State v. Mead

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
 -2-

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.
 -3-

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.
 -4-

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
 -5-

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
 -6-

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
 -7-

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.
 -8-

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
 -9-

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.
 -10-

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.
 -11-

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).
 -12-

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).