Appeal by defendant from judgment dated 23 February 2000 by
Judge Catherine C. Eagles in Randolph County Superior Court. Heard
in the Court of Appeals 17 April 2001.
Attorney General Michael F. Easley, by Special Deputy Attorney
General Isaac T. Avery, III, for the State.
Richard G. Roose for defendant-appellant.
GREENE, Judge.
Sy Lobohe (Defendant) appeals a judgment dated 23 February
2000 entered after a jury rendered a verdict finding him guilty of
driving while impaired and after he pled guilty to habitual
impaired driving.
On 6 December 1999, Defendant was indicted for one count of
impaired driving pursuant to N.C. Gen. Stat. § 20-138.1 (Count I)and one count of habitual impaired driving pursuant to N.C. Gen.
Stat. § 20-138.5 (Count II). Count I of the indictment states:
The jurors for the State upon their oath
present that on or about the date of offense
shown and in the county named above the
defendant named above unlawfully, willfully
and feloniously did drive a vehicle on High
Point Street in Randleman, North Carolina, a
highway, while subject to an impairing
substance.
Count II of the indictment states:
And the jurors for the State upon their oath
present that on or about the date of offense
shown and in the county named above the
defendant named above within seven years of
the date of this offense, has been convicted
of three or more offenses involving impaired
driving. The defendant has been previously
convicted on (1) April 13, 1995, of impaired
driving in Davidson County District Court; (2)
January 21, 1998 (offense date 7-12-97), of
impaired driving in Guilford County Superior
Court; and (3) January 21, 1998
(See footnote 1)
(offense date
7-1-95), of impaired driving in Guilford
County Superior Court.
Defendant's case was tried in the Superior Court of Randolph
County. Prior to trial, Defendant made a motion to dismiss Count
I of the indictment on the ground the superior court did not have
jurisdiction over the misdemeanor charged in Count I. Defendant
also made a motion to dismiss Count II of the indictment on the
ground Count II did not charge all of the elements of a criminal
offense as required by N.C. Gen. Stat. § 15A-924(a)(5). The trial
court denied Defendant's motions. Defendant then stipulated to the
prior convictions contained in Count II of the indictment “without
waiving [his] objections to the form of [the] indictment.” The State presented evidence at trial that on 21 Aug
ust 1999,
Don Taylor (Taylor), a patrolman with the Randleman Police
Department, was patrolling on High Point Street when he saw an
overturned vehicle blocking both lanes of traffic. The vehicle
“was sitting on its hood, completely upside down with all four
wheels facing upward” and there was one person in the vehicle, who
was later identified as Defendant. After notifying a 911 operator
of the accident, Taylor approached the vehicle to determine whether
Defendant was injured and he “notice[d] an odor of alcohol about
[Defendant's] person.” When medical assistance arrived at the
scene of the accident, Defendant was transported by ambulance to
the hospital. Taylor also went to the hospital, where he read
Defendant his rights regarding the taking of blood “to Determine
Alcohol Concentration or Presence of an Impairing Substance.”
Defendant consented to undergo a blood test to determine the
alcohol concentration of his blood, and a sample of his blood was
taken. The sample was sent for analysis to the North Carolina
State Bureau of Investigation, where it was determined that
Defendant's “blood alcohol concentration was 0.177 grams of ethanol
per 100 millimeters of blood.”
Defendant did not present any evidence at trial. At the close
of the evidence, Defendant renewed his motion to dismiss both
counts of the indictment and the trial court denied this motion.
Subsequent to its deliberations, the jury returned a verdict
finding Defendant guilty of driving while impaired. The trial
court then entered judgment against Defendant for habitual impaired
driving. The judgment states Defendant pled guilty to this charge.
___________________________
[1]The dispositive issue is whether an indictment which
alleges in one count the elements of impaired driving under N.C.
Gen. Stat. § 20-138.1 and alleges in a second count previous
convictions which would elevate the impaired driving offense to
habitual impaired driving under N.C. Gen. Stat. § 20-138.5 is a
valid indictment under N.C. Gen. Stat. §§ 15A-924 and 15A-928.
Defendant argues the indictment in this case “is fatally
defective because neither count alleges all of the elements of the
felony of Habitual Impaired Driving” as required by N.C. Gen. Stat.
§ 15A-924. We disagree.
