Appeal by defendant from judgments dated 28 July 2005 by Judge
W. Russell Duke, Jr. in Pitt County Superior Court. Heard in the
Court of Appeals 1 November 2006.
Attorney General Roy Cooper, by Special Deputy Attorney
General T. Lane Mallonee, for the State.
The Robinson Law Firm, P.A., by Leslie S. Robinson, for
defendant-appellant.
BRYANT, Judge.
Harry Teel, Jr. (defendant) appeals from judgments dated 28
July 2005, convicting him of misdemeanor fleeing to elude arrest
and reckless driving. For the reasons below, we find no error in
the trial or the judgment of the trial court.
Facts and Procedural History
On 24 January 2005, a Pitt County Grand Jury returned a Bill
of Indictment which charged defendant with: (1) felony fleeing to
elude arrest, in violation of N.C. Gen. Stat. . 20-141.5(b); (2)
careless and reckless driving, in violation of N.C. Gen. Stat. .
20-140(b); and (3) resisting a public officer, in violation of N.C.
Gen. Stat. . 14-223. This matter came up for a jury trial at the
26 July 2005 Criminal Session of Superior Court for Pitt County,
the Honorable W. Russell Duke, Jr., presiding. On 27 July 2005,
the jury returned a verdict of guilty of misdemeanor fleeing to
elude arrest; guilty of reckless driving; and not guilty of
resisting a public officer. The trial court entered judgments,
consistent with the jury verdict and dated 28 July 2005, sentencing
defendant to two fifteen day jail terms for the two misdemeanor
convictions, but suspended the sentence as to the conviction of
reckless driving and placed defendant on twelve months unsupervised
probation. Defendant appeals.
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Defendant raises the issues of whether the trial court erred
when it: (I) denied defendant's motions to dismiss the charge of
felony fleeing to elude arrest because the indictment failed to
describe the lawful duties the officers were performing at the timeof defendant's flight; (II) denied defendant's motions to dismiss
the charge of careless and reckless driving because the State
failed to present substantial evidence of all elements of the
charge; and (III) denied defendant's motion for appropriate relief
because the verdicts finding defendant not guilty of felony fleeing
to elude arrest and not guilty of resisting a public officer are
inconsistent with the verdicts of guilty of misdemeanor fleeing to
elude arrest and reckless driving.
I
[1] Defendant first argues the trial court erred in denying
his motions to dismiss the charge of felony fleeing to elude arrest
because the indictment failed to describe the lawful duties the
officers were performing at the time of defendant's flight. We
disagree.
“The purpose of a bill of indictment is to put a defendant on
such notice that he is reasonably certain of the crime of which he
is accused.”
State v. McGriff, 151 N.C. App. 631, 634, 566 S.E.2d
776, 778 (2002) (citation omitted). An indictment must contain
“[a] plain and concise factual statement in each count which . . .
asserts facts supporting every element of a criminal offense and
the defendant's commission thereof with sufficient precision
clearly to apprise the defendant or defendants of the conduct which
is the subject of the accusation.” N.C. Gen. Stat. § 15A-924(a)(5)
(2005). “The elements need only be alleged to the extent that the
indictment (1) identifies the offense; (2) protects against double
jeopardy; (3) enables the defendant to prepare for trial; and (4)supports a judgment on conviction.”
State v. Thomas, 153 N.C. App.
326, 335, 570 S.E.2d 142, 147 (2002) (citation omitted). Further,
“[a]n indictment is sufficient if the charge against the defendant
is expressed 'in a plain, intelligible, and explicit manner[.]'”
State v. Glynn, 178 N.C. App. 689, 695, 632 S.E.2d 551, 555 (2006)
(quoting N.C. Gen. Stat. § 15-153 (2005)),
disc. rev. denied and
appeal dismissed, No. 480P06 (N.C. Supreme Court Oct. 5, 2006).
The indictment at issue in the instant case charged,
inter
alia, that defendant “unlawfully, willfully and feloniously did
operate a motor vehicle on a public highway . . . while attempting
to elude a law enforcement officer . . . in the lawful performance
of the officer's duties . . .” in violation of N.C. Gen. Stat. .
20-141.5. N.C. Gen. Stat. . 20-141.5 provides in pertinent part
that “[i]t 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.” N.C. Gen. Stat. . 20-
141.5(a) (2005). Defendant asks this Court to hold that an
indictment charging a person with an offense under N.C. Gen. Stat.
. 20-141.5 must meet the same requirements as one charging a person
with the offense of resisting arrest under N.C. Gen. Stat. . 14-
223.
N.C. Gen. Stat. § 14-223 states that “[i]f any person shall
willfully and unlawfully resist, delay or obstruct a public officer
in discharging or attempting to discharge
a duty of his office, he
shall be guilty of a Class 2 misdemeanor.” N.C. Gen. Stat. § 14-223 (2005) (emphasis added). It is well established that “[a]n
indictment fails under N.C. Gen. Stat. § 14-223 if it does not
describe the duty the named officer was discharging or attempting
to discharge.”
State v. Ellis, 168 N.C. App. 651, 655, 608 S.E.2d
803, 806 (2005) (citing
State v. Dunston, 256 N.C. 203, 204, 123
S.E.2d 480, 481 (1962)). Moreover, in discussing N.C. Gen Stat. §
14-223, this Court has held that
[i]n the offense of resisting an officer, the
resisting of the public officer in the
performance of some duty is the primary
conduct proscribed by that statute and the
particular duty that the officer is performing
while being resisted is of paramount
importance and is very material to the
preparation of the defendant's defense[.]
