State v Morris, (04-676) 05/03/2005

Appeal by defendant from judgments entered 18 December 2003 by Judge Ola M. Lewis in Harnett County Superior Court. Heard in the Court of Appeals 25 April 2005.

Attorney General Roy Cooper, by Assistant Attorney General Katherine C. Galvin, for the State.

Brannon Strickland, PLLC, by Anthony M. Brannon, for defendant-appellant.

CALABRIA, Judge.

     Lamont Morris (“defendant”) appeals from a judgment finding him guilty of felony speeding to elude arrest, driving while impaired, and attaining the status of an habitual felon . We find no error.
     On 27 April 2001, Officer Kelly Fields (“Officer Fields”) of the Lillington Police Department noticed defendant at a gas station in Lillington, North Carolina. Officer Fields had issued citations to defendant on 18 and 24 April 2001 for driving with no operator's license and had warned defendant that the next time he saw defendant driving defendant would be placed in custody. Defendant responded that “next time [Officer Fields] wouldn't catch him.” Defendant drove out of the gas station onto a residential road in a thirty-five mile per hour zone. Officer Fields pulled behind defendant and activated his blue lights. Instead of stopping, defendant accelerated with Officer Fields in pursuit. Officer Fields drove seventy miles per hour and gradually gained on defendant.
    Defendant approached an intersection and made a right turn, failed to stop at a stop sign, and cut in front of two vehicles waiting at the intersection. As defendant made the turn, he drove left of center onto the shoulder of the road. Six to eight people were standing on the left shoulder of the road. Defendant missed the pedestrians, a hedge, a fire hydrant, and a telephone pole before swerving back onto the road. Defendant then turned onto another residential street again failing to stop at a stop sign. Finally, defendant pulled into a driveway, exited his vehicle as it collided with a van parked in the driveway, and ran. The collision caused approximately $500 in damage to the van's rear bumper and interior seats.
    Officer Fields ran after defendant and apprehended him after about a minute's chase. Officer Fields noticed a “very strong odor of alcohol” about defendant's person. Defendant refused to take a field sobriety test and was transported to the Law Enforcement Center. An intoxilyzer test indicated defendant had a .09 blood alcohol concentration.
    On 18 December 2003, defendant was convicted of felonious speeding to elude arrest, driving while impaired, and attaining thestatus of an habitual felon. Defendant was sentenced to one year for impaired driving, and a consecutive term of 107 to 138 months in the custody of the North Carolina Department of Correction for felonious speeding to elude arrest and attaining the status of an habitual felon. Defendant appeals.
     Defendant's sole argument on appeal is that there was insufficient evidence to support the conviction of felony speeding to elude arrest. Specifically, defendant contends the State failed to present sufficient evidence that he was driving recklessly or driving more than fifteen miles over the speed limit. We disagree.      To survive a motion to dismiss, the State must present “substantial evidence of each essential element of the offense charged and substantial evidence that the defendant is the perpetrator.” State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434 (1997). “'Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.'” Id., 345 N.C. at 717, 483 S.E.2d at 434 (quoting State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992)). When reviewing the sufficiency of the evidence, “[t]he trial court must consider such evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom.” State v. Patterson, 335 N.C. 437, 450, 439 S.E.2d 578, 585 (1994).
     Felony speeding to elude arrest is defined under N.C. Gen. Stat. § 20-141.5 (2003) as follows:
        (a) 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. Except as provided in subsection (b) of this section, violation of this section shall be a Class 1 misdemeanor.
        (b) If two or more of the following aggravating factors are present at the time the violation occurs, violation of this section shall be a Class H felony.
            (1) Speeding in excess of 15 miles per hour over the legal speed limit.
            . . .
            (3) Reckless driving as proscribed by G.S. 20-140.
            . . .
            (5) Driving when the person's drivers license is revoked.

Defendant stipulated to driving while license revoked, one of the eight aggravating factors. Therefore, the State was required to prove one additional aggravating factor to support the conviction of felony speeding to elude arrest.
    North Carolina General Statutes § 20-140 (2003) defines the offense of reckless driving as follows:
        (a) Any person who drives any vehicle upon a highway or any public vehicular area carelessly and heedlessly in willful or wanton disregard of the rights or safety of others shall be guilty of reckless driving.
        (b) Any person who drives any vehicle upon a highway or any public vehicular area without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property shall be guilty of reckless driving.

The State presented substantial evidence that defendant drove at speeds well above the thirty-five mile per hour speed limit, failed to stop at two stop signs, cut in front of two cars at an intersection, and swerved left of center onto the shoulder of the road while making a turn, placing several pedestrians at risk. Atthe conclusion of the chase, defendant turned into a driveway and jumped from his vehicle as it collided with a van parked in the driveway, causing approximately $500 in damage to the van. From this evidence, a jury could reasonably conclude that defendant recklessly drove a vehicle “in willful or wanton disregard of the rights or safety of others .” N.C. Gen. Stat. § 20-140(a). Accordingly, we hold the trial court did not err in denying defendant's motion to dismiss the charge of felony speeding to elude arrest.
    No error .
    Chief Judge MARTIN and Judge McCULLOUGH concur.
     Report per Rule 30(e).

*** Converted from WordPerfect ***