{ "id": 8354293, "name": "STATE OF NORTH CAROLINA v. BILLY JOE CRUZ", "name_abbreviation": "State v. Cruz", "decision_date": "2005-10-18", "docket_number": "No. COA04-1217", "first_page": "689", "last_page": "699", "citations": [ { "type": "official", "cite": "173 N.C. App. 689" } ], "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": "614 S.E.2d 262", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633103 ], "weight": 4, "year": 2005, "pin_cites": [ { "page": "264" }, { "page": "263" }, { "page": "264-65" } ], "opinion_index": 0, "case_paths": [ "/se2d/614/0262-01" ] }, { "cite": "615 S.E.2d 256", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633238 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "265" }, { "page": "269" } ], "opinion_index": 0, "case_paths": [ "/se2d/615/0256-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-179", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2003, "pin_cites": [ { "page": "604" } ], "opinion_index": 0 }, { "cite": "359 N.C. 602", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3799620 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0602-01" ] }, { "cite": "359 N.C. 425", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3796256 ], "year": 2005, "pin_cites": [ { "page": "438-39" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0425-01" ] }, { "cite": "542 U.S. 296", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5868041 ], "weight": 2, "year": 2004, "opinion_index": 0, "case_paths": [ "/us/542/0296-01" ] }, { "cite": "178 S.E.2d 120", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "121-22", "parenthetical": "certificate of mailing complied with statutory \"proof of notice\" requirement" } ], "opinion_index": 0 }, { "cite": "10 N.C. App. 263", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553107 ], "year": 1970, "pin_cites": [ { "page": "264", "parenthetical": "certificate of mailing complied with statutory \"proof of notice\" requirement" } ], "opinion_index": 0, "case_paths": [ "/nc-app/10/0263-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-48", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2003, "pin_cites": [ { "page": "(a)", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "226 S.E.2d 524", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "526" }, { "page": "526-27" } ], "opinion_index": 0 }, { "cite": "30 N.C. App. 224", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553295 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "227" }, { "page": "227-28" } ], "opinion_index": 0, "case_paths": [ "/nc-app/30/0224-01" ] }, { "cite": "326 S.E.2d 90", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "92", "parenthetical": "quoting State v. Chester, 30 N.C. App. 224, 227, 226 S.E.2d 524, 526 (1976)" }, { "page": "92-93", "parenthetical": "defendant's stipulation of a mailing date was sufficient to show the notice was mailed to defendant" } ], "opinion_index": 0 }, { "cite": "73 N.C. App. 248", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523181 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "251", "parenthetical": "quoting State v. Chester, 30 N.C. App. 224, 227, 226 S.E.2d 524, 526 (1976)" }, { "page": "251-52", "parenthetical": "defendant's stipulation of a mailing date was sufficient to show the notice was mailed to defendant" } ], "opinion_index": 0, "case_paths": [ "/nc-app/73/0248-01" ] }, { "cite": "225 S.E.2d 543", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "545" } ], "opinion_index": 0 }, { "cite": "290 N.C. 266", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560898 ], "year": 1976, "pin_cites": [ { "page": "271" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0266-01" ] }, { "cite": "385 S.E.2d 194", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "195", "parenthetical": "citing State v. Atwood, 290 N.C. 266, 271, 225 S.E.2d 543, 545 (1976)" }, { "page": "194-95", "parenthetical": "dismissal appropriate where the only evidence of defendant's knowledge of revocation was a police officer's testimony" } ], "opinion_index": 0 }, { "cite": "96 N.C. App. 270", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521496 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "271", "parenthetical": "citing State v. Atwood, 290 N.C. 266, 271, 225 S.E.2d 543, 545 (1976)" }, { "page": "271-72", "parenthetical": "dismissal appropriate where the only evidence of defendant's knowledge of revocation was a police officer's testimony" } ], "opinion_index": 0, "case_paths": [ "/nc-app/96/0270-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-28", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "337 S.E.2d 487", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1985, "pin_cites": [ { "page": "491" }, { "page": "492" }, { "page": "495" }, { "page": "493" }, { "page": "495" } ], "opinion_index": 0 }, { "cite": "315 N.C. 222", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4715156 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "232" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0222-01" ] }, { "cite": "342 S.E.2d 878", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1986, "pin_cites": [ { "page": "880" }, { "page": "880", "parenthetical": "discussing both methods of proof" }, { "page": "880" }, { "page": "880-81", "parenthetical": "internal citations omitted" }, { "page": "881-82", "parenthetical": "corroboration of defendant's admission that he drove while impaired, in conjunction with the admission itself, is enough to survive a motion to dismiss" }, { "page": "880" } ], "opinion_index": 0 }, { "cite": "316 N.C. 528", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4699127 ], "weight": 4, "year": 1986, "pin_cites": [ { "page": "531" }, { "page": "532" }, { "page": "533-34" }, { "page": "531" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0528-01" ] } ], "analysis": { "cardinality": 988, "char_count": 24997, "ocr_confidence": 0.752, "pagerank": { "raw": 1.0072425872784622e-07, "percentile": 0.5411000795799292 }, "sha256": "15051a0aed8d95af51c6e715ea5a8e4555e83a00e4b7978cfbd01b809aff0bce", "simhash": "1:6b6c70eb262b827e", "word_count": 4176 }, "last_updated": "2023-07-14T20:45:28.578783+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and CALABRIA concur." ], "parties": [ "STATE OF NORTH CAROLINA v. BILLY JOE CRUZ" ], "opinions": [ { "text": "ELMORE, Judge.\nBilly Joe Cruz (defendant) was indicted for involuntary manslaughter, driving while impaired, driving while license revoked, and aiding and abetting a person under twenty-one to possess alcohol. Following the State\u2019s evidence, the trial court dismissed the charge of involuntary manslaughter and the jury found defendant guilty of driving while impaired and driving while license revoked. Defendant appeals his convictions for these offenses on the basis that the trial court erred in denying his motion to dismiss.\nDefendant\u2019s charges arose from the investigation of his nephew\u2019s death that occurred on 31 December 2002. Lee Cruz, defendant\u2019s underage nephew, had been drinking beer most of the day at defendant\u2019s house with other family members. During the early evening hours Lee got a phone call from his girlfriend that prompted him to leave defendant\u2019s house. Lee drove away from defendant\u2019s house and ended up having a fatal car accident not far from his own home. During the investigation of the accident scene, defendant arrived with another person, and police officers noticed defendant creating a disturbance near where other onlookers had gathered. Several of these officers testified at trial that defendant was belligerent and smelled of alcohol.\nDefendant was interviewed on 2 January 2003 by an investigator with the Pitt County ABC Board of Inquiry, Calvin Craft (Investigator Craft). On 14 January 2003 defendant was also interviewed by North Carolina Highway Patrol officer David Newbie (Officer Newbie), a collision reconstructionist. Based upon seven interviews with defendant between the incident and 26 March 2003, Investigator Craft and Officer Newbie testified to written and oral statements that defendant made. These confessions, are what the State relies on in proving that defendant drove a car, both while impaired and while his license was revoked.\nDefendant accurately points out that to survive a motion to dismiss, the State must provide some evidence in addition to defendant\u2019s statements or confession. See State v. Trexler, 316 N.C. 528, 531, 342 S.E.2d 878, 880 (1986). This is known as the corpus delicti rule, and in North Carolina there are two methods of proving the additional evidence requirement. Id. at 532, 342 S.E.2d at 880 (discussing both methods of proof). In State v. Parker, our Supreme Court \u201cexpanded\u201d the corpus delicti rule in North Carolina after extensive evaluation of the rule\u2019s multiple variations. 315 N.C. 222, 337 S.E.2d 487 (1985). The more traditional application of the rule is \u201cthat there be corroborative evidence, independent of the defendant\u2019s confession, which tends to prove the commission of the crime charged.\u201d Id. at 229, 337 S.E.2d at 491. Another, more modem method has been called the \u201c \u2018trustworthiness\u2019 version of corroboration and is generally followed by the federal courts and an increasing number of states.