An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-301

NORTH CAROLINA COURT OF APPEALS

Filed: 3 January 2006


STATE OF NORTH CAROLINA

     v .                          Forsyth County
                                 Nos. 04 CRS 52872
        DONALD WAYNE MCGEE                      04 CRS 54934-
                                     54936
    

    Appeal by defendant from judgments entered 16 September 2004, by Judge Judson D. DeRamus, Jr., in Forsyth County Superior Court. Heard in the Court of Appeals 16 November 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General Richard E. Slipsky, for the State.

    Linda B. Weisel for defendant appellant.

    MCCULLOUGH, Judge.

    Defendant appeals from judgments entered after a jury verdict of guilty on the charges of felonious operation of a motor vehicle to elude apprehension and three counts of assault with a deadly weapon upon an officer of a political subdivision of the state. We find no error.

FACTS
    On 5 April 2004 and 17 May 2004 a Forsyth County grand jury indicted defendant for the offenses of fleeing and eluding arrest with a motor vehicle, and four counts of assault with a deadly weapon on a law enforcement officer. These charges were tried together on 15 September 2004 in Forsyth County Superior Court.    The State presented evidence at trial tending to show the following: On 6 March 2004 defendant was drinking beer and playing pool with Percy Belton (Mr. Belton) at a bar. When the bar closed at 2:00 a.m. a group of people proceeded to Mr. Belton's home to shoot more pool. Shortly after arriving, defendant asked Mr. Belton whether he could borrow a vehicle owned by Mr. Belton to pick up his girlfriend. The vehicle owned by Mr. Belton was a 2002 yellow Ford F-150 truck that was capable of reaching speeds up to 160 miles per hour. Mr. Belton agreed and gave defendant the keys. Defendant and a “long-haired friend” then left the house. Around 2:20 a.m. Officer Cranford, a Winston-Salem police officer, observed a yellow Ford F-150 on Highway 421 pass him at a high rate of speed with no lights on. Officer Cranford estimated that the truck was traveling at about 140 miles per hour. Officer Cranford tried to catch up with the vehicle but was unable to, so he radioed other officers for assistance. One of the officers he alerted was Corporal Perkins who was in closer proximity to the vehicle and was able to pull onto the road behind it. Corporal Perkins and Officer Cranford pursued defendant on Peace Haven Road with their emergency lights activated with defendant traveling at a speed of around 80 miles per hour on a road with a speed limit of 45 miles per hour. Defendant then stopped the vehicle at an intersection where the two officers tried to use their police cars to detain defendant. At this time, defendant turned around at a high rate of speed and drove towards Corporal Perkins forcing him to pull his car to the side to avoid the impact. Corporal Perkins estimated that thevehicle passed within three to five feet of his car. The two officers proceeded to follow the vehicle defendant was driving back towards Highway 421.
    At trial, Corporal Perkins testified that he was able to see the driver of the truck when the vehicle was within three to five feet of him. Corporal Perkins described the driver as a white male in his mid-twenties, with short dark hair, a mustache and a goatee. At trial he identified defendant as the driver. After this incident, the officers lost sight of the vehicle. Officer Cranford regained sight of the vehicle defendant was driving on Jonestown Road when defendant moved into his lane of traffic headed towards the officer with no lights on. Officer Cranford had to pull off the road to avoid a collision with the vehicle which came within five feet of his car.
    Officer Mulgrew was also on duty the night of 6 March 2004 when she spotted a bright yellow truck traveling down Jonestown Road with no lights on. She began to follow the vehicle, losing sight of it at one time and then again spotting it parked on the side of the road facing her car. At this point, Officer Mulgrew stopped her car and began to open the door when she heard the driver hit the gas pedal and begin advancing towards her. Officer Mulgrew jumped back inside her car and pulled it to the left, causing the vehicle to miss her by about 10 feet. Officer Huffman, who had been following Officer Mulgrew, began pursuing the vehicle down Jonestown Road losing sight and then regaining sight when the vehicle headed towards Officer Huffman in the officer's lane oftraffic and then moving back into its own lane about 500 feet from the officer's car.
    Responding to calls by Officers Huffman and Mulgrew, Corporal Perkins regained sight of the vehicle defendant was driving and continued to follow at high speeds in pursuit. Defendant continued driving erratically with his lights off, losing control of the vehicle at one point and jumping a concrete median. Defendant then turned the vehicle off the main road and entered the campus of Wake Forest University at which time Corporal Perkins terminated his pursuit. The next time Corporal Perkins saw the vehicle it was stopped in a wooded area off the road with a flat tire and damaged undercarriage. The only passenger in the vehicle at the time was Tonya Canter (Ms. Canter) who was shaking and crying. Defendant was chased through the wooded area near the vehicle and then apprehended and taken to Corporal Perkins by Officer Trollinger. Defendant was subsequently identified as the driver of the truck by Corporal Perkins.
    During the cross-examination of Officer Trollinger, defendant attempted to elicit his own statement made at the time of apprehension. The court excluded the statement and defendant made an offer of proof. Officer Trollinger testified that upon apprehension by the police, defendant was winded, his clothes were disarranged, he was sweating and breathing heavily. The offer of proof tended to show that at the time defendant was apprehended, he asked whether the police had found the “other guy” and further stated that he, defendant, was not driving the vehicle. OfficerTrollinger further admitted that defendant was nervous and excited at the time of the statement. Defendant argued that his statement was not hearsay, but rather fell within the exception of an excited utterance. The trial court found that it was not an excited utterance and therefore hearsay and inadmissible.
    Later in the trial, during cross-examination of Corporal Perkins, the following dialogue took place:
            Q: Did you ever find the male--long- haired male that was in the vehicle?

