An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-880


Filed: 3 May 2005


         v.                        Buncombe County
                                Nos.    03CRS055837-40,
ALPHONZO PEARCY, JR.                    03CRS013109

    Appeal by defendant from judgments entered 5 November 2003 by Judge J. Marlene Hyatt in Buncombe County Superior Court. Heard in the Court of Appeals 25 April 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Allison A. Pluchos, for the State.

    Allen W. Boyer for defendant-appellant.

    ELMORE, Judge.

    On 8 September 2003, the Buncombe County grand jury indicted defendant on charges of felony eluding arrest, driving while license revoked, reckless driving, failure to wear a seat belt, hit and run with property damage, speeding, and resisting a public officer. Defendant was also charged with being an habitual felon.
    Officer Scott Muse testified he was parked on the side of the road at around 10:00 or 11:00 p.m. on 13 May 2003. He saw a dark colored sedan which was being driven at a high rate of speed and was crossing the center line. After he began pursuit of the sedan, Officer Muse saw the sedan cross left of center several times as it was traveling at a high rate of speed. The sedan accelerated to atleast sixty miles-per-hour in a thirty-five miles-per-hour zone. Officer Muse measured the speed of his vehicle as he paced the sedan. While he maintained a speed of sixty miles-per-hour with his vehicle, the sedan was pulling away during the approximately one-mile pursuit.
    Officer Muse described the sedan as being driven in a reckless manner with the driver almost losing control on several occasions on some of the sharp curves. In one curve, the sedan slid completely sideways and almost spun out. He stated that had anyone been coming during the times the sedan crossed over the center line, it could have caused a major wreck.
    Officer Muse was a couple of car lengths away when the driver jumped out of the still-moving sedan as it neared the dead-end of Miller Lane. As the driver fled on foot, the sedan crashed into a fence. Officer Muse pursued the driver approximately 100 yards into heavy woods and thick underbrush before calling for assistance from a K-9 unit. Officer Michele Spinda arrived in a few minutes and began tracking with her dog. During her search, Officer Spinda heard someone yell, “Get your dog. Don't let him bite me. I give up. I give up.” Sergeant Bigalow, who was her backup officer during the search, cuffed the suspect. Officer Spinda returned to Officer Muse's location in a matter of minutes with the suspect in custody, and Officer Muse stated the suspect exactly matched his description of the driver who had fled from the sedan.
    Officer Spinda identified defendant in open court as the suspect who was taken into custody by Sergeant Bigalow. OfficerMuse also identified defendant in open court as the suspect who had been apprehended as a result of the canine search by Officer Spinda. Upon checking defendant's driving history, Officer Muse discovered that his driver's license had been revoked.
    The owner of the damaged fence, Howard Hazelrigg, testified that the sedan had “picked up the bottom of the fence, bent a couple of posts and the gate a bit.” He stated no one, including the driver of the sedan, had ever contacted him about the damage. Mr. Hazelrigg said he had purchased $78.00 in parts for repairing the fence, but he had not completely fixed the fence.
    At the close of the State's evidence, defendant moved to dismiss the charges. Following the trial court's denial of his motion, defendant introduced several photographs into evidence. Defendant renewed his motion to dismiss at the close of all the evidence, which the trial court again denied. The jury then found defendant to be guilty of driving while license revoked, reckless driving, hit and run with property damage, speeding, resisting arrest, and felonious operation of a motor vehicle to elude arrest. After the jury found defendant guilty of the substantive offenses, they heard additional evidence and found defendant to have attained the status of an habitual felon. After consolidating the convictions for speeding to elude arrest, resisting arrest, and hit and run with property damage for the purposes of judgment, the trial court sentenced defendant as an habitual felon to a term of 150 to 189 months imprisonment. The trial court arrested judgment on the convictions for driving while license revoked, speeding, andreckless driving to endanger. From the trial court's judgments, defendant appeals.
    Defendant contends the trial court erred by denying his motion to dismiss the charges of hit and run with property damage, speeding, reckless driving to endanger, driving while license revoked, and speeding to elude arrest. While he challenges the sufficiency of the evidence to support various elements of those offenses, defendant does not challenge his identification as the driver of the sedan. Upon review of the record, defendant's arguments are not persuasive.
    When ruling on a defendant's motion to dismiss, the trial court is to consider the evidence in the light most favorable to the State. State v. Davis, 325 N.C. 693, 696-97, 386 S.E.2d 187, 189 (1989). “The State is entitled to every reasonable inference which can be drawn from the evidence presented[,]” and the trial court is to resolve all contradictions and discrepancies in the State's favor. See id. “If there is substantial evidence _ whether direct, circumstantial, or both _ to support a finding that the offense charged has been committed and that defendant committed it, a case for the jury is made and nonsuit should be denied.” State v. McKinney, 288 N.C. 113, 117, 215 S.E.2d 578, 582 (1975).
