State v. Curtis

• Decision Date: 05 March 1985
• Docket Number: No. 8425SC523,8425SC523
• Citation: 326 S.E.2d 90,73 N.C.App. 248
• Parties: STATE of North Carolina v. Randy Dean CURTIS.
• Court: North Carolina Court of Appeals

Page 90

326 S.E.2d 90

73 N.C.App. 248

STATE of North Carolina v. Randy Dean CURTIS.

No. 8425SC523.

Court of Appeals of North Carolina.

March 5, 1985.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. David E. Broome, Jr., Raleigh, for the State.

Appellate Defender Adam Stein by Asst. Appellate Defender Robin E. Hudson, Raleigh, for defendant-appellant.

COZORT, Judge.

The defendant was convicted of (1) operating a motor vehicle on a public highway while his operator's license was permanently revoked and (2) exceeding the posted speed limit. He does not challenge his conviction of the latter. As to the former, he raises several issues on appeal, most of which relate to the sufficiency of a stipulation about the defendant's driving record. The defendant contends that the following stipulation was insufficient evidence of revocation and notice of revocation to support his conviction: "[W]e will stipulate that this is a certified and sealed record from the N.C. Division of Motor Vehicles, and ... that there was a permanent revocation effective November 24, 1982; and that it also shows a mail date of suspension January 17, 1983." We disagree with the defendant and hold that the defendant's trial was free of prejudicial error.

Officer Gary Clark of the Lenoir Police Department was the sole witness at trial. He testified that on 29 June 1983, he observed the defendant driving a burgundy Toyota on Dellwood Drive, a public street in Lenoir. Officer Clark requested and received from the North Carolina Division of Motor Vehicles (DMV) a certified copy of the driving record of the defendant which showed that the defendant's license was permanently revoked on 24 November 1982, with the suspension letter being mailed on 17 January 1983.

Prior to Officer Clark taking the stand, the defendant's attorney stated to the court: "I anticipate the State will be attempting to introduce into evidence a master check. I will move to resist except ... that which shows his license was in revocation. The rest of it I contend was inadmissible." When Officer Clark testified that the suspension letter was mailed 17 January 1983, the following transpired:

Q. MR. McKINNEY [State's attorney]: I understand the defendant will stipulate that the record so reflects that, is that correct?

MR. LACKEY [Defendant's attorney]: Your Honor, we will stipulate that this is a certified and sealed record from the N.C. Division of Motor Vehicles, and we will further stipulate that that record reflects that the defendant's license was suspended--excuse me--that there was a permanent revocation effective November 24, 1982; and that it also shows a mail date of suspension January 17, 1983.

THE COURT: Let the record show that.

Q. Officer, do the records reflect at anytime that the defendant's driving privileges had been reinstated?

A. No, sir.

MR. McKINNEY: Your Honor, we move to introduce the record for that purpose to show the drivers license was permanently revoked.

THE COURT: Let the record show that that portion of the record is admitted.

The defendant contends that his conviction should be reversed for the following reasons: (1) the defendant's stipulation was not specific enough to show knowledge of the revocation; (2) the defendant's use of the words "mail date of suspension January 17, 1983" was not sufficient evidence that the revocation was mailed to the defendant in accordance with G.S. 20-48; (3) the DMV record was introduced only for the purpose of showing revocation and not that the defendant had received notice of the revocation; (4) the State improperly argued to the jury that defendant had the burden of rebutting the presumption of receipt arising from the evidence of mailing; and (5) the trial court committed prejudicial error by instructing the jury that the revocation had been "mailed to him."

The defendant was convicted of G.S. 20-28(b) which requires that the State prove beyond a reasonable doubt: "(1) the operation of a motor vehicle by a person (2) on a public highway (3) while his operator's license is suspended or revoked.... For purposes of a conviction for driving while license is suspended or revoked, mailing of the notice under G.S. 20-48 raises only a prima facie presumption that defendant received the notice and thereby acquired knowledge of the suspension or revocation. [Citations omitted.] Thus, defendant is not by this statute denied the right to rebut this presumption." State v. Atwood, 290 N.C. 266, 271, 225 S.E.2d 543, 545-46 (1976). The State satisfies its burden of proof of a G.S. 20-28 violation when, "nothing else appearing, it has offered evidence of compliance with the notice requirements of G.S. 20-48 because of the presumption that he received notice and had such knowledge." State v. Chester, 30 N.C.App. 224, 227, 226 S.E.2d 524, 526 (1976). G.S. 20-48(a) provides that "notice shall be given either by personal delivery thereof to the person to be so notified, or by deposit in the United States mail of such notice in an envelope with postage prepaid, addressed to such person at his address as shown by the records of the Division. The giving of notice by mail is complete upon the expiration of four days after such deposit of such notice."

The 17 January 1983 letter of notice of revocation began with this language: "Effective 12:01 A.M. November 24, 1982 your North Carolina driving privilege is permanently revoked for a third, or subsequent, conviction of driving under the influence of alcoholic beverages or drugs--G.S. 20-17(2) and 20-19(e)." The letter is addressed to Randy D. Curtis at 604 Broadway St. SW in Lenoir. That is the same address which appears on the 29...