An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA05-1388


Filed: 18 July 2006


     v .                              Guilford County
                                     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.

    McCULLOUGH, Judge.

    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 seat.
    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 duties.

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 limit.

                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.
Cocaine Possession
    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 the jury.'” 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 (2002).
    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
    No error.
    Judges HUDSON and TYSON concur.
    Report per Rule 30(e).

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