An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1227

NORTH CAROLINA COURT OF APPEALS

Filed: 5 July 2005

STATE OF NORTH CAROLINA

v .                         Davidson County
                            Nos. 03 CRS 10727, 59079
ANTONIA DEMETRIUS GILBERT

    Appeal by defendant from judgment entered 26 April 2004 by Judge Kimberly S. Taylor in Superior Court, Davidson County. Heard in the Court of Appeals 18 May 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General Thomas J. Pitman, for the State.
    
    Kathryn L. VandenBerg for defendant-appellant.

    McGEE, Judge.
                    
    Antonia Demetrius Gilbert (defendant) was convicted on 26 April 2004 of felonious speeding to elude arrest, in violation of N.C. Gen. Stat. § 20-141.5, and of attaining habitual felon status. He was sentenced to a minimum term of 80 months and a maximum term of 105 months in prison. Defendant appeals.
     The State's evidence at trial tended to show that on 7 September 2003, Officer Tony Lewis (Officer Lewis) of the Thomasville Police Department and a reserve officer with whom he was working, were driving in a marked patrol vehicle on Culbreth Avenue in Thomasville. As they drove down Culbreth Avenue, a womanstanding in her front yard screamed for them to stop. Officer Lewis stopped the patrol vehicle and had a conversation with the woman. Defendant was standing near Officer Lewis and the woman throughout their conversation. Officer Lewis asked defendant to "hold up" so that he could speak with him. Defendant replied, "I'm not talking with you," and got into his car. Officer Lewis again asked defendant to "hold up." Defendant replied "No" and drove away down the wrong lane of Culbreth Avenue at a high rate of speed. Officer Lewis then got into his patrol vehicle to pursue defendant for careless and reckless driving. As soon as Officer Lewis began pursuit of defendant, he turned on his blue lights and siren.
    Defendant drove down the wrong lane on Culbreth Avenue for approximately 150 feet. He moved into the correct lane and turned right onto Cable Street, a residential street, without signaling. Defendant's speed continued to increase, and his tires squealed. Defendant's car fishtailed as he went around a ninety-degree turn halfway down Cable Street. Officer Lewis believed that defendant was speeding approximately fifty miles per hour down Cable Street, which had a posted thirty-five mile per hour speed limit and was populated with people at the time. Defendant failed to stop for the stop sign at the intersection of Cable Street and Memorial Park, and continued to squeal his tires. Officer Lewis estimated that defendant's speed reached seventy miles per hour on Memorial Park.
    Defendant made a right turn on Unity Drive, and Officer Lewisagain observed defendant squealing his tires. Officer Lewis estimated that defendant was driving seventy miles per hour down Unity Drive. An event was being held at Finch Auditorium on Unity Drive that evening, which increased the traffic and the number of pedestrians on the sidewalk. Officer Lewis pursued defendant down Unity Drive and onto Bulldog Drive, which led to Thomasville High School. Defendant voluntarily stopped in the parking lot of Thomasville High School.
    Throughout the pursuit, Officer Lewis never lost sight of defendant. Officer Lewis testified that he was certified to operate radar equipment, and that his radar equipment was properly calibrated for accuracy at the time of the pursuit. During the pursuit, Officer Lewis's radar equipment showed that defendant was traveling seventy miles per hour on several thirty-five mile per hour streets, including residential areas and school zones.
    Defendant was convicted by a jury of felony speeding to elude arrest on 26 April 2004. Defendant was then tried for habitual felon status, and the State submitted to the jury certified copies of three of defendant's prior felony convictions. The jury found defendant had attained the status of an habitual felon.
    We note at the outset that defendant has presented an argument in support of only six of his assignments of error. Defendant has thus abandoned his other assignments of error. See N.C.R. App. P. 28(b)(6).    

I.

    Defendant first argues that the trial court erred in denyinghis motion to dismiss the charge of felony speeding to elude arrest. Defendant argues the evidence was insufficient to show that defendant knew he was being pursued by Officer Lewis and that he continued to drive once he knew he was being pursued by the police. We disagree.
    A defendant's motion to dismiss should be denied when "there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant[] being the perpetrator of such offense." State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). Substantial evidence is such "relevant evidence that a reasonable mind might accept as adequate to support a conclusion." State v. Fletcher, 301 N.C. 709, 712, 272 S.E.2d 859, 861 (1981). When considering a defendant's motion to dismiss, the trial court must consider the evidence in the light most favorable to the State, and the State is entitled to every reasonable inference that can be drawn from the evidence. Powell, 299 N.C. at 99, 261 S.E.2d at 117.
    N.C. Gen. Stat. § 20-141.5 (2003) provides that:
        (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 milesper hour over the legal speed limit.
            ....
            (3)    Reckless driving as proscribed by G.S. 20-140.

