An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 18 July 2006
STATE OF NORTH CAROLINA
Nos. 04 CRS 72596,
KEITH TYRONE TROXLER 04 CRS 72601
Appeal by defendant from judgments entered 27 April 2005 by
Judge A. Moses Massey in Guilford County Superior Court. Heard in
the Court of Appeals 18 May 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Timothy W. Jones, for the State.
Charlotte Gail Blake for defendant appellant.
Defendant appeals from judgments entered after jury verdicts
of guilty on felonious speeding to elude arrest and possession of
cocaine charges. We find no error.
On 16 August 2004, a Guilford County grand jury indicted
defendant for the offense of possession of cocaine and then
subsequently on 20 September 2004 for the offenses of fleeing to
elude arrest and resisting a public officer. The indictment for the
offense of fleeing to elude arrest stated in pertinent part, the
defendant named above unlawfully, willfully and feloniously did
operate a motor vehicle on a street, while attempting to elude a
law enforcement officer who was in the lawful performance of theofficer's duties and further set forth certain aggravating
factors. The State proceeded to trial on 25 April 2005 and
presented the following evidence:
On 17 March 2004, Officer E.S. Stevenson (Officer Stevenson)
was patrolling the Smith Homes public housing division of
Greensboro, North Carolina with Officer S.W. Cox (Officer Cox).
Officer Stevenson was familiar with the area and its residents as
he had been assigned to it for approximately one year. While
patrolling Luray Drive, the officers passed a 1997 Nissan
Pathfinder and recognized defendant as the driver of the vehicle.
Both Officer Stevenson and Officer Cox had met defendant on
several occasions and were aware that defendant did not possess a
valid North Carolina driver's license. The officers turned around
to pursue defendant and attempted to cut him off after following
defendant through several turns. The Pathfinder and the police car
again passed each other and the officers once again recognized
defendant as the driver of the vehicle.
At this time, the officers attempted to stop defendant and
turned on their blue lights in pursuit of the vehicle. Defendant
accelerated to a speed of approximately 60 to 65 miles per hour in
a 35-mile-per-hour speed limit zone and ran several stop signs
before hitting a barrier at the end of Oak Street. The officers
then observed defendant jump out of the vehicle, climb over a small
fence, and flee.
Officer Stevenson attempted to pursue defendant but was unable
to find him. While Officer Stevenson pursued defendant, OfficerCox approached the vehicle and discovered a passenger in the right
front seat of the vehicle whom he detained. When Officer Stevenson
subsequently returned to the vehicle, he and Officer Cox performed
a search of the vehicle and discovered cocaine in the driver's
At the close of the State's evidence, defendant made a motion
to dismiss all charges which was denied by the trial judge.
Defendant renewed the motion to dismiss the charges at the close of
all the evidence which was again denied by the trial judge. The
jury returned a verdict of guilty on the charges of felonious
speeding to elude arrest and possession of cocaine.
Defendant now appeals.
In his first argument on appeal, defendant contends that the
indictment charging him with the offense of speeding to elude
arrest was fatally defective, such that the trial court lacked
jurisdiction to try him and enter judgment on the charges.
Specifically, defendant contends that the indictments merely
recited language from N.C. Gen. Stat. § 20-141.5 without making any
specific factual allegations as to the name of the officer and the
lawful duty of which he was performing. We disagree.
It is well settled that a valid warrant or indictment is
essential to jurisdiction. See State v. Partridge, 157 N.C. App.
568, 570, 579 S.E.2d 398, 399, disc. review improvidently allowed,
357 N.C. 572, 597 S.E.2d 673 (2003). To be valid under our GeneralStatutes, an indictment must contain [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)(2005). [T]he language in a statutorily
prescribed form of criminal pleading is sufficient if the act or
omission is clearly set forth so that a person of common
understanding may know what is intended. State v. Coker, 312 N.C.
432, 435, 323 S.E.2d 343, 346 (1984). An indictment will only be
considered fatally defective if it 'wholly fails to charge some
offense . . . or fails to state some essential and necessary
element of the offense of which the defendant is found guilty.'
State v. Wilson, 128 N.C. App. 688, 691, 497 S.E.2d 416, 419
(citation omitted) (footnote omitted), disc. review improvidently
allowed, 349 N.C. 289, 507 S.E.2d 38 (1998).
The offense of speeding to elude arrest is made unlawful by
the following statutory provision:
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
N.C. Gen. Stat. § 20-141.5 (2005). The following language was used
in the indictment charging the present defendant with speeding to
elude arrest: The jurors for the State upon their oath
present that on or about the 17th day of March,
2004, in the county named above [Guilford] the
defendant . . . unlawfully, willfully and
feloniously did operate a motor vehicle on a
street, while attempting to elude a law
enforcement officer who was in the lawful
performance of the officer's duties. At the
time of the violation the defendant was:
1. The defendant was speeding in excess of
15 miles per hour over the legal speed
2. The defendant was driving recklessly in
violation of G.S. 20-140.
3. The defendant was driving while his
driver's license was revoked.
Defendant asserts on appeal that the crime of speeding to
elude arrest is analogous to the crime of resisting an officer,
and therefore further asserts that the requirement that a victim
of the crime be named in the indictment should also follow. We
disagree with these assertions. The crime of resisting an officer
is set forth in N.C. Gen. Stat. § 14-223: If 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). We disagree with the analogy that defendant attempts to
make and conclude that, unlike resisting arrest, the potential
victim of speeding to elude is more likely the public, rather than
the officer. Thus, naming the officer is unnecessary.