            A: No, sir, due to the fact that once Mr. McGee was in custody, he was identified as the driver, I positively identified him. I had no reason to continue to pursue or attempt to locate the other person.

            Q: You had no reason?

            A: No, sir. I had my driver in custody. I also had another victim that was in the vehicle who identified him as the driver.

At that point, defendant objected to the out-of-court statement made by Ms. Canter to the officer. The objection was overruled by the trial judge as responsive to the question. Following this line of questioning, the cross-examination continued:
            Q: Isn't it true, sir, that you also had information that someone else was driving?

            A: No, sir, never had any indication that anyone else was driving that vehicle.

                    Q. No one gave you any information that the other person was driving?
    
            A: Mr. McGee made--
The State objected on the grounds of hearsay and defendant responded that the door had been opened. The court sustained the objection.
    At the close of the evidence, defendant made a motion to dismiss for insufficient evidence on all charges. The issue was then raised as to whether there was a fatal variance in the indictment. The indictment alleged that defendant operated a motor vehicle on U.S. 421 while fleeing a law enforcement officer, T.L. Perkins, in a lawful performance of his duties to attempt to make a traffic stop and that at the time of the violation, defendant was speeding in excess of 15 miles per hour over the legal speed limit and driving recklessly in violation of N.C. Gen. Stat. § 20-140. However, there was no evidence at trial of Corporal Perkins pursuing defendant on Highway 421. The State then made a motion to conform the pleadings to the evidence by striking the reference to Highway 421 and striking the reference to Corporal Perkins to which defendant objected. The court allowed the motion with respect to striking the mention of Highway 421, but not as to Corporal Perkins, and found that there was no fatal variance in the indictment.
    The jury returned a guilty verdict on the charges of felonious operation of a motor vehicle to elude apprehension, assault with a deadly weapon on Corporal Perkins, assault with a deadly weapon on Officer Cranford, and assault with a deadly weapon on Officer Mulgrew. The jury returned a verdict of not guilty on the charge of assault with a deadly weapon on Officer Huffman.     Defendant now appeals.
ANALYSIS
I
    On appeal, defendant first contends that it was error and a violation of his constitutional right to confrontation to allow admission of an out-of-court statement made by a witness to Corporal Perkins. We disagree.
    Defendant argues for the first time on appeal that the admission of the statements made by Ms. Canter to Corporal Perkins amounted to a denial of his constitutional rights guaranteed by the Confrontation Clause of the Sixth Amendment of the U.S. Constitution. However, “constitutional error will not be considered for the first time on appeal.” State v. Chapman, 359 N.C. 328, 366, 611 S.E.2d 794, 822 (2005) (citation omitted). Because defendant did not raise his constitutional argument at trial, he has failed to preserve it for appellate review, and it is waived. See id; N.C.R. App. P. 10(b)(1) (“In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion stating the specific grounds for the ruling the party desired the court to make[.]”).
    Defendant further argues that the statement was hearsay and therefore admitted in violation of the rules of evidence. In the instant case, the court admitted the evidence as responsive to the question. While we agree that it was error for the court to admit the statement under this premise, we find that defendant was not prejudiced. (A new trial will be granted only for prejudicialerror. McAlister v. McAlister, 14 N.C. App. 159, 161, 187 S.E.2d 449, 451, cert. denied, 281 N.C. 315, 188 S.E.2d 898 (1972)).
    Officer Perkins testified that on the night in question he was able to see the driver of the vehicle. He further described the appearance of the driver and identified defendant as the driver of the vehicle at trial. Moreover, the statement of Ms. Canter, testified to by Corporal Perkins, was admissible on other grounds.