            N.C. Gen. Stat. § 20-140 (2003) provides that:
        (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.

    Therefore, the elements of the offense of felony speeding to elude arrest are: (1) operation of a motor vehicle (2) on a highway or public vehicular area (3) while fleeing or attempting to elude a law enforcement officer who is lawfully performing his or her duties and (4) while two or more of the enumerated factors in N.C. Gen. Stat. § 20-141.5(b) are present.
    Defendant only challenges the third element. The testimony of Officer Lewis, when viewed in the light most favorable to the State, is substantial evidence that is sufficient for a reasonable juror to find that defendant knew he was fleeing or attempting to elude a law enforcement officer who was lawfully performing his duties. Officer Lewis testified that he asked defendant to "hold up." Defendant replied "No," and stated, "I'm not talking to you." Defendant then drove away at a high speed. Officer Lewisimmediately got into his marked patrol vehicle, turned the blue lights on, and began to pursue defendant. As Officer Lewis followed defendant, defendant drove seventy miles per hour in a thirty-five mile per hour zone. We find that this is substantial evidence of the challenged element. The trial court did not err in denying defendant's motion to dismiss.
II.
    
    Defendant next argues that there was a material variance between the indictment and the evidence presented at trial. The indictment alleged that defendant "unlawfully, willfully, and feloniously did operate a motor vehicle on a street, highway, or public vehicular area . . . while fleeing and attempting to elude a law enforcement officer, A.T. Lewis, in the lawful performance of his duties, attempting to arrest . . . defendant for a domestic violence assault." (emphasis added). In contrast, Officer Lewis testified that he attempted to initiate a traffic stop for defendant's careless and reckless driving.
    We find that there is not a material variance between the indictment and the evidence presented at trial. In State v. Pelham, our Court stated:
        An indictment must set forth each of the essential elements of the offense. Allegations beyond the essential elements of the offense are irrelevant and may be treated as surplusage and disregarded when testing the sufficiency of the indictment. To require dismissal any variance must be material and substantial and involve an essential element.

164 N.C. App. 70, 79, 595 S.E.2d 197, 203, disc. review denied, 359 N.C. 195, 608 S.E.2d 63 (2004) (citations omitted). We havefurther stated: "It is only 'where the evidence tends to show the commission of an offense not charged in the indictment [that] there is a fatal variance between the allegations and the proof requiring dismissal.'" State v. Poole, 154 N.C. App. 419, 423, 572 S.E.2d 433, 436 (2002), cert. denied, 356 N.C. 689, 578 S.E.2d 589 (2003) (alteration in original) (quoting State v. Williams, 303 N.C. 507, 510, 279 S.E.2d 592, 594 (1981)).
    In the present case, the reason for Officer Lewis's pursuit of defendant was not an essential element of the charge of the offense of speeding to elude arrest. Therefore, the allegation that Officer Lewis attempted to arrest defendant for a domestic violence assault can be treated as "surplusage and disregarded when testing the sufficiency of the indictment." Pelham, 164 N.C. App. at 79, 595 S.E.2d at 203; see also State v. Dammons, 159 N.C. App. 284, 293, 583 S.E.2d 606, 612, disc. review denied, 357 N.C. 579, 589 S.E.2d 133 (2003), and cert. denied, 541 U.S. 951, 158 L. Ed. 2d 382 (2004). Since the indictment alleged all the essential elements for speeding to elude arrest, the reason for Officer Lewis's pursuit of defendant was mere surplusage. Furthermore, the evidence did not show the commission of an offense not alleged in the indictment. Therefore, there was not a fatal variance between the indictment and the evidence presented at trial.
III.