The action prescribed by the offense of speeding to elude
arrest is the operation of a vehicle in a dangerous manner to
effectuate elusion of arrest. Where the indictment clearly statesthe actions taken by defendant to recklessly operate a motor
vehicle with the purpose of eluding arrest, we find that these
facts were sufficient. Defendant was placed on sufficient notice of
the crime charged as to allow him to prepare a defense; and
including the name of the officer or the duty which the officer was
performing at the time would be mere superfluous language, and
therefore unnecessary to withstand a test of sufficiency.
Therefore this assignment of error is overruled.
Defendant further contends that the State presented
insufficient evidence as to the charges of speeding to elude arrest
and possession of cocaine such that a motion to dismiss should have
been granted. We disagree.
Upon review of a motion to dismiss, this Court determines
whether there is substantial evidence, viewed in the light most
favorable to the State, of each essential element of the offense
charged and of defendant being the perpetrator of the offense.
State v. Stancil, 146 N.C. App. 234, 244, 552 S.E.2d 212, 218
(2001), modified and aff'd, 355 N.C. 266, 559 S.E.2d 788 (2002)
(per curiam). Substantial evidence is such relevant evidence that
a reasonable mind might accept as adequate to support a
conclusion. State v. Morgan, 111 N.C. App. 662, 665, 432 S.E.2d
877, 879 (1993).
The court must examine the evidence in the light most
beneficial to the State, drawing all reasonable inferences
therefrom in favor of the State's case. State v. Robinson, 355 N.C.320, 336, 561 S.E.2d 245, 256, cert. denied, 537 U.S. 1006, 154 L.
Ed. 2d 404 (2002). If there is substantial evidence--whether
direct, circumstantial, or both--to support a finding that the
offense charged has been committed and that the defendant committed
it, the case is for the jury and the motion to dismiss should be
denied. State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383
(1988). This is true, even if the evidence likewise permits a
reasonable inference of the defendant's innocence. State v.
Grigsby, 351 N.C. 454, 457, 526 S.E.2d 460, 462 (2000).
Speeding to elude arrest
As stated, supra, 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's contention on appeal is that the trial court erred in
failing to dismiss the offense of felony speeding to elude arrest
where there was insufficient evidence that he was the person
driving the vehicle. We disagree.
Our review of the record in the instant case makes it clear
that the evidence taken in the light most favorable to the State
tended to show that defendant was the driver of the vehicle.
Officer Stevenson testified that he had been patrolling the area
for around a year and was familiar with defendant as well as aware
of the fact that defendant did not possess a valid North Carolinadriver's license. Officer Stevenson further testified that, when
the car initially passed him while on patrol, he recognized
defendant to be the driver. While in pursuit of defendant, the
vehicle turned and again passed the officer's patrol car, giving
Officer Stevenson a second opportunity to view the driver and
identify defendant as the operator of the vehicle. We find there to
be sufficient evidence that defendant was the operator of the
vehicle alleged to have been speeding to elude arrest.
The State proceeded to prove possession of cocaine by
defendant on the theory of constructive possession. The State is
not required to prove actual physical possession of the controlled
substance; proof of constructive possession by the defendant is
sufficient to carry the issue to the jury and such possession need
not be exclusive. State v. Perry
, 316 N.C. 87, 96, 340 S.E.2d 450,
456 (1986). Constructive possession exists when a person, while not
having actual possession of the controlled substance, has the
intent and capability to maintain control and dominion over a
controlled substance. State v. Williams
, 307 N.C. 452, 455, 298
S.E.2d 372, 374 (1983).
Where a controlled substance is found on the premises under
the defendant's control, this fact alone may be sufficient to
overcome a motion to dismiss and to take the case to the jury.
State v. Harvey
, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972).
However, if a defendant does not maintain control of the premises,
other incriminating circumstances must be established forconstructive possession to be inferred. State v. Alston
, 91 N.C.
App. 707, 710, 373 S.E.2d 306, 309 (1988). Our determination then
'depends on the totality of the circumstances in each case. No
single factor controls, but ordinarily the questions will be for
.' State v. Butler
, 147 N.C. App. 1, 11, 556 S.E.2d 304,
311 (2001) (citation omitted), aff'd
, 356 N.C. 141, 567 S.E.2d 137
In the instant case, defendant contends the State did not
present substantial evidence that he possessed cocaine. Upon review
of the testimony presented at trial, we hold that the State showed
sufficient incriminating circumstances from which the trial court
could have inferred constructive possession of cocaine when ruling
on defendant's motion to dismiss. The officers identified defendant
as the driver of a vehicle and began pursuit of defendant, based on
the knowledge that he did not possess a valid North Carolina
driver's license. The police officers followed defendant as he
attempted to elude arrest by speeding and running stop signs until
defendant crashed the car, bringing it to a stop. The officers then
observed defendant leap out of the car, jump a fence, and run away
from the scene. Officer Stevenson began an immediate pursuit of
defendant while Officer Cox went directly to the car and removed
the passenger. When Officer Stevenson returned, the two officers
searched the car and discovered cocaine lying in the driver's seat
where defendant had previously been seated.
Thus, there were
sufficient incriminating circumstances to warrant submission of theoffense to the jury, and therefore the corresponding assignments of
error are overruled.
Accordingly, we find there to be no merit in defendant's
contentions on appeal that the trial court committed error and
therefore we find
Judges HUDSON and TYSON concur.
Report per Rule 30(e).
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