State v. Gilbert, No. COA04-1227 (NC 7/5/2005)
| Decision Date | 05 July 2005 |
| Docket Number | No. COA04-1227,COA04-1227 |
| Court | United States State Supreme Court of North Carolina |
| Parties | STATE OF NORTH CAROLINA v. ANTONIA DEMETRIUS GILBERT |
Kathryn L. Vanden Berg for defendant-appellant.
Antonia Demetrius Gilbert (defendant) was convicted on 26 April 2004 of felonious speeding to elude arrest, in violation of N.C. Gen. Stat. § 20-141.5, and of attaining habitual felon status. He was sentenced to a minimum term of 80 months and a maximum term of 105 months in prison. Defendant appeals.
The State's evidence at trial tended to show that on 7 September 2003, Officer Tony Lewis (Officer Lewis) of the Thomasville Police Department and a reserve officer with whom he was working, were driving in a marked patrol vehicle on Culbreth Avenue in Thomasville. As they drove down Culbreth Avenue, a woman standing in her front yard screamed for them to stop. Officer Lewis stopped the patrol vehicle and had a conversation with the woman. Defendant was standing near Officer Lewis and the woman throughout their conversation. Officer Lewis asked defendant to "hold up" so that he could speak with him. Defendant replied, "I'm not talking with you," and got into his car. Officer Lewis again asked defendant to "hold up." Defendant replied "No" and drove away down the wrong lane of Culbreth Avenue at a high rate of speed. Officer Lewis then got into his patrol vehicle to pursue defendant for careless and reckless driving. As soon as Officer Lewis began pursuit of defendant, he turned on his blue lights and siren.
Defendant drove down the wrong lane on Culbreth Avenue for approximately 150 feet. He moved into the correct lane and turned right onto Cable Street, a residential street, without signaling. Defendant's speed continued to increase, and his tires squealed. Defendant's car fishtailed as he went around a ninety-degree turn halfway down Cable Street. Officer Lewis believed that defendant was speeding approximately fifty miles per hour down Cable Street, which had a posted thirty-five mile per hour speed limit and was populated with people at the time. Defendant failed to stop for the stop sign at the intersection of Cable Street and Memorial Park, and continued to squeal his tires. Officer Lewis estimated that defendant's speed reached seventy miles per hour on Memorial Park.
Defendant made a right turn on Unity Drive, and Officer Lewis again observed defendant squealing his tires. Officer Lewis estimated that defendant was driving seventy miles per hour down Unity Drive. An event was being held at Finch Auditorium on Unity Drive that evening, which increased the traffic and the number of pedestrians on the sidewalk. Officer Lewis pursued defendant down Unity Drive and onto Bulldog Drive, which led to Thomasville High School. Defendant voluntarily stopped in the parking lot of Thomasville High School.
Throughout the pursuit, Officer Lewis never lost sight of defendant. Officer Lewis testified that he was certified to operate radar equipment, and that his radar equipment was properly calibrated for accuracy at the time of the pursuit. During the pursuit, Officer Lewis's radar equipment showed that defendant was traveling seventy miles per hour on several thirty-five mile per hour streets, including residential areas and school zones.
Defendant was convicted by a jury of felony speeding to elude arrest on 26 April 2004. Defendant was then tried for habitual felon status, and the State submitted to the jury certified copies of three of defendant's prior felony convictions. The jury found defendant had attained the status of an habitual felon.
We note at the outset that defendant has presented an argument in support of only six of his assignments of error. Defendant has thus abandoned his other assignments of error. See N.C.R. App. P. 28(b)(6).
Defendant first argues that the trial court erred in denying his motion to dismiss the charge of felony speeding to elude arrest. Defendant argues the evidence was insufficient to show that defendant knew he was being pursued by Officer Lewis and that he continued to drive once he knew he was being pursued by the police. We disagree.