    “'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.C. Gen. Stat. § 8C-1, Rule 801(c) (2003). When such statements by one other than the witness testifying are offered for a proper purpose other than to prove the truth of the matter asserted, it is not hearsay and is admissible. State v. Coffey, 326 N.C. 268, 282, 389 S.E.2d 48, 56 (1990), cert. denied, 421 S.E.2d 360 (1992). “Specifically, 'statements of one person to another are admissible to explain the subsequent conduct of the person to whom the statement was made.'” Id. (citation omitted)
    
In the instant case, defendant was questioning Corporal Perkins regarding whether another male occupant of the vehicle was ever apprehended when the following testimony was elicited:
            Q: Did you ever find the male -- long- haired male that was in the vehicle?

            A: No, sir, due to the fact that once Mr. McGee was in custody, he was identified as the driver, I positively identified him. I had no reason to continue to pursue or attempt to locate the other person.
            Q: You had no reason?

            A: No, sir. I had my driver in custody. I also had another victim that was in the vehicle who identified him as the driver.

While the testimony provided by Corporal Perkins contained out-of- court statements of witnesses not present at trial, the statements were not offered for the truth of the matter asserted but rather to explain why Corporal Perkins felt he had no reason to continue to pursue or attempt to locate the other person. Therefore, the testimony did not amount to hearsay and thus there was no error in allowing its admission. See State v. Moore, 162 N.C. App. 268, 592 S.E.2d 562 (2004) (holding that out-of-court statements can be admitted as testimony when used to explain the subsequent actions of a law enforcement official). Therefore, this assignment of error is overruled.
    II
    Next defendant contends that it was error for the trial court to exclude defendant's statement made to police when apprehended. We disagree.
    Defendant argues that his statement made to Officer Trollinger while being apprehended fell within the excited utterance exception to the rules regarding hearsay. “Under Rule 803(2) of the North Carolina Rules of Evidence, hearsay that fits the requirements of an excited utterance is admissible as an exception to the general rule against hearsay.” State v. Lowe, 154 N.C. App. 607, 611, 572 S.E.2d 850, 854 (2002). In order to fall within the excited utterance exception to the hearsay rule, there must be: “'“(1) asufficiently startling experience suspending reflective thought and (2) a spontaneous reaction, not one resulting from reflection or fabrication.”'” Id. (citations omitted). “The critical determination is whether the statement was made under conditions which demonstrate that the declarant lacked the 'opportunity to fabricate or contrive' the statement.” State v. Wright, 151 N.C. App. 493, 497, 566 S.E.2d 151, 154 (2002) (citation omitted).
    In State v. Riley, 154 N.C. App. 692, 572 S.E.2d 857 (2002), the defendant on cross-examination attempted to elicit testimony from an officer regarding the defendant's statement which he made to the officer at the time of apprehension. The defendant had crashed his vehicle while trying to flee the police and after crashing he further attempted to elude arrest by fleeing on foot. The defendant was apprehended in close proximity to the site of the crash and at that time he made a statement to the officer taking him into custody. The trial court excluded the testimony on the grounds that the defendant's statement did not fall within the excited utterance exception. This Court held that the time between the defendant crashing the car and the time he was apprehended was a sufficient amount of time to deprive the statement of the spontaneity required to show that it was made free of reflection and fabrication, and therefore the trial court did not err in finding that the statement was not an excited utterance. See id. at 695, 572 S.E.2d at 859.
    In the instant case, the vehicle defendant was driving was found stopped on the side of the road with a flat tire and he attempted to flee to elude arrest, running into the wooded area on the roadside. He was apprehended by police in the woods near the vehicle and at the time of apprehension asked Officer Trollinger whether the police had found the “other guy” and further stated that he, defendant, was not driving the truck. The decision of this Court in Riley is controlling in this case. Where there was a sufficient amount of time to provide defendant with an opportunity to fabricate a statement, the statement lacked the necessary spontaneity to show that it was made free of reflection and fabrication and therefore was hearsay and inadmissible.
    Defendant further contends that it was error for the trial court to sustain the objection to cross-examination of Corporal Perkins regarding defendant's statements made at the time of apprehension. Following testimony regarding Ms. Canter's statement, defendant attempted to elicit his statement made to the police at the time of apprehension:
            Q: Isn't it true, sir, that you also had information that someone else was driving?

