State v. Mead ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA 14-3
NORTH CAROLINA COURT OF APPEALS
Filed: 29 July 2014
STATE OF NORTH CAROLINA
v. Ashe County
No. 12 CRS 51013
ELIZABETH HARRELSON MEAD
Appeal by defendant from judgment entered 6 September 2013
by Judge Ronald E. Spivey in Ashe County Superior Court. Heard
in the Court of Appeals 5 May 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Mary S. Mercer, for the State.
Randolph and Fischer, by J. Clark Fischer, for defendant-
appellant.
STEELMAN, Judge.
While defendant preserved her double jeopardy issue for
appellate review, the two offenses were separate and distinct
and do not violate the principles of double jeopardy. Defendant
waived the right to object to the disjunctive nature of the
charge by failing to object at trial. Where there was
substantial evidence presented of each element of the charge of
unsafe movement, the superior court properly denied defendant’s
motion to dismiss.
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I. Factual and Procedural Background
On 30 September 2012 defendant’s car struck a parked car as
she was leaving the parking lot of a CVS store. On 3 October
2012 an arrest warrant was issued charging defendant with hit
and run with property damage pursuant to N.C. Gen. Stat. § 20-
166(c)(2013).
The case was tried in district court on 14 February 2013.
Following the presentation of the State’s evidence, the district
court judge dismissed the hit and run charge, but ordered
defendant to pay a fine for “MSC-Unsafe Movement.” N.C. Gen.
Stat. § 20-154. On the same date, the State filed a Misdemeanor
Statement of Charges (MSC) alleging that defendant violated N.C.
Gen. Stat. § 20-154 “by failing to see before starting/backing
that such movement could be made in safety.” The parties
dispute when the MSC was filed in relation to the dismissal of
the hit and run charge. Defendant appealed to superior court.
Defendant was tried before a jury at the 3 September 2013
Session of Criminal Superior Court of Ashe County. The State
offered evidence including witness testimony, video surveillance
recordings, and a diagram of the CVS parking lot. On 6 September
2013, the jury found defendant responsible for making an unsafe
movement.
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Defendant appeals.1
II. Double Jeopardy
In her first argument, defendant contends that her
“acquittal in district court of the original charge of hit and
run precluded further prosecution under basic principles of
double jeopardy.”
We disagree.
A. Standard of Review
We review de novo whether the State’s filing of a
misdemeanor statement of charges for unsafe movement violated
the principles of double jeopardy. State v. Fox, 216 N.C. App.
144, 147, 721 S.E.2d 673, 675 (2011) (citations omitted) (“The
standard of review for this issue is de novo, as the trial court
made a legal conclusion regarding the defendant's exposure to
double jeopardy."). Under a de novo standard of review, this
Court “considers the matter anew and freely substitutes its own
judgment” for that of the trial court. State v. Williams, 362
1
At the time of defendant’s appeal from district court to
superior court, defendants were permitted to appeal infractions
to superior court and have a trial by jury under the provisions
of N.C. Gen. Stat. § 15A-1115(a)(1986). This same statute
allowed defendant to appeal from the superior court to this
Court. Session Law 2013-385 deleted N.C. Gen. Stat. § 15A-
1115(a), limiting appeals of infractions to the superior court
and this Court to infractions described in N.C. Gen. Stat. § 7A-
271(d). This statute applies to offenses committed on or after
1 December 2013.
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N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (citations
omitted).
C. Analysis
“The Fifth Amendment to the United States Constitution and
Article I, Section 19 of the North Carolina Constitution
prohibit double jeopardy.” State v. Sparks, 182 N.C. App. 45,
47, 641 S.E.2d 339, 341 (2007) (quoting U.S. Const. amend. V;
N.C. Const. art. I, § 19). The doctrine of double jeopardy
"provides that no person shall be subject for the same offen[s]e
to be twice put in jeopardy of life or limb." Id. (citations
and internal quotation marks omitted). Once jeopardy has
attached, defendant is “protect[ed] against (1) a second
prosecution for the same offense after acquittal, (2) a second
prosecution for the same offense after conviction, and (3)
multiple punishments for the same offense." State v. Rahaman,
202 N.C. App. 36, 40, 688 S.E.2d 58, 62 (2010) (citations and
internal quotation marks omitted). In a nonjury trial in
district court, “jeopardy attaches when the court begins to hear
evidence or testimony,” State v. Brunson, 327 N.C. 244, 249, 393
S.E.2d 860, 864 (1990), if offered for the purpose of
determining defendant’s guilt. State v. Ward, 127 N.C. App.
115, 121, 487 S.E.2d 798, 802 (1997).
