STATE OF NORTH CAROLINA
v. Buncombe County
Nos. 03CRS055837-40,
ALPHONZO PEARCY, JR. 03CRS013109
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 ***