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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA07-37


Filed: 4 September 2007


         v.                    Henderson County
                            No. 04 CRS 56445

    Appeal by defendant from judgment entered 2 June 2006 by Judge James U. Downs in Henderson County Superior Court. Heard in the Court of Appeals 20 August 2007.

    Attorney General Roy A. Cooper, III, by Assistant Attorney General Brian Paxton, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Emily H. Davis, for defendant-appellant.

    JACKSON, Judge.

    Clarence Bateman (“defendant) was charged with driving while license revoked. He was found guilty in district court and appealed to superior court, where he again was found guilty. From a judgment imposing an active term of imprisonment of forty-five days, defendant appeals.
    On 7 October 2004, Officer Travis Rector (“Officer Rector”) of the Hendersonville Police Department and Angela Swain (“Swain”), an employee of the Hendersonville Water Department, observed a vehicle travel along Fourth Avenue in Hendersonville, cross the center line, come onto the sidewalk on the southern side of the Hendersonville Water Department building, and stop approximately twenty-five feet from where Officer Rector and Swain were standing. Officer Rector and Swain both identified defendant as the operator of the vehicle. Since Officer Rector was accompanying Swain as she was making a bank deposit and he was prohibited by department policy from leaving Swain, he did not conduct any further investigation at the scene. Later that day, Officer Rector ascertained that defendant's driver's license was revoked, and thereafter, Officer Rector obtained a warrant for defendant's arrest on a charge of driving while license revoked.
    At trial, Officer Rector produced a copy of defendant's driving record. Defendant stipulated to the authenticity of the document and to the fact the document stated that defendant's operator's license was in a state of revocation or suspension at the time of the incident in question. Officer Rector also produced a copy of a letter dated 16 May 1996 that the Division of Motor Vehicles mailed to defendant notifying him of the permanent revocation or suspension of defendant's operator's license.
    Defendant testified that he had not driven an automobile “in four or five years.” He also testified that he knew his driver's license was revoked. He denied that he had driven a vehicle on the date in question.
    The sole issue on appeal is whether the court committed plain error by instructing the jury as follows:
        Third, the State must prove beyond a reasonable doubt that at the time the Defendant was driving the motor vehicle, his drivers license was revoked. The law requires that the Defendant must have had knowledge of the revocation at the time he was driving the motor vehicle. It is stipulated in here, by and between the State and the Defendant, thathis license was in a state of revocation at that time and on this date. It has not been stipulated that he was driving. And furthermore, it has been stipulated that he knew that his license was in a state of revocation, so the jury doesn't have to find that. You see, a stipulation is an agreement that that is a fact that is not in controversy. And it's your duty to find the facts, so if they've agreed upon anything, you seize that and put it behind you and move on to those things that are in controversy.

Defendant contends that the court erroneously instructed the jury that the parties had stipulated, when they actually had not, that on the date of the incident, (1) defendant's driver's license was revoked; and (2) defendant knew his license was revoked. He submits that the parties merely stipulated to the authenticity of documents showing defendant's license had been revoked and that defendant had been notified of the revocation of his driver's license. He maintains that he never stipulated to the facts that his license was in a state of revocation on the date of the incident or that he had knowledge of the revocation of his license.
    In deciding whether a defective jury instruction amounted to plain error, this Court reviews the whole record to determine whether the instruction had a probable impact upon the jury's finding of guilt. See State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 378.89 (1983). The defendant has the burden of showing “(i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial.” State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997).
    We are not persuaded that the jury would have come to adifferent result had this instruction not been given. Two witnesses testified that defendant was driving the vehicle on the date in question. Further, in addition to stipulating to the authenticity of documents showing his license was revoked, defendant testified that he knew his operator's license was revoked on the date of the alleged incident. Accordingly, defendant's assignment of error is overruled.
    No error.
    Chief Judge MARTIN and Judge CALABRIA concur.
    Report per Rule 30(e).

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