Opinion
No. COA03-299
Filed 3 February 2004 This case not for publication
Appeal by defendant from judgments entered 10 May 2002 by Judge Ola M. Lewis in Robeson County Superior Court. Heard in the Court of Appeals 4 December 2003.
Attorney General Roy Cooper, by Assistant Attorney General Richard G. Sowerby, for the State. Margaret Creasy Ciardella, for defendant-appellant.
Robeson County No. 01 CRS 050360.
Jimmy Fitzgerald Smith ("defendant") appeals from judgments entered on a jury's verdict convicting him of felony possession of stolen goods, felonious fleeing to elude arrest with a motor vehicle, and resisting a public officer. We find no error.
I. Background
On 12 January 2001, David Allen Bullen ("victim") looked out his office window and saw someone attempting to steal his black 1998 Nissan pickup truck. The victim ran out to the parking lot to stop the theft of his truck and struggled with the perpetrator. The perpetrator, whom the victim later identified as defendant, drove off in the truck. The victim reported the incident to the Red Springs Police Department. On 16 January 2001, the Red Springs Police Department was notified that the stolen truck was parked outside of a home in a mobile home park. The Robeson County Sheriff's Department was asked to assist in the apprehension of defendant since the mobile home park was located outside the Red Springs Police Department's jurisdiction. Some of the officers knew that defendant had been driving the stolen truck. Officers located the truck and saw defendant exit the home, enter the truck, and drive it away from the mobile home park. Several officers pursued defendant. A high-speed chase ensued as defendant failed to stop at stop lights and stop signs, and sped through school zones at speeds exceeding one hundred miles per hour.
The pursuit ended when defendant lost control of the truck and crashed it into an occupied mobile home, knocking the home off its foundation. Defendant exited the truck and ran from the officers. While running, defendant looked back at the officers and ran into a tree. Robeson County Deputy Sheriff Butch Campbell apprehended and handcuffed defendant. Several officers testified that defendant was combative, pulled away, and tried to run while the officers were attempting to handcuff him. Defendant offered no evidence.
II. Issues
The issues presented are whether the trial court erred in: (1) admitting a North Carolina Division of Motor Vehicles' ("DMV") record for purposes of showing that defendant's driver's license had been revoked; (2) denying defendant's motion to dismiss; and(3) allowing the prosecutor to state in closing argument that certain evidence was uncontradicted.
III. DMV Record
Defendant contends the trial court erred in admitting his DMV record without properly authenticating the document. N.C. Gen. Stat. § 20-28(a) (2003) states that it is unlawful for a person to drive with a revoked license. To be convicted under this statute, the State must show that: "(1) [defendant] operated a motor vehicle, (2) on a public highway, (3) while his operator's license was suspended or revoked, and (4) had knowledge of the suspension or revocation." State v. Woody, 102 N.C. App. 576, 578, 402 S.E.2d 848, 850 (1991).
Rule 902 of the North Carolina Rules of Evidence provides that:
Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
. . . .
(4) Certified Copies of Public Records — A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification. . . .
N.C. Gen. Stat. § 8C-1, Rule 902 (2003). This Court has held that certification by a DMV employee that the original suspension notice was mailed to a defendant on a specified date at his address shown on the record is sufficient to admit a copy of the document in the prosecution of a defendant for driving while his license wasrevoked. State v. Herald, 10 N.C. App. 263, 264, 178 S.E.2d 120, 122 (1970); see N.C. Gen. Stat. § 20-48(a) (2003).
Here, the State informed the trial court of several facts regarding the certification of the DMV record:
I received in this envelope yesterday a certified driving record for Jimmy Fitzgerald Smith, copies of letters giving — certified copies of those letters giving Mr. Fitzgerald Smith, notice and a certified acknowledgment of how the letters were sent to Mr. Smith: first class mail and postage prepaid, and at the address that he had submitted to the — I have those your Honor. The State is requesting a ruling on the admissibility of those documents. Your Honor, the State believes that as all those documents were together and mailed together in the same envelope under seal and certified, your Honor, that they would come in under 902.
Additionally, Deputy Sheriff Kevin Hickman testified that the DMV record and letters were certified and that they had been unaltered from when he received them. He read the language of the certification into the record and stated that it was signed by a DMV employee. Defendant has not argued that the DMV record was not authentic nor has he included any DMV reports into the record on appeal. The trial court did not err in allowing the DMV record into evidence to show that defendant's license had been revoked. This assignment of error is overruled.