    The offense of hit and run with property damage is defined by N.C. Gen. Stat. § 20-166(c) and (c1) (2003) as follows:
    The driver of any vehicle, when he knows or reasonably should know that the vehicle which he is operating is involved in an accident or collision, which accident or collision, results . . . [o]nly in damage to property[,] . . . shall immediately stop his vehicle at the scene of the accident or collision. . . . [T]he driver . . .shall give his name, address, driver's license number and the license plate number of his vehicle to . . . any person whose property is damaged in the accident or collision.
When viewed in the light most favorable to the State, the evidence shows that Officer Muse saw defendant jump from the still-moving sedan as it was approaching the dead-end portion of a road. Defendant then immediately fled into a heavily wooded area and did not return to the scene until he was apprehended by officers following a canine search of the area. The fence owner testified as to the damage to his fence, to the cost of parts which he used for repairs, and to the fact that no one had ever contacted him about causing the damage to his fence. The State having produced substantial evidence of each of the contested elements of this offense, the trial court properly denied defendant's motion to dismiss this charge.
    The offense of speeding is defined by N.C. Gen. Stat. § 20- 141(j1) (2003) as follows: “A person who drives a vehicle on a highway at a speed that is . . . more than 15 miles per hour more than the speed limit established by law for the highway where the offense occurred . . . is guilty of a Class 2 misdemeanor.” The State's evidence for this offense tended to show that the sedan driven by defendant was pulling away from Officer Muse's vehicle during the pursuit. Officer Muse testified that he maintained a speed of sixty miles-per-hour during that time and that the pursuit occurred in a thirty-five miles-per-hour speed limit zone. Given that Officer Muse was driving twenty-five miles-per-hour over the speed limit during the pursuit and that the sedan driven bydefendant was pulling away during that time, substantial evidence was produced that defendant committed the offense. The trial court properly denied defendant's motion.
    The offense of reckless driving to endanger is defined by N.C. Gen. Stat. § 20-140(b) (2003) as follows: “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.” In this instance, Officer Muse described the sedan as crossing left of center several times. He stated the driver almost lost control on several occasions on sharp curves. At one point the sedan slid completely sideways and almost spun out of a curve. Officer Muse opined that had anyone been approaching when the sedan crossed over into oncoming traffic, a major wreck would have occurred. This evidence, when viewed in the light most favorable to the State, amply supported the trial court's decision to deny defendant's motion and submit the offense to the jury.
    The offense of driving while license revoked is defined by N.C. Gen. Stat. § 20-28 (2003) as follows: “[A]ny person whose drivers license has been revoked who drives any motor vehicle upon the highways of the State while the license is revoked is guilty of a Class 1 misdemeanor.” There must also be actual or constructive knowledge of the suspension or revocation in order for there to be a conviction under this statute. See State v. Woody, 102 N.C. App. 576, 578, 402 S.E.2d 848, 850 (1991). No evidence was introducedto show when or if defendant had received notification that his driver's license had been revoked. The State as a result properly concedes in its brief that insufficient evidence was introduced to show defendant knew at the time of his arrest that his driver's license had been revoked. Defendant's conviction for driving while license revoked is therefore reversed, and the arrested judgment (03 CRS 55837) is vacated.
    The offense of speeding to elude arrest is defined by N.C. Gen. Stat. § 20-141.5(a) and (b) in part as follows:
    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. . . . 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 argues there was insufficient evidence of each of the three preceding aggravating factors in order to elevate the offense from a misdemeanor to a felony. His argument is without merit.
    Although the three aggravating factors were listed in the indictment and were included by the trial court in its instructions to the jury, the State was not required by the holding in State v. Moore, 315 N.C. 738, 749, 340 S.E.2d 401, 408 (1986), to prove all three factors in order to obtain a conviction for felonious speeding to elude arrest. See State v. Funchess, 141 N.C. App. 302, 310, 540 S.E.2d 435, 440 (2000). The statute only requires proof of two or more of the factors, and the jury here convicteddefendant of two of the offenses which were alleged in the indictment and which are listed as aggravating factors in N.C. Gen. Stat. § 20-141.5(b): speeding (N.C. Gen. Stat. § 20-141(j1)) and reckless driving (N.C. Gen. Stat. § 20-140(b)). Substantial evidence of those two aggravating factors was presented, and this assignment of error is overruled.
    No error in part; reversed in part as to defendant's conviction for driving while license revoked in case number 03 CRS 55837.
    Judges BRYANT and GEER concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***