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State v. Wood12/6/2005
t. The test registered a 0.07 breath alcohol concentration. At trial on 2 February 2005, Paul Glover ("Glover"), an employee of the Department of Health and Human Services for the Forensic Tests Alcohol Branch, testified that he had performed a retrograde extrapolation which he believed would show defendant's alcohol concentration at the time of the original stop of defendant's vehicle to have been 0.10. The State laid no foundation to show the relevancy of this testimony and Glover failed to correlate any factors to be consistent with this defendant or to compare his averages to defendant's individual specific characteristics.
On 3 February 2005, the jury returned guilty verdicts for felony speeding to elude arrest, impaired driving, expired registration, and speeding fifty-seven miles per hour in a forty-five miles per hour zone. The trial court entered judgments and imposed an active sentence of six months for the driving while impaired conviction and a suspended term of eight to ten months for the speeding to elude arrest, speeding, and expired registration convictions. Defendant appeals.
II. Issues
The issues on appeal are whether the trial court erred by: (1) failing to properly instruct the jury on the felony fleeing to elude arrest by motor vehicle; and (2) denying defendant's motion to dismiss the driving while impaired charge.
III. Felony Fleeing to Elude Arrest by Motor Vehicle
Defendant first contends the trial court failed to properly instruct the jury on the charge of felony fleeing to elude arrestby motor vehicle. Defendant did not object to the trial court's instructions and asks this Court to review for plain error.
Plain error arises when the error is "'so basic, so prejudicial, so lacking in its elements that justice cannot have been done[.]'" State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 U.S. 1018, 74 L.Ed. 2d. 513 (1982)).
Here, the trial court instructed the jury on felony fleeing to elude arrest by motor vehicle as follows:
The defendant has been charged with felonious operation of a motor vehicle to elude arrest. For you to find the defendant guilty of this offense, the State must prove four things beyond a reasonable doubt.
First, that the defendant was operating a motor vehicle. Second, that the defendant was operating that motor vehicle on a street, highway or public vehicular area. Third, that the defendant was fleeing or attempting to elude a law enforcement officer who was in the lawful performance of his duties, a law enforcement officer with authority to enforce motor vehicle laws . . . And fourth, that two or more of the following factors were present at the time - reckless driving, negligent driving leading to an accident causing property damage in excess of $1,000, or driving while her license were revoked.
Defendant specifically argues that since "reckless driving," "negligent driving," and "driving with license revoked" were the three named aggravating factors that led to her conviction under N.C. Gen. Stat. § 20-141.5(b)(5), the trial court should have defined those terms for the jury. Defendant fails to cite to any case law or statute which requires the trial court to define thoseterms during its jury instruction. Furthermore, the trial court properly charged the jury using the language of the pattern jury instruction which stated it had to find at least two of the three aggravating factors set out in the bill of indictment were present in order to convict defendant of felonious speeding to elude arrest. N.C.P.I. Crim. 270.54A; see State v
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