An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA02-1270

NORTH CAROLINA COURT OF APPEALS

Filed: 3 June 2003

STATE OF NORTH CAROLINA

         v.                        Pitt County
                                No. 99 CRS 68077-79
BAKEER DESHAWN DAWKINS

    Appeal by defendant from judgments entered 31 May 2002 by Judge W. Russell Duke, Jr. in Pitt County Superior Court. Heard in the Court of Appeals 2 June 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Jeffrey R. Edwards, for the State.

    George E. Kelly, III for defendant-appellant.

    TYSON, Judge.

    Bakeer Deshawn Dawkins (“defendant”) was found guilty of felonious hit and run, reckless driving, driving while his license was revoked, failure to heed blue light and siren, and speeding to elude arrest. Defendant appeals from judgments imposing active consecutive sentences of 10-12 months, 120 days, and 120 days.

I. Background

    The State presented evidence tending to show that during the mid-afternoon of 2 December 1999 Officer David Bowen of the Greenville Police Department observed a white four-door Oldsmobile engage in an unsafe movement. As the Oldsmobile passed by Officer Bowen's cruiser, Officer Bowen looked at the driver and noted he was a dark-skinned male with dreadlocks. Officer Bowen turnedaround and followed the vehicle. Officer Bowen activated his blue lights and siren and notified Greenville Communications of his pursuit of the vehicle. The Oldsmobile accelerated to an estimated speed of 65 to 70 miles per hour on Line Avenue, where the posted speed limit was 35 miles per hour. The vehicle ran one red light, and as it approached a stop sign at the intersection of Line Avenue and Chestnut Street it made an abrupt turn into a gravel parking lot. Officer Bowen lost sight of the Oldsmobile for a few seconds and then saw it again proceeding down Chestnut Street. Officer Bowen also saw in the middle of Chestnut Street a stopped vehicle that had been involved in a collision. Officer Bowen terminated his pursuit of the Oldsmobile to assist the motorist involved in the collision. This motorist, Ms. Gwendolyn Smith, testified that a white vehicle came out of a gravel driveway, struck the front of her 1989 Toyota Tercel, and proceeded down the street. Ms. Smith testified that the vehicle was occupied by two black males, one having dreadlocks. She also testified that she received medical and chiropractic treatment for injuries she sustained in the collision.
    While Officer Bowen assisted Ms. Smith, an unoccupied white 1988 Oldsmobile was found parked approximately six to seven blocks away from the collision scene. The vehicle had damage to the front left quarter panel. The vehicle was registered to defendant. Officer Bowen obtained a mug shot of defendant and identified defendant as the driver of the white Oldsmobile he had pursued.
II. Issues
    Defendant contends that: (1) the court erred by denying his motion to suppress the identification testimony of Officer Bowen, (2) the court erred by making findings of fact in its order denying the motion to suppress that are not supported by evidence, (3) the court erred by denying his motion to dismiss the charges on the ground the evidence is insufficient to identify him as the driver, (4) the court committed plain error in submitting felony hit and run to the jury, and (5) the court committed plain error in instructing the jury regarding defendant's failure to testify when defendant had not requested the instruction.
III. Identification

