STATE OF NORTH CAROLINA
v. Henderson County
No. 04 CRS 57653
CARROL LEE OWENS,
Attorney General Roy Cooper, by Assistant Attorney General
Newton G. Pritchett, Jr., for the State.
Haakon Thorsen for defendant-appellant.
Defendant Carrol Lee Owens appeals from his conviction for
felonious speeding to elude arrest. After reviewing his challenges
to the trial court's jury instructions and its denial of his motion
to dismiss for insufficiency of the evidence, we hold that he
received a trial free of error and accordingly uphold his
conviction and sentence.
(3) Reckless driving as proscribed
by G.S. 20-140.
. . . .
(5) Driving when the person's
driver[']s license is revoked.
Defendant argues that the State presented insufficient evidence that his driver's license was revoked. Defendant does not, however, contest the sufficiency of the evidence as to whether he was speeding in excess of 15 miles per hour over the speed limit or whether he was driving recklessly.
This Court was faced with a similar situation in State v. Funchess, 141 N.C. App. 302, 540 S.E.2d 435 (2000). In that case, the State, as here, charged defendant with a violation of § 20- 141.5(b), alleging factors (1), (3), and (5). Funchess, 141 N.C. App. at 306, 540 S.E.2d at 438. The Funchess Court held that, because § 20-141.5(b) only requires proof of two or more factors,the State is not required to prove all three factors pertinent to defendant's case even if all three were stated conjunctively in the indictment. Funchess, 141 N.C. App. at 310, 540 S.E.2d at 440. Since defendant, in this case, has made no argument indicating that the State did not prove factors (1) and (3), and since the State was required to prove only two factors, we hold that the trial court did not err in denying his motion to dismiss for insufficiency of the evidence. See State v. Stokes, __ N.C. App. __, __, 621 S.E.2d 311, 318 (2005) ("The lack of evidence or the State's abandonment of . . . [one] aggravating factor did not constitute error[,] [because] [t]he State was only required to prove two of the three factors listed in the indictment to elevate the crime from a misdemeanor to a felony.") This assignment of error is, therefore, overruled.
Defendant also argues that the trial court committed plain error in its jury instructions regarding aggravating factors. The plain error rule is only applied when "'it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done . . . .'" State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F. 2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513, 103 S. Ct. 381 (1982)). In this case, after the jury had deliberated for a period of time, it sent a question to the trial judge asking her to clarify the distinction between felonious and misdemeanor speeding to elude arrest. The trial judge, with the consent of the parties, re-read the pertinent portion of her prior instructions. When she reached the aggravating factors portion of her re-instruction, which distinguished between felony and misdemeanor speeding to elude arrest, the judge stated:
And number four, you must find two or more of the following factors were present at the time: One, speeding in excess of 15 miles per hour over the legal speed limit; two, if there was reckless driving; three, that the driver's license was revoked. The defendant's driver's license was revoked.
Defendant contends the last sentence of this instruction was improper, because it relieved the State of its burden of proving beyond a reasonable doubt that defendant's license was revoked by stating that that factor had been established. We believe defendant misreads the transcript.
"The general rule in North Carolina is that a jury charge must be construed in its entirety." State v. Mebane, 61 N.C. App. 316, 319, 300 S.E.2d 473, 476 (1983). See also State v. Blizzard, 169 N.C. App. 285, 296-97, 610 S.E.2d 245, 253 (2005) ("'The [jury] charge will be held to be sufficient if it presents the law of the case in such manner as to leave no reasonable cause to believe thejury was misled or misinformed.'" (quoting Bass v. Johnson, 149 N.C. App. 152, 160, 560 S.E.2d 841, 847 (2002))). An examination of the transcript in this case reveals that the trial judge's sentence _ "The defendant's driver's license was revoked" _ was not a direction to the jury, but a clarification of the preceding sentence.
A reading of the challenged instruction in the context of the other places in the transcript where the judge properly instructed the jury, indicates that the judge was not trying to tell the jury that it had to find that defendant's license was revoked, but rather was trying to make sure the jury understood that the aggravating factor of a revoked license had to apply to defendant himself. The trial judge described the aggravating factors to the jury in three other instances, without any improper implication that the State had already proved that defendant's license had been revoked. In short, a contextual reading of the charge in its entirety does not reveal any error on the part of the trial court, but merely an attempt at clarification, to bring that description of the aggravating factors into consistency with the court's descriptions elsewhere in the jury instructions. We can see no reasonable possibility that the jury was misled or misinformed or that the trial court committed plain error in its instructions. Finally, defendant assigns plain error to the trial court's failure to give instructions defining "driving while license revoked" and "reckless driving." This Court has recently rejected this argument in the case of State v. Wood, __ N.C. App. __, __, 622 S.E.2d 120, 123 (2005). In Wood, the defendant was convicted of speeding to elude arrest, and on appeal he assigned plain error to the trial court's jury instructions, contending the court should have instructed the jury as to the meaning of "driving while license revoked," "negligent driving," and "reckless driving." In that case, as in this case, the defendant cited no statutory or case law authority that would require a judge to issue concurrent instructions defining any of these terms. This Court in Wood accordingly held that the judge did not commit plain error in failing to define the terms. Id. As Wood is indistinguishable from the present case, this assignment of error is also overruled.
Judges TYSON and JACKSON concur.
Report per Rule 30(e).
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