State v. Finger

• Decision Date: 05 February 1985
• Docket Number: No. 8421SC261,8421SC261
• Parties: STATE of North Carolina v. Robert Leon FINGER a/k/a Robert H. Finger a/k/a Robert Leo Finger.
• Court: North Carolina Court of Appeals

Page 894

324 S.E.2d 894

72 N.C.App. 569

STATE of North Carolina v. Robert Leon FINGER a/k/a Robert H. Finger a/k/a Robert Leo Finger.

No. 8421SC261.

Court of Appeals of North Carolina.

Feb. 5, 1985.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Michael Smith, Raleigh, for the State.

Sapp & Mast by David P. Mast, Jr., Winston-Salem, for defendant-appellant. BECTON, Judge.

The defendant, Robert Leon Finger, was convicted of driving while his license was revoked, displaying a fictitious driver's license, and making a false affidavit to obtain a driver's license. From judgments imposing an 18-month active sentence on the driving while license revoked charge, and a two-year suspended sentence on the other two misdemeanor charges which had been consolidated for judgment, the defendant appeals. Defendant has made numerous assignments of error concerning, inter alia, the admission of evidence, the sufficiency of the evidence, erroneous instructions on the law, the expressions of opinion by the trial court, and the imposition of a sentence which is in excess of the statutory maximum. We find no error in the driving while license revoked charge, but we reverse defendant's conviction of making a false affidavit to obtain a driver's license.

I

Defendant first argues that the trial court erred in allowing testimony of law enforcement officers, court officials, and one of his former attorneys regarding prior charges, convictions, and court proceedings relating to the defendant. The defendant directs our attention first to the general rule that "in a prosecution for a particular crime the State cannot offer evidence tending to show that the accused has committed another distinct, independent or separate offense." State v. Spillars, 280 N.C. 341, 352, 185 S.E.2d 881, 888 (1972). Defendant argues that the rule is particularly applicable in this case in which the State, in its case in chief, put on evidence of defendant's prior charges and convictions. Defendant also cites State v. Thomas, 17 N.C.App. 8, 193 S.E.2d 450 (1972), in which the general rule is applied to the specific facts of a driving while license suspended case. In Thomas, we said:

It violated the rule that evidence of other offenses is inadmissible if its only relevancy is to show the character of the accused or his disposition to commit an offense of the nature of the one charged. While the fact that the defendant's driver's license was in a state of suspension was competent as evidence in the case, the reasons for the suspension were incompetent and their admission into evidence amounted to prejudicial error. The fact that the defendant may have been convicted of reckless driving on another occasion while his driver's license was suspended and for driving while his driver's license was suspended does not come within any of the exceptions to the general rule excluding evidence of the commission of other offenses as set out in State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954). Moreover, we are of the opinion that the fact that defendant was later properly cross-examined concerning his prior convictions for the purpose of impeaching his credibility did not cure the error. If we were to hold otherwise, it would amount to a condonation of a practice which the rules of evidence forbid.

17 N.C.App. at 10-11, 193 S.E.2d at 452.

With the general rule we have no quarrel. The facts of this case present an exception to the general rule, and this case is distinguishable from State v. Thomas. To sustain its burden of proof on two of the charges involving fraudulent conduct, the State had to show not only the defendant's acts, but also his intentions. That is, the State had to prove that the defendant possessed and displayed a driver's license that he knew was fictitious, N.C.Gen.Stat. Sec. 20-30(1) (1983), and that he made a false statement in applying for a driving license, N.C.Gen.Stat. Sec. 20-30(5) (1983).

In this case, State Highway Patrolman Hall testified that he stopped defendant, who was driving a 1973 Buick, on 10 June 1983 because he knew that defendant's license was permanently revoked. Division of Motor Vehicles Officer Gwyn testified that defendant applied for a North Carolina driver's license on 27 May 1982 and presented a North Carolina birth certificate. In response to the questions on the application, defendant informed Gwyn that he had not had a ticket in North Carolina, that his license had never been suspended, and that he had never suffered from drug or alcohol problems. Defendant's birth certificate showed his proper name as Robert H. Finger. Defendant signed the application "Robert H. Finger" and a driver's license was issued to Robert H. Finger on 27 May 1982.