    Defendant argues the identification procedure was so impermissibly suggestive as to give rise to a substantial likelihood of misidentification. We disagree.
    “Identification evidence must be excluded as violating a defendant's rights to due process where the facts reveal a pretrial identification procedure so impermissibly suggestive that there is a very substantial likelihood of irreparable misidentification.” State v. White, 307 N.C. 42, 45-6, 296 S.E.2d 267, 269 (1982). Determination of the issue of whether the evidence should be excluded involves a two-step process: (1) the court must first determine whether the pretrial identification procedures were unnecessarily suggestive; and if so, (2) the court then must determine whether these procedures were so impermissibly suggestive that they resulted in a substantial likelihood of irreparable misidentification. State v. Fisher, 321 N.C. 19, 23, 361 S.E.2d551, 553 (1987). Factors the court considers in determining whether there is a substantial likelihood of irreparable misidentification include: (1) the opportunity of the witness to view the perpetrator at the time of the crime, (2) the witness' degree of attention, (3) the accuracy of the witness' prior description of the perpetrator, (4) the level of certainty demonstrated by the witness, and (5) the length of time between the crime and the identification. Id. at 23, 361 S.E.2d at 553.
    We analyze the totality of circumstances and conclude there is no substantial likelihood of misidentification. Consistent with his practice when a person commits a violation in his presence, Officer Bowen “looked [the driver of the Oldsmobile] right in the face” and made eye contact with the driver of the Oldsmobile as the vehicle passed by him. Officer Bowen had an unobstructed view of the driver in broad daylight on a clear day. Officer Bowen noted that the driver of the vehicle had a distinctive broad, flat nose, in addition to dreadlocks. Nothing in the record indicates that the description given by Officer Bowen was not accurate. Officer Bowen was absolutely positive in his identification. Officer Bowen made the identification approximately one hour after the incident.     In summary, Officer Bowen had adequate opportunity to observe the perpetrator, paid a high degree of attention to the perpetrator, gave an accurate description, exhibited confidence in his identification, and made the identification while the event was still fresh in his mind. This assignment of error is overruled.
VI. Denial of Motion to Suppress
    Defendant next contends that the court erred by making findings of fact in its order denying the motion to suppress that are not supported by evidence. Defendant argues that the court erroneously found that Officer Bowen “witnessed” the collision, located the wrecked Oldsmobile, and traced ownership of the vehicle to defendant. Officer Bowen testified that he did not see the collision and that other officers located the wrecked Oldsmobile.
    A careful reading of the court's findings of fact shows the trial court found that “the car was found and found to be registered to the defendant,” not that Officer Bowen personally made these discoveries. Although the trial court did vary from the evidence in finding that Officer Bowen “witnessed” the collision, this variance is not material. Whether or not Officer Bowen actually saw the collision has no relevance to the issue of identification. This assignment of error is overruled.
V. Motion to Dismiss and Plain Error

    Defendant next contends the court erred by denying his motion to dismiss the charges on the ground the evidence is insufficient to identify him as the driver of the white Oldsmobile. In a related contention, he argues the court committed plain error in submitting felony hit and run to the jury. He submits there is no evidence to show the driver of the Oldsmobile knew, or should have known, an occupant of the Smith vehicle sustained physical injury.
    In ruling on a motion to dismiss, the court determines whether the State has presented substantial evidence of each element of the offense and of perpetration of the offense by the accused. Statev. Small, 328 N.C. 175, 180, 400 S.E.2d 413, 415 (1991). The evidence must be examined in the light most favorable to the State, giving it the benefit of every reasonable inference that may be drawn from the evidence. State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992). If the evidence is sufficient to allow the jury to draw a reasonable inference of the defendant's guilt of the crime charged, then the case should be submitted to the jury. State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 652 (1982).
    We conclude the evidence presented by the State is sufficient to support submission of the offenses to the jury. Officer Bowen's identification of defendant as the driver of the white Oldsmobile is alone sufficient to take the case to the jury on this issue. Officer Bowen also testified that the front left corner of Ms. Smith's vehicle was crushed, pieces of the vehicle were in the roadway, and fluid was leaking from the radiator. The kind of damage sustained by the vehicle gave him reason to believe the occupant of the vehicle was injured. Before even talking to Ms. Smith he called for an ambulance. He subsequently examined the white Oldsmobile and noted that the left front quarter panel of the white Oldsmobile was collapsed as if it had collided almost head-on with another vehicle. Ms. Smith testified that the white car came “out in front of [her vehicle]” and struck the left front part of her vehicle. She estimated the speed of the white vehicle as 35 to 40 miles per hour and her speed as 20 miles per hour just before impact. Based upon the foregoing evidence, a jury could reasonably infer that the driver of the Oldsmobile knew, or had reason toknow, that an occupant of the Smith vehicle sustained physical injury. See N.C. Gen. Stat. § 20-166 (a) (2001) (defining as a Class H felony the failure of a driver “who knows or reasonably should know” his vehicle was involved in a collision resulting in injury or death to any person, to stop and remain at the scene).
VI. Jury Instruction

Defendant's final contention is that the court committed plain error in instructing the jury regarding defendant's failure to testify when defendant had not requested the instruction. To constitute plain error, an instructional mistake must have had a probable impact upon the jury's finding of guilt. State v. Odom 307 N.C. 655, 661, 300 S.E.2d 375, 378-79 (1983). The challenged instruction directed the jury that defendant's failure to testify “creates no presumption against him; therefore, his silence is not to influence your decision in any way.” We fail to comprehend how this instruction could have caused the jury to find defendant guilty. This assignment of error is overruled.
VII. Conclusion

    We hold that defendant received a fair trial, free of errors he assigned and argued.
    No error.
    Judges WYNN and STEELMAN concur.
    Report per Rule 30(e).

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