\u2019 \u201d Id. at 230, 337 S.E.2d at 492. This method was adopted by our Supreme Court in Parker. Id. at 236, 337 S.E.2d at 495. Parker and Trexler offer an understanding of each method of corroboration.\nIn Trexler, the Court explained that the traditional approach to the corpus delicti rule was still applicable in \u201ccases in which there is some evidence aliunde the confession which, when considered with the confession, will tend to support a finding that the crime charged occurred.\u201d Trexler, 316 N.C. at 532, 342 S.E.2d at 880.\nThe rule does not require that the evidence aliunde the confession prove any element of the crime. The corpus delicti rule only requires evidence aliunde the confession which, when considered with the confession, supports the confession and permits a reasonable inference that the crime occurred. . . . The independent evidence must touch or be concerned with the corpus delicti. . . . The expanded rule enunciated in Parker applies in cases in which such independent proof is lacking but where there is substantial independent evidence tending to furnish strong corroboration of essential facts contained in defendant\u2019s confession so as to establish trustworthiness of the confession.\nId. at 532, 342 S.E.2d at 880-81 (internal citations omitted). This rule does not require the State to come forward with evidence, absent the defendant\u2019s confession, that supports each element of the crime charged. Rather, \u201c[a]pplying the more traditional definition of corpus delicti, the requirement for corroborative evidence would be met if that evidence tended to establish the essential harm, and it would not be fatal to the State\u2019s case if some elements of the crime were proved solely by the defendant\u2019s confession.\u201d Parker, 315 N.C. at 232, 337 S.E.2d at 493.\n. In Parker, the Court explained the modified approach, or the trustworthiness rule, as follows:\nWe adopt a rule in non-capital cases that when the State relies upon the defendant\u2019s confession to obtain a conviction, it is no longer necessary that there be independent proof tending to establish the corpus delicti of the crime charged if the accused\u2019s confession is supported by substantial independent evidence tending to establish its trustworthiness, including facts that tend to show the defendant had the opportunity to commit the crime.\nWe wish to emphasize, however, that when independent proof of loss or injury is lacking, there must be strong corroboration of essential facts and circumstances embraced in the defendant\u2019s confession. Corroboration of insignificant facts or those unrelated to the commission of the crime will not suffice. We emphasize this point because although we have relaxed our corroboration rule somewhat, we remain advertent to the reason for its existence, that is, to protect against convictions for crimes that have not in fact occurred.\nId. at 236, 337 S.E.2d at 495.\nEvaluating the record before us, under either the traditional or trustworthiness approach to the corpus delicti rule, the State offered corroborating evidence that when considered with defendant\u2019s statements is sufficient to survive defendant\u2019s motion to dismiss.\nDefendant\u2019s admissions or confessions regarding driving were numerous. Sergeant Kenneth Pitts, of the North Carolina Highway Patrol, first spoke with defendant at the scene of the accident. Sergeant Pitts testified that defendant told him that he followed Lee after Lee had a phone conversation with his girlfriend. Sergeant Pitts also testified that, in his opinion, defendant was appreciably impaired during their conversation, which occurred within several hours of Lee\u2019s accident.\nInvestigator Craft testified that he first spoke with defendant on 2 January 2003. Defendant told him that he and Lee were first at a local restaurant where they had alcohol, then everyone went back to defendant\u2019s house where they all consumed an additional two cases of beer. Investigator Craft further testified that defendant told him he and Lee got in a brief fight on the lawn about the beer money and Lee left. Defendant went inside to get his keys, and his girlfriend \u201cwent with him\u201d after Lee. Investigator Craft continued, stating:\nThat the defendant traveled toward Lee Cruz, the deceased, house and didn\u2019t see his vehicle home. He turned down a farm path and came back home; that his father came to the defendant\u2019s house. His father stated that he saw a rescue squad go by the residence that he was at, and he had a feeling that Lee was in an accident. So, they went toward Lee\u2019s house to see, and that\u2019s when they located the accident.