A defendant's motion to dismiss should be denied when "there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant[] being the perpetrator of such offense." State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). Substantial evidence is such "relevant evidence that a reasonable mind might accept as adequate to support a conclusion." State v. Fletcher, 301 N.C. 709, 712, 272 S.E.2d 859, 861 (1981). When considering a defendant's motion to dismiss, the trial court must consider the evidence in the light most favorable to the State, and the State is entitled to every reasonable inference that can be drawn from the evidence. Powell, 299 N.C. at 99, 261 S.E.2d at 117.
N.C. Gen. Stat. § 20-141.5 (2003) provides that:
(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 milesper hour over the legal speed limit.
....
(3) Reckless driving as proscribed by G.S. 20-140.
N.C. Gen. Stat. § 20-140 (2003) provides that:
(a) Any person who drives any vehicle upon a highway or any public vehicular area carelessly and heedlessly in willful or wanton disregard of the rights or safety of others shall be guilty of reckless driving.
(b) Any person who drives any vehicle upon a highway or any public vehicular area without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property shall be guilty of reckless driving.
Therefore, the elements of the offense of felony speeding to elude arrest are: (1) operation of a motor vehicle (2) on a highway or public vehicular area (3) while fleeing or attempting to elude a law enforcement officer who is lawfully performing his or her duties and (4) while two or more of the enumerated factors in N.C. Gen. Stat. § 20-141.5(b) are present.
Defendant only challenges the third element. The testimony of Officer Lewis, when viewed in the light most favorable to the State, is substantial evidence that is sufficient for a reasonable juror to find that defendant knew he was fleeing or attempting to elude a law enforcement officer who was lawfully performing his duties. Officer Lewis testified that he asked defendant to "hold up." Defendant replied "No," and stated, "I'm not talking to you." Defendant then drove away at a high speed. Officer Lewis immediately got into his marked patrol vehicle, turned the blue lights on, and began to pursue defendant. As Officer Lewis followed defendant, defendant drove seventy miles per hour in a thirty-five mile per hour zone. We find that this is substantial evidence of the challenged element. The trial court did not err in denying defendant's motion to dismiss.
Defendant next argues that there was a material variance between the indictment and the evidence presented at trial. The indictment alleged that defendant "unlawfully, willfully, and feloniously did operate a motor vehicle on a street, highway, or public vehicular area . . . while fleeing and attempting to elude a law enforcement officer, A.T. Lewis, in the lawful performance of his duties, attempting to arrest . . . defendant for a domestic violence assault." (emphasis added). In contrast, Officer Lewis testified that he attempted to initiate a traffic stop for defendant's careless and reckless driving.
We find that there is not a material variance between the indictment and the evidence presented at trial. In State v. Pelham, our Court stated:
An indictment must set forth each of the essential elements of the offense. Allegations beyond the essential elements of the offense are irrelevant and may be treated as surplusage and disregarded when testing the sufficiency of the indictment. To require dismissal any variance must be material and substantial and involve an essential element.
164 N.C. App. 70, 79, 595 S.E.2d 197, 203, disc. review denied, 359 N.C. 195, 608 S.E.2d 63 (2004) (citations omitted). We have further stated: "It is only 'where the evidence tends to show the commission of an offense not charged in the indictment [that] there is a fatal variance between the allegations and the proof requiring dismissal.'" State v. Poole, 154 N.C. App. 419, 423, 572 S.E.2d 433, 436 (2002), cert. denied, 356 N.C. 689, 578 S.E.2d 589 (2003) (alteration in original) (quoting State v. Williams, 303 N.C. 507, 510, 279 S.E.2d 592, 594 (1981)).
In the present case, the reason for Officer Lewis's pursuit of defendant was not an essential element of the charge of the offense of speeding to elude arrest. Therefore, the allegation that Officer Lewis attempted to arrest defendant for a domestic violence assault can be treated as "surplusage and disregarded when testing the sufficiency of the indictment." Pelham, 164 N.C. App. at 79, 595 S.E.2d at 203; see also State v. Dammons, 159 N.C. App. 284, 293, 583 S.E.2d 606, 612, disc. review denied, 357 N.C. 579, 589 S.E.2d 133 (2003), and cert. denied, 541 U.S. 951, 158 L. Ed. 2d 382 (2004). Since the indictment alleged all...
To continue reading
Request your trial