“A person commits the offense of impaired driving if he drives
any vehicle upon any highway, any street, or any public vehicular
area within this State: . . . (2) After having consumed sufficient
alcohol that he has, at any relevant time after the driving, an
alcohol concentration of 0.08 or more.” N.C.G.S. § 20-138.1
(1999). “A person commits the offense of habitual impaired driving
if he drives while impaired as defined in G.S. 20-138.1 and has
been convicted of three or more offenses involving impaired driving
as defined in G.S. 20-4.01(24a) within seven years of the date of
this offense.” N.C.G.S. § 20-138.5 (1999).
N.C. Gen. Stat. § 15A-924, which sets forth the requirements
for a valid criminal indictment, provides that a criminal
indictment must contain
[a] plain and concise factual statement in
each count which, without allegations of an
evidentiary nature, asserts facts supporting
every element of a criminal offense and the
defendant's commission thereof with sufficient
precision clearly to apprise the defendant ordefendants of the conduct which is the subject
of the accusation.
N.C.G.S. § 15A-924(a)(5) (1999). Additionally, section 15A-924
provides that “[i]n trials in superior court, allegations of
previous convictions are subject to the provisions of G.S. 15A-
928.” N.C.G.S. § 15A-924(c) (1999). Section 15A-928, which sets
forth the proper format for an indictment that contains allegations
of a previous conviction, states:
(a) When the fact that the defendant has
been previously convicted of an offense raises
an offense of lower grade to one of higher
grade and thereby becomes an element of the
latter, an indictment or information for the
higher offense may not allege the previous
conviction. . . .
(b) An indictment or information for the
offense must be accompanied by a special
indictment or information, filed with the
principal pleading, charging that the
defendant was previously convicted of a
specified offense. At the prosecutor's
option, the special indictment or information
may be incorporated in the principal
indictment as a separate count. . . .
N.C.G.S. § 15A-928(a), (b) (1999).
In this case, Count I of the indictment contains all of the
elements of driving while impaired and, in compliance with section
15A-928(a), Count I does not allege Defendant's three previous
impaired driving convictions. Count II of the indictment, which is
contained as a separate count in the principal indictment as
permitted by section 15A-928(b), contains an allegation that
Defendant was convicted of impaired driving on three previous
occasions and contains the dates of those alleged convictions.
Count II, therefore, complies with the requirement of section 15A-
928(b) that the principal indictment “be accompanied by a specialindictment or information, filed with the principal pleading,
charging that the defendant was previously convicted of a specified
offense.” Thus, the indictment follows precisely the required
format set forth in section 15A-928. Further, as section 15A-
924(c) specifically states that “allegations of previous
convictions are subject to the provisions of [section] 15A-928,” we
reject Defendant's argument that an indictment which complies with
section 15A-928 is in violation of section 15A-924 because it does
not contain in one count the elements of impaired driving as well
as the elements which elevate the offense of impaired driving to
that of habitual impaired driving.
See State v. Sullivan, 111 N.C.
App. 441, 443-44, 432 S.E.2d 376, 378 (1993) (trial court properly
granted the defendant's motion to strike from the principal
indictment the allegations of the defendant's prior convictions,
pursuant to section 15A-928, when the prior convictions were
alleged for the purpose of elevating the offense contained in the
principal indictment to a higher grade offense). Accordingly, the
trial court properly denied Defendant's motion to dismiss the
indictment on the ground it does not comply with section 15A-
924(a)(5).
[2]Additionally, Defendant argues the superior court did not
have jurisdiction over the misdemeanor alleged in Count I of the
indictment.
See N.C.G.S. § 7A-272 (1999) (jurisdiction of district
court over criminal actions below the grade of felony). This Court
has previously held “the offense of habitual impaired driving as
defined by G.S. § 20-138.5 constitutes a separate substantive
felony offense which is properly within the original exclusivejurisdiction of the superior court.”
State v. Priddy, 115 N.C.
App. 547, 548, 445 S.E.2d 610, 612,
disc. review denied, 337 N.C.
805, 449 S.E.2d 751 (1994). Because the indictment alleges the
substantive felony of habitual impaired driving, an element of
which is the misdemeanor offense of impaired driving, the trial
court properly denied Defendant's motion to dismiss Count I of the
indictment based on lack of jurisdiction.
See State v. Baldwin,
117 N.C. App. 713, 716, 453 S.E.2d 193, 194 (rejecting the
defendant's argument that the superior court did not have
jurisdiction to try a misdemeanor driving while impaired charge
when, because of previous impaired driving convictions, the
misdemeanor charge was enhanced to habitual impaired driving),
cert. denied, 341 N.C. 653, 462 S.E.2d 518 (1995). Accordingly,
the trial court's 23 February 2000 judgment is affirmed.
Affirmed.
Judges MCGEE and CAMPBELL concur.
Footnote: 1