Opinion
No. COA09-743.
January 5, 2010.
Forsyth County Nos. 06 CRS 58193, 23155, 24113.
Appeal by Defendant from judgment entered 2 December 2008 by Judge Judson D. DeRamus, Jr., in Superior Court, Forsyth County. Heard in the Court of Appeals 15 December 2009.
Attorney General Roy Cooper, by Assistant Attorney General Kathryn J. Thomas, for the State. Jon W. Myers for Defendant-Appellant.
Darrell Lamar Williams (Defendant) was indicted on charges of possession with intent to sell or deliver cocaine, felonious operation of a motor vehicle to elude arrest, reckless driving to endanger, and being an habitual felon on 8 October 2007. Defendant was indicted on charges of speeding and driving while license revoked on 14 April 2008.
The evidence at trial showed that Officer Scott Smith (Officer Smith), an ABC law enforcement officer, was on duty and conducting a surveillance of a McDonald's restaurant in Forsyth County, North Carolina on 10 July 2006. Some time after 8:00 p.m., Officer Smith observed a white Dodge Durango back into the parking lot, but did not see anybody get out of the car to enter the restaurant. Smith thought it was "strange" that nobody got out of the vehicle to get something to eat or drink, so he continued to watch the car from a distance. Shortly thereafter, Defendant's vehicle, a black Acura Legend, entered the parking lot and parked beside the Dodge Durango. The driver of the Acura got out and leaned into the Dodge Durango, "as if they were talking to each other." The Dodge Durango then pulled out of the parking lot and the Acura pulled out behind the Durango. Smith followed the two vehicles.
As Officer Smith followed the two vehicles, he heard loud music coming from Defendant's car, and decided to initiate a traffic stop for a loud music violation. Smith activated his lights and siren, pulled up beside Defendant, identified himself as "police," and both told and motioned to Defendant to pull over. At that point, Defendant "took off," and Officer Smith pursued Defendant. Officer Smith testified that Defendant headed down Interstate 40 at a high rate of speed and was passing traffic "on the left, right, and in the far right lane." Officer Smith also testified that when he looked at his speedometer, he was traveling at over a hundred miles an hour. Officer Smith called his supervisor to inform him of the chase, and then called the Winston-Salem Police Department Communications to advise them of the chase. Officer Smith estimated Defendant's speed as being "in excess of 130." Trooper Bryan Baker (Trooper Baker) of the North Carolina State Highway Patrol joined the chase. Officer Smith backed off and allowed Trooper Baker to take the lead.
At mile marker 174, Defendant's vehicle "shot over and went through the rest area." Trooper Baker motioned to Officer Smith to follow Defendant into the rest area while Trooper Baker continued on Interstate 40. Inside the rest area, Defendant's vehicle began to slide. Defendant's vehicle went over the curb, through a chain link fence, and came to a stop between two big oak trees. Officer Smith and Trooper Baker arrested Defendant and placed him in handcuffs. Officer Smith asked Defendant why he ran, and Defendant responded that "[m]y license is messed up." After arresting
Defendant, Defendant told Officer Smith that he worked for Maiden's Car Detailing and Cleaning Service. Meanwhile, Trooper Baker was handed a black leather bag by a truck driver at the scene. Trooper Baker and Officer Smith opened the bag and found a bag of cocaine, scales, a razor blade with cocaine residue, and a business card. The business card was for Maiden's Car Cleaning Service.
Defendant was convicted of felonious operation of a motor vehicle to elude arrest, speeding, reckless driving to endanger, and being an habitual felon. The trial court consolidated the offenses and sentenced Defendant to a term of 100 months to 129 months in prison. Defendant appeals.
Defendant's sole argument on appeal is that the trial court committed plain error in its jury instructions. At trial, the trial court instructed the jury on trafficking in cocaine by possession, trafficking in cocaine by transportation, possession of cocaine with intent to sell or deliver, reckless driving, and felonious operation of a motor vehicle to elude arrest. With regard to the charge of felonious operation of a motor vehicle to elude arrest, the trial court instructed the jury that the State must prove that Defendant was "speeding in excess of more than 15 miles per hour over the legal speed limit, and . . . reckless driving." Defendant contends the trial court provided insufficient guidance to the jury because it did not define "reckless driving" as it pertained to the offense of felonious operation of a motor vehicle to elude arrest. We disagree.
"A plain error is one `so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.'" State v. Carroll, 356 N.C. 526, 539, 573 S.E.2d 899, 908 (2002) ( quoting State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988)), cert. denied, 539 U.S. 949, 156 L. Ed. 2d 640 (2003). It is to be applied cautiously and only in the exceptional case where the error is so prejudicial, that justice cannot have been done. State v. Baldwin, 161 N.C. App. 382, 388, 588 S.E.2d 497, 503 (2003) (citing State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)). Furthermore, "`[e]ven when the "plain error" rule is applied, "it is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court."'" State v. Bell, 359 N.C. 1, 23, 603 S.E.2d 93, 109 (2004) (quoting Odom, 307 N.C. at 660-61, 300 S.E.2d at 378), cert. denied, 544 U.S. 1052, 161 L. Ed. 2d 1094 (2005). "`In deciding whether a defect in the jury instruction constitutes "plain error," the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury's finding of guilt.'" Id. (quoting Odom, 307 N.C. at 661, 300 S.E.2d at 378-79).
In the case before us, the trial court had already instructed the jury on the separate offense of reckless driving. [T. p. 115] This Court "will uphold instructions that, when `viewed in their entirety, present the law fairly and accurately to the jury.'" State v. Bunch, ___ N.C. App. ___, ___, 675 S.E.2d 103, 108 (2009) (quoting State v. Roache, 358 N.C. 243, 304, 595 S.E.2d 381, 420 (2004)); see also State v. Blizzard, 169 N.C. App. 285, 296-97, 610 S.E.2d 245, 253 (2005) (instructions to be reviewed contextually and in their entirety). Thus, it is apparent that, when viewed in their entirety, the trial court's instructions to the jury were sufficient.
Moreover, this Court rejected the same argument in State v. Wood, 174 N.C. App. 790, 622 S.E.2d 120 (2005). In Wood, the defendant was convicted of felony speeding to elude arrest. On appeal, the defendant argued that the trial court committed plain error by failing to instruct the jury as to the meaning of "driving with license revoked," "negligent driving," and "reckless driving." Id. at 794, 622 S.E.2d at 123. In that case, as in this case, the defendant "fail[ed] to cite to any case law or statute which requires the trial court to define those terms during its jury instruction." Id. Accordingly, this Court held in Wood that the trial court did not commit plain error in failing to define these terms. Id. As Wood is indistinguishable from the present case, we likewise conclude the trial court did not commit plain error in its instructions to the jury. Accordingly, we find no error.
No error.
Judges GEER and HUNTER, JR. concur.
Report per Rule 30(e).