State v. Kirby, 15 N.C. App. 480, 488, 190 S.E.2d 320, 325 (1972).
Unlike the offense of resisting an officer in the performance of
his duties, the offense of fleeing to elude arrest is not dependent
upon the
specific duty the officer was performing at the time of
the offense. Therefore, the specific duty the officer was
performing at the time of the offense is not an essential element
of the offense of fleeing to elude arrest, as defined in N.C. Gen.
Stat. § 20-141.5, and was not required to be set out in the
indictment. This assignment of error is overruled.
II
[2] Defendant next argues the trial court erred in denying
defendant's motion to dismiss the charge of reckless driving
because the State failed to present substantial evidence of all
elements of the charge. Specifically, defendant argues the State
failed to present substantial evidence that defendant's operationof the motorcycle was at a speed or in a manner to endanger persons
or property. We disagree.
In ruling on a motion to dismiss, the trial court is to
consider the evidence in the light most favorable to the State, and
the State is entitled to every reasonable inference to be drawn
from that evidence.
State v. Bell, 311 N.C. 131, 138, 316 S.E.2d
611, 615 (1984). The trial court must determine if the State has
presented substantial evidence of each essential element of the
offense.
State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925
(1996). “Evidence is substantial if it is relevant and adequate to
convince a reasonable mind to accept a conclusion.”
State v.
Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001) (citation
omitted).
Defendant was charged with the offense of reckless driving
under N.C. Gen. Stat. . 20-140(b) which states: “[a]ny 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.” N.C. Gen. Stat. §
20-140(b) (2005) (emphasis added). This Court has further held in
order to send a charge of reckless driving to the jury the State
must introduce evidence as to “whether [defendant's] speed, or his
manner of driving, endangered or was likely to endanger any person
or property including himself, his passenger, his property, or the
person or property of others[.]”
State v. Floyd, 15 N.C. App. 438,440, 190 S.E.2d 353, 354,
disc. review denied, 281 N.C. 760, 191
S.E.2d 363 (1972).
Here, the State presented evidence that defendant was
operating a motorcycle on a two-lane public road with a posted
speed limit of forty-five miles per hour. Two officers estimated
that defendant was driving at a speed of ninety miles per hour and
later in excess of one-hundred miles per hour. One officer
testified that defendant followed the officer's un-marked vehicle
from a distance of approximately two to three feet from the rear
end of the officer's vehicle. The officer further testified that
defendant attempted to pass him on the left across a double yellow
line in a curve and later attempted to pass him on the right along
the shoulder of the road. The officer testified that defendant
crossed the double yellow center line two or three times while
attempting to pass on the left, and came into contact with the
white line two or three times in attempting to pass on the right.
This is sufficient evidence, when viewed in the light most
favorable to the State, that defendant drove a motorcycle on a
public highway without due caution and circumspection and at a
speed and in a manner so as to endanger or be likely to endanger a
person or property in violation of N.C. Gen. Stat. § 20-140(b).
This assignment of error is overruled.
III
[3] Defendant next assigns as error the trial court's denial
of defendant's motion for appropriate relief to set aside the
verdicts as being inconsistent. Defendant argues the verdict ofnot guilty of the charge of resisting arrest is not consistent with
the verdict of guilty of the charge of misdemeanor flight to elude
arrest because both were based on the identical conduct of
defendant - his failure to stop. Likewise, defendant argues the
verdict of not guilty of the charge of felony flight to elude
arrest is inconsistent with the verdict of guilty of the charge of
reckless driving because the aggravating factors alleged in the
charge of felony flight to elude arrest were speeding in excess of
fifteen miles per hour over the speed limit and reckless driving.
Defendant argues these guilty verdicts and the judgments entered
thereon must be vacated and the charges dismissed. Defendant,
however, has not cited any authority in support of this assignment
of error and it is deemed abandoned. “Assignments of error not set
out in the appellant's brief, or in support of which no reason or
argument is stated or authority cited, will be taken as abandoned.”
N.C. R. App. P. 28(b)(6);
See State v. Augustine, 359 N.C. 709, 731
n.1, 616 S.E.2d 515, 531 n.1 (2005),
cert. denied, __ U.S. __, 165
L. Ed. 2d 988 (2006).
Additionally, we note that defendant's assignment of error is
without merit even if this Court were to reach the merits of
defendant's argument. “It is well established in North Carolina
that a jury is not required to be consistent and that incongruity
alone will not invalidate a verdict.”
State v. Rosser, 54 N.C.
App. 660, 661, 284 S.E.2d 130, 131 (1981) (citing
State v. Brown,
36 N.C. App. 152, 153, 242 S.E.2d 890, 891 (1978) (“Inconsistent
verdicts do not require a reversal.”));
see also State v. Davis,214 N.C. 787, 794, 1 S.E.2d 104, 109 (1939) (“A jury is not
required to be consistent and mere inconsistency will not
invalidate the verdict.”). Further, the United States Supreme
Court has held that “[t]he fact that the inconsistency may be the
result of lenity, coupled with the Government's inability to invoke
review, suggests that inconsistent verdicts should not be
reviewable.”
United States v. Powell, 469 U.S. 57, 66, 83 L. Ed.
2d 461, 469 (1984). This assignment of error is dismissed.
No error.
Judges McGEE and STEELMAN concur.
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