\nInvestigator Craft testified that defendant told him he would issue a written statement as to what happened, and Investigator Craft received that statement the next day. After being asked by the State to read the statement into evidence, Investigator Craft testified:\nThis print is kind of hard to read. It says, \u201cLee came here after work, and asked me if I wanted to go to Mazatlan and drink and eat, and I said \u2018Okay.\u2019 Lee had a girlfriend that worked at Mazatlan. I paid for my bill, and Lee paid for his. Lee had two beers and a shot, and I had the same thing. We got some beer, about two cases. We finished them and had a little argument about some beer money. We hang each other like\u201d \u2014 I can\u2019t really see it. \u201cWe hang each like the\u201d \u2014 then he said, \u201cWe were arguing, started crying so I let him go, and I hit the window; with my fist.\u201d It\u2019s got, \u201cLee to his car, and I ran after him. I came in and asked my girlfriend for the keys. She said, no, because I was too drunk, and I followed minutes later. She said, \u2018I\u2019ll go with you,\u2019 so we left, went by Lee\u2019s house. He won\u2019t there, then we come back home and my dad picked me up and said he was leaving Jesus\u2019 home\u201d\u2014 that\u2019s Lee\u2019s dad. \u201cMy dad was leaving Lee\u2019s dad\u2019s home. He saw an ambulance go by, so he decided to come by my home. When he got here, he said, \u2018Lee just\u2019 \u201d \u2014 \u201cHe said he\u2019d just saw an ambulance and decided to come over. I said Lee\u201d \u2014 It looks like, \u201cLee after drank. Then my dad said, \u2018Let\u2019s go to Lee\u2019s home,\u2019 and then we saw what had happened.\u201d It\u2019s signed, \u201cBilly Joe Cruz.\u201d\nInvestigator Craft spoke with defendant again on 9 January 2003, and the testimony is consistent with defendant\u2019s previous statements. Investigator Craft also testified that he spoke with defendant on 26 March 2003 and, after waiving his Miranda rights, defendant issued another written statement. This statement was also read into the record.\nHe stated, after he was advised of his Miranda rights, that his girlfriend and child were both with him while he drove his vehicle while impaired in an attempt to locate Jesus Lee Cruz; that he went to Mazatlan resteraunt because Lee wanted to drink there; that the large Hispanic female served the first beers, and the smaller one serve them the other beer, this being Ms. Portella, the smaller one of the two waitresses. He said they went to Food Lion where Juan used Lee\u2019s debit card to pay for the beer, four twelve packs. They went back to Joe\u2019s house on Green Street in Farmville where the two consumed three twelve packs of Corona beers; that they got in an argument over going to get more beer and who was going. Mr. Cruz stated that he was not going for the beer because he had too much to drink already. I advised if he knew that Lee was going to drive, and the defendant stated, \u201cYes.\u201d They both threw $10 on the ground for someone to go get more beer and got in the argument; that the defendant broke the window to the front door in anger and told Lee to chill out and it was stupid to fight. Lee left fussing about his girlfriend, and the defendant went in the house to get his keys to follow Lee; that he, himself, his girlfriend and 14-month-old baby went to see if Lee was okay; that they never saw Lee\u2019s vehicle when he went to look for Lee.\nOfficer Newbie testified that on 14 January 2003 he spoke with defendant and defendant relayed the following:\nAfter this altercation [with Lee], Mr. Cruz stated he stepped inside and Lee went to his car and took off. Mr. Cruz stated that \u2014 stated that Lee\u2019s car was parked in front of his house on Green Street facing north. He last saw Lee heading north on Green Street. The defendant stated he went back inside and told his girlfriend to give him the keys. His girlfriend refused to give him the keys because he was drunk. After a few moments, his girlfriend got the baby, and they left in the car heading north on Green Street. The defendant stated when they left that \u2014 excuse me. The defendant stated that when Mr. Cruz, the deceased, left \u2014 his quote was, \u201cWhen Lee left here, he was drunk; he was staggering. I know Lee. I followed Lee before home on more than three or four occasions at two or three o\u2019clock in the morning. I get myself in trouble. I follow that man home because he drank. He won\u2019t stay the night. He wants to go home to his house.