State Carolina v. Banks

713 S.E.2d 754

STATE of North Carolina

v.Jimmy Wayne BANKS, Defendant.

No. COA10–935.

Court of Appeals of North Carolina.

July 19, 2011.

OPINION TEXT STARTS HERE

Appeal by defendant from judgment entered 10 March 2010 by Judge James G. Bell in Superior Court, Johnston County. Heard in the Court of Appeals 26 January 2011.

Attorney General, Roy A. Cooper, III, by Vanessa N. Totten, Assistant Attorney General, for the State.

Peter Wood, Raleigh, for defendant-appellant.

STROUD, Judge.

Jimmy Wayne Banks (“defendant”) appeals from his conviction for felonious operation of a motor vehicle to elude arrest. For the following reasons, we find no error in defendant's trial.

On 2 November 2009, defendant was indicted for felony operation of a motor vehicle to elude arrest. Defendant was tried on this charge at the 8 March 2010 Criminal Session of Superior Court, Johnston County. At trial, the State's evidence tended to show that on 15 April 2009 Officer David Hildreth of the Johnston County Sheriff's Department observed defendant driving with a white left taillight instead of a red taillight, as required by North Carolina law. Officer Hildreth turned his patrol car around and followed defendant. When the two vehicles reached an intersection, defendant suddenly changed from the middle lane, which was not a turning lane, to the right turn lane. Defendant then stopped for about thirty seconds, even though the stop light at the intersection was showing a green arrow for his lane. After defendant turned right at the intersection, Officer Hildreth turned on his blue lights and siren to initiate a stop of defendant's vehicle. Officer Hildreth followed defendant as he made an immediate right turn into a parking lot located at the corner of the intersection. When Officer Hildreth exited his vehicle to approach the stopped vehicle, defendant suddenly drove away.

Officer Hildreth followed as defendant circled the parking lot by exiting the lot, without stopping, onto one road and then re-entering the lot from an entrance on the other road. Officer Hildreth testified that at one point defendant was driving on the left side of the road in the opposing traffic lanes. He estimated that defendant was going thirty to thirty-five miles per hour through the parking lot and that there was a person in the parking lot during the chase. After exiting the parking lot for the final time, defendant drove through a red stoplight at thirty to forty miles per hour. Then, at a sharp turn further down the road, defendant lost control of the vehicle. It swerved onto the left side of the road, into oncoming traffic, and flipped over before coming to a stop. Officer Hildreth arrested defendant at the scene. The State presented evidence that at the time of the incident defendant was driving while his license was revoked and that the damage to defendant's car was in excess of $1,000. Defendant did not present any evidence at trial.

The trial court instructed the jury on both misdemeanor and felony operation of a motor vehicle to elude arrest. On 9 March 2009, the jury found defendant guilty of felonious operation of a motor vehicle to elude arrest. Subsequent to trial, defendant pled guilty to attaining the status of habitual felon on 10 March 2010 and pursuant to that plea agreement, the trial court entered judgment, sentencing defendant to a term of 80 to 105 months imprisonment. Defendant gave notice of appeal in open court.

Defendant contends the trial court failed to properly instruct the jury in two respects: (1) by giving a disjunctive jury instruction which allowed the jury to return a felony conviction without a unanimous verdict; and (2) by declining to define the aggravating factor of reckless driving in the jury instruction. Defendant argues for a plain error analysis of his disjunctive jury instruction argument. We have noted that generally a “defendant's failure to object to an alleged error of the trial court precludes the defendant from raising the error on appeal” but

“[w]here, however, the error violates [a] defendant's right to a trial by a jury of twelve, [a] defendant's failure to object is not fatal to his right to raise the question on appeal.” Id.

[ State v. Ashe, 314 N.C. 28, 331 S.E.2d 652 (1985) ]

; see also State v. Brewer, 171 N.C.App. 686, 691, 615 S.E.2d 360, 363 (2005) (quoting State v. Wiggins, 161 N.C.App. 583, 592, 589 S.E.2d 402, 409 (2003), disc. review denied, 358 N.C. 241, 594 S.E.2d 34 (2004)), disc. review denied, 360 N.C. 484, 632 S.E.2d 493 (2006) (stating that “[v]iolations of constitutional rights, such as the right to a unanimous verdict ... are not waived by the failure to object at trial and may be raised for the first time on appeal.' ”).

