Defendant assigns error to the trial court's denial of his
motions to dismiss for insufficient evidence because the State
failed to produce any evidence that he was driving the vehicle. We
When a defendant moves for dismissal, the trial court is to
determine whether there is substantial evidence (a) of eachessential element of the offense charged, or of a lesser offense
included therein, and (b) of defendant's being the perpetrator of
the offense. If so, the motion to dismiss is properly denied.
State v. Bellamy
, 172 N.C. App. 649, 656, 617 S.E.2d 81, 87 (2005)
(quoting State v. Earnhardt
, 307 N.C. 62, 65-66, 296 S.E.2d 649,
651-52 (1982)). Substantial evidence is relevant evidence that a
reasonable mind might accept as adequate to support a conclusion.
State v. Vick
, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995).
In ruling on a motion to dismiss, the court must view the evidence
in a light most favorable to the State. State v. Benson
, 331 N.C.
537, 544, 417 S.E.2d 756, 761 (1992).
To convict a defendant under N.C. Gen. Stat. § 20-28(a) of
driving while his license is revoked the State must prove beyond a
reasonable doubt that (1) the defendant operated a motor vehicle
(2) on a public highway (3) while his operator's license was
revoked. State v. Cruz
, 173 N.C. App. 689, 697, 620 S.E.2d 251,
256 (2005) (quoting State v. Richardson
, 96 N.C. App. 270, 271, 385
S.E.2d 194, 195 (1989)). Here, the State introduced evidence that
defendant's driver's license was in a state of revocation on 5 June
2003. Similarly, to convict a defendant on the charge of habitual
driving while impaired, N.C.G.S. § 20-138.5(a) requires that the
State prove that the defendant has driven while impaired as
defined in G.S. 20-138.1 and has been convicted of three or more
offenses involving impaired driving as defined in G.S. 20-4.01(24a)
within seven years of the date of this offense. N.C. Gen. Stat.
§ 20-138.5 (2005). At trial, defendant stipulated to three priorconvictions for impaired driving. Pursuant to N.C.G.S. §
A person commits the offense of impaired
driving if he drives any vehicle upon any
highway, any street, or any public vehicular
area within this State: (1) While under the
influence of an impairing substance; or (2)
After having consumed sufficient alcohol that
he has, at any relevant time after the
driving, an alcohol concentration of 0.08 or
N.C. Gen. Stat. § 20-138.1(a) (2005). Defendant's blood alcohol
level was .211, and Trooper McMurray testified as to his opinion
that defendant's physical and mental faculties were appreciably
Thus, as to both offenses, the issue is whether the State
produced sufficient evidence that defendant was the driver of the
van. In this case, the State presented evidence that Ms. Gurley
arrived at the scene of the accident seconds after it happened and
observed the van until emergency crews arrived. No other person
was seen leaving the van, either by Ms. Gurley or by the emergency
responders who joined her. While this evidence was circumstantial,
the State may rely on circumstantial evidence to prove its prima
case, as [t]he law makes no distinction between the weight
to be given to either direct or circumstantial evidence. State v.
, 137 N.C. App. 553, 557, 528 S.E.2d 386, 390, disc. review
, 352 N.C. 361, 544 S.E.2d 556 (2000) (quoting State v.
, 107 N.C. App. 200, 204, 419 S.E.2d 200, 203 (1992)). Our
Supreme Court has specifically held that the identity of the
driver of an automobile at the time of a collision may beestablished by circumstantial evidence, either alone or in
combination with direct evidence. Helms v. Rea
, 282 N.C. 610,
616, 194 S.E.2d 1, 5-6 (1973). In State v. Riddle
, 56 N.C. App.
701, 704, 289 S.E.2d 598, 599 (1982), on facts closely parallel to
the case at bar, we held that similar circumstantial evidence
provided sufficient prima facie
evidence of the driver's identity
to survive a motion to dismiss. We conclude the same here, and
overrule this argument.
Defendant next argues that his conviction for habitual driving
while impaired violates his federal and state constitutional rights
to be free from double jeopardy. Defendant acknowledges that this
issue has already been decided adversely in State v. Vardiman
N.C. App. 381, 383, 552 S.E.2d 697, 699 (2001), but urges us to
. One panel of the Court of Appeals may not,
however, overrule another panel. In re Appeal from Civil Penalty
324 N.C. 373, 384, 379 S.E.2d 30, 36 (1989). Therefore, this
argument must fail.
Judges TYSON and McCULLOUGH concur.
Report per Rule 30(e).
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