STATE OF NORTH CAROLINA
v
.
Buncombe County
No. 03 CRS 6965-6967
03 CRS 53456-53458
ANTHONY CHRISTOPHER BECOATS 03 IFS 6079
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Jeffery R. Edwards, for the State.
Don Willey, for defendant-appellant.
STEELMAN, Judge.
On 24 March 2003, Officer Jonathan Brown observed a late model
silver Cadillac driving at a high rate of speed and running a stop
sign in Asheville, Buncombe County. Officer Brown commenced
pursuit of the vehicle and activated his blue lights. The vehicle
pulled into a bus station and Officer Brown followed, believing the
vehicle was stopping in response to his blue light. The vehicle
then made an aggressive turn and sped directly toward Officer
Brown. Officer Brown observed defendant (with whom Officer Brown
was familiar) driving the vehicle, and a female passenger.
Defendant sped off with Officer Brown in pursuit. The chase
continued at high speed, including periods where defendant wasdriving 70 mph in a 35 mph zone. Defendant ran several red lights.
While in pursuit, Officer Brown radioed communications to inform
them that he was involved in a chase and to give descriptions of
the vehicle and its occupants. Due to the high rate of speed, in
what had become a 20 mph zone, and the risks inherent to such a
pursuit in downtown Asheville, Officer Brown ceased pursuit of
defendant. Approximately twenty seconds after Officer Brown gave
up pursuit, Officer Sean Ward, having been alerted to the chase
over his radio, observed a silver Cadillac with two occupants
matching the description given by Officer Brown driving at a high
rate of speed. Officer Ward gave chase with lights and siren on
Patton Avenue and Leicester Highway. Officer Ward paced
defendant's speed at times at 120 mph in a 45 mph zone, and he
observed the vehicle crossing the center line. Leicester Highway
becomes a winding mountain road which terminates at its
intersection with Highway 209. Officer Ward lost sight of the
vehicle and terminated the chase pursuant to department policy.
Defendant fled from Buncombe County into Haywood County. Sergeant
Don Robinson of the Haywood County Sheriff's Department, also
alerted by the radio transmission, ordered his officers to spread
out in search of the vehicle. Defendant's vehicle was again
located and pursued, with different officers joining in and leaving
the chase. Defendant traveled in excess of 20 miles through two
counties while evading various law enforcement officers. Defendant
was finally arrested in Haywood County after officers disabled the
vehicle using stop sticks. Indictments were returned in Buncombe county charging
defendant with speeding 120 mph in a 45 mph zone, running a red
light, running a stop sign, resisting an officer, two counts of
reckless driving, and two counts of felony fleeing to elude arrest
on 2 June 2003. The trial court dismissed the resisting an officer
charge at the end of State's evidence. The jury convicted
defendant on the remaining charges. The trial court arrested
judgment on the two reckless driving charges because this was an
aggravating factor in elevating the two fleeing to elude arrest
charges to felonies. Judgments and commitments were entered on 17
September 2003, sentencing defendant to two consecutive active
sentences of 8 to 10 months. From these judgments defendant
appeals.
Defendant first argues that the trial court erred in
proceeding on two identically worded indictments for fleeing to
elude arrest and reckless driving on the same date because they
were fatally defective for failing to allege a noncontinuous period
of driving or otherwise allege a sufficient factual basis to
distinguish each offense. We disagree.
This argument encompasses defendant's assignments of error
numbers two, three and four in the record. These assignments of
error are: 1) the trial court erred in sentencing the defendant
because “the indictments were materially defective and failed to
state criminal offenses as defined by law[;]” 2) “[t]he trial
court lacked subject matter jurisdiction to accept the jury's
verdict because the indictments are facially defective[;]” and 3)the trial court erred in entering judgment on the verdict and
sentencing defendant because “the indictments were materially
insufficient to charge the offenses . . . .” Defendant further
argues that the trial court's actions as set forth in assignments
of error 1) and 3) violated his constitutional rights. Defendant
did not object to the indictments as being “materially” or
“facially” defective at trial, or that they “failed to “state
criminal offenses as defined by law.” Defendant merely argues in
his brief that the evidence did not support two charges because
they were both part of the same transaction.
Normally, having not objected at trial, and having not argued
plain error in his brief, these arguments would not be properly
before us. N.C. R. App. P. Rule 10(b)(1); State v. Nobles, 350 N.C.
483, 514-15, 515 S.E.2d 885, 904 (1999). “However, under Rule
10(a) of the Rules of Appellate Procedure, upon appeal, any party
may present for review . . . the questions of whether the court had
jurisdiction of the subject matter, and whether a criminal charge
is sufficient in law.” State v. Beaver, 291 N.C. 137, 139-40, 229
S.E.2d 179, 181 (1976). “This is true, notwithstanding the absence
of exceptions or assignments of error in the record on appeal.” Id.
at 140, 229 S.E.2d 179, 181.
In the instant case, defendant attempts to parlay his right to
argue the sufficiency of the indictments and subject matter
jurisdiction into an argument that his convictions based on the two
indictments violated the double jeopardy clause of the Fifth
Amendment to the United States Constitution. This he has no rightto do. Having failed to object to the indictments on double
jeopardy grounds at trial, and failing to argue plain error in his
brief, defendant may not now “swap horses between courts in order
to get a better mount” on appeal. Weil v. Herring, 207 N.C. 6, 10
(1934); State v. Woodard, 102 N.C. App. 687, 696, 404 S.E.2d 6, 11
(1991).