“[T]he double jeopardy protection” may be raised on appeal
when “the defense and the facts underlying it are brought first
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to the attention of the trial court.” State v. McKenzie, 292
N.C. 170, 176, 232 S.E.2d 424, 428 (1977). In State v.
McKenzie, the defendant made no objection, motion, or argument
before the trial court relating to double jeopardy. Id. at 176,
232 S.E.2d at 429. In the present case, defendant made a
motion, both sides presented arguments to the trial court, and
the trial court ruled on the issue of double jeopardy. Thus,
defendant in the present case preserved her right to appeal the
double jeopardy issue. Id. at 176-77, 232 S.E.2d at 428-29.
Defendant argues that the State filed a misdemeanor
statement of charges for unsafe movement after jeopardy attached
in the hit and run property damage case. Defendant contends
that since the hit and run charge was dismissed in district
court after the State presented evidence, “the state’s action in
proceeding on a misdemeanor statement of charges alleging unsafe
movement based on the same conduct” was unconstitutional and
procedurally improper. The State contends that “jeopardy does
not attach when a pretrial conference takes place” and therefore
initiation of the misdemeanor statement of charges for unsafe
movement was permissible.
The district court was not a court of record. Ward, 127
N.C. App. at 119, 487 S.E.2d at 801 (1997). We are thus unable
to determine when the MSC was filed. Even assuming arguendo
that jeopardy had attached to the hit and run property damage
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case, defendant overlooks “the general rule in North Carolina.”
State v. Strohauer, 84 N.C. App. 68, 72-73, 351 S.E.2d 823, 827
(1987) (“determining whether certain crimes are separate and
distinct offenses is based on Blockburger v. U.S., 284 U.S. 299,
52 S.Ct. 180 (1932)”).
“The [Blockburger] rule states that in order to show
separate and distinct offenses, there must be proof of an
additional fact required for each conviction. It is not enough
to show that one crime requires proof of a fact that the other
does not. Each offense must include an element not common to
the other.” State v. Hoover, 89 N.C. App. 199, 208, 365 S.E.2d
920, 926 (1988) (citations omitted).
In the instant case, defendant was originally charged
pursuant to N.C. Gen. Stat. § 20-166(c) which required the State
to prove that: (1) defendant was the driver of a vehicle; (2)
defendant knew or should have known that the vehicle which
defendant was operating was involved in a collision; (3) such
collision resulted in property damage; and (4) defendant failed
to immediately stop at the scene of the collision. Violation of
this statute is a Class 1 misdemeanor.
Assuming that an unsafe movement infraction in violation of
N.C. Gen. Stat. §20-154(a) constitutes an “offense” for the
purposes of double jeopardy, the State was required to prove
that: (1) defendant was the driver of a vehicle; (2) the vehicle
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which defendant was operating was on a highway or public
vehicular area; and (3) defendant backed her vehicle in a manner
that could not be made with safety and without interfering with
other traffic. See State v. Hamrick, 110 N.C. App. 60, 66, 428
S.E.2d 830, 833 (1993) (holding that the doctrine of double
jeopardy applied to a violation of N.C. Gen. Stat. § 20-146(1989), for “driving a vehicle left of center”).
Under the Blockburger test, a “hit and run” misdemeanor and
an “unsafe movement” infraction differ in the facts that must be
proven by the State. An unsafe movement violation does not
require proof that defendant failed to “immediately stop” or
that a resulting collision caused property damage. Similarly, a
hit and run misdemeanor does not require proof that defendant
backed the vehicle which could not be made in safety and without
interfering with traffic. Each offense has at least one
essential element that is not an element of the other offense.
Thus, the two offenses are “separate and distinct.” State v.
Hoover, 89 N.C. App. at 208, 365 S.E.2d at 926.
We hold that the doctrine of double jeopardy did not bar
the State from proceeding on the misdemeanor statement of
charges against defendant for an unsafe movement.
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III. Misdemeanor Statement of Charges
In her second argument, defendant contends that the unsafe
movement charge was improperly charged and fatally disjunctive.
We disagree.
The “authority of the State to prosecute under a
misdemeanor statement of charges” permits the prosecutor to
“file a statement of charges upon his own determination prior to
arraignment in the district court.” N.C. Gen. Stat. § 15A-
922(d). This State’s pretrial procedure provides that “[a]
defendant will be arraigned in accordance with this section only
if the defendant files a written request with the clerk of
superior court[.]” N.C. Gen. Stat. § 15A-941(d) (emphasis
added).
