{ "id": 4181098, "name": "STATE OF NORTH CAROLINA v. MICKEY JAMES DEWALT", "name_abbreviation": "State v. Dewalt", "decision_date": "2011-01-04", "docket_number": "No COA10-559", "first_page": "187", "last_page": "193", "citations": [ { "type": "official", "cite": "209 N.C. App. 187" } ], "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": "608 S.E.2d 59", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632440 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/608/0059-01" ] }, { "cite": "406 S.E.2d 837", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "844", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "329 N.C. 557", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554319 ], "year": 1991, "pin_cites": [ { "page": "568", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0557-01" ] }, { "cite": "148 L. Ed. 2d 684", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "pin_cites": [ { "parenthetical": "internal citations and quotations omitted" } ], "opinion_index": 0 }, { "cite": "531 U.S. 1083", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9696835, 9696995, 9696964, 9696934, 9696712, 9696907, 9696799, 9696783, 9696879, 9696818, 9696692, 9696758, 9696855, 9696735 ], "year": 2001, "pin_cites": [ { "parenthetical": "internal citations and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/us/531/1083-08", "/us/531/1083-14", "/us/531/1083-13", "/us/531/1083-12", "/us/531/1083-02", "/us/531/1083-11", "/us/531/1083-06", "/us/531/1083-05", "/us/531/1083-10", "/us/531/1083-07", "/us/531/1083-01", "/us/531/1083-04", "/us/531/1083-09", "/us/531/1083-03" ] }, { "cite": "530 S.E.2d 807", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "819" } ], "opinion_index": 0 }, { "cite": "352 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684912 ], "year": 2000, "pin_cites": [ { "page": "19" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0001-01" ] }, { "cite": "410 S.E.2d 887", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "890-91" } ], "opinion_index": 0 }, { "cite": "330 N.C. 331", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2508874 ], "year": 1991, "pin_cites": [ { "page": "337" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0331-01" ] }, { "cite": "598 S.E.2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "128" } ], "opinion_index": 0 }, { "cite": "358 N.C. 473", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986601 ], "year": 2004, "pin_cites": [ { "page": "477" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0473-01" ] }, { "cite": "540 S.E.2d 435", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "440" }, { "page": "441" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 302", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9440957 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc-app/141/0302-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-140", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "pin_cites": [ { "parenthetical": "reckless driving" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 20-138.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "pin_cites": [ { "parenthetical": "impaired driving" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 20-28", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2009, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 20-141.5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 2009, "pin_cites": [ { "page": "(a)" }, { "page": "(b)(5)" }, { "page": "310-11" } ], "opinion_index": 0 }, { "cite": "359 N.C. 195", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3800192, 3796582, 3802248, 3803629, 3800433, 3796312, 3799355, 3794559 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc/359/0195-04", "/nc/359/0195-06", "/nc/359/0195-01", "/nc/359/0195-02", "/nc/359/0195-03", "/nc/359/0195-08", "/nc/359/0195-05", "/nc/359/0195-07" ] }, { "cite": "598 S.E.2d 596", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "607" } ], "opinion_index": 0 }, { "cite": "165 N.C. App. 337", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8997518 ], "year": 2004, "pin_cites": [ { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/nc-app/165/0337-01" ] } ], "analysis": { "cardinality": 641, "char_count": 13458, "ocr_confidence": 0.752, "pagerank": { "raw": 6.087085966315723e-08, "percentile": 0.37832553172018907 }, "sha256": "7bb19a9ca9e2bbcb18a27112b4e691320c91ca11845b2cf6ac76ee4d0a868701", "simhash": "1:4fca12ad162f8090", "word_count": 2210 }, "last_updated": "2023-07-14T17:06:47.704823+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STROUD and BEASLEY concur." ], "parties": [ "STATE OF NORTH CAROLINA v. MICKEY JAMES DEWALT" ], "opinions": [ { "text": "BRYANT, Judge.