            A: No, sir, never had any indication that anyone else was driving that vehicle.

            Q. No one gave you any information that the other person was driving?

            A: Mr. McGee made--

Defendant argues that the statement should have been admitted into evidence when the State “opened the door” by introducing the statement of Ms. Canter. However, it must be noted that it was defendant who elicited the statement of Ms. Canter during itscross-examination of Corporal Perkins not the State. Further, the statement testified to by Corporal Perkins was offered only as an explanation for his statement that he had no reason to pursue any additional suspects after apprehension of defendant. See State v. Canady, 355 N.C. 242, 559 S.E.2d 762 (2002) (stating that where a witness offers more than a mere explanation of subsequent conduct that cross-examination should be permitted). The gravamen of the argument is that defendant was trying to elicit favorable testimony in cross-examining Corporal Perkins but instead elicited harmful testimony. This is not a ground for error and, therefore, this assignment of error is overruled.    
III
    Defendant also contends that there was insufficient evidence to submit the offenses of assault with a deadly weapon on Officers Mulgrew and Cranford to the jury. We disagree.
    “In ruling on a motion to dismiss for insufficient evidence the trial court must consider the evidence in the light most favorable to the state, which is entitled to every reasonable inference which can be drawn from that evidence.” State v. McNicholas, 322 N.C. 548, 556-57, 369 S.E.2d 569, 574 (1988) (citation omitted). “There must, however, be substantial evidence of each essential element of the offense charged, together with evidence that defendant was the perpetrator of the offense.” Id. “Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992) (citation omitted).“'Circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence.'” State v. Fritsch, 351 N.C. 373, 379, 526 S.E.2d 451, 455 (citation omitted), cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000). If the evidence presented is circumstantial, the court must consider whether a reasonable inference of defendant's guilt may be drawn from the circumstances. Id. Once the court decides that a reasonable inference of defendant's guilt may be drawn from the circumstances, then “'“it is for the jury to decide whether the facts, taken singly or in combination, satisfy [it] beyond a reasonable doubt that the defendant is actually guilty.”'” Id.
    Defendant first contends that there was insufficient evidence that he was the perpetrator of the assault with a deadly weapon against Officer Cranford and Officer Mulgrew. However, it is evident from the record that there was sufficient evidence from which a reasonable inference could be drawn that defendant was the driver of the truck at the time both offenses occurred. Corporal Perkins identified defendant at trial as the person that was driving the truck, and there was no evidence to the contrary that there was at anytime anyone other than defendant driving the truck. The trial court did not err in denying the motion to dismiss where there was sufficient evidence from which a reasonable inference could be drawn that defendant was the perpetrator of the assaults with a deadly weapon on Officers Mulgrew and Cranford.    Defendant further contends that there was insufficient evidence of an assault with a deadly weapon on Officer Mulgrew and therefore the charge should not have been submitted to the jury. There are two theories upon which assault may be based. State v. McDaniel, 111 N.C. App. 888, 890-91, 433 S.E.2d 795, 797-98 (1993). The common law definition of criminal assault is “an overt act or attempt, or the unequivocal appearance of an attempt, with force and violence, to do some immediate physical injury to the person of another, which show of force or menace of violence must be sufficient to put a person of reasonable firmness in fear of immediate bodily harm.” Id. By contrast, the other rule requires a showing of some violence by the defendant, accompanied by reasonable apprehension of immediate bodily harm or injury on the part of the person assailed, which causes him to engage in a course of conduct which he would not otherwise have followed. Id.
    