Defendant cites no case law to support her argument that a
dismissal following a pre-trial conference in district court
implies that an arraignment took place. At no time during the
“pre-trial conference” or any time thereafter did defendant file
a written request for arraignment with the clerk of superior
court, as required pursuant to N.C. Gen. Stat. § 15A-941(d). As
the N.C. Supreme Court explained in State v. King, “[i]f a
defendant feels that he has not been properly informed of the
charges against him at arraignment, it is his duty to object at
that time and to have appropriate entries made in the record to
show the basis for the objection.” 311 N.C. 603, 609, 320
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S.E.2d 1, 5 (1984) (citations and internal quotation marks
omitted). Thus, even if we were to accept defendant’s argument
that a dismissal in district court gives rise to a presumption
of an arraignment, defendant waived her right to object on the
grounds of a disjunctive pleading because defendant was required
to object during the arraignment. King, 311 N.C. at 609-10, 320
S.E.2d at 5-6; State v. Sellers, 273 N.C. 641, 645-51, 161
S.E.2d. 15, 18-22 (1968) (explaining that a disjunctive pleading
is “sufficient if it advises the defendant of the charges he is
facing”).
We hold that the filing of the MSC was both timely and
sufficient to put defendant on notice as to the nature of the
charge for unsafe movement. This argument is without merit.
IV. Denial of Motion to Dismiss
As part of her second argument, defendant contends that her
motion to dismiss should have been granted because the State’s
evidence was insufficient to support submitting the unsafe
movement charge to the jury. We disagree.
A. Standard of Review
When ruling on a motion to dismiss, the trial court must
consider all the evidence in the light most favorable to the
State. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117
(1980). The State’s evidence is “entitled to the benefit of . .
. every reasonable inference to be drawn therefrom.” State v.
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Brown, 218 N.C. 415, 420, 11 S.E.2d 321, 324 (1940). "[T]he
defendant's evidence should be disregarded unless it is
favorable to the State or does not conflict with the State’s
evidence." State v. Fritsch, 351 N.C. 373, 379, 526 S.E.2d 451,
455 (2000) (citations omitted). “The trial court's decision as
to whether there is substantial evidence is a question of law,
and, on appeal, we review it de novo.” State v. Chamberlain,
___ N.C. App. ___, ___, 753 S.E.2d 725, 729 (2014) (citations
and internal quotation marks omitted).
B. Analysis
The test to be applied in ruling on a defendant's motion to
dismiss is whether the State has produced substantial evidence
of each essential element of the offense charged. Powell, 299
N.C. at 98, 261 S.E.2d at 117 (1980). Substantial evidence is
defined as "evidence from which a rational finder of fact could
find the fact to be proved beyond a reasonable doubt.” State v.
Davis, 130 N.C. App. 675, 678, 505 S.E.2d 138, 141 (1998)
(citations omitted).
“The trial court in considering such motions is concerned
only with the sufficiency of the evidence to carry the case to
the jury and not with its weight.” Powell, 299 N.C. at 99, 261
S.E.2d at 117 (citations omitted). See also Fritsch, 351 N.C.
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at 379, 526 S.E.2d at 455 (discrepancies and contradictions in
the evidence are for the jury to resolve). "If there is more
than a scintilla of competent evidence . . . it is the court's
duty to submit the case to the jury.” State v. Everhardt, 96
N.C. App. 1, 11, 384 S.E.2d 562, 568 (1989), aff'd, 326 N.C.
777, 392 S.E.2d 391 (1990) (citations omitted).
At trial, the State presented two video surveillance
recordings of defendant backing up in the CVS parking lot on 30
September 2012. While these video surveillance recordings did
not show defendant’s vehicle making contact with the parked
vehicle, Mr. Hartzog was an eyewitness to the collision. Mr.
Hartzog testified that he observed defendant back up her vehicle
and the parked vehicle shake “as it was impacted here on the
corner.” Considering the evidence in the light most favorable
to the State, “a rational finder of fact could find” that
defendant unsafely backed her car into the parked vehicle in the
CVS parking lot. Davis, 130 N.C. App. at 678, 505 S.E.2d at
141. Defendant’s arguments on appeal as to the reliability of
the witness’ testimony and the quality of the video surveillance
recordings go to the credibility and weight of the evidence, and
were properly submitted to the jury for resolution. Fritsch,
351 N.C. at 378, 526 S.E.2d at 455; State v. Bunn, 173 N.C. App.
729, 734, 619 S.E.2d 918, 921-22 (2005).
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We hold there was substantial evidence to “carry the case
to the jury.” Powell, 299 N.C. at 99, 261 S.E.2d at 117. This
argument is without merit.
NO ERROR.
Chief Judge MARTIN and Judge DILLON concur.
Report per Rule 30(e).