\u201d Two or three minutes after Lee left, Mr. Cruz, the defendant, left driving through Farmville at 55 to 60 and stated, \u201cI was going passed the speed limit.\u201d The defendant stated the speed limit was 35. He went to Lee\u2019s house. The defendant went to Lee\u2019s house. He went passed Lee\u2019s house .... His girlfriend and the baby were in the back seat, and Mr. Cruz, the defendant, admitted he was drunk. He stated that he came through the area of the collision.... Mr. Cruz stated that Lee had already wrecked when he went through. Mr. Cruz, the defendant, stated that when he gets to Lee\u2019s house, he doesn\u2019t see his car, so he proceeds passed the trailer and makes a left turn onto a field path and drives over to US 264 Alternate.\nOfficer Newbie\u2019s testimony as to what statements defendant made are substantially similar to the testimony of Investigator Craft and Sergeant Pitts.\nThus, the essential facts of defendant\u2019s confession are that: he and Lee drank beer at a restaurant earlier in the day; the two obtained more beers and drank approximately two cases at defendant\u2019s house; Lee had talked with his girlfriend, was upset and got into a fight with defendant before leaving; defendant, while impaired, got his keys and drove after Lee with his wife and child in the car; after passing by the accident scene close to Lee\u2019s house, defendant drove down a dirt farm road and eventually ended up at home.\nThe State put on evidence tending to support defendant\u2019s recitation of the events in his confession and thus lending a substantial amount of trustworthiness to his statement. First, the State called one of defendant\u2019s nephews, who testified that defendant and Lee went to the Mazatlan and drank, then purchased more beer and drank at defendant\u2019s home. Defendant\u2019s nephew testified that defendant and Lee got into an argument, but that he left defendant\u2019s house to go to the store. When he came back, approximately thirty minutes later, defendant and Lee were gone, as were both of their cars. Defendant returned to the house later on in the evening. Second, the State called a witness who was traveling on the road in the opposite direction of Lee just before Lee crashed. She stated that she saw Lee\u2019s car travel past her at a high rate of speed followed shortly thereafter by a dark colored car, also traveling very fast. After being shown a picture of defendant\u2019s car, a black Nissan, she confirmed that it was a similar car to one she saw following Lee\u2019s. Third, the State called a resident who lived near the accident site, who testified that he was in his garage and heard a speeding car go by. Then, within a few moments, he heard another car speeding towards him. He got up to look out the window and saw the car slow down, then speed up, then turn down a farm dirt road. The resident testified that the dirt road was a private road that led to 264 Alternate. Fourth, another witness testified that he was walking his dogs near the road where the accident occurred. He heard two cars coming towards the location of the accident at a high rate of speed. He said he then heard th\u00e9 crash, followed by another car slowing down and then speeding off. And fifth, the State called Lee\u2019s girlfriend, who testified that she called Lee twice on the day of the accident and had planned to come pick him up from defendant\u2019s house.\nWe determine that the State sufficiently corroborated the essential facts of defendant\u2019s confession through the testimony of these other witnesses. Several officers and witnesses testified to defendant\u2019s drinking and impairment. A car similar to the one owned and operated by defendant was seen traveling down the road near the accident and turning down a side street, just as defendant confessed to doing. The State also corroborated defendant\u2019s account of Lee receiving a phone call from his girlfriend. Absent defendant\u2019s confession, the circumstantial evidence of defendant\u2019s driving would likely not be enough to support a conviction, however with his confession it is. See Trexler, 316 N.C. at 533-34, 342 S.E.2d at 881-82 (corroboration of defendant\u2019s admission that he drove while impaired, in conjunction with the admission itself, is enough to survive a motion to dismiss). We cannot sustain defendant\u2019s assignment of error on this point.