{ "id": 8352325, "name": "STATE OF NORTH CAROLINA v. MICHAEL TYRONE STOKES", "name_abbreviation": "State v. Stokes", "decision_date": "2005-11-15", "docket_number": "No. COA05-234", "first_page": "447", "last_page": "459", "citations": [ { "type": "official", "cite": "174 N.C. App. 447" } ], "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": "176 S.E.2d 765", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "770", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "277 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563764 ], "year": 1970, "pin_cites": [ { "page": "214", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0205-01" ] }, { "cite": "310 S.E.2d 633", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "636-37", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "66 N.C. App. 79", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523045 ], "year": 1984, "pin_cites": [ { "page": "84-85", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/66/0079-01" ] }, { "cite": "65 S.E.2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "pin_cites": [ { "page": "10" } ], "opinion_index": 0 }, { "cite": "233 N.C. 581", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613655 ], "year": 1951, "pin_cites": [ { "page": "583" } ], "opinion_index": 0, "case_paths": [ "/nc/233/0581-01" ] }, { "cite": "301 S.E.2d 91", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "97", "parenthetical": "quoting State v. Carter, 233 N.C. 581, 583, 65 S.E.2d 9, 10 (1951)" } ], "opinion_index": 0 }, { "cite": "308 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4710741 ], "year": 1983, "pin_cites": [ { "page": "167", "parenthetical": "quoting State v. Carter, 233 N.C. 581, 583, 65 S.E.2d 9, 10 (1951)" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0159-01" ] }, { "cite": "526 S.E.2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "455", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "351 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155599 ], "year": 2000, "pin_cites": [ { "page": "378-79", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0373-01" ] }, { "cite": "400 S.E.2d 57", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "61" } ], "opinion_index": 0 }, { "cite": "328 N.C. 231", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2541929 ], "year": 1991, "pin_cites": [ { "page": "236" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0231-01" ] }, { "cite": "265 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "year": 1980, "pin_cites": [ { "page": "78-79" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "296 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "651" } ], "opinion_index": 0 }, { "cite": "307 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560587 ], "year": 1982, "pin_cites": [ { "page": "65-66" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0062-01" ] }, { "cite": "340 S.E.2d 401", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "opinion_index": 0 }, { "cite": "315 N.C. 738", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720408 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/315/0738-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-140", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "565 S.E.2d 273", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "277" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 236", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9079887 ], "year": 2002, "pin_cites": [ { "page": "244" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0236-01" ] }, { "cite": "323 S.E.2d 343", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "349" } ], "opinion_index": 0 }, { "cite": "312 N.C. 432", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4756963 ], "year": 1984, "pin_cites": [ { "page": "440" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0432-01" ] }, { "cite": "247 S.E.2d 668", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "669-70" } ], "opinion_index": 0 }, { "cite": "38 N.C. App. 222", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553073 ], "pin_cites": [ { "page": "224-25" } ], "opinion_index": 0, "case_paths": [ "/nc-app/38/0222-01" ] }, { "cite": "94 S.E.2d 853", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "pin_cites": [ { "page": "855", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "244 N.C. 737", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219533 ], "year": 1956, "pin_cites": [ { "page": "739-40", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/244/0737-01" ] }, { "cite": "177 S.E.2d 392", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "396" } ], "opinion_index": 0 }, { "cite": "277 N.C. 312", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564836 ], "year": 1970, "pin_cites": [ { "page": "319" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0312-01" ] }, { "cite": "196 S.E.2d 770", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "774", "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "283 N.C. 494", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559260 ], "year": 1973, "pin_cites": [ { "page": "499-500", "parenthetical": "internal citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/283/0494-01" ] }, { "cite": "244 S.E.2d 386", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562180 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0236-01" ] }, { "cite": "336 S.E.2d 852", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1985, "pin_cites": [ { "page": "853" }, { "page": "855", "parenthetical": "internal citations omitted" }, { "page": "856" }, { "page": "856" }, { "page": "856" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 39", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519454 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "41" }, { "page": "46" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0039-01" ] }, { "cite": "540 S.E.2d 435", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2000, "pin_cites": [ { "page": "439" }, { "page": "439" }, { "page": "438" }, { "page": "440" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 302", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9440957 ], "weight": 4, "year": 2000, "pin_cites": [ { "page": "309" }, { "page": "309" }, { "page": "306" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0302-01" ] }, { "cite": "99 L. Ed. 2d 912", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1988, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "485 U.S. 1036", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 13312, 13445, 13287, 13545, 13740, 13965, 13233, 14131, 13397, 13238, 13399, 13750, 13849, 13725 ], "year": 1988, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/us/485/1036-05", "/us/485/1036-12", "/us/485/1036-11", "/us/485/1036-04", "/us/485/1036-06", "/us/485/1036-14", "/us/485/1036-08", "/us/485/1036-10", "/us/485/1036-01", "/us/485/1036-02", "/us/485/1036-13", "/us/485/1036-03", "/us/485/1036-09", "/us/485/1036-07" ] }, { "cite": "362 S.E.2d 244", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "251" } ], "opinion_index": 0 }, { "cite": "321 N.C. 201", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569839 ], "year": 1987, "pin_cites": [ { "page": "213" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0201-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "378" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "659" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "405 U.S. 625", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11723176 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "633" }, { "page": "533-34" } ], "opinion_index": 0, "case_paths": [ "/us/405/0625-01" ] }, { "cite": "530 U.S. 466", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9413911 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "477" }, { "page": "447" } ], "opinion_index": 0, "case_paths": [ "/us/530/0466-01" ] }, { "cite": "159 L. Ed. 2d 252", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2004, "pin_cites": [ { "parenthetical": "citing Apprendi v. New Jersey, 530 U.S. 466, 477, 147 L. Ed. 2d 435, 447 (2000); Alexander v. Louisiana, 405 U.S. 625, 633, 31 L. Ed. 2d 536, 533-34 (1972)" } ], "opinion_index": 0 }, { "cite": "541 U.S. 1088", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5868964, 3633948, 5922408, 5887338, 5877035, 5897547, 3632844, 5868718, 5909141, 5891352, 3633468, 5893885, 5916862 ], "year": 2004, "pin_cites": [ { "parenthetical": "citing Apprendi v. New Jersey, 530 U.S. 466, 477, 147 L. Ed. 2d 435, 447 (2000); Alexander v. Louisiana, 405 U.S. 625, 633, 31 L. Ed. 2d 536, 533-34 (1972)" } ], "opinion_index": 0, "case_paths": [ "/us/541/1088-12", "/us/541/1088-08", "/us/541/1088-02", "/us/541/1088-01", "/us/541/1088-06", "/us/541/1088-05", "/us/541/1088-09", "/us/541/1088-11", "/us/541/1088-04", "/us/541/1088-10", "/us/541/1088-13", "/us/541/1088-03", "/us/541/1088-07" ] }, { "cite": "591 S.E.2d 837", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "842" } ], "opinion_index": 0 }, { "cite": "357 N.C. 529", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491517 ], "year": 2003, "pin_cites": [ { "page": "537" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0529-01" ] }, { "cite": "178 S.E.2d 490", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "492", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "277 N.C. 704", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567498 ], "year": 1971, "pin_cites": [ { "page": "707-08", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0704-01" ] }, { "cite": "339 S.E.2d 810", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "812" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 559", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522029 ], "year": 1986, "pin_cites": [ { "page": "562" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0559-01" ] }, { "cite": "570 S.E.2d 142", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "147", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 326", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249845 ], "year": 2002, "pin_cites": [ { "page": "335", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0326-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-141.5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 8, "year": 2003, "pin_cites": [ { "page": "(b)(2)" }, { "page": "(a)" }, { "page": "(b)(2)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1078, "char_count": 28403, "ocr_confidence": 0.739, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.2028359568453605 }, "sha256": "270d2c7c57ff7c9f78b662a91facf705fcce3159d1d3b62c088d0e8c7a7ef72f", "simhash": "1:db40966b523d2e5e", "word_count": 4673 }, "last_updated": "2023-07-14T21:19:44.302822+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JACKSON and JOHN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. MICHAEL TYRONE STOKES" ], "opinions": [ { "text": "TYSON, Judge.\nMichael Tyrone Stokes (\u201cdefendant\u201d) appeals from judgment entered after a jury found him to be guilty of felonious fleeing to elude arrest. We find no error.\nI. Background\nIn the early morning hours of 2 September 2000, Greensboro City Police Officer Jeff Mercer (\u201cOfficer Mercer\u201d) responded to a call reporting a domestic dispute at an apartment complex. Upon arrival, Officer Mercer began to speak with a black male who was walking away from the residence. As they spoke, defendant approached Officer Mercer and began to interrupt him while holding an object in his hand. Officer Mercer testified defendant was angry and that he believed defendant intended to assault the other individual. Officer Mercer told defendant to \u201cback off\u2019 and threatened to use Mace. Defendant complied and walked away toward the apartment.\nDefendant\u2019s estranged wife approached Officer Mercer and identified herself as the person who had made the call. As Officer Mercer interviewed defendant\u2019s wife, defendant left the scene in a red pickup truck yelling threats. Officer Mercer contacted Officer T.D. Dell (\u201cOfficer Dell\u201d) by radio and requested he intercept defendant at the apartment complex. Officer Dell was unable to intercept defendant there but followed him onto eastbound Interstate 40. The speed limit on Interstate 40 was fifty miles per hour due to a construction zone. Officer Dell estimated defendant was traveling approximately seventy-five miles per hour. Officer Dell activated his lights and siren and initiated a traffic stop. Defendant drove one-half mile before pulling over onto the shoulder.\nOfficer Dell testified that upon approaching defendant\u2019s vehicle he noticed a strong odor of alcohol, and that defendant\u2019s eyes were very red and glassy. Defendant gave Officer Dell his driver\u2019s license upon request, and Officer Dell returned to his patrol car to wait for other officers to arrive. Once other officers arrived, Officer Dell returned to defendant\u2019s vehicle and asked defendant if he had been drinking. Defendant denied that he had. When Officer Dell asked defendant to step out of his vehicle, defendant put the truck into gear and attempted to leave the scene.\nAs defendant pulled away, Officer Dell\u2019s hand became pinned inside defendant\u2019s truck. Officer Dell jumped into the cab of the truck through the window. His body armor prevented him from getting the lower half of his body into the truck. Defendant began striking Officer Dell to prevent him from reaching the keys. The truck attained a speed of approximately 45 to 50 miles per hour and traveled approximately one-half mile with Officer Dell hanging out of the window. Defendant was \u201cextremely belligerent, shouting \u201cF \u2014 k you. F \u2014 k you. F \u2014 k you. You\u2019re going to die. Get the f \u2014 k out of my truck.\u201d Defendant\u2019s demeanor suddenly changed and he said, \u201cIt just doesn\u2019t matter. It just doesn\u2019t matter.\u201d At that point, Officer Dell was able to switch off the ignition and the truck coasted to a stop. Officer Dell testified that defendant\u2019s speech was \u201cvery thick tongued, mush mouthed, [and] very hard to understand at times.\u201d\nWhen the other officers arrived, defendant again became angry. Three officers forcibly removed him from his truck. Defendant was transported to the Guilford County Detention Center where he was administered a breath analysis examination, which registered a blood alcohol level of. 12. Defendant became belligerent and refused a second test.\nAt trial, defendant admitted to having six or seven beers at a bar prior to the incident. Defendant also admitted that he had violated a protective order by going to his wife\u2019s residence. Defendant moved to dismiss at the close of the State\u2019s evidence and renewed his motion at the close of all evidence. The trial court denied both motions. The jury found defendant to be guilty of felonious fleeing to elude arrest. Defendant pled guilty to having attained habitual felon status and was sentenced to an active term of imprisonment in the mitigated range for a minimum of ninety months and a maximum of 117 months. Defendant appeals.