An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1578


Filed: 17 January 2006


         v.                            Buncombe County
                                    Nos. 03CRS062239-42

    Appeal by defendant from judgments entered 20 February 2004 by Judge Dennis J. Winner in Buncombe County Superior Court. Heard in the Court of Appeals 9 January 2006.

    Attorney General Roy A. Cooper, III, by Assistant Attorney General Alexandra M. Hightower, for the State.

    Blanchard, Newman & Hayes, by Gregory A. Newman, for defendant-appellant.

    HUNTER, Judge.

    Jonathan Anthony Lee Torres (“defendant”) was charged with felony fleeing to elude arrest, speeding, reckless driving to endanger, and driving while license suspended. We find no error in defendant's trial; however, we vacate defendant's aggravated sentence and remand for resentencing.
    The State's evidence tended to show that on 19 September 2003, Trooper Frank Stout (“Trooper Stout”), of the North Carolina Highway Patrol, was on routine patrol in an unmarked vehicle in the Sweeten Creek Road area of Buncombe County. A Geo Storm swerved across the center line of the road and forced him onto the shoulder of the roadway. Trooper Stout turned his vehicle around and gavechase down U.S. 25-A. Trooper Stout observed two people in the vehicle, one of whom wore a ball cap turned backwards. Trooper Stout activated his blue light and siren, but the driver of the Geo Storm failed to pull over. The Geo Storm maintained the speed limit for a time, but accelerated to seventy-five miles per hour when the highway opened to four lanes. At times, the Geo Storm and Trooper Stout's vehicle reached speeds of 130 miles per hour.
    During the pursuit, Trooper Stout was joined by two other state troopers, Zeb Stroup (“Trooper Stroup”) and J. M. Arrowood (“Trooper Arrowood”). At one point, Trooper Stroup pulled along the right side of the Geo Storm and was able to see the car's occupants. Trooper Stroup noted that the driver wore a white UNC ball cap emblazoned with a black “Tarheel foot,” with the bill of the cap turned to the back. Trooper Stroup also noted that the driver was a male of medium complexion -- neither black, nor fair- skinned like the passenger of the vehicle. At trial, Trooper Stroup identified the passenger in the Geo Storm as Scott Gillen (“Gillen”). Trooper Stroup continued to pursue the Geo Storm at speeds above 120 miles per hour until he lost the car in the vicinity of Blue Ridge Road. The officers ran the vehicle's license plate through Department of Motor Vehicle records, but were unable to locate the car or the registered owner of the vehicle at the listed address.
    On 20 September 2003, Trooper Arrowood was alerted that the Geo Storm had been spotted at an apartment complex on Sweeten Creek Road. Trooper Arrowood spoke to Gillen at the complex, whoacknowledged that he had been a passenger in the car during the 19 September 2003 chase. Trooper Arrowood had Gillen write out a statement to that effect. At trial, Gillen testified in conformity with his statement, specifically noting that defendant was driving the Geo Storm during the 19 September 2003 chase.
    When Trooper Arrowood served defendant with warrants for his arrest, defendant, without being told the nature of the offense for which he was being arrested, exclaimed, “'[y]ou can't prove I was driving.'” Subsequently at the police station, defendant said, “'[y]ou won't catch me next time, I'll be on a motorcycle.'” At the time of his arrest, defendant was wearing a white baseball cap with a UNC Tarheel insignia on it. Finally, a copy of defendant's driving record, introduced at trial, showed that defendant's driver's license was suspended. A copy of a letter notifying defendant of this suspension was also introduced at trial.
    Defendant moved to dismiss the charges against him at the close of the State's evidence, and the trial court denied that motion. Defendant then presented evidence that tended to show Gillen was driving the Geo Storm during the early evening on 19 September 2003, and that Gillen had previously stated that only he could drive the car because it belonged to his uncle. None of defendant's witnesses could state with certainty, however, that Gillen was driving the Geo Storm after 8:00 p.m. on the evening of 19 September 2003 during the police chase.
    Defendant testified in his own defense, denying both driving the Geo Storm and wearing a UNC Tarheel cap on 19 September 2003. Defendant also denied telling the officers that they could not prove he was driving on the evening of his arrest. On cross- examination, defendant admitted to having committed at least seven criminal offenses in the six years since he turned sixteen years old. Notably, although defendant had a limited driving privilege, that privilege was only extended between 8:00 a.m. and 8:00 p.m.
    A jury subsequently found defendant guilty as charged. Defendant stipulated to having four prior record level points, and a corresponding prior record level of II. In rendering judgment in open court, the trial court found two aggravating factors and no mitigating factors. The court, therefore, sentenced defendant to an aggravated term of ten to twelve months imprisonment for the felony speeding to elude arrest conviction in 03CRS062240, and to a suspended sentence for the driving while license suspended conviction. The trial court arrested judgment on the excessive speeding and reckless driving convictions. Defendant appeals.