    Defendant next argues that because the offense of speeding to elude arrest is a misdemeanor, it is insufficient to trigger habitual felon sentencing, and the trial court thus erred insubmitting the issue of habitual felon status to the jury. Specifically, defendant argues that the finding of aggravating factors merely changes the level of punishment, and not the actual definitional classification of the crime. However, our Court recently held in State v. Scott, ___ N.C. App. ___, ___, 607 S.E.2d 10, 13 (2005), that "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." Our Supreme Court has held that "'[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.'" State v. Jones, 358 N.C. 473, 477, 598 S.E.2d 125, 128 (2004) (quoting Lemons v. Old Hickory Council, 322 N.C. 271, 276, 367 S.E.2d 655, 658 (1988)).
    Because the crime with which defendant was charged is "an offense 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 (2003). Defendant's argument that the underlying felony of speeding to elude arrest is a misdemeanor for purposes of the habitual felon statute is without merit. Thus, defendant's indictment as an habitual felon was not fatally defective.
IV.

    Defendant next contends that his habitual felon sentence was a disproportionate punishment that violates the Eighth Amendment. We disagree.
    Our Court recently held in State v. Quick, ___ N.C. App. ___,___, 611 S.E.2d 864, 867 (2005), that "nothing in the Eighth Amendment prohibits our legislature from enhancing punishment for habitual offenders." We further noted that "our habitual felon statute is the result of a deliberate policy choice by the legislature that those who repeatedly commit felonious criminal offenses should be segregated from the rest of society for an extended period of time." ___ N.C. App. at ___, 611 S.E.2d at 866- 67 (citing State v. Aldridge, 76 N.C. App. 638, 640, 334 S.E.2d 107, 108 (1985) (quoting Rummel v. Estelle, 445 U.S. 263, 284, 63 L. Ed. 2d 382, 397 (1980)). Our Supreme Court has stated that "'[o]nly in exceedingly unusual non-capital cases will the sentences imposed be so grossly disproportionate as to violate the Eighth Amendment's proscription of cruel and unusual punishment.'" State v. Todd, 313 N.C. 110, 119, 326 S.E.2d 249, 254 (1985), cert. denied, ___ N.C. ___, 547 S.E.2d 39 (Feb. 1, 2001) (No. 523P00) (quoting State v. Ysaguire, 309 N.C. 780, 786, 309 S.E.2d 436, 441 (1983)). In this case, defendant was sentenced within the limits of our statutory scheme as defined by Chapter 15 of our General Statutes. Furthermore, we do not find that the case was "exceedingly unusual." For these reasons, we conclude that defendant's habitual felon sentence did not violate his Eighth Amendment rights.
V.

    Defendant next argues that the trial court erred in submitting to the jury the offense of speeding to elude arrest because the indictment failed to specify any act of reckless driving committedby defendant. Specifically, defendant argues that the description of the aggravating factor of reckless driving in the indictment as "reckless driving as proscribed by G.S. 20-140" was too imprecise to put defendant on notice of the charges. We disagree.
     Our Court held in Scott, ___ N.C. App. at ___, 607 S.E.2d at 13-14, that an indictment for speeding to elude arrest was not defective because it failed to list all elements of the underlying aggravating offense of driving with a revoked license. Our Supreme Court has stated that "the 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." State v. Squires, 357 N.C. 529, 591 S.E.2d 837, 842 (2003), cert. denied, 541 U.S. 1088, 159 L. Ed. 2d 252 (2004) (citing Apprendi v. New Jersey, 530 U.S. 466, 477, n.3, 147 L. Ed. 2d 435, 447, n.3 (2000)). Our Supreme Court noted that our courts continue to hold that, even when elements such as premeditation and deliberation or felony-murder are excluded from an indictment, statutory short-form murder indictments "give a defendant sufficient notice of the nature and cause of the charges against him or her." Squires, 357 N.C. at 537, 591 S.E.2d at 842.
    In the present case, since the indictment for speeding to elude arrest properly included the statutory aggravating factor of reckless driving, sufficient notice was given to defendant of the underlying aggravating factor. See State v. Funchess, 141 N.C. App. 302, 311, 540 S.E.2d 435, 440-41 (2000) (holding that the trial court did not have to charge the jury on the elements of theaggravating offense of driving with a revoked license where the evidence was sufficient to show that notice of revocation was given to the defendant). We therefore find no error in the indictment.
    No error.
    Judges CALABRIA and ELMORE concur.
    Report per Rule 30(e).

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