\nII. Issues\nThe issues on appeal are whether: (1) the indictment for felony fleeing to elude arrest was fatally defective; (2) the trial court erroneously instructed the jury on the charge of felony fleeing to elude arrest by failing to define the legal requirements for the element of \u201cgross impairment;\u201d (3) the trial court erroneously instructed the jury on the charge of felony fleeing to elude arrest by instructing the jury on a theory of guilt different from that set forth in the indictment where a fatal variance exists between the allegations in the indictment and the evidence introduced at trial; (4) the trial court erred in denying defendant\u2019s motion to dismiss due to insufficient evidence of speeding and gross impairment; and (5) the trial court improperly commented on the evidence during the jury instructions.\nIII. Indictment\nDefendant first argues the indictment for felony fleeing to elude arrest was fatally defective because it only references penalty enhancements by name and does not set forth the facts necessary for the jury to find them. We disagree.\nN.C. Gen. Stat. \u00a7 20-141.5 (2003) is entitled \u201cSpeeding to Elude Arrest.\u201d However, except as provided in N.C. Gen. Stat. \u00a7 20-141.5(b)(2) below, the statute does not require the State to prove defendant was speeding to be convicted of violating the statute. The statute provides in part:\n(a) It shall be unlawful for any person to operate a motor vehicle on a street, highway, or public vehicular area while fleeing or attempting to elude a law enforcement officer who is in the lawful performance of his duties. Except as provided in sub section (b) of this section, violation of this section shall be a Class 1 misdemeanor.\n(b) If two or more of the following aggravating factors are present at the time the violation occurs, violation of this section shall be a Class H felony.\n(1) Speeding in excess of 15 miles per hour over the legal speed limit.\n(2) Gross impairment of the person\u2019s faculties while driving due to:\na. Consumption of an impairing substance; or\nb. A blood alcohol concentration of 0.14 or more within a relevant time after the driving.\n(3) Reckless driving as proscribed by G.S. 20-140.\nDefendant argues the indictment is fatally defective because the facts necessary to show reckless driving and gross impairment were not set forth in the indictment to elevate the crime from a misdemeanor to a felony. The indictment alleges defendant:\nunlawfully, willfully and feloniously did operate a motor vehicle on a highway, Interstate 40, while attempting to elude a' law enforcement officer, T.D. Dell of the Greensboro Police Department, in the lawful performance of the officer\u2019s duties, stopping the defendant\u2019s vehicle for various motor vehicle offenses. At the time of the violation:\n1. The defendant was speeding in excess of 15 miles per hour over the legal speed limit.\n2. The defendant was driving recklessly in violation of G.S. 20-140.\n3. There was gross impairment of the defendant\u2019s faculties while driving due to consumption of an impairing substance.\nAn indictment must charge all the essential elements of the alleged criminal offense. State v. Thomas, 153 N.C. App. 326, 335, 570 S.E.2d 142, 147 (2002) (citation omitted). \u201cThe elements need only be alleged to the extent that the indictment (1) identifies the offense; (2) protects against double jeopardy; (3) enables the defendant to prepare for trial; and (4) supports a judgment on conviction.\u201d Id. at 335, 570 S.E.2d at 147-48 (citing State v. Baynard, 79 N.C. App. 559, 562, 339 S.E.2d 810, 812 (1986)). \u201cAn indictment for a statutory offense is sufficient, as a general rule, when it charges the offense in the language of the statute.\u201d State v. Penley, 277 N.C. 704, 707-08, 178 S.E.2d 490, 492 (1971) (citations omitted).\nThe language of the indictment tracks N.C. Gen. Stat. \u00a7 20-141.5. Defendant\u2019s indictment alleges all of the elements defined by N.C. Gen. Stat. \u00a7 20-141.5(a) and the elements necessary to elevate the offense from a misdemeanor to a felony. Our Supreme Court has stated, \u201cthe United States Supreme Court has consistently declined to impose a requirement mandating states to prosecute only upon indictments which include all elements of an offense.\u201d State v. Squires, 357 N.C. 529, 537, 591 S.E.2d 837, 842 (2003), cert. denied, 541 U.S. 1088, 159 L. Ed. 2d 252 (2004) (citing Apprendi v. New Jersey, 530 U.S. 466, 477, 147 L. Ed. 2d 435, 447 (2000); Alexander v. Louisiana, 405 U.S. 625, 633, 31 L. Ed. 2d 536, 533-34 (1972)). The indictment is sufficient to charge defendant with felony speeding to elude arrest. This assignment of error is overruled.\nIV. Jury Instruction on \u201cGross Impairment\u201d\nDefendant contends the trial court erred by failing to define the legal requirements for the necessary element of \u201cgross impairment\u201d in the jury instructions. We disagree.