.) Defendant maintains that, since the three
aggravating factors were listed in the conjunctive in the
indictment, the State should have had to prove all three factors
were present in order to obtain a conviction for felonious speeding
to elude arrest under N.C. Gen. Stat. § 20-141.5(b). We disagree. We find guidance in our Supreme Court's deci
sion in
State v.
Moore, 315 N.C. 738, 340 S.E.2d 401 (1986). In
Moore, defendant
was charged with the first-degree kidnapping of his estranged wife
under N.C. Gen. Stat. § 14-39.
Moore, 315 N.C. at 739, 742, 340
S.E.2d at 402, 404. The indictment in
Moore included three of
eight statutory "purposes" that make kidnapping a first-degree
offense.
Id. at 743, 340 S.E.2d at 404-05. The Supreme Court
noted that "[t]he indictment in a kidnapping case must allege the
purpose or purposes upon which the State intends to rely, and the
State is restricted at trial to proving the purposes alleged in the
indictment."
Id. at 743, 340 S.E.2d at 404. The Supreme Court did
not, however, require the State to prove
every ground or purpose
set out in the indictment, instead stating that "[a]lthough the
indictment may allege more than one purpose for the kidnapping, the
State has to prove only one of the alleged purposes in order to
sustain a conviction of kidnapping."
Id. The jury in
Moore was
not required to indicate which of the three purposes it found to be
present, but the case was remanded for a new trial, because one of
the purposes was not supported by the evidence and should not have
been submitted to the jury at all.
Id. at 749, 340 S.E.2d at 408.
The indictment in the present case is similar in form to that
in
Moore, and includes three factors which would support a
conviction for
felonious speeding to elude arrest, a more serious
conviction than the Class 1
misdemeanor described in N.C. Gen.
Stat. § 20-141.5(a). Contrary to defendant's contention, we do notbelieve that the State is required by the holding in
Moore t
o prove
all three factors, even though they are stated conjunctively in the
indictment, because the statute only requires proof of
two or more
of the factors. We find no error in the trial court's treatment of
this issue, and we overrule this assignment of error.
III. Defining a Statutory Factor Which Is Itself a Crime
[3]Finally, defendant argues that, since "driving while
driver's license is revoked" was one of the three named aggravating
factors that led to his conviction under N.C. Gen. Stat. § 20-
141.5(b)(5), the trial court should have charged the jury on the
elements of the offense of driving with a revoked license,
particularly the element of knowledge.
We disagree.
To convict a person of the crime of driving with a revoked
license, the State must prove beyond a reasonable doubt that
defendant was on notice that his driver's license was revoked.
See
N.C. Gen. Stat. § 20-28 (1999);
State v. Chester, 30 N.C. App. 224,
226 S.E.2d 524 (1976);
State v. Woody, 102 N.C. App. 576, 402
S.E.2d 848 (1991). Defendant contends that the trial court's
failure in the case before us to charge on the elements of driving
with a revoked license was plain error in violation of the
requirement that "[t]he trial court must charge the essential
elements of the offense."
State v. Gooch, 307 N.C. 253, 256, 297
S.E.2d 599, 601 (1982).
On direct examination, Trooper Miles was asked to compare the
information on defendant's driving record to that on a letter from
the Division of Motor Vehicles notifying defendant that his drivingprivilege was revoked. The trooper testified that the information
matched and revealed that defendant received notice of revocation
of his driving privilege at his home address on 2 February 1998.
During the trial, although defendant challenged many portions of
the State's case, he did not contest in any way his awareness that
his driver's license was revoked, nor did he object to the
officer's testimony in that regard. The State's evidence tended to
show that it complied with the provisions for giving notice of
revocation or suspension of a driver's license found in N.C. Gen.
Stat. § 20-48. "[W]here there is
no evidence that defendant did
not receive the notice mailed by the Department [of Motor
Vehicles], it is not necessary for the trial court to charge on
guilty knowledge[.]"
Chester, 30 N.C. App. at 227, 226 S.E.2d at
527.
Thus, it appears that the failure of the trial court to charge
on knowledge of revocation was not erroneous, and we need not reach
the question of whether the trial court is required to charge the
jury on the elements of the separate crimes which serve to enhance
the status of speeding to elude arrest to that of a felony.
No error.
Judges WALKER and McGEE concur.
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