State v. Graves

690 S.E.2d 545

STATE of North Carolina v. Sandy Delandore GRAVES.

No. COA09-595.

Court of Appeals of North Carolina.

March 16, 2010.

Attorney General Roy Cooper, by Assistant Attorney General Kathryne E. Hathcock, for the State.

Cheshire, Parker, Schneider, Bryan & Vitale, by John Keating Wiles, Raleigh, for defendant.

ELMORE, Judge.

A jury found Sandy Delandore Graves (defendant) guilty of the following crimes: felony speeding to elude arrest, driving while license revoked, reckless driving to endanger, and level two driving while impaired. Following these convictions, defendant pled guilty to being a habitual felon. The trial court sentenced defendant to 133 to 145 months' imprisonment for felony speeding to elude arrest, 120 days' imprisonment for driving while license revoked and reckless driving to endanger, and twelve months' imprisonment for driving while impaired. Defendant now appeals. After careful consideration, we vacate defendant's conviction for driving while license revoked. As to his other convictions, we find no error.

Around midnight on the evening of 24 July 2007, Detective David Lamberth of the Eden Police Department responded to a radio communications call for "a domestic in process in or around a dark blue vehicle at the Patrick Street/Washington Street area of Eden." When Detective Lamberth arrived, he saw a dark blue car on Washington Street. Detective Lamberth turned around to pursue the car, but defendant, who was driving it, also turned around and drove in the opposite direction down Washington Street. As Detective Lamberth followed the blue car, he observed it speed up and ultimately achieve a speed of sixty-five to seventy miles per hour. He saw the blue car run three stop signs. Detective Lamberth activated his lights and sirens after seeing defendant run the first of those stop signs. The blue car eventually crossed over a yard, spun out, and hit a fire hydrant and Detective Lamberth's cruiser. Defendant then continued driving at approximately fifty-five miles per hour in a twenty-five mile per hour zone, ran through a fourth stop sign, and veered across the road into a residential yard. Defendant then stepped out of the car, and Detective Lamberth restrained him.

The State indicted defendant for felony speeding to elude arrest, driving while license revoked, reckless driving to endanger, driving while impaired, and being a habitual felon. A jury convicted defendant of the first four charges, and defendant pled guilty to being a habitual felon. He now appeals.

Defendant first argues that the trial court erred by denying his motions to dismiss the charges of felony speeding to elude arrest, driving while license revoked, and being a habitual felon.

Our review of the trial court's denial of a motion to dismiss is well understood. Where the sufficiency of the evidence ... is challenged, we consider the evidence in the light most favorable to the State, with all favorable inferences. We disregard defendant's evidence except to the extent it favors or clarifies the State's case. When a defendant moves for dismissal, the trial court must determine only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense. Substantial evidence is that evidence which a reasonable mind might accept as adequate to support a conclusion.

State v. Hinkle, 189 N.C.App. 762, 766, 659 S.E.2d 34, 36-37 (2008) (quotations and citation omitted; alteration in original).

Accordingly, we begin with the elements of felony speeding to elude arrest, set out in N.C. Gen.Stat. § 20-141.5, which provides, in relevant part:

(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.

* * *

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

(4) Negligent driving leading to an accident causing ... property damage in excess of one thousand dollars ($ 1,000).

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

N.C. Gen.Stat. § 20-141.5(a)-(b) (2009). Although there are eight aggravating factors that elevate speeding to elude arrest from a misdemeanor to a felony, the State only argued the four factors listed above. The jury had only to find that two of those four factors were present in order to convict defendant of the crime. Defendant does not challenge the sufficiency of the State's evidence as to factors (1), (3), and (4); it challenges only the sufficiency of factor (5). The State concedes that it did not present sufficient evidence to either show that defendant was driving with a revoked license for purposes of satisfying the speeding to elude arrest statute or to maintain a conviction for driving with license revoked.

The issue before us, then, is whether the State's failure to present sufficient evidence in support of one of four alleged aggravating factors requires us to vacate the conviction, even though the State presented sufficient evidence in support of the other three aggravating factors. In 2006, we answered this very question in the negative, albeit in an unpublished case. State v. Owens, 178 N.C.App. 742, 632 S.E.2d 600, 2006 WL 2129834, at *2, 2006 N.C.App. Lexis 1648 at *6 (2006). In Owens, the defendant argued that the State did not present sufficient evidence of reckless driving, and, thus, the court should have dismissed the felony speeding to elude charge. Id., 2006 WL 2129834, at *2, 2006 N.C.App. Lexis 1648 at *5. However, the defendant did not challenge the sufficiency of the State's evidence with respect to speeding or reckless driving. Id. We explained:

Since defendant, in this case, has made no argument indicating that the State did not prove factors (1) and (3), and since the State was required to prove only two factors, we hold that the trial court did not err in denying his motion to dismiss for insufficiency of the evidence.

Id., 2006 WL 2129834, at *2, 2006 N.C.App. Lexis 1648 at *6 (citation omitted). "Although many of the enumerated aggravating factors are in fact separate crimes under various provisions of our General Statutes, they are not separate offenses ..., but are merely alternate ways of enhancing the punishment for speeding to elude arrest from a misdemeanor to a Class H felony." State v. Funchess, 141 N.C.App. 302, 309, 540 S.E.2d 435, 439 (2000); see also State v. Moore, 315 N.C. 738, 743, 340 S.E.2d 401, 404 (1986) ("Although the indictment may allege more than one purpose for the kidnapping, the State has to prove only one of the alleged purposes in order to sustain a conviction of kidnapping.") (citations omitted). Accordingly, the State need not present sufficient evidence to support every alternative way of enhancing the punishment in order to survive a motion to dismiss for insufficiency of the evidence; it need only present sufficient evidence of at least two alternatives.¹

Because the State did not present sufficient evidence that defendant committed the crime of driving with license revoked, as conceded by the State in its brief, we vacate that conviction. However, we hold that the trial court did not err by denying defendant's motion to dismiss the charge of felony speeding to elude.

Defendant next makes two plain error arguments regarding jury instructions. As to both arguments, we find no error, plain or otherwise. "In criminal cases, a question which was not preserved by objection noted at trial ... may be made the basis of...