Appeal by defendant from judgment entered 28 August 2003 by
Judge J. Richard Parker in Nash County Superior Court. Heard in
the Court of Appeals 19 October 2004.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Jason T. Campbell, for the State.
Stubbs, Cole, Breedlove, Prentis & Biggs, P.L.L.C., by C.
Scott Holmes, for defendant-appellant.
HUNTER, Judge.
Gregory Scott (“defendant”) appeals from a judgment dated 28
August 2003 entered consistent with a jury verdict finding him
guilty of felony operation of a motor vehicle to elude arrest,reckless driving, and driving while license revoked. As we find
error in the trial court's admission of defendant's prior
convictions, we reverse and remand for a new trial.
The evidence tends to show that defendant was driving a green
Honda Accord on Beale Street in the town of Rocky Mount after
midnight on 10 May 2001. Officer Ian Kendrick (“Officer Kendrick”)
and Officer C. D. Joyner (“Officer Joyner”) of the Rocky Mount
Police Department were patrolling on bicycles. After hearing a
vehicle with a revved engine and squealing tires, the officers
approached defendant, who was stopped at a stop sign. The officers
asked defendant to turn off his engine and remove the keys from the
ignition. Defendant refused and sped away from the scene, causing
Officer Kendrick to leap from his bicycle in order to avoid being
struck by the departing vehicle.
The officers were unable to catch the vehicle, but dispatched
a description of the automobile and tag number to other officers in
the area. State Highway Patrol Trooper William R. Bullock
(“Trooper Bullock”), received the dispatch and spotted the Accord
jumping over train tracks with all four tires airborne at an
estimated speed of fifty to fifty-five miles per hour. Trooper
Bullock pursued the vehicle and found it abandoned in the middle of
the road with the driver's side door opened.
Defendant was charged with assault with a deadly weapon of a
law enforcement officer, driving while license revoked, reckless
driving, and feloniously operating a motor vehicle to elude arrest.
Defendant did not testify at trial. Defendant was not convicted of
assault with a deadly weapon, but was convicted of the remainingthree charges. Defendant pled guilty to a habitual felon charge
after the jury returned a verdict of guilty as to the predicate
felony. Defendant's convictions were consolidated and he was
sentenced to a term of 100 to 126 months. Defendant appeals.
I.
[1] Defendant contends the trial court erroneously admitted
evidence of prior convictions against defendant. As we agree, we
reverse and remand for a new trial.
Defendant was charged with “unlawfully and willfully . . .
operat[ing] a motor vehicle on a street or highway while the
defendant's driver's license was revoked.” One element of the
crime of driving while license revoked is actual or constructive
notice of the revocation.
See State v. Atwood, 290 N.C. 266, 271,
225 S.E.2d 543, 545 (1976). At trial, the State submitted
defendant's driving record (“Exhibit 3A”) as evidence of
defendant's multiple convictions and suspensions, as well as
multiple letters of suspension for various traffic offenses
(“Exhibit 2A”) as evidence of notice for this charge, both of which
included statements of defendant's specific prior offenses.
Defendant objected to the admission of Exhibit 3A as it listed
prior convictions. The trial court permitted the driving record to
be admitted only after the State offered a redacted copy which
removed the specific offenses from Exhibit 3A. The specific
offenses were not removed from Exhibit 2A, however. Although
defendant did not raise a specific objection to Exhibit 2A
regarding the prior convictions, defendant's objection to the
admission of this evidence in Exhibit 3A, presented together withExhibit 2A, was sufficient to preserve this issue for appellate
review.
See N.C.R. App. P. 10(b)(1).
Under Rule 404(b) of the North Carolina Rules of Evidence,
evidence of other crimes, wrongs or acts is not admissible to show
action in conformity therewith. N.C. Gen. Stat. § 8C-1, Rule
404(b) (2003). Evidence of the bare facts of a conviction are
rarely, if ever, admissible against a non-testifying defendant.
See State v. Wilkerson, 148 N.C. App. 310, 319, 559 S.E.2d 5, 11
(Wynn, J., dissenting),
rev'd per curiam, 356 N.C. 418, 571 S.E.2d
583 (2002) (for reasons stated in dissenting opinion). Admission
of a letter of suspension is appropriate as evidence of notice in
a charge of driving while license revoked, as defendant concedes.
See Atwood, 290 N.C. at 271, 225 S.E.2d at 545 (holding that for
purposes of a conviction for driving while license is revoked,
mailing of the notice of suspension raises a
prima facie
presumption that defendant received the notice and thereby acquired
knowledge of the suspension or revocation). However, the trial
court's admission of multiple letters of suspension, with no
redaction of the specific offenses for which the license was
revoked, including multiple counts of driving while impaired, is a
violation of Rule 404(b), as no basis in this case has been shown
for admission of the bare facts of the specific offenses.
Wilkerson, 148 N.C. App. at 319-20, 559 S.E.2d at 11.
Further, such error in admission is not so harmless as to
prevent the conclusion that “had the error in question not been
committed, a different result would have been reached[.]” N.C.
Gen. Stat. § 15A-1443(a) (2003). Although, as the State notes, theprior convictions were not highlighted in the text of the letters
and were listed in the same font and size as the rest of the text,
the jury was properly charged by the trial court with the duty to
“weigh all of the evidence in the case[,]”
see State v. McClain,
282 N.C. 396, 400, 193 S.E.2d 113, 115 (1972), including the
letters of suspension plainly listing defendant's prior
convictions. Therefore, we find that admission of the letters with
inclusion of the specific offenses cannot be said to be harmless
error and we grant a new trial. Although this error is dispositive
of this appeal, we will discuss the additional assignments of error
likely to arise again at defendant's next trial that are properly
before this Court.
