Opinion
No. COA11-89
Filed 5 July 2011 This case not for publication
Appeal by defendant from judgment entered 3 August 2010 by Judge Phyllis M. Gorham in Carteret County Superior Court. Heard in the Court of Appeals 26 May 2011.
Attorney General Roy Cooper, by Assistant Attorney General John W. Congleton, for the State. Daniel M. Blau, for defendant-appellant.
Carteret County No. 10 CRS 50104.
Where defendant stipulated to three prior driving while impaired convictions pursuant to N.C. Gen. Stat. § 15A-928, the arresting officer identified defendant as operating the moped, and defendant was operating the moped in a public vehicular area, the trial court did not err in denying defendant's motion to dismiss. The trial court did not commit plain error in not giving a definition of public vehicular area in its charge to the jury. A conviction for habitual impaired driving does not constitute double jeopardy.
I. Factual and Procedural Background
On the evening of 20 November 2009, Morehead City Police Officer J.S. Covington (Officer Covington) encountered Kevin Ernest Lamb (defendant) sitting on a moped at a busy intersection in the K-Mart parking lot. Defendant was "unsteady on his feet," smelled strongly of alcohol, and had a pint of vodka in his pocket. Officer Covington testified that he had to help defendant off the moped and assist defendant in standing. Determining that defendant "was obviously impaired," Officer Covington placed him under arrest. Officer Covington transported defendant to the police department, where defendant submitted to a chemical analysis, which registered 0.15 on the first test. Defendant refused to provide a second breath sample.
On 8 February 2 010, defendant was indicted for habitual impaired driving. Based upon defendant's stipulations, the trial court submitted the offense of driving while impaired to the jury. The defendant was found guilty. The trial court entered a judgment against defendant for the felony of habitual impaired driving and sentenced defendant to 19-23 months imprisonment.
Defendant appeals.
II. Denial of Motion to Dismiss
In his first argument, defendant contends that the trial court erred by denying his motion to dismiss at the close of all of the evidence because the evidence was insufficient to establish defendant's guilt of either misdemeanor DWI or felony habitual impaired driving. We disagree.
A. Standard of Review
"In ruling on a motion to dismiss, the issue before the trial court is whether substantial evidence of each element of the offense charged has been presented, and that defendant was the perpetrator of the offense." State v. Carr, 122 N.C. App. 369, 371-2, 470 S.E.2d 70, 72 (1996). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Patterson, 335 N.C. 437, 449-50, 439 S.E.2d 578, 585 (1994). All of the evidence, whether direct or circumstantial, must be considered by the trial court, in the light most favorable to the State, with all reasonable inferences to be drawn in favor of the State. State v. Rose, 335 N.C. 301, 439 S.E.2d 518, cert. denied, 512 U.S. 1246, 129 L. Ed. 2d 88, 114 S. Ct. 2770 (1994).
State v. Parker, 143 N.C. App. 680, 686, 550 S.E.2d 174, 178 (2001). Additionally, "[i]f there is any evidence tending to prove guilt or which reasonably leads to this conclusion as a fairly logical and legitimate deduction, it is for the jury to say whether it is convinced beyond a reasonable doubt of defendant's guilt." State v. Franklin, 327 N.C. 162, 171-72, 393 S.E.2d 781, 787 (1990).
At the close of the State's evidence, defendant's counsel made a motion to dismiss for insufficiency of the evidence and renewed the motion at the close of all evidence. Defendant contends "[o]ut of an extreme abundance of caution" that, should this Court find his attorney did not preserve these arguments for appellate review, then his attorney was constitutionally ineffective in failing to preserve such arguments. However, on review of the record, this Court finds that defendant's attorney adequately preserved these arguments for appellate review.
B. Prior Convictions
Defendant first argues that the State did not prove each essential element of habitual impaired driving, since he never admitted the existence of the second prior DWI conviction and the State did not submit the issue to the jury. However, defendant counsel stipulated to the existence of all three prior DWI convictions listed in the indictment and did not object when the State offered certified copies of the prior convictions to the trial court at a voir dire hearing.
A person is guilty of habitual impaired driving "if he drives while impaired as defined in G.S. 20-138.1 and has been convicted of three or more offenses involving impaired driving . . . within 10 years of the date of this offense." N.C. Gen. Stat. § 20-138.5(a) (2009). Chapter 15A provides a specific procedure to be used when, "the fact that the defendant has been previously convicted of an offense raises an offense of lower grade to one of higher grade and thereby becomes an element of the latter." N.C. Gen. Stat. § 15A-928(a) (2009). Before the trial court may impose a higher penalty for the more serious crime, the indictment must allege the prior convictions and the State must prove those convictions through the means specified in the statute. State v. Moore, 27 N.C. App. 245, 246, 218 S.E.2d 496, 497 (1975).