State v. Johnson, 183 N.C.App. 576, 582, 646 S.E.2d 123, 127 (2007). Accordingly, defendant's argument is properly before us.

In addressing the substance of defendant's argument, we note that a violation of N.C. Gen.Stat. § 20–141.5 is enhanced from a Class 1 misdemeanor to a Class H felony when at least two of the eight aggravating factors listed in subsection (b) are present:

(a) 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. Except as provided in subsection (b) of this section, violation of this section shall be a Class 1 misdemeanor.

(b) If two or more of the following aggravating factors are present at the time the violation occurs, violation of this section shall be a Class H felony.

(1) Speeding in excess of 15 miles per hour over the legal speed limit.

(2) Gross impairment of the person's faculties while driving due to:

a. Consumption of an impairing substance; or

b. A blood alcohol concentration of 0.14 or more within a relevant time after the driving.

(3) Reckless driving as proscribed by G.S. 20–140.

(4) Negligent driving leading to an accident causing:

a. Property damage in excess of one thousand dollars ($ 1,000); or

b. Personal injury.

(5) Driving when the person's drivers license is revoked.

(6) Driving in excess of the posted speed limit, during the days and hours when the posted limit is in effect, on school property or in an area designated as a school zone pursuant to G.S. 20–141.1, or in a highway work zone as defined in G.S. 20–141(j2).

(7) Passing a stopped school bus as proscribed by G.S. 20–217.

(8) Driving with a child under 12 years of age in the vehicle.

N.C. Gen.Stat. § 20–141.5 (2009). As noted above, the trial court instructed the jury on both misdemeanor and felony operation of a motor vehicle to elude arrest, stating that in order to find defendant guilty of the felony, the jury had to find at least two of the aggravating factors listed in N.C. Gen.Stat. § 20–141.5, specifically: reckless driving; negligent driving leading to an accident causing property damage in excess of $1,000; and driving while defendant's driver's license was revoked. Defendant asserts that the trial court erred by giving an instruction which allowed the jury to return a felony conviction if it found that at least two of the three aggravating factors submitted were present. He argues that the trial court should have instead required the jury to be unanimous as to which aggravating factors were present before it could return a felony conviction.

A disjunctive jury instruction is fatally ambiguous when it is “impossible to determine whether the jury unanimously found that the defendant committed one particular offense.” State v. Bell, 359 N.C. 1, 29, 603 S.E.2d 93, 112–13 (2004) (citation and quotation marks omitted), cert. denied, 544 U.S. 1052, 125 S.Ct. 2299, 161 L.Ed.2d 1094 (2005). However, “if the trial court merely instructs the jury disjunctively as to various alternative acts which will establish an element of the offense, the requirement of unanimity is satisfied.” Id. at 30, 603 S.E.2d at 113 (citation, emphasis, and quotation marks omitted). In State v. Funchess, 141 N.C.App. 302, 540 S.E.2d 435 (2000), we considered whether a disjunctive jury instruction on the aggravating factors of N.C. Gen.Stat. § 20–141.5 violated the North Carolina Constitution's requirement that “ ‘[n]o person shall be convicted of any crime but by the unanimous verdict of a jury in open court.’ ” Id. at 307, 540 S.E.2d at 438 (quoting N.C. Const. Art. I, § 24). Specifically, the defendant in Funchess argued “that the jury should have been required to agree on which of those eight particular factors [of N.C. Gen.Stat. § 20–141.5(b) ] were present in his case.” Id. In rejecting the defendant's argument, we concluded that in that context, a disjunctive jury instruction was acceptable because the aggravating factors are “not separate offenses ... but are merely alternate ways of enhancing the punishment.” Id. at 309, 540 S.E.2d at 439. We explained that the jury had still unanimously convicted defendant of “a single wrong: attempting to flee in a motor vehicle from a law enforcement officer in the lawful performance of his duties,” even though it may not have been unanimous as to which aggravating factors were present during the offense. Id. In applying Funchess, to the present case, we note that while the jury may not have been unanimous as to which aggravating factors were present, it was unanimous in finding that defendant was guilty of felonious operation of a motor vehicle to...