\nNext, defendant contends the trial court erred in denying his motion to dismiss the driving while license revoked charge. We agree. Defendant argues the State presented insufficient evidence that he drove a car and that he did so with knowledge his license was revoked. As stated above, we find the evidence supporting defendant\u2019s driving to be sufficient; however, we hold there was insufficient evidence presented that defendant knew his license was revoked.\n\u201cTo convict a defendant under N.C. Gen. Stat. \u00a7 20-28(a) of driving while his license is revoked the State must prove beyond a reasonable doubt (1) the defendant\u2019s operation of a motor vehicle (2) on a public highway (3) while his operator\u2019s license is revoked.\u201d State v. Richardson, 96 N.C. App. 270, 271, 385 S.E.2d 194, 195 (1989) (citing State v. Atwood, 290 N.C. 266, 271, 225 S.E.2d 543, 545 (1976)). The State must also prove \u201cthe defendant had \u2018actual or constructive knowledge of the . . . revocation in order for there to be a conviction under this statute.\u2019 \u201d Id. This Court has previously held that \u201c[t]he State satisfies its burden of proof of a G.S. 20-28 violation when, \u2018nothing else appearing, it has offered evidence of compliance with the notice requirements of G.S. 20-48 because of the presumption that he received notice and had such knowledge.\u2019 \u201d State v. Curtis, 73 N.C. App. 248, 251, 326 S.E.2d 90, 92 (1985) (quoting State v. Chester, 30 N.C. App. 224, 227, 226 S.E.2d 524, 526 (1976)).\nSection 20-48 of our General Statutes states that:\nWhenever the Division is authorized or required to give any notice under this Chapter or other law regulating the operation of vehicles, unless a different method of giving such notice is otherwise expressly prescribed, such notice shall be given either by personal delivery thereof to the person to be so notified or by deposit in the United States mail of such notice in an envelope with postage prepaid, addressed to such person at his address as shown by the records of the Division. The giving of notice by mail is complete upon the expiration of four days after such deposit of such notice. Proof of the giving of notice in either such manner may be made by the certificate of any officer or employee of the Division or affidavit of any person over 18 years of age, naming the person to whom such notice was given and specifying the time, place, and manner of the giving thereof\nN.C. Gen. Stat. \u00a7 20-48(a) (2003) (emphasis added). Accordingly, if notice of a revocation is sent via the mail, as was done in this case, there is a rebuttable presumption that defendant has received knowledge of the revocation four days after a certif\u00edcate or affidavit states that a copy of an official notice has been mailed to defendant\u2019s address. See id.; Chester, 30 N.C. App. at 227-28, 226 S.E.2d at 526-27. When mailing notice, evidence of compliance with the statute requires the State to show an official notice explaining the date revocation will begin and a certificate or affidavit of a person stating the \u201ctime, place, and manner of the giving thereof.\u201d See, e.g., State v. Herald, 10 N.C. App. 263, 264, 178 S.E.2d 120, 121-22 (1970) (certificate of mailing complied with statutory \u201cproof of notice\u201d requirement); see also State v. Curtis, 73 N.C. App. 248, 251-52, 326 S.E.2d 90, 92-93 (1985) (defendant\u2019s stipulation of a mailing date was sufficient to show the notice was mailed to defendant).\nHere, the State had a police officer testify that defendant\u2019s license was revoked as of 29 December 2002, two days before the incident. The State also introduced an official notice from the Department of Motor Vehicles addressed to defendant, stating the revocation would begin on 29 December 2002. The notice is dated 30 October 2002; however, at trial, there was no testimony, certificate, or affidavit introduced that proves the 30 October 2002 notice was ever mailed to defendant. Without any evidence that an official notice was actually mailed to defendant\u2019s address, the State falls short of offering even a prima facie case of knowledge, and a dismissal is appropriate. See State v. Richardson, 96 N.C. App. 270, 271-72, 385 S.E.2d 194, 194-95 (1989) (dismissal appropriate where the only evidence of defendant\u2019s knowledge of revocation was a police officer\u2019s testimony).