State v. Richardson

• Decision Date: 07 November 1989
• Docket Number: No. 8919SC102,8919SC102
• Citation: 96 N.C.App. 270,385 S.E.2d 194
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Joseph Beverly RICHARDSON.

Page 194

385 S.E.2d 194

96 N.C.App. 270

STATE of North Carolina v. Joseph Beverly RICHARDSON.

No. 8919SC102.

Court of Appeals of North Carolina.

Nov. 7, 1989.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Linda Anne Morris, Raleigh, for the State.

Appellate Defender Malcolm Ray Hunter by Asst. Appellate Defender Teresa A. McHugh, Raleigh, for defendant appellant.

COZORT, Judge.

Defendant was charged with and convicted of driving while impaired, felony death by vehicle, and driving while his license was revoked; he was sentenced to a total of six years in prison. On appeal, the defendant contends that there was insufficient evidence to convict him of the last charge. We agree.

The State offered evidence tending to show that, on 2 August 1987, defendant Joseph Richardson had been drinking heavily. The evidence included the defendant's admission that, during the morning of 2 August 1987, he and a friend, Billy Lichtenberg "drank two beers apiece and some Canadian Mist. [Lichtenberg] had some Ever-Clear and we drank some of this" and by mid-afternoon "we were pretty drunk. Everything was fuzzy." At approximately 3:40 in the afternoon, with the defendant driving, he and Lichtenberg left the Millboro Trailer Park in a 1980 Ford pickup truck.

The State's evidence also tended to show that the defendant was at the wheel a short time later when that truck flipped end-over-end as the driver attempted to pass other vehicles on U.S. Highway 64 between Asheboro and Ramseur. Lichtenberg was severely injured in the accident and died en route to the hospital.

Without objection from the defendant, Sergeant Billy Ray McLeod testified at trial that the defendant's driver's license had been revoked prior to the accident. On that issue the State presented no other evidence.

The defendant offered no evidence.

On appeal the defendant raises two issues: (1) whether the evidence was sufficient to convict him of driving while his license was revoked and (2) whether, on that charge, defendant was denied effective assistance of counsel.

We note first that a "defendant in a criminal case may not assign as error the insufficiency of the evidence to prove the crime charged unless he moves to dismiss the action, or for judgment as in case of nonsuit, at trial." Rule 10(b)(3), N.C.Rules App.Proc. However, we suspend that requirement to prevent manifest injustice to the defendant. Rule 2, N.C.Rules App.Proc.

To convict a defendant under N.C.Gen.Stat. § 20-28(a) of driving while his license is revoked the State must prove beyond a reasonable doubt (1) the defendant's operation of a motor vehicle (2) on a public highway (3) while his operator's license is revoked. State v. Atwood, 290 N.C. 266, 271, 225 S.E.2d 543, 545 (1976). The State must also prove that the defendant had "actual or constructive knowledge of the ... revocation in order for there to be a conviction under this statute." Id. With regard to notice, 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....' " State v. Curtis, 73 N.C.App. 248, 251, 326 S.E.2d 90, 92 (1985) (quoting State v. Chester, 30 N.C.App. 224, 227, 226 S.E.2d 524, 526 (1976)).

In the case below the State offered no evidence that defendant was notified that his license was revoked. The defendant's plea of not guilty required the State to prove beyond a reasonable doubt every element of the offense charged. The State failed to do so. As the State forthrightly conceded in its brief, "the insufficiency of the evidence rises to a fundamental error in the conviction for driving while license revoked. The conviction for that charge should be reversed." In view of...