During the presentation of the State's evidence, the trial court excused the jury from the courtroom and allowed defendant to admit or deny the previous convictions, pursuant to N.C. Gen. Stat. § 15A-928(c)(1)-(2) (2009). If defendant denied the convictions, the State would then be allowed to present evidence of those convictions to the jury. Defendant stipulated to the existence of the three underlying convictions listed in the indictment. The prosecutor then read each conviction individually. Defendant admitted to the first and third convictions, but did not directly admit to the second conviction. When the second conviction was read, defendant objected to a typographical error regarding the date of the conviction. The indictment alleged that the date of the conviction for the second DWI offense was 1 December 2006, when the actual date of the conviction was 11 December 2006. The district attorney moved to amend the indictment and the trial court allowed the motion over defendant's objection. However, defendant had previously stipulated to the three prior DWI offenses, did not object to the admission of the copies of the judgments, and never objected to the underlying conviction.
Defendant's only objection at trial was to the amendment of the indictment, an argument that he does not bring forward on appeal. Based upon defendant's stipulation at the voir dire hearing pursuant to N.C. Gen. Stat. § 15A-928, the case was submitted to the jury as a driving while impaired charge, and not as an habitual impaired driving charge. Defendant's prior stipulation regarding the existence of all three convictions was sufficient evidence of their existence.
Defendant's argument is without merit.
C. Operating a Vehicle
Defendant next argues that there was no evidence to show that he drove or operated his moped while impaired. The State was required to present substantial evidence that defendant (1) drove or operated a vehicle, (2) upon any highway, street or public vehicular area, (3) while under the influence of an impairing substance. N.C. Gen. Stat. § 20-138.1(a) (2009). At trial, Officer Covington testified that he observed an individual sitting on a dark colored moped, "stumbling as if he was having trouble getting his balance on the moped." He also testified that defendant was the person "operating" the moped. Defendant's conduct met the statutory requirement. Defendant now complains that the State failed to offer testimony that the moped was in motion, the engine was running, or that the keys were in the ignition. However, Officer Covington's testimony at trial comprised sufficient evidence for the trial court to submit this issue to the jury.
This argument is without merit.
D. Public Vehicular Area
Defendant next argues that there was insufficient evidence that defendant was operating the moped within a public vehicular area (PVA) . A PVA is an area "used by the public for vehicular traffic at any time, including by way of illustration and not limitation any drive, driveway, road, roadway, street, alley, or parking lot upon the grounds or premises of . . . [any] . . . business . . . establishment providing parking space for customers, patrons, or the public." N.C. Gen. Stat. § 20-4.01(32) (2009). To survive a motion to dismiss, the State was required to present substantial evidence that defendant drove a vehicle in a public vehicular area. N.C. Gen. Stat. § 20-138.1(a).
Officer Covington testified he found defendant in the K-Mart parking lot, that the area was paved, contained a number of stores, and was open to public vehicular traffic. He further testified that the area is "a heavy intersection at nighttime," requiring the officer to "go around and block vehicles to get to [defendant] ." We hold that there was sufficient evidence presented to submit to the jury the issue of whether defendant was operating the moped in a public vehicular area.
This argument is without merit.
III. Improper Jury Instruction
In his third argument, defendant contends that the trial court committed plain error by failing to instruct the jury on the definition of "public vehicular area." We disagree.
A. Standard of Review
Plain error is error "so fundamental that, absent the error, the jury probably would have reached a different result." State v. Jones, 355 N.C. 117, 125, 558 S.E.2d 97, 103 (2002). "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." State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 378-9 (1983). "[I]t 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." Id. (citing Henderson v. Kibbe, 431 U.S. 145, 154, 52 L. Ed. 2d 203, 212 (1977)).
B. Analysis
At the close of all the evidence, the trial court informed counsel for the State and defendant's counsel of the jury instructions it intended to present to the jury. As to the substantive charge of driving while impaired, the trial court advised that it would instruct pursuant to N.C.P.I. — Crim. 270.20A. The trial court instructed that the jury must find, inter alia, that defendant "was driving [a] vehicle upon a public vehicular area within the State." See State v. Snyder, 343 N.C. 61, 69, 468 S.E.2d 221, 226 (1996) (holding that parking lots are considered public vehicular areas as a matter of law). Where there is conflicting evidence regarding whether the area is a PVA, this issue must be submitted to the jury. State v. Bowen, 67 N.C. App. 512, 514-15, 313 S.E.2d 196, 197, appeal dismissed, 312 N.C. 79, 320 S.E.2d 405 (1984).
Defendant did not request a jury instruction on the definition of a PVA, nor did defendant object after hearing the trial court's instructions to the jury. We hold that the term "public vehicular area" is a self-defining term and that defendant cannot show error, much less plain error in the trial court's instructions to the jury. This argument is without merit.
IV. Double Jeopardy
In his fourth argument, defendant contends that the trial court's conviction of habitual impaired driving under N.C. Gen. Stat. § 20-138.5 violated his state and federal constitutional protections against double jeopardy. Defendant acknowledges that this argument is made only for preservation purposes. We hold that this argument is without merit.
In State v. Vardiman, 146 N.C. App. 381, 552 S.E.2d 697 (2001), appeal dismissed, 355 N.C. 222, 559 S.E.2d 794, cert. denied, 537 U.S. 833, 154 L. Ed. 2d 51 (2002), this Court held that a conviction for habitual impaired driving does not constitute double jeopardy. We are bound by that decision. In re Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989).
This argument is without merit.
NO ERROR.
Judges CALABRIA and ELMORE concur.
Report per Rule 30(e).