STATE OF NORTH CAROLINA
v. Henderson County
No. 04 CRS 56445
CLARENCE BATEMAN
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ascertained that defendant's driver's license was revoked, and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license was revoked.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drivers license was revoked.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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