\nWhere the statute defining the offense of speeding to elude arrest does not specify that a particular aggravating factor must be proved as required for conviction of a separate offense under a different statute, the trial court does not err in so instructing the jury. Where the evidence at trial is clear and positive as to each element of the offense charged and no evidence supports a lesser-included offense, the trial court need not instruct on the lesser-included offense.\nFacts\nOn 23 October 2008, Detective Donald Frank Talley of the Yadkin County Sheriff\u2019s Office and Detective Farron Grey Jester of the Yadkinville Police Department were attempting to locate defendant Mickey James Dewalt in connection with a warrant against him. The detectives were familiar with defendant from past encounters, and Det. Talley had spoken with defendant on numerous occasions. Believing defendant was at a shopping center in Forsyth County, the detectives contacted the sheriff\u2019s department there and asked for assistance in apprehending defendant. Two members of the Forsyth County Sheriff\u2019s Department, Deputy Christopher Barry Davenport and another officer, waited in marked patrol cars behind the shopping center, while the Yadkin detectives waited in an unmarked patrol car in the front parking lot.\nAt about 5:45 p.m. that day, the detectives saw defendant drive into the parking lot in a Land Rover and alerted the Forsyth County officers. The two Forsyth officers drove around to the front parking lot with blue lights activated and pulled up to defendant\u2019s vehicle. Deputy Davenport got out of his patrol car with his weapon drawn, called defendant by name, informed him he was under arrest, and ordered him to put his hands out of the vehicle window. Instead, defendant drove forward over a concrete parking median, narrowly missing the marked patrol cars, crossed a grassy area and drove along the entrance/exit road of the shopping center toward Shallowford Road. The deputies were unable to see what happened thereafter, and when they reached Shallowford Road, defendant\u2019s vehicle had disappeared from view.\nAt that point, they received word that a vehicle matching the description of defendant\u2019s Land Rover had been located at 120 Sunny Acres Lane. This address is a residential property with a large yard adjacent to the shopping center. When the deputies arrived, they found the Land Rover stuck in a ditch across the street from the home. Tire tracks suggested the vehicle had traveled from Shallowford Road across the grassy yard of the home, across Sunny Acres Lane and then into the ditch. A minor child who lived at the residence testified that he had been in his yard playing soccer that day when he heard sirens. Shortly thereafter, the child saw the vehicle drive off Shallowford Road across his yard, at which point the driver jumped out and ran into some nearby woods. The vehicle continued to roll on its own until it became stuck in the ditch.\nOn 23 September 2009, defendant was tried before a jury on charges of felony fleeing to elude arrest, resisting a public officer, reckless driving to endanger, driving while license revoked, and having attained the status of habitual felon. At the jury charge conference, defense counsel objected to an instruction on felony fleeing to elude arrest, contending that the statutorily required two aggravating factors were not present. The State alleged that the aggravating factors present were reckless driving and driving while license revoked, and the indictment alleged defendant had operated his vehicle on the 6900 block of Shallowford Road and on Sunny Acres Lane. Defendant argued that the evidence did not show that he drove on any public street or highway but only that he had driven in the shopping center parking lot, a public vehicular area not sufficient to support a driving while license revoked charge. The trial court stated that, when used as an aggravating factor for felony speeding to elude arrest, driving while license revoked does not require a showing that the defendant drove on a public highway or street. Over defendant\u2019s objection, the trial court instructed the jury that it could convict based on defendant driving on a public vehicular area. Further, the trial court instructed the jury only on felony speeding to elude arrest and did not instruct on the lesser included offense of misdemeanor speeding to elude arrest.