II.
[2] Defendant next contends that the predicate substantive
felony used in the habitual felon charge is not a felony, and
therefore the indictment is fatally defective. Defendant further
argues that one of the underlying felonies, possession of cocaine,
in the ancillary habitual felon indictment is also not a felony.
We disagree.
Under the Habitual Felons Act, N.C. Gen. Stat. § 14-7.3
(2003), two indictments are required, one for the predicate
substantive felony, and one for the ancillary habitual charge.
See
State v. Cheek, 339 N.C. 725, 727-28, 453 S.E.2d 862, 863 (1995).
Under the Article, a felony offense is defined “as an offense which
is a felony under the laws of the State or other sovereign wherein
a plea of guilty was entered or a conviction was returnedregardless of the sentence actually imposed.” N.C. Gen. Stat. §
14-7.1 (2003).
Here, defendant was charged with speeding to elude arrest,
N.C. Gen. Stat. § 20-141.5 (2003). Under this statute, such a
violation is a misdemeanor, unless the presence of two or more
aggravating factors are found. If such aggravating factors are
found, N.C. Gen. Stat. § 20-141.5(b) states that “violation of this
section shall be a Class H felony.” Defendant suggests that the
finding of aggravating factors merely changes the level of
punishment, and not the actual definitional classification of the
crime. However, as the Supreme Court of North Carolina recently
noted in
State v. Jones, 358 N.C. 473, 598 S.E.2d 125 (2004),
“'[w]hen the language of a statute is clear and unambiguous, there
is no room for judicial construction, and the courts must give it
its plain and definite meaning.'”
Jones, 358 N.C. at 477, 598
S.E.2d at 128 (citation omitted). The
Jones Court found that the
statutory language of N.C. Gen. Stat. § 90-95(d) (2003), stating
that possession of certain controlled substances was “'punishable
as a Class I felony,'” did not merely connote a sentencing
classification, but rather dictated “that a conviction for
possession of the substances listed therein . . . is elevated to a
felony classification for all purposes.”
Jones, 358 N.C. at 478,
598 S.E.2d at 128. Here, the statutory language of N.C. Gen. Stat.
§ 20-141.5(b) contains no ambiguity whatsoever, clearly stating
that the violation is a felony when two or more aggravating factors
are found. As the crime with which defendant was charged is “anoffense which is a felony under the laws of the State[,]” there is
no fatal defect in the indictment. N.C. Gen. Stat. § 14-7.1.
Further, defendant's contention that the underlying felony of
possession of cocaine is a misdemeanor for purposes of the habitual
felon statute is also without merit. As discussed above, the
Supreme Court's ruling in
Jones has clarified that cocaine
possession is a felony for all purposes.
Jones, 358 N.C. at 486,
598 S.E.2d at 133. Therefore, defendant's indictment as a habitual
felon was not fatally defective and the trial court had
jurisdiction to proceed as to the charges. Defendant's assignment
of error is overruled.
III.
[3] Defendant next contends the indictments for driving while
license revoked and speeding to elude arrest were defective, as
they failed to list all elements of the crime of driving with
license revoked. We disagree.
Defendant contends that the indictment failed to list the
element of notice of suspension in the charge of driving while
license revoked. While notice is not a required element under the
governing statute, N.C. Gen. Stat. § 20-28 (2003), the Supreme
Court has held proof of constructive or actual notice is necessary
in order to obtain a conviction of this offense.
Atwood, 290 N.C.
at 271, 225 S.E.2d at 545. This Court has held, however, that it
is not necessary to charge on knowledge of revocation when
unchallenged evidence shows that the State has complied with the
provisions for giving notice of revocation under N.C. Gen. Stat. §20-16(d), as is the case here.
See State v. Funchess, 141 N.C.
App. 302, 311, 540 S.E.2d 435, 440-41 (2000).
[4] As defendant was properly indicted with the offense of
driving while license revoked, we also find no error in the
indictment for speeding to elude arrest using the aggravating
factor of driving while licence revoked. As the Supreme Court
recently explained in
State v. Squires, 357 N.C. 529, 591 S.E.2d
837 (2003), “[t]he United States Supreme Court has consistently
declined to impose a requirement mandating states to prosecute only
upon indictments which include all elements of an offense.”
Id. at
537, 591 S.E.2d at 842 (citing
Apprendi v. New Jersey, 530 U.S.
466, 477, n.3, 147 L. Ed. 2d 435, 447, n.3 (2000)).
Squires noted
that our courts have consistently held that statutory short-form
murder indictments are constitutional as they “give a defendant
sufficient notice of the nature and cause of the charges against
him or her[,]” even when elements such as premeditation and
deliberation or felony-murder are excluded.
Squires, 357 N.C. at
537, 591 S.E.2d at 842. Similarly, as the indictment for speeding
to elude arrest properly included the statutory aggravating factor
of driving while licence revoked, sufficient notice was given to
defendant of the underlying aggravating factor.
Funchess, 141 N.C.
App. at 311, 540 S.E.2d at 440-41. Thus, we find no error in the
challenged indictments.
IV.
Defendant brings forward four additional assignments of error.
In view of our disposition of this appeal, we decline to address
these errors. As the trial court erred in admission of evidence of
defendant's past convictions, we order a new trial. Those
additional assignments of error discussed above are overruled.
New trial.
Judges WYNN and THORNBURG concur.
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