\nDefendant failed to object to the jury instructions at trial and may only assert plain error to the trial court\u2019s failure to properly instruct the jury. See State v. Odom, 307 N.C. 655, 659, 300 S.E.2d 375, 378 (1983); N.C.R. App. P. 10(b)(2) (2004); N.C.R. App. P. 10(c)(4) (2004). Defendant alleges the trial court\u2019s failure to properly instruct the jury constitutes plain error. To award a new trial for plain error, the trial court\u2019s error must be \u201cso fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.\u201d State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988) (citations omitted).\nThe North Carolina Pattern Jury Instruction for felony speeding to elude arrest reads in pertinent part:\nAnd Fourth, that two or more of the following factors were present at that time:\n[(2) gross impairment of the defendant\u2019s faculties while driving due to [consumption of an impairing substance] [a blood alcohol level of 0.14 or more within a relevant time after driving]]\n[(3) reckless driving as proscribed by G.S. 20-140 . . .]\nN.C.P.I. \u2014 Crim. 270.54A. The trial court instructed the jury as follows:\nAnd fourth, the State must prove that both of the following factors were present at the time. First, gross impairment of the defendant\u2019s faculties while driving due to consumption of an impairing substance and reckless driving. A person operates a vehicle recklessly when he does so carelessly and heedlessly in willful or wanton disregard of the rights or safety of others, or when he does so without due caution or circumspection and at a speed or in a manner so as to endanger or to be likely to endanger any person or property.\nThis Court has found no error where the trial court\u2019s instruction \u201ctracked the language of the pattern jury instructions\u201d on the offense of Felony Speeding to Elude Arrest. State v. Funchess, 141 N.C. App. 302, 309, 540 S.E.2d 435, 439 (2000). Here, the trial court followed the pattern jury instructions. No definition of \u201cgross impairment\u201d appears either in the pattern jury instructions or in N.C. Gen. Stat. \u00a7 20-141.5(b)(2). We find no past cases defining \u201cgross impairment\u201d in the context of our Speeding to Elude Arrest statute, N.C. Gen. Stat. \u00a7 20-141.5.\nThis Court has discussed gross impairment in the context of a driving while impaired conviction in State v. Harrington, 78 N.C. App. 39, 336 S.E.2d 852 (1985). In Harrington, the defendant was convicted of driving while impaired and assigned as error the trial court\u2019s finding the defendant was grossly impaired as an aggravating factor. 78 N.C. App. at 41, 336 S.E.2d at 853. We stated, \u201cIn construing \u2018gross impairment,\u2019 the intent of the legislature controls; we look first to the plain and ordinary meanings of the words, with an eye to previous enactments and decisions construing similar statutes.\u201d Id. at 44-45, 336 S.E.2d at 855 (citing In re Banks, 295 N.C. 236, 244 S.E.2d 386 (1978)).\n\u201cGross impairment\u201d must be defined with reference to \u201cimpairment.\u201d \u201cImpairment\u201d does not appear to have any special legal meaning, but simply means \u201cweakening, making worse, diminishment.\u201d . .. Under our statutes, the consumption of alcohol, standing alone, does not render a person impaired. An effect, however slight, on the defendant\u2019s faculties, is not enough to render him or her impaired. . . . On the other hand, the State need not show that the defendant is \u201cdrunk,\u201d i.e., that his or her faculties are materially impaired. The effect must be appreciable, that is, sufficient to be recognized and estimated, for a proper finding that defendant was impaired.\nId. at 45, 336 S.E.2d at 855 (internal citations omitted). We noted, \u201cwe do not draw a bright line which will mark once and for all where \u2018impairment\u2019 ends and \u2018gross impairment\u2019 begins. That determination must depend on the facts of each individual case.\u201d Id. at 46-47, 336 S.E.2d at 856. This Court simply stated, \u201c \u2018gross impairment\u2019 is a high level of impairment, higher than that impairment which must be shown to prove the offense of DWI.\u201d Id. at 46, 336 S.E.2d at 856.\n\u201cGross\u201d is defined in numerous terms. The American Heritage Dictionary includes in its definition of \u201cgross\u201d as meaning \u201cglaringly obvious,\u201d \u201cflagrant,\u201d \u201cutter,\u201d and \u201cunmitigated in any way.\u201d The American Heritage Dictionary of the English Language 798-99 (3rd ed. 1992). Our Supreme Court has stated the court\u2019s role in statutory construction as follows:\n[T]he function of the court is to discover the intent of the Legislature and to give to the words of the statute the meaning which the Legislature had in mind. Unless the contrary appears, it is presumed that the Legislature intended the words of the statute to be given the meaning which they had in ordinary speech at the time the statute was enacted.