An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1517


Filed: 1 July 2003


         v.                        Lenoir County
                                No. 01-CRS-52761

    Appeal by defendant from judgment entered 24 July 2002 by Judge Paul L. Jones in Superior Court, Lenoir County. Heard in the Court of Appeals 23 June 2003.

    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.
    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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