\nDefendant also argues that the trial court erred in finding a grossly aggravating factor: that he drove impaired with a child under the age of sixteen in the car. Defendant argues this finding by the trial court, and not the jury, is in violation of Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004). In State v. Allen, 359 N.C. 425, 438-39, 615 S.E.2d 256, 265 (2005), our Supreme Court applied Blakely and held that N.C. Gen. Stat. \u00a7 15A-1340.16 was unconstitutional to the extent that it required the trial court to find aggravating factors by a preponderance of the evidence, rather than presenting them to the jury for a determination beyond a reasonable doubt. The remedy applied in Allen for this \u201cstructural error\u201d was remand for resentenc-ing. Id. at 449, 615 S.E.2d at 269. In State v. Speight, 359 N.C. 602, 614 S.E.2d 262 (2005), our Supreme Court determined that \u201cthe rationale in Allen applies to all cases in which (1) a defendant is constitutionally entitled to a jury trial, and (2) a trial court has found one or more aggravating factors and increased a defendant\u2019s sentence beyond the presumptive range without submitting the aggravating factors to a jury.\u201d Id. at 606, 614 S.E.2d at 264. Speight involved a defendant convicted of driving while impaired and sentenced as a Level II offender under N.C. Gen. Stat. \u00a7 20-179 (2003), without a jury finding the grossly aggravating factor that escalated his level of punishment. Id. at 604, 614 S.E.2d at 263. In accord, here we hold that the trial court\u2019s sentence of defendant as a Level II offender on the basis of its finding of a grossly aggravating factor was also structural error that requires resentencing. See id. at 606, 614 S.E.2d at 264-65.\nIn sum, the trustworthiness of defendant\u2019s confessions was adequately corroborated and his conviction for driving while impaired was without error. Defendant\u2019s conviction for driving while license revoked is reversed because the State failed to offer sufficient evidence of compliance with N.C. Gen. Stat. \u00a7 20-48. Further, defendant is entitled to a new sentencing hearing on the driving while impaired conviction because the grossly aggravating factor was not submitted to a jury to be determined beyond a reasonable doubt.\nNo error in part, reversed in part, remanded for resentencing.\nJudges McGEE and CALABRIA concur.\n. \u201c[R]egardless of whether defendant\u2019s statements constitute an actual confession or only amount to an admission, our long established rule of corpus delicti requires that there be corroborative evidence, independent of the statements, before defendant may be found guilty of the crime.\u201d State v. Trexler, 316 N.C. 528, 531, 342 S.E.2d 878, 880 (1986).", "type": "majority", "author": "ELMORE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Patricia A. Duffy, for the State.", "William D. Spence, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. BILLY JOE CRUZ\nNo. COA04-1217\n(Filed 18 October 2005)\n1. Motor Vehicles\u2014 driving while impaired \u2014 motion to dismiss\u2014 corpus delicti rule \u2014 confession\u2014corroborating evidence\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of driving while impaired, because evaluating the evidence under either the traditional or trustworthiness approach to the corpus delicti rule reveals that: (1) the State offered corroborating evidence of the essential facts of defendant\u2019s confession through the testimony of various witnesses; and (2) several officers and witnesses testified to defendant\u2019s drinking and impairment.\n2. Motor Vehicles\u2014 driving while license revoked \u2014 motion to dismiss\nThe trial court erred by denying defendant\u2019s motion to dismiss the charge of driving while license revoked, because although the evidence supporting defendant\u2019s driving was sufficient, there was insufficient evidence that defendant knew his license was revoked when there was no evidence that an official notice was actually mailed to defendant\u2019s address as required by N.C.G.S. \u00a7 20-48.\n3. Sentencing\u2014 aggravating factor \u2014 failure to submit to jury \u2014 Blakely error\nThe trial court committed Blakely error in a driving while impaired case by sentencing defendant as a Level II offender on the basis of its finding of the grossly aggravating factor that defendant drove impaired with a child under the age of sixteen in the car, and the case is remanded for resentencing, because the aggravating factor was not submitted to a jury to be determined beyond a reasonable doubt.\nAppeal by defendant from judgment entered 12 February 2004 by Judge Thomas D. Haigwood in Pitt County Superior Court. Heard in the Court of Appeals 18 May 2005.\nAttorney General Roy Cooper, by Assistant Attorney General Patricia A. Duffy, for the State.\nWilliam D. Spence, for defendant-appellant." }, "file_name": "0689-01", "first_page_order": 719, "last_page_order": 729 }