On these facts, it was essential for the State to show (1) the officer's and defendant's knowledge of defendant's prior driving record, (2) the defendant's conduct in obtaining his license in May 1982, and (3) the defendant's conduct during his arrest in June 1983, as those factors bore on the defendant's intentions and acts. We find the evidence objected to admissible for reasons other than character. It showed that defendant had several driving violations of which he was aware, but which he falsely represented when he obtained a license in May 1982. It showed the law enforcement officers' personal knowledge of defendant's license status. Further, the evidence was relevant on the issue of identity. The evidence objected to comes within the exceptions set out in State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954).

II

Having held the evidence objected to in section I admissible, we summarily reject defendant's second argument that the trial court erred by admitting into evidence State's Exhibits 4 through 8 which were court files relating to defendant's prior convictions.

III

Defendant styles his third argument as follows:

The trial court committed reversible error in the 'driving while license revoked' case, in denying defendant's motion to dismiss on the ground of insufficient evidence, and in particular for the failure to introduce any evidence showing notice to defendant of revocation of his license, at the conclusion of the State's evidence and again at the conclusion of all the evidence.

We do not agree with defendant. Our analysis follows.

A defendant must have actual or constructive knowledge of the revocation of his license before there can be a conviction under N.C.Gen.Stat.Sec. 20-28(a) (1983). Our Supreme Court recently said:

We have previously held that a conviction under G.S. 20-28(a) 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.

However, we believe that the legislature also intended that there be actual or constructive knowledge of the suspension or revocation in order for there to be a conviction under this statute.

State v. Atwood, 290 N.C. 266, 271, 225 S.E.2d 543, 545 (1976).

N.C.Gen.Stat. Sec. 20-48(a) (1983) addresses specifically the constructive notice issue:

Whenever the Division is authorized or required to give any notice under this Chapter or other law regulating the operation of vehicles, unless a different method of giving such notice is otherwise expressly prescribed, such 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. Proof of the giving of notice in either such manner may be made by the certificate of any officer or employee of the Division or affidavit of any person over 18 years of age, naming the person to whom such notice was given and specifying the time, place, and manner of the giving thereof.

The notice requirements of G.S. Sec. 20-48 have been applied by our Court in State v. Chester, 30 N.C.App. 224, 226 S.E.2d 524 (1976) and State v. Hayes, 31 N.C.App. 121, 228 S.E.2d 460 (1976).

At no time before the close of all the evidence in this case did the State introduce any evidence that a letter was sent to the defendant giving notice of revocation as provided in G.S. Sec. 20-48 (1983). State's Exhibit 11a, a certified Division of Motor Vehicles license check on Fred Robert Leo Finger had been admitted in evidence before the close of all the evidence. It is true that, after the close of all the evidence and following the renewed argument of the defendant for dismissal, the trial court asked the district attorney if he wanted to offer the remaining three pages of State's Exhibit 11 into evidence. The district attorney indicated that he did. The court ordered the remaining portions of State's Exhibit 11 admitted in evidence and, for convenience, we have labeled those portions State's Exhibits 11b, 11c, and 11d. State's Exhibit 11b is a letter to Fred R. Finger from the Division of Motor Vehicles entitled "Official Notice and Record of Revocation of Driving Privilege." The first paragraph of that letter reads: "Effective 12:01 a.m. June 25, 1978, your North Carolina driving privilege is revoked four (4) years for a second conviction of driving under the influence of intoxicating liquor or drugs--G.S. 20-17(2) and 20-19(d)."

Without regard to the court's efforts in assisting the State in this case, we still find this evidence insufficient to show that defendant had constructive notice that his license was revoked on 10 June 1983, the date of his arrest for the offenses charged herein. The most State's Exhibit 11b shows is that the State forwarded a letter to Fred R. Finger advising him that his driving privilege had been revoked for four years effective 25 June 1978 to 25 June 1982...