STATE OF NORTH CAROLINA
v. Onslow County
No. 02 CRS 58795
JAMES MONROE ACKERMAN
Attorney General Roy Cooper, by Assistant Attorney General
Jeffrey R. Edwards, for the State.
Angela Humes Brown for defendant-appellant.
MARTIN, Chief Judge.
On 10 December 2002, the Onslow County grand jury indicted
defendant on charges of felony speeding to elude arrest, driving
while license revoked, reckless driving to endanger, and failure to
heed a blue light and siren. During jury voir dire on 17 February
2003, it was discovered that defendant had spoken with a
prospective juror earlier in that day. When the trial court stated
its belief that defendant “would be someone who is familiar with
the court system and the presence of jurors[,]” defendant's counsel
conceded that defendant had been in the courthouse before, knew
about the jury process, and had “been through the jury process
before.” Upon his counsel's advice, defendant did not respond tothe trial court's inquiry as to why he had spoken to members of the
jury panel. The trial court stated “[i]f I can't hear his
explanation I don't have any other choice [to protect the jury
process] so his bond is revoked.”
After the jury had been selected and excused for the day,
defense counsel informed the trial court that defendant wished to
explain his contact with the prospective juror. Defense counsel
also asked the trial court to reconsider its decision to strike
defendant's bond. Upon hearing defendant's explanation, the trial
court ruled that defendant would be retained in custody while the
case was being tried. Defendant's trial subsequently began and
concluded on 18 February 2003.
At trial, Officer F. T. Hasbargen testified that he saw
defendant driving at approximately 10:00 a.m. on 21 August 2002.
He knew defendant, a former neighbor, had a revoked driver's
license. After making eye contact with the officer, defendant
moved out of the turn lane and continued down the road. The
officer, who had made a U-turn and was waiting for defendant to
turn into the mall parking lot, followed defendant and activated
his blue lights. Defendant looked back over his shoulder and made
direct eye contact with the officer after he had activated his blue
lights. Defendant then made a left turn into a drug store parking
lot from a right turn only lane. The officer activated his siren
and followed defendant around the drug store parking lot.
Defendant drove around the drug store twice at a speed of
approximately thirty to forty miles per hour with the officer inpursuit and ran two stop signs before parking at a department
store. The officer then placed him under arrest.
The State introduced evidence of defendant's driver's license
record maintained by the North Carolina Division of Motor Vehicles.
According to that document, defendant's license was permanently
revoked on 10 October 1993. His driver's license record also
listed subsequent additional convictions for driving while license
revoked, with the most recent conviction occurring in 2001. The
trial court denied defendant's motion to dismiss at the close of
the State's evidence. Defendant presented no evidence and renewed
his motion, which the trial court again denied.
The jury returned verdicts finding defendant guilty of all
charges. The trial court entered four judgments on 18 February
2003, but struck two of the judgments (driving without a license
and reckless driving) and modified the judgment for failure to stop
for a blue light or siren on 20 February 2003. The trial court
sentenced defendant to a term of six to eight months imprisonment
for the charge of felony speeding to elude arrest and to a
consecutive term of sixty days for the charge of failure to stop
for a blue light or siren. Defendant appeals.
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Defendant first contends the trial court erred by revoking his
pretrial bond and by refusing to reset it. He argues the trial
court failed to consider his mental and physical disabilities and
failed to set new conditions of pretrial release in accordance with
N.C. Gen. Stat. § 15A-534 (2003). Defendant asserts that the trialcourt abused its discretion and violated his constitutional rights.
His arguments are not persuasive.
“[I]n addition to modification of a bail bond, a trial judge
has discretionary power to order a defendant into custody during
the progress of a trial.” State v. Perry, 316 N.C. 87, 108, 340
S.E.2d 450, 463 (1986). Defendant's improper contact with at least
one potential juror in the courtroom coupled with his inadequate
explanation for that contact were legitimate reasons for the trial
court's exercise of its discretion to revoke his bond and order him
into custody overnight. “There is no prejudicial error so long as
that discretion is not exercised in a manner which would convey,
either expressly or implicitly, to the jury the slightest
intimation that the court had any opinion regarding defendant's
credibility as a witness or the strength of his case.” State v.
Collins, 19 N.C. App. 553, 555-56, 199 S.E.2d 491, 493 (1973),
cert. denied, 285 N.C. 664, 207 S.E.2d 758 (1974). The
circumstances surrounding the trial court's action here did not
convey any intimation as to an opinion by the trial court.
