{ "id": 11436136, "name": "STATE OF NORTH CAROLINA v. SY LOBOHE", "name_abbreviation": "State v. Lobohe", "decision_date": "2001-05-15", "docket_number": "No. COA00-492", "first_page": "555", "last_page": "559", "citations": [ { "type": "official", "cite": "143 N.C. App. 555" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "462 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "341 N.C. 653", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793121, 793060, 793106, 793175, 793112 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/341/0653-03", "/nc/341/0653-02", "/nc/341/0653-05", "/nc/341/0653-01", "/nc/341/0653-04" ] }, { "cite": "453 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "194" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 713", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526276 ], "pin_cites": [ { "page": "716" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0713-01" ] }, { "cite": "449 S.E.2d 751", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "337 N.C. 805", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2550182, 2549415, 2549431, 2549882, 2549179 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/337/0805-05", "/nc/337/0805-04", "/nc/337/0805-02", "/nc/337/0805-01", "/nc/337/0805-03" ] }, { "cite": "445 S.E.2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "612" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 547", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12135816 ], "year": 1994, "pin_cites": [ { "page": "548" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0547-01" ] }, { "cite": "432 S.E.2d 376", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "378" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 441", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522481 ], "year": 1993, "pin_cites": [ { "page": "443-44" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0441-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-138.5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "parenthetical": "Count II" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 20-138.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "parenthetical": "Count I" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 453, "char_count": 11156, "ocr_confidence": 0.731, "pagerank": { "raw": 8.722938643522164e-08, "percentile": 0.4937838074729453 }, "sha256": "794d8521fed5eb8e86c957d990182332a9f84b9ab1de6b2078974987b8b05abe", "simhash": "1:e52f836612bb05d2", "word_count": 1759 }, "last_updated": "2023-07-14T21:26:47.079244+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and CAMPBELL concur." ], "parties": [ "STATE OF NORTH CAROLINA v. SY LOBOHE" ], "opinions": [ { "text": "GREENE, Judge.\nSy Lobohe (Defendant) appeals a judgment dated 23 February 2000 entered after a jury rendered a verdict finding him guilty of driving while impaired and after he pled guilty to habitual impaired driving.\nOn 6 December 1999, Defendant was indicted for one count of impaired driving pursuant to N.C. Gen. Stat. \u00a7 20-138.1 (Count I) and one count of habitual impaired driving pursuant to N.C. Gen. Stat. \u00a7 20-138.5 (Count II). Count I of the indictment states:\nThe jurors for the State upon their oath present that on or about the date of offense shown and in the county named above the defendant named above unlawfully, willfully and feloniously did drive a vehicle on High Point Street in Randleman, North Carolina, a highway, while subject to an impairing substance.\nCount II of the indictment states:\nAnd the jurors for the State upon their oath present that on or about the date of offense shown and in the county named above the defendant named above within seven years of the date of this offense, has been convicted of three or more offenses involving impaired driving. The defendant has been previously convicted on (1) April 13, 1995, of impaired driving in Davidson County District Court; (2) January 21, 1998 (offense date 7-12-97), of impaired driving in Guilford County Superior Court; and (3) January 21, 1998 (offense date 7-1-95), of impaired driving in Guilford County Superior Court.\nDefendant\u2019s case was tried in the Superior Court of Randolph County. Prior to trial, Defendant made a motion to dismiss Count I of the indictment on the ground the superior court did not have jurisdiction over the misdemeanor charged in Count I. Defendant also made a motion to dismiss Count II of the indictment on the ground Count II did not charge all of the elements of a criminal offense as required by N.C. Gen. Stat. \u00a7 15A-924(a)(5). The trial court denied Defendant\u2019s motions. Defendant then stipulated to the prior convictions contained in Count II of the indictment \u201cwithout waiving [his] objections to the form of [the] indictment.