In the instant case, the evidence taken in the light most favorable to the State shows that defendant had been driving erratically throughout the night, attempting to avoid apprehension by police officers. In fact, defendant had on several occasions, driven the vehicle towards police officers, coming within only a few feet of them. When Officer Mulgrew began to step out of her car, she heard defendant hit the gas and was able to swerve off the road. It cannot be said that sufficient evidence is not present for a reasonable inference to be drawn that due to the acts of aggression by defendant, Officer Mulgrew was placed in reasonableapprehension of immediate bodily harm or injury. Therefore, this assignment of error is overruled.
    IV
    Lastly, defendant contends that the conviction of felonious operation of a motor vehicle to elude apprehension must be vacated where there was a fatal variance in the indictment. The indictment alleged that defendant “unlawfully, willfully and feloniously did operate a motor vehicle on a highway, U.S. 421, while fleeing a law enforcement officer, T.L. Perkins, in the lawful performance of the officer's duties, attempting to make a traffic stop,” and that at the time of the violation, defendant was “speeding in excess of 15 miles per hour over the legal speed limit” and “driving recklessly in violation of N.C. Gen. Stat. § 20-140.” However, the evidence at trial did not show any pursuit of defendant on U.S. 421 but rather on several other roads in Forsyth County, North Carolina. We disagree with the contention that this was a fatal variance in the indictment.
    This Court has held that
            [a]n 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.

State v. Pelham, 164 N.C. App. 70, 79, 595 S.E.2d 197, 203, appeal dismissed, disc. review denied, 359 N.C. 195, 608 S.E.2d 63 (2004) (citations omitted). “It is only 'where the evidence tends to showthe 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) (citation omitted). N.C. Gen. Stat. § 20-141.5 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 miles per hour over the legal speed limit.

            . . . .

            (3) Reckless driving as proscribed by [N.C. Gen. Stat. §] 20-140 [(2003)].

N.C. Gen. Stat. § 20-141.5 (2003). Accordingly, the elements of the offense of felony speeding to elude arrest are: (1) operation of a motor vehicle (2) on a street, 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.    N.C. Gen. Stat. § 15A-924(a)(5) requires that an indictment include: “A plain and concise factual statement in each count which, without allegations of an evidentiary nature, 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) (2003). Further, an indictment is constitutionally sufficient if it apprises the defendant of the charge against him with enough certainty to enable him to prepare his defense and to protect him from subsequent prosecution for the same offense. See Poole, 154 N.C. App. at 422, 572 S.E.2d at 436.
    In the instant case, the indictment alleges all of the elements of the offense defined by N.C. Gen. Stat. § 20-141.5(a) plus two of the aggravating factors listed in N.C. Gen. Stat. § 20-141.5(b). The only problem with the indictment was that it incorrectly stated the highway on which the incident took place. There was substantial evidence that defendant drove his vehicle on state roads at high speeds and in a reckless manner while officers ensued him. Defendant was adequately apprised of the accusations against him and the evidence did not show the commission of an offense not charged in the indictment. Moreover, defendant was not denied the opportunity to prepare an adequate defense against the charges due to the indictment stating one highway on which the pursuit took place and the evidence showing another. Therefore, this assignment of error is overruled.     Accordingly, we find that there was no error in admitting the statement of Ms. Canter to explain the subsequent conduct of Corporal Perkins, in excluding a statement made by defendant at the time of apprehension, in denying the motion to dismiss for insufficient evidence as to the assault with a deadly weapon on Officers Cranford and Mulgrew, and refusing to find that there was a fatal variance in the indictment requiring dismissal.
    No error.
    Judges HUNTER and GEER concur.
    Report per Rule 30(e).

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