Thus, our review is limited to whether the two indictments
were sufficient to charge the alleged offenses and confer
jurisdiction upon the trial court. N.C. Gen. Stat. § 15A-924(a)(5)
requires: “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 or defendants of the conduct which is the subject of the
accusation.” The two indictments alleging that defendant twice
committed the crime of fleeing to elude arrest in the instant case
sufficiently allege each element of the crime, a point defendant
does not contest, and thus properly charged each crime and
conferred subject matter jurisdiction on the trial court.
Defendant's argument that there was only one criminal transaction
of fleeing to elude arrest, and thus the evidence at trial could
only support one conviction of this crime, represent “allegations
of an evidentiary nature” that were properly left out of the
indictments. There was a proper procedure for defendant to assert
a double jeopardy argument at trial and on appeal, but defendantchose not to follow that procedure. This argument is without
merit.
In defendant's second argument, which encompasses his
assignments of error numbers seven and nine, he contends that the
trial court erred in denying his motion to dismiss one count of
fleeing to elude arrest and one count of reckless driving because
there was only a single criminal act. We disagree.
First, nowhere in the record does defendant assign error to
the denial of his motion to dismiss one count of reckless driving.
Thus, this issue is not preserved for appeal. N.C. R. App. P. Rule
10; State v. White, 82 N.C. App. 358, 360, 346 S.E.2d 243, 245
(1986).
Our review is therefore limited to defendant's argument that
the trial court erred in denying his motion to dismiss one count of
fleeing to elude arrest.
Upon reviewing a motion to dismiss in a
criminal trial, “'the question for the Court
is whether there is substantial evidence (1)
of each essential element of the offense
charged, or of a lesser offense included
therein, and (2) of defendant's being the
perpetrator of such offense. If so, the motion
is properly denied.'” “Substantial evidence is
that amount of relevant evidence necessary to
persuade a rational juror to accept a
conclusion.” “'In reviewing challenges to the
sufficiency of evidence, we must view the
evidence in the light most favorable to the
State, giving the State the benefit of all
reasonable inferences. Contradictions and
discrepancies do not warrant dismissal of the
case but are for the jury to resolve.'”
“'When ruling on a motion to dismiss, the
trial court should be concerned only about
whether the evidence is sufficient for jury
consideration, not about the weight of the
evidence.'”
State v. Littlejohn, 158 N.C. App. 628, 634-35, 582 S.E.2d 301, 306
(2003).
N.C. Gen. Stat. § 20-141.5(a) states in relevant part: “It
shall be unlawful for any person to operate a motor vehicle on a
street, highway, or public vehicular area while fleeing or
attempting to elude a law enforcement officer who is in the lawful
performance of his duties.”
In the instant case evidence was presented that defendant fled
from Officer Brown after Officer Brown had activated his blue light
and siren, speeding through multiple red lights. Officer Brown
lost contact with defendant and gave up the chase, determining that
pursuit of defendant would involve risk to others. Defendant was
out of contact with any law enforcement officer for approximately
twenty seconds. Officer Ward, who had been alerted to the chase
over his radio, made contact with defendant, activated his blue
light and siren, and pulled in behind defendant. Defendant fled
from Officer Ward, reaching speeds of 120 mph, and defendant
successfully eluded arrest by Officer Ward.
Defendant committed the first offense of fleeing to elude
arrest when he failed to stop for Officer Brown. Once defendant
successfully eluded Officer Brown, that offense was complete. Once
Officer Ward made contact with defendant, defendant had the choice
of obeying the blue lights and siren and pulling over, or
attempting to flee a second time. Defendant chose to flee. This
constituted a second offense of fleeing to elude arrest. We hold
there was sufficient relevant evidence to persuade a rational jurorto accept that two distinct offenses of fleeing to elude arrest had
occurred.
Defendant argues this outcome allows for absurd results,
suggesting that if two patrol cars are simultaneously chasing a
suspect, the suspect could then be convicted of two counts of the
crime. We disagree. When a suspect flees pursuit, whether by one
officer or ten, he has committed the crime of fleeing to elude
arrest. If he successfully eludes pursuit, is subsequently pursued
by law enforcement, and again chooses to flee, he has committed a
second offense. The fact that there was a very short period of
time separating the end of the first pursuit and the commencement
of the second pursuit does not alter this conclusion. In this case
there were two distinct pursuits by different officers at different
times. This argument is without merit.
In defendant's third argument, encompassing his assignments of
error numbers twelve and thirteen, he contends the trial court
erred in instructing the jury on two counts of fleeing to elude
arrest and two counts of reckless driving. In light of our holding
on defendant's second argument, we hold that this argument is also
without merit.
In defendant's fourth argument, encompassing his assignment of
error number seven, he makes a “preservation claim” contending that
there was insufficient evidence at trial to establish defendant as
the driver of the vehicle involved in these crimes. We disagree.
A preservation claim is made when the defendant acknowledges
that the decisions of the appellate courts have already determinedthe issue against him, but he desires to preserve the claim in the
hope that the decisions of the appellate courts will be overturned
in his favor. See State v. Wiley, 355 N.C. 592, 639, 565 S.E.2d 22,
53 (2002). Reviewing the facts of the instant case, and the
relevant case law, we agree that defendant's position is against
the weight of our state's appellate decisions. See State v.
Steelman, 62 N.C. App. 311, 302 S.E.2d 637 (1983). This argument
is without merit.
Because defendant has not argued his other assignments of
error in his brief, they are deemed abandoned. N.C. R. App. P.
Rule 28(b)(6) (2003).
NO ERROR.
Chief Judge MARTIN and Judge McCULLOUGH concur.
Report per Rule 30(e).
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