Finally, although defendant argues in his brief to this Court that
the trial court's action adversely affected his ability to contact
two witnesses, he presented no evidence and “the record contains no
indication as to witnesses defendant would have secured or evidence
he would have gathered.” State v. Jefferson, 68 N.C. App. 725,
728, 315 S.E.2d 744, 746-47, appeal dismissed, 311 N.C. 766, 321
S.E.2d 151 (1984). This assignment of error is overruled.
Defendant next contends the trial court erred by denying hismotion to dismiss the convictions for felony speeding to elude
arrest and for failure to stop for a blue light and siren. He
argues that the State's evidence, which suggested that he stopped
within five seconds of the siren being activated, was insufficient
evidence to support the charge of failure to stop for a blue light
or siren. Defendant further argues the State failed to prove he
had notice that his driver's license had been revoked on the date
in question. He asserts the evidence was insufficient to support
the two required aggravating factors for felony speeding to elude
arrest. We disagree.
Evidence is sufficient to withstand a motion to dismiss when
it gives “rise to a reasonable inference of defendant's guilt based
on the circumstances.” State v. Styles, 93 N.C. App. 596, 603, 379
S.E.2d 255, 260 (1989). Once sufficient evidence is adduced at
trial, it becomes a question for the jury. Id. “This test applies
when the evidence is circumstantial, direct, or both.” Id.
Pursuant to N.C. Gen. Stat. § 20-157(a) (2003), “[u]pon the
approach of any police . . . vehicle giving warning signal by
appropriate light and by audible . . . siren . . . , audible under
normal conditions from a distance not less than 1000 feet, the
driver of every other vehicle shall immediately drive the same to
a position as near as possible and parallel to the right-hand edge
or curb, . . . and shall stop and remain in such position . . . .”
The State's evidence shows that defendant looked back over his
shoulder and made direct eye contact with Officer Hasbargen after
the officer had activated his blue lights. The officer followeddefendant into the drug store parking lot and activated his siren
at that time. Defendant thereafter drove around the drug store
twice at a speed of approximately thirty to forty miles per hour,
then ran two stop signs before parking at a department store. This
evidence, when viewed in the light most favorable to the State, was
sufficient to support the submission of the charge to the jury.
The trial court properly denied defendant's motion to dismiss the
charge of failure to stop for a blue light and siren.
Defendant contends the State failed to produce sufficient
evidence to prove one of the two aggravating factors used to
convict him of felony speeding to elude arrest. He argues the
State's evidence of the aggravating factor that he was driving with
his license revoked was insufficient because the State failed to
prove he had notice that his driver's license was in a state of
revocation on the date in question. At trial, the State introduced
defendant's driver's license record into evidence, which clearly
shows defendant's license was permanently revoked on 10 October
1993. His driver's license record also listed subsequent
additional convictions for driving while license revoked, with the
most recent conviction occurring in 2001. This evidence, when
viewed in the light most favorable to the State, was sufficient to
support the trial court's submission of this aggravating factor for
felony speeding to elude arrest to the jury. These assignments of
error are overruled.
In his final argument, defendant contends the trial court
committed plain error by failing to arrest judgment for failure tostop for a blue light and siren after convicting and sentencing him
for felony speeding to elude arrest. He complains the felony
enhancement of the charge of speeding to elude arrest is a
violation of double jeopardy. Defendant claims the evidence which
proves the aggravating factor of reckless driving necessary for the
charge of felony speeding to elude arrest takes into account his
failure to stop for a blue light and siren. His argument is not
persuasive.
Our appellate courts have applied plain error review only to
jury instructions and evidentiary rulings. State v. Childress, 321
N.C. 226, 234, 362 S.E.2d 263, 268 (1987). Defendant never raised
this issue with the trial court and therefore may not now seek to
raise the issue of double jeopardy for the first time before this
Court. See State v. McKenzie, 292 N.C. 170, 175, 232 S.E.2d 424,
428 (1977). We note, furthermore, that the two offenses require
different elements and therefore would not constitute double
jeopardy. See N.C. Gen. Stat. § 20-157(a) (2003); see also N.C.
Gen. Stat. § 20-141.5 (2003). Defendant received a fair trial,
free from prejudicial error.
No error.
Judges McGEE and BRYANT concur.
Report per Rule 30(e).
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