\nTransportation Service, Inc. v. County of Robeson, 283 N.C. 494, 499-500, 196 S.E.2d 770, 774 (1973) (internal citations omitted). Where the words of a statute have not been given a special or technical meaning, courts are to construe them according to their common and ordinary meaning. Supply Co. v. Motor Lodge, 277 N.C. 312, 319, 177 S.E.2d 392, 396 (1970).\nDefendant does not contest the meaning of the term \u201cgrossly impaired\u201d but asserts error due to those words not being defined for the jury in the jury instructions. The language used in the statute and jury instructions accords with the ordinary meaning of the term \u201cgrossly impaired\u201d and is clearly understandable. State v. McNeely, 244 N.C. 737, 739-40, 94 S.E.2d 853, 855 (1956) (citation omitted).\nIn Funchess, this Court held that a jury instruction on our Speeding to Elude Arrest Statute was sufficient where it tracked the language of the pattern jury instructions. 141 N.C. App. at 309, 540 S.E.2d at 439. Nothing in the record suggests the Legislature intended for the words \u201cgross impairment\u201d to mean anything other than their common and ordinary meaning. In re Faulkner, 38 N.C. App. 222, 224-25, 247 S.E.2d 668, 669-70 (Nothing in the record indicated that the Legislature intended the words \u201cgross incompetence\u201d be given anything other than their common and ordinary meaning.)\nThe Legislature clearly intended the term \u201cgross impairment\u201d to require a level of impairment higher than that necessary to support a DWI conviction. Harrington, 78 N.C. App. at 46, 336 S.E.2d at 856. \u201cIn State v. Coker, 312 N.C. 432, 440, 323 S.E.2d 343, 349 (1984), our Supreme Court noted that there are two ways to prove the single offense of impaired driving: (1) showing appreciable impairment; or (2) showing an alcohol concentration of 0.08 or more.\u201d State v. McDonald, 151 N.C. App. 236, 244, 565 S.E.2d 273, 277 (2002). Defendant failed to meet his burden of showing that the trial court\u2019s failure to further define \u201cgross impairment\u201d amounted to plain error. This assignment of error is overruled.\nV. Variance in the Indictment and Evidence Presented at Trial\nDefendant next contends the trial court erred in instructing the jury on a theory of guilt different from that set forth in the indictment. We disagree.\nThe indictment alleges that defendant attempted to elude a law enforcement officer and that at the time of the violation: (1) he was speeding in excess of fifteen miles per hour over the legal speed limit; (2) he was driving recklessly in violation of N.C. Gen. Stat. \u00a7 20-140; and (3) there was gross impairment of defendant\u2019s faculties while driving due to the consumption of an impairing substance. While some evidence was presented at trial that defendant was speeding more than fifteen miles per hour over the legal speed limit at the time he attempted to elude the law enforcement officer, the State elected to proceed upon evidence of the two remaining factors \u2014 reckless driving and gross impairment. Defendant argues the State must prove all allegations set forth in the indictment, which includes speeding in excess of fifteen miles over the legal speed limit. This argument is without merit.\nThe facts in this case are similar to those in Funchess, 141 N.C. App. 302, 540 S.E.2d 435. In Funchess, the State alleged three aggravating factors in the indictment to support the charge of Felony Speeding to Elude Arrest pursuant to N.C. Gen. Stat. \u00a7 20-141.5. 141 N.C. App. at 306, 540 S.E.2d at 438. On appeal, the defendant argued the State was required to prove all three factors beyond a reasonable doubt because all were alleged in the indictment. Id. at 310, 540 S.E.2d at 440. This Court, relying on State v. Moore, 315 N.C. 738, 340 S.E.2d 401 (1986), found no error and held the plain language of the statute only required proof of two or more of the factors to support a felony conviction. Id. Here, the State\u2019s evidence supported the charges of defendant\u2019s reckless driving and gross impairment of defendant\u2019s faculties set forth in the indictment. This assignment of error is overruled.\nVI. Motions to Dismiss\nDefendant argues the trial court erred in denying defendant\u2019s motions to dismiss at the close of the State\u2019s evidence and at the close of all evidence because insufficient evidence of speeding and gross impairment was presented at trial. We disagree.\nThe lack of evidence or the State\u2019s abandonment of speeding in excess of fifteen miles per hour over the legal speed limit as an aggravating factor did not constitute error. The State was only required to prove two of the three factors listed in the indictment to elevate the crime from a misdemeanor to a felony. N.C. Gen. Stat. \u00a7 20-141.5. The sole issue in this assignment of error is whether substantial evidence was presented to support a conclusion that defendant\u2019s faculties were grossly impaired while driving due to the consumption of an impairing substance.