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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