    By his first assignment of error on appeal, defendant argues that the trial court erred in denying his motion to dismiss based upon sufficiency of the evidence. Specifically, defendant contends that there is not sufficient evidence to show that he was driving the vehicle in question on 19 September 2003 so as to support his convictions. We disagree.
    The standard of review in this case is well settled:
            “In ruling on a motion to dismiss, the issue before the trial court is whether substantial evidence of each element of the offense charged has been presented, and that defendant was the perpetrator of the offense.” “Substantial evidence is such relevantevidence as a reasonable mind might accept as adequate to support a conclusion.” All the evidence, whether direct or circumstantial, must be considered by the trial court, in the light most favorable to the State, with all reasonable inferences to be drawn from the evidence being drawn in favor of the State.
State v. Parker, 143 N.C. App. 680, 686, 550 S.E.2d 174, 178 (2001) (citations omitted). “'If there is more than a scintilla of competent evidence to support allegations in the warrant or indictment, it is the court's duty to submit the case to the jury.'” State v. Everhardt, 96 N.C. App. 1, 11, 384 S.E.2d 562, 568 (1989) (citation omitted).
    In the instant case, defendant was convicted of multiple driving-related offenses, but contends that the State's evidence showing that he was the perpetrator of the crimes was insufficient. A thorough review of the record, however, reveals quite the contrary.
    In the light most favorable to the State, the evidence tended to show that at least two of the troopers involved in the 19 September 2003 chase noted the presence of two persons in the Geo Storm -- one of whom was wearing a baseball cap backwards. Significantly, Trooper Stroup got close enough to the fleeing vehicle to note that the driver was wearing the baseball cap, which he noted to be a white UNC cap, with a black “Tarheel foot” on it. Trooper Stroup further noted that the driver was a male, with a medium complexion. Trooper Stroup described the passenger as a fair-skinned male. Trooper Stroup was able to positively identify Gillen as the passenger in the Geo Storm on the evening of 19September 2003. Further, defendant made several incriminating statements in the presence of Trooper Arrowood at the time of his arrest. Defendant spontaneously told Trooper Arrowood, “'[y]ou can't prove I was driving[,]'” before the trooper even informed defendant of the charges against him. Once he was taken to the police station, defendant told the trooper, “'[y]ou won't catch me next time, I'll be on a motorcycle.'” We note that defendant was wearing a white UNC Tarheel hat at the time of his arrest. Finally, Gillen gave investigating officers a statement and testified at trial that he was a passenger in the Geo Storm and defendant was the driver during the 19 September 2003 police chase.
    We conclude that this evidence was sufficient to submit defendant's guilt of the subject driving offenses to the jury. Though defendant presented evidence which may have supported his acquittal, it is well established that in ruling on a motion to dismiss, “[t]he defendant's evidence should be disregarded unless it is favorable to the State or does not conflict with the State's evidence.” State v. Peoples, 167 N.C. App. 63, 67, 604 S.E.2d 321, 324 (2004). Accordingly, this assignment of error is overruled.
    By his second assignment of error, defendant argues that the trial court erred in finding aggravating factors without submitting those factors to a jury, in violation of Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004). We agree.
    Though the record does not include the trial court's findings as to aggravating factors, the judgment reveals that such findings were made and that the court did sentence defendant in theaggravated range of sentences for the felony fleeing to elude arrest conviction. As argued by the State, however, defendant has already served his sentence for that conviction. Nonetheless, we note that defendant is now presumably serving a probationary sentence on the misdemeanor driving while license suspended conviction and may be entitled to some type of credit for time served on the felony conviction. Accordingly, it does appear that there may be some collateral consequences resulting from that aggravated sentence already served; and hence, pursuant to Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, and the North Carolina Supreme Court's decisions in State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005), and State v. Speight, 359 N.C. 602, 614 S.E.2d 262 (2005), the judgments of the trial court are vacated and this matter remanded to the superior court for resentencing. See State v. Branch, 134 N.C. App. 637, 641, 518 S.E.2d 213, 216 (1999) (“[i]f a judgment is invalid as a matter of law, North Carolina Courts have the authority to vacate the invalid sentence and resentence the defendant accordingly, even if the term has ended”).
    No error in defendant's trial; vacated and remanded for resentencing.
    Chief Judge MARTIN and Judge STEELMAN concur.
    Report per Rule 30(e).

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