\nWhen a defendant moves for dismissal, the trial court is to determine only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). Whether evidence presented constitutes substantial evidence is a question of law for the court. Substantial evidence is \u201csuch relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980).\nState v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991). The trial court \u201cmust view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences . . . Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve.\u201d State v. Fritsch, 351 N.C. 373, 378-79, 526 S.E.2d 451, 455 (2000) (citation omitted).\nDefendant contends the trial court should have dismissed the charges because the evidence at trial only showed \u201cappreciable impairment\u201d rather than \u201cgross impairment.\u201d The State presented evidence tending to show: (1) defendant had a strong odor of alcohol about him; (2) defendant\u2019s eyes were \u201cvery red, glazed, [and] glassy;\u201d (3) defendant\u2019s speech was \u201cmush mouthed\u201d and \u201cvery hard to understand;\u201d (4) defendant repeatedly used profanity against the officers; (5) defendant told Officer Dell that he was \u201cgoing to die;\u201d (6) defendant drove one-half mile with the lower portion of Officer Dell\u2019s body hanging out of the window of his vehicle; (7) defendant had to be forcibly removed from his vehicle; and (8) defendant testified that he consumed six to seven beers at a local bar between 9:30 p.m. and 1:00 a.m. and admitted he was under the influence of alcohol when he pulled off from the traffic stop. Sufficient evidence was presented to support a conclusion by the jury that defendant was grossly impaired. This assignment of error is overruled.\nVII. Comment on the Evidence\nDefendant contends the trial court improperly commented on the evidence during the jury instructions. The court instructed the jury that \u201carresting a person for driving while impaired is a duty of a Greensboro police officer\u201d when there was no evidence defendant was arrested or charged with driving while impaired. We disagree.\nN.C. Gen. Stat. \u00a7 15A-1222 (2003) prohibits a trial judge from expressing any opinion in the presence of the jury on any question of fact. \u201cIt is fundamental to our system of justice that each and every person charged with a crime be afforded the opportunity to be tried \u2018before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm.\u2019 \u201d State v. Harris, 308 N.C. 159, 167, 301 S.E.2d 91, 97 (1983) (quoting State v. Carter, 233 N.C. 581, 583, 65 S.E.2d 9, 10 (1951)). \u201cThe charge, however, must be viewed contextually, and whether a defendant was unduly prejudiced by the trial judge\u2019s remarks is determined by the probable effect on the jury in light of all the attendant circumstances, the burden being on defendant to show prejudice.\u201d State v. Lofton, 66 N.C. App. 79, 84-85, 310 S.E.2d 633, 636-37 (1984) (citations omitted). \u201cIf the charge presents the law fairly and clearly to the jury, the fact that some expressions, standing alone, might be considered erroneous will afford no ground for reversal.\u201d State v. Lee, 277 N.C. 205, 214, 176 S.E.2d 765, 770 (1970) (citations omitted).\nThe trial court made the statements defendant challenges within its recitation of the jury instruction on the charge of Assault with a Deadly Weapon on a Government Officer. The trial court instructed the jury as follows:\nThird, that the victim was an officer of a political subdivision of the State. A Greensboro police officer is an officer of a political subdivision of the State. And fourth, that the victim was performing a duty of his office. Arresting a person for driving while impaired is a duty of a Greensboro police officer.\nThe trial court was explaining to the jury that the victim of the assault must have been an \u201cofficer of a political subdivision of the State\u201d who was \u201cperforming a duty of his office.\u201d At the time of the alleged offense, Officer Dell was investigating a possible driving while intoxicated offense. Defendant smelled of alcohol and his eyes were red and glassy. The trial court charged that Officer Dell was discharging a duty of his office at the time of the alleged assault and was not commenting on the evidence. This assignment of error is overruled.\nVT\u00cdI. Conclusion\nDefendant\u2019s indictment for felony fleeing to elude arrest was not fatally defective. Defendant has failed to show plain error by the trial court in following the pattern jury instructions and the language of the statute without specifically defining \u201cgross impairment\u201d or in instructing the jury on a theory of guilt different from that set forth in the indictment.\nThe trial court did not err in denying defendant\u2019s motions to dismiss and did not improperly comment on the evidence to the jury. Defendant received a fair trial, free from errors he preserved, assigned, and argued.