\nFollowing a trial, the jury returned guilty verdicts for the first four offenses, and defendant changed his plea from not guilty to guilty on the habitual felon charge. The trial court sentenced defendant to 100 to 129 months plus 120 days in prison. Defendant appeals.\nOn appeal, defendant argues the trial court committed reversible error in (I) instructing the jury that the factor of driving while licence revoked in aggravation of the offense of felony speeding to elude arrest did not require a showing that he was on a highway or street and (II) denying his request for a jury instruction on a lesser included offense.\nI\nDefendant first argues that the trial court committed reversible error in instructing the jury. Specifically, he asserts that it was error to instruct the jury that the factor of driving while licence revoked used in aggravation of the offense of felony speeding to elude arrest does not require a showing that he was on a highway or street, rather than on a public vehicular area. We disagree.\n\u201cFailure to instruct on each element of a crime is prejudicial error requiring a new trial.\u201d State v. Lanier, 165 N.C. App. 337, 354, 598 S.E.2d 596, 607, disc. review denied, 359 N.C. 195, 608 S.E.2d 59 (2004). Prejudicial error is defined as a question of whether \u201cthere is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.\u201d N.C. Gen. Stat. \u00a7 15A-1443(a) (2009).\nSpeeding to elude arrest is defined as operating \u201ca 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.\u201d N.C. Gen. Stat. \u00a7 20-141.5(a) (2009). This offense is a felony if any two of the eight aggravating factors listed in the statute are present; one of those factors is \u201c[d]riving when the person\u2019s drivers license is revoked.\u201d N.C.G.S. \u00a7 20-141.5(b)(5).\nDefendant argues that the driving while license revoked aggravating factor under \u00a7 20-141.5(b)(5) requires the same proof as the offense of driving while license revoked under N.C. Gen. Stat. \u00a7 20-28(a) (2009). Section 20-28 specifies that the offense of driving while license revoked occurs when an operator whose license has been revoked \u201cdrives any motor vehicle upon the highways of the State[.]\u201d Id. Thus, \u00a7 20-28 does not, by its plain language, apply when an operator whose license has been revoked drives in public vehicular areas. This is in contrast to other driving-related offenses which can occur when an operator drives on a \u201cstreet, highway or public vehicular area[.]\u201d See N.C.G.S. \u00a7 20-141.5; see also N.C. Gen. Stat. \u00a7 20-138.1 (2009) (impaired driving); N.C. Gen. Stat. \u00a7 20-140 (2009) (reckless driving). Defendant contends that aggravating factor (b)(5) requires proof that he operated his vehicle on a public highway and contends that his argument is supported by State v. Funchess, 141 N.C. App. 302, 540 S.E.2d 435 (2000). We disagree.\nIn Funchess, the \u201cdefendant argue[d] that, since \u2018driving while driver\u2019s license is revoked\u2019 was one of the three named aggravating factors that led to his conviction under N.C. Gen. Stat. \u00a7 20-141.5(b)(5), the trial court should have charged the jury on the elements of the offense of driving with a revoked license, particularly the element of knowledge.\u201d Id. at 310-11, 540 S.E.2d at 440. However, because of factual circumstances of that ease, we did \u201cnot reach the question of whether the trial court is required to charge the jury on the elements of the separate crimes which serve to enhance the status of speeding to elude arrest to that of a felony.\u201d Id. at 311, 540 S.E.2d at 441. Thus, Funchess has no precedential value as to defendant\u2019s argument.\nIn considering this matter of first impression, we find defendant\u2019s argument unpersuasive. Our cardinal rule in statutory construction is to give plain meaning to statutory language that is expressed clearly and unambiguously. State v. Jones, 358 N.C. 473, 477, 598 S.E.2d 125, 128 (2004). Here, aggravating factor (b)(5) does not require a showing that a defendant was driving on a highway or street when his license was revoked. Rather, only the underlying offense of speeding to elude arrest specifies a location, stating that it occurs when a person operates a \u201cmotor 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.