STATE OF NORTH CAROLINA
v. Lenoir County
No. 01-CRS-52761
DONNELL HICKS
Attorney General Roy Cooper, by Assistant Attorney General
Jeffrey R. Edwards, for the State.
William H. Dowdy for defendant-appellant.
WYNN, Judge.
Defendant, Donnell Hicks, presents the following three issues
for our consideration: (I) Did the trial court commit plain error
in failing to dismiss the indictment because it charged a
nonexistent offense; (II) Did the trial court commit plain error in
submitting a verdict form to the jury that described an element
that is not a definitional part of the offense; and (III) Did the
trial court erroneously deny defendant's motion to dismiss based
upon insufficient evidence? We conclude no error was committed by
the trial court.
The pertinent facts tend to show to show that at approximately
6:55 p.m. on 29 June 2001, Officer James Gwartney of the Kinston
Police Department observed a blue-gray vehicle fail to stop for astop sign. Officer Gwartney activated his blue light and siren and
chased the blue-gray vehicle through three stop lights and
approximately eight stop signs. After pursuing the vehicle for
approximately 3.1 miles, the vehicle stopped and the driver ran
from the vehicle, leaving the motor running. The driver was seen
running into a residence at 132 S. Adkin Street in Kinston.
Officer Russell Flint responded to Officer Gwartney's call for
assistance. He encountered the blue-gray vehicle and identified
the vehicle's driver, who was wearing an Hawaiian-style shirt, as
the defendant. Approximately one hour earlier Officer Flint had
spoken with the defendant in connection with another incident in
front of 132 S. Adkin Street. The defendant was wearing a
Hawaiian-style shirt at the time. Officer Flint advised the other
officers involved in the chase that the vehicle was probably headed
to 132 S. Adkin Street, where the defendant resided.
The officers traced ownership of the vehicle to a “Mr. Dove.”
After speaking with the vehicle's registered owner, Officer
Gwartney issued a warrant for the defendant's arrest two days
later.
The defendant was convicted by a jury of felony eluding arrest
in violation of N.C. Gen. Stat. § 20-141.5 (2001) and was
sentenced to an active term of 10-12 months.
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The defendant contends the court committed plain error by not
dismissing the indictment because it charged an offense, speeding
to elude arrest, that is non-existent and is not supported by thespecific allegations of the indictment. The indictment reads in
pertinent part as follows:
Class H: Felony Speeding to Elude Arrest 20-141.5
THE JURORS FOR THE STATE UPON THEIR OATH
PRESENT that on or about the 29th day of June,
2001, in Lenoir County, Donnell Hicks
unlawfully and willfully did feloniously drive
and operate a vehicle . . . while fleeing and
attempting to elude arrest and apprehension by
a law enforcement officer, J.M. Gwartney, of
the Kinston Police Department, with authority
to enforce the motor vehicle laws and was in
the lawful performance of his duties in
stopping the defendant for vehicle violations.
At the time of the violation the defendant was
driving in a careless and heedless manner in
willful and wanton disregard of the rights and
safety of others as provided by N.C.G.S. 20-
140; and the defendant was driving while his
license was revoked.
When there is a conflict, the allegations of the body of an
indictment control over the caption of the indictment. See State
v. Allen, 112 N.C. App. 419, 428, 435 S.E.2d 802, 807-08 (1993).
“The caption of an indictment, whether on the front or the back
thereof, is not a part of it and the designation therein of the
offense sought to be charged can neither enlarge nor diminish the
offense charged in the body of the instrument.” State v. Bennett,
271 N.C. 423, 425, 156 S.E.2d 725, 726 (1967).
Although N.C. Gen. Stat. § 20-141.5 is entitled “Speeding to
elude arrest,” it is not necessary for the accused to be speeding
to be convicted of a violation of the statute. Section (a) of N.C.
Gen. Stat. § 20-141.5 makes it a misdemeanor for one to operate a
vehicle “while fleeing or attempting to elude a law enforcement
officer who is in the lawful performance of his duties.” N.C. Gen.Stat. § 20-141.5(a) (2001). The violation is a felony under
section (b) if any two or more aggravating factors listed in the
statute are present. These aggravating factors are: (1) speeding
in excess of 15 miles per hour over the legal speed limit, (2)
gross impairment by an impairing substance, (3) reckless driving;
(4) negligent driving leading to an accident causing personal
injury or property damage in excess of $1,000; (5) driving when the
person's license is revoked; (6) speeding in excess of the posted
speed limit in a school or work zone; (7) passing a stopped school
bus; and (8) driving with a child under the age of twelve as a
passenger. N.C. Gen. Stat. § 20-141.5(b).
“An indictment is constitutionally sufficient if it apprises
the defendant of the charge against him with enough certainty to
enable him to prepare his defense and to protect him from
subsequent prosecution for the same offense.” State v. Lowe, 295
N.C. 596, 603, 247 S.E.2d 878, 883 (1978). Here, the indictment
alleges all of the elements of the offense defined by N.C. Gen.
Stat. § 20-141.5(a) plus two of the aggravating factors listed in
N.C. Gen. Stat. § 20-141.5(b). It charges the felony offense and
apprises the defendant of the charge with sufficient certainty. We
hold the court did not err by not dismissing the indictment.
Incorporating the same argument made above, the defendant also
contends the court committed plain error by submitting to the jury
a verdict form offering the jury the possible verdicts of (1)
guilty of “Felony Speed to Elude Arrest”'; (2) misdemeanor “Speed
to Elude Arrest”; or (3) not guilty. The record shows that theprosecutor, acknowledging that speeding was not an element of the
charged offense and that the caption of the indictment was
misleading, moved to amend the verdict form to state the possible
verdicts as felony or misdemeanor “operating a vehicle to elude
arrest.” The defendant objected to making any changes in the
verdict form. Having contested the prosecutor's attempt to correct
the alleged error, the defendant may not now contend that the court
committed prejudicial error in submitting the verdict form. “A
defendant is not prejudiced by the granting of relief he has sought
or by error resulting from his own conduct.” N.C. Gen. Stat. §
15A-1443(c)(2001).
The defendant's remaining contention is that the court erred
by denying his motion to dismiss for insufficient evidence. He
argues (1) the evidence is insufficient to identify him as the
perpetrator; and (2) there is a variance between the indictment and
proof because the indictment charges speeding to elude arrest.
In considering a motion to dismiss, the court must determine
whether the State has presented substantial evidence to prove each
element of the offense and perpetration of the offense by the
accused. State v. Small, 328 N.C. 175, 180, 400 S.E.2d 413, 415
(1991). Substantial evidence is that which a reasonable mind may
consider adequate to support a conclusion. State v. Franklin, 327
N.C. 162, 171, 393 S.E.2d 781, 787 (1990). In making this
determination, the court must examine the evidence 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).
Here, Officer Flint saw the fleeing vehicle and identified the
driver as the defendant, with whom he had a personal encounter
approximately one hour earlier. On both occasions, defendant wore
a Hawaiian shirt. Having seen the defendant earlier in the day at
132 S. Adkin Street, Officer Flint accurately noted that defendant
would likely return to that address. After talking to the
registered owner of the vehicle, Officer Gwartney issued a warrant
for the defendant's arrest. Based upon the foregoing evidence, a
jury could reasonably find that the defendant perpetrated the
offense.
Having determined that the indictment does not charge speeding
to elude arrest, we need not address the second part of the
defendant's argument.
No error.
Judges TYSON and STEELMAN concur.
Report per Rule 30(e).
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