IV. Motion to Dismiss
Defendant argues the trial court erred in denying his motion to dismiss all the charges on the grounds of insufficient evidence. "To survive a motion to dismiss, the State must offer substantial evidence of each essential element of the offense and substantialevidence that defendant is the perpetrator. Substantial evidence is defined as relevant evidence which a reasonable mind could accept as adequate to support a conclusion." State v. Lee, 348 N.C. 474, 488, 501 S.E.2d 334, 343 (1998) (citations omitted). "Ultimately, the question for the court is whether a reasonable inference of defendant's guilt may be drawn from the circumstances. If, upon consideration of all the evidence, only a suspicion of guilt is raised, then the evidence is insufficient, and the motion to dismiss should be granted." Id. at 488-489, 501 S.E.2d at 343 (citations omitted).
To withstand defendant's motion to dismiss the charge of felonious possession of stolen property, the State must present substantial evidence that defendant possessed stolen property that had a value in excess of one thousand dollars ($1,000). See N.C. Gen. Stat. § 14-72 (2003). The victim testified that he received a check for approximately six thousand dollars ($6,000) from his insurance company for repair of the 1998 Nissan truck after police recovered the stolen vehicle. Defendant offered no evidence that the truck was worth one thousand dollars ($1,000) or less. The jury had a reasonable basis to find that the truck had a value in excess of one thousand dollars ($1,000). The trial court did not err in denying defendant's motion to dismiss this charge.
Defendant contends the trial court erred in failing to dismiss the charge of felonious fleeing to elude a law enforcement officer. The State must provide sufficient evidence showing that at least two of the statutory factors were present, including:
(3) Reckless driving as prescribed by G.S. § 20-140.
(4) Negligent driving leading to an accident causing:
(a) Property damage in excess of one thousand dollars ($1,000); or
(b) Personal injury.
(5) Driving when the person's driver's license is revoked.
(6) Driving in excess of the posted speed limit, during the days and hours when the posted speed limit is in effect, on school property or in an area designated as a school zone pursuant to G.S. § 20-141.1 or in a highway work zone as defined in G.S. § 20-141(j2).
N.C. Gen. Stat. § 20-141.5(b) (2003). Defendant, while driving with a revoked license, led police on a high-speed chase, during which defendant disregarded traffic signals and signs, traveled in excess of one hundred (100) miles per hour, sped through school zones while children were being dismissed from school, and drove down the center of the road causing vehicles to veer off the road and pedestrians to flee. The pursuit continued until defendant wrecked the stolen vehicle into a mobile home, causing several thousand dollars worth of damage. The State produced sufficient evidence of more than two statutory factors. The trial court properly denied defendant's motion to dismiss this charge.
Defendant argues the trial court should have dismissed the charge of resisting a public officer. Two officers testified that defendant ran from police and once detained, he was "somewhat combative" and "resisting." The State produced sufficient evidence to show that defendant willfully resisted the named officer duringthe performance of his duties. See N.C. Gen. Stat. § 14-223 (2003). The trial court did not err in denying defendant's motion to dismiss this charge.
The State produced sufficient evidence tending to show the elements of each offense and that defendant committed the offenses charged. This assignment of error is overruled.
V. Closing Argument
Defendant argues the trial court should have intervened ex mero motu to stop the prosecutor from referring, in his closing, to the "uncontradicted evidence." The Fifth Amendment of the United States Constitution and Article 1, § 23 of the North Carolina Constitution prohibit a prosecutor in a criminal trial from referring to a defendant's decision not to testify. Griffin v. California, 380 U.S. 609, 615, 14 L.Ed.2d 106, 110 (1965); State v. Reid, 334 N.C. 551, 555, 434 S.E.2d 193, 196 (1993). Our Supreme Court has held that the prosecutor may comment on a defendant's failure to produce witnesses or exculpatory evidence to contradict or refute evidence presented by the State. Reid, 334 N.C. at 555, 434 S.E.2d at 196.
Here, the prosecutor made no reference to defendant's failure to testify but described and summarized the evidence as "uncontradicted." We cannot conclude, and defendant has failed to show, that this language prejudiced defendant's case. Defendant failed to refute the evidence presented by the State and the trial court properly allowed the prosecutor to argue this fact before the jury. This assignment of error is overruled.
VI. Conclusion
The trial court properly admitted the DMV record into evidence after the State made a proper showing that it was a certified copy of a public record. The trial court properly denied defendant's motion to dismiss and did not err by allowing the prosecutor to refer to the "uncontradicted evidence" during closing argument. Defendant's assignments of error are overruled.
No Error.
Judges HUDSON and STEELMAN concur.