\u201d N.C.G.S. \u00a7 20-141.5(a) (emphasis added). In turn, the eight listed aggravating factors must only be shown to have been \u201cpresent at the time the violation occurs[.]\u201d N.C.G.S. \u00a7 20-141.5(b).\nAs to defendant\u2019s contention regarding \u00a7 20-28, we draw his attention to another well-known canon of statutory construction, expressio unius est exclusio alterius: the expression of one thing is the exclusion of another. See Baker v. Martin, 330 N.C. 331, 337, 410 S.E.2d 887, 890-91 (1991). The speeding to elude arrest statute cites several other criminal statutes when defining aggravating factors which support the felony level of this offense:\n(3) Reckless driving as proscribed by G.S. 20-140.\n(6) Driving in excess of the posted speed limit, during the days and hours when the posted limit is in effect, on school property or in an area designated as a school zone pursuant to G.S. 20-141.1, or in a highway work zone as defined in G.S.20-141Q2).\n(7) Passing a stopped school bus as proscribed by G.S. 20-217.\nN.C.G.S. \u00a7 20-141.5(b). However, the'statute does not cite \u00a7 20-28 when listing the aggravating factor \u201c[d]riving when the person\u2019s drivers license is revoked.\u201d N.C.G.S. \u00a7 20-141.5(b)(5). Thus, the plain language of \u00a7 20-141.5 reveals that, while the General Assembly chose to cross-reference criminal statutes in defining the scope of certain aggravating factors, it chose not to do so in defining aggravating factor (b)(5). This argument is overruled.\nII\nDefendant also argues that the trial court committed reversible error in denying his request for a jury instruction on the lesser-included offense of misdemeanor speeding to elude arrest. We disagree.\nA trial court must give instructions on all lesser-included offenses that are supported by the evidence, even in the absence of a special request for such an instruction; and the failure to so instruct constitutes reversible error that cannot be cured by a verdict finding the defendant guilty of the greater offense. The trial court may refrain from submitting the lesser offense to the jury only where the evidence is clear and positive as to each element of the offense charged and no evidence supports a lesser-included offense.\nState v. Lawrence, 352 N.C. 1, 19, 530 S.E.2d 807, 819 (2000), cert. denied, 531 U.S. 1083, 148 L. Ed. 2d 684 (2001) (internal citations and quotations omitted). However, \u201c[a] defendant is not entitled to an instruction on a lesser[-]included offense merely because the jury could possibly believe some of the State\u2019s evidence but not all of it.\u201d State v. Annadale, 329 N.C. 557, 568, 406 S.E.2d 837, 844 (1991) (citation omitted).\nDefendant bases this argument on his contentions as to Issue I. Having rejected that argument, we do the same here. The State presented uncontroverted evidence as to each element of speeding to elude arrest and the presence of two listed aggravating factors required to make this offense a felony. Thus, defendant was not entitled to an instruction on the lesser-included offense of misdemeanor speeding to elude arrest. This argument is overruled.\nNo error.\nJudges STROUD and BEASLEY concur.", "type": "majority", "author": "BRYANT, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General William R Hart, Jr., for the State.", "Paul Y.K. Castle for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MICKEY JAMES DEWALT\nNo COA10-559\n(Filed 4 January 2011)\n1. Motor Vehicles\u2014 felony speeding to elude arrest \u2014 aggravating factor \u2014 driving while license revoked \u2014 jury instruction correct\nThe trial court did not err in instructing the jury that the factor of driving while license revoked under N.C.G.S. \u00a7 20-11.5(b)(5) in aggravation of the offense of felony speeding to elude arrest did not require a showing that defendant was on a highway or street. The aggravating factor does not require the same proof as the offense of driving while license r\u00e9voked under N.C.G.S. \u00a7 20-28(a).\n2. Motor Vehicles\u2014 felony speeding to elude arrest \u2014 lesser-included offense \u2014 no jury instruction required\nThe trial court did not err in denying defendant\u2019s request for a jury instruction on the lesser-included offense of misdemeanor speeding to elude arrest. The State presented uncontroverted evidence as to each element of speeding to elude arrest and the presence of two listed