\nNo error.\nJudges JACKSON and JOHN concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General N. Morgan Whitney, Jr., and Special Deputy Attorney General Melissa L. Trippe, for the State.", "Stubbs, Cole, Breedlove, Prentis & Biggs, PLLC, by C. Scott Holmes, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MICHAEL TYRONE STOKES\nNo. COA05-234\n(Filed 15 November 2005)\n1. Motor Vehicles\u2014 felonious fleeing to elude arrest \u2014 sufficiency of indictment\nThe indictment was sufficient to charge defendant with felonious fleeing to elude arrest because: (1) the language of the indictment tracks N.C.G.S. \u00a7 20-141.5, and alleges all of the elements defined by the statute and the elements necessary to elevate the offense from a misdemeanor to a felony; and (2) the United States Supreme Court has consistently declined to impose a requirement mandating states to prosecute only upon indictments which include all elements of an offense.\n2. Motor Vehicles\u2014 felonious fleeing to elude arrest \u2014 jury instructions \u2014 gross impairment\nThe trial court did not commit plain error in a felonious fleeing to elude arrest case by failing to define the legal requirements for the necessary element of \u201cgross impairment\u201d in the jury instructions, because: (1) the language used in the statute and jury instructions accords with the ordinary meaning of the term \u201cgross impairment\u201d and is understandable; and (2) the legislature did not intend for the words \u201cgrossly impaired\u201d to mean anything other than their common and ordinary meaning.\n3. Motor Vehicles\u2014 felonious fleeing to elude arrest \u2014 theory of guilt\nThe trial court in a prosecution for felonious fleeing to elude arrest did not improperly instruct the jury on a theory of guilt different from that set forth in the indictment, because: (1) although the State alleged three aggravating factors in the indictment to support the charge, the plain language of the statute only requires proof of two or more of the factors to support a felony conviction; and (2) the State\u2019s evidence supported the charges of defendant\u2019s reckless driving and gross impairment of defendant\u2019s faculties set forth in the indictment.\n4. Motor Vehicles\u2014 felonious fleeing to elude arrest \u2014 motion to dismiss \u2014 sufficiency of evidence\nThe trial court did not err in a felonious fleeing to elude arrest case by denying defendant\u2019s motions to dismiss at the close of the State\u2019s evidence and at the close of all evidence based on alleged insufficient evidence of speeding and gross impairment, because: (1) the lack of evidence or the State\u2019s abandonment of speeding in excess of fifteen miles per hour over the legal speed limit as an aggravating factor did not constitute error when the State was only required to prove two of the three factors listed in the indictment to elevate the crime from a misdemeanor to a felony; and (2) sufficient evidence was presented to support a conclusion by the jury that defendant was grossly impaired including that defendant had a strong odor of alcohol about him; defendant\u2019s eyes were very red, glazed, and glassy; defendant\u2019s speech was hard to understand; defendant repeatedly used profanity against the officers; defendant told an officer that he was going to die; defendant drove one-half mile with the lower portion of an officer\u2019s body hanging out of the window of defendant\u2019s vehicle; defendant had to be forcibly removed from his vehicle; and defendant testified he consumed six to seven beers at a local bar between 9:30 pm and 1:00 am, and admitted he was under the influence of alcohol when he pulled off from the traffic stop.\n5. Criminal Law\u2014 jury instruction \u2014 officer\u2019s duty \u2014 not improper comment on evidence\nThe trial court did not improperly comment on the evidence during its instructions on assault with a deadly weapon on a government officer by its statement that \u201carresting a person for driving while impaired is a duty of a Greensboro police officer\u201d when there was no evidence that defendant was arrested or charged with driving while impaired where the officer was investigating a possible driving while impaired offense at the time of the alleged assault, and the court\u2019s instruction related to whether the officer was performing a duty of his office at the time of the assault.\nAppeal by defendant from judgment entered 12 June 2001 by Judge Russell G. Walker, Jr., in Guilford County Superior Court. Heard in the Court of Appeals 19 October 2005.\nAttorney General Roy Cooper, by Assistant Attorney General N. Morgan Whitney, Jr., and Special Deputy Attorney General Melissa L. Trippe, for the State.\nStubbs, Cole, Breedlove, Prentis & Biggs, PLLC, by C. Scott Holmes, for defendant-appellant." }, "file_name": "0447-01", "first_page_order": 477, "last_page_order": 489 }