\u201d\nThe State presented evidence at trial that on 21 August 1999, Don Taylor (Taylor), a patrolman with the Randleman Police Department, was patrolling on High Point Street when he saw an overturned vehicle blocking both lanes of traffic. The vehicle \u201cwas sitting on its hood, completely upside down with all four wheels facing upward\u201d and there was one person in the vehicle, who was later identified as Defendant. After notifying a 911 operator of the accident, Taylor approached the vehicle to determine whether Defendant was injured and he \u201cnotice[d] an odor of alcohol about [Defendant\u2019s] person.\u201d When medical assistance arrived at the scene of the accident, Defendant was transported by ambulance to the hospital. Taylor also went to the hospital, where he read Defendant his rights regarding the taking of blood \u201cto Determine Alcohol Concentration or Presence of an Impairing Substance.\u201d Defendant consented to undergo a blood test to determine the alcohol concentration of his blood, and a sample of his blood was taken. The sample was sent for analysis to the North Carolina State Bureau of Investigation, where it was determined that Defendant\u2019s \u201cblood alcohol concentration was 0.177 grams of ethanol per 100 millimeters of blood.\u201d\nDefendant did not present any evidence at trial. At the close of the evidence, Defendant renewed his motion to dismiss both counts of the indictment and the trial court denied this motion. Subsequent to its deliberations, the jury returned a verdict finding Defendant guilty of driving while impaired. The trial court then entered judgment against Defendant for habitual impaired driving. The judgment states Defendant pled guilty to this charge.\nThe dispositive issue is whether an indictment which alleges in one count the elements of impaired driving under N.C. Gen. Stat. \u00a7 20-138.1 and alleges in a second count previous convictions which would elevate the impaired driving offense to habitual impaired driving under N.C. Gen. Stat. \u00a7 20-138.5 is a valid indictment under N.C. Gen. Stat. \u00a7\u00a7 15A-924 and 15A-928.\nDefendant argues the indictment in this case \u201cis fatally defective because neither count alleges all of the elements of the felony of Habitual Impaired Driving\u201d as required by N.C. Gen. Stat. \u00a7 15A-924. We disagree.\n\u201cA person commits the offense of impaired driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this State: ... (2) After having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more.\u201d N.C.G.S. \u00a7 20-138.1 (1999). \u201cA person commits the offense 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 as defined in G.S. 20-4.01(24a) within seven years of the date of this offense.\u201d N.C.G.S. \u00a7 20-138.5 (1999).\nN.C. Gen. Stat. \u00a7 15A-924, which sets forth the requirements for a valid criminal indictment, provides that a criminal indictment must contain\n[a] plain and concise factual statement in each count which, without allegations of an evidentiary nature, asserts facts supporting every element of a criminal offense and the defendant\u2019s commission thereof with sufficient precision clearly to apprise the defendant or defendants of the conduct which is the subject of the accusation.\nN.C.G.S. \u00a7 15A-924(a)(5) (1999). Additionally, section 15A-924 provides that \u201c[i]n trials in superior court, allegations of previous convictions are subject to the provisions of G.S. 15A-928.\u201d N.C.G.S. \u00a7 15A-924(c) (1999). Section 15A-928, which sets forth the proper format for an indictment that contains allegations of a previous conviction, states:\n(a) 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, an indictment or information for the higher offense may not allege the previous conviction. . . .\n(b) An indictment or information for the offense must be accompanied by a special indictment or information, filed with the principal pleading, charging that the defendant was previously convicted of a specified offense. At the prosecutor\u2019s option, the special indictment or information may be incorporated in the principal indictment as a separate count.\nN.C.G.S. \u00a7 15A-928(a), (b) (1999).\nIn this case, Count I of the indictment contains all of the elements of driving while impaired and, in compliance with section 15A-928(a), Count I does not allege Defendant\u2019s three previous impaired driving convictions. Count II of the indictment, which is contained as a separate count in the principal indictment as permitted by section 15A-928(b), contains an allegation that Defendant was convicted of impaired driving on three previous occasions and contains the dates of those alleged convictions. Count II, therefore, complies with the requirement of section 15A-928(b) that the principal indictment \u201cbe accompanied by a special indictment or information, filed with the principal pleading, charging that the defendant was previously convicted of a specified offense.\u201d Thus, the indictment follows precisely the required format set forth in section 15A-928. Further, as section 15A-924(c) specifically states that \u201callegations of previous convictions are subject to the provisions of [section] 15A-928,\u201d we reject Defendant\u2019s argument that an indictment which complies with section 15A-928 is in violation of section 15A-924 because it does not contain in one count the elements of impaired driving as well as the elements which elevate the offense of impaired driving to that of habitual impaired driving. See State v. Sullivan, 111 N.C. App. 441, 443-44, 432 S.E.2d 376, 378 (1993) (trial court properly granted the defendant\u2019s motion to strike from the principal indictment the allegations of the defendant\u2019s prior convictions, pursuant to section 15A-928, when the prior convictions were alleged for the purpose of elevating the offense contained in the principal indictment to a higher grade offense). Accordingly, the trial court properly denied Defendant\u2019s motion to dismiss the indictment on the ground it does not comply with section 15A-924(a)(5).\nAdditionally, Defendant argues the superior court did not have jurisdiction over the misdemeanor alleged in Count I of the indictment. See N.C.G.S. \u00a7 7A-272 (1999) (jurisdiction of district court over criminal actions below the grade of felony). This Court has previously held \u201cthe offense of habitual impaired driving as defined by G.S. \u00a7 20-138.5 constitutes a separate substantive felony offense which is properly within the original exclusive jurisdiction of the superior court.\u201d State v. Priddy, 115 N.C. App. 547, 548, 445 S.E.2d 610, 612, disc. review denied, 337 N.C. 805, 449 S.E.2d 751 (1994). Because the indictment alleges the substantive felony of habitual impaired driving, an element of which is the misdemeanor offense of impaired driving, the trial court properly denied Defendant\u2019s motion to dismiss Count I of the indictment based on lack of jurisdiction. See State v. Baldwin, 117 N.C. App. 713, 716, 453 S.E.2d 193, 194 (rejecting the defendant\u2019s argument that the superior court did not have jurisdiction to try a misdemeanor driving while impaired charge when, because of previous impaired driving convictions, the misdemeanor charge was enhanced to habitual impaired driving), cert. denied, 341 N.C. 653, 462 S.E.2d 518 (1995). Accordingly, the trial court\u2019s 23 February 2000 judgment is affirmed.\nAffirmed.\nJudges McGEE and CAMPBELL concur.\n. Prior to Defendant\u2019s trial, the State moved to amend \u201cJanuary 21, 1998\u201d to state \u201cMay 14, 1996,\u201d and the trial court granted this motion.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Special Deputy Attorney General Isaac T. Avery, III, for the State.", "Richard G. Roose for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. SY LOBOHE\nNo. COA00-492\n(Filed 15 May 2001)\n1. Motor Vehicles\u2014 impaired driving \u2014 indictment\u2014misdemeanor and habitual\nThe trial court properly denied defendant\u2019s motion to dismiss an indictment for impaired driving and habitual impaired driving where Count I contained all of the elements of driving while impaired but did not allege defendant\u2019s three previous convictions, while Count II contained the allegation of three previous convictions and the dates of those convictions. The indictment follows precisely the required format of N.C.G.S. \u00a7 15A-928 and complies with N.C.G.S. \u00a7 15A-924(a)(5).\n2. Motor Vehicles\u2014 impaired driving \u2014 misdemeanor and felony counts \u2014 superior court jurisdiction\nThe trial court properly denied an impaired driving defendant\u2019s motion to dismiss a misdemeanor offense for lack of superior court jurisdiction where the second count of the indictment alleged felony habitual impaired driving, an element of which was the misdemeanor impaired driving.\nAppeal by defendant from judgment dated 23 February 2000 by Judge Catherine C. Eagles in Randolph County Superior Court. Heard in the Court of Appeals 17 April 2001.\nAttorney General Michael F. Easley, by Special Deputy Attorney General Isaac T. Avery, III, for the State.\nRichard G. Roose for defendant-appellant." }, "file_name": "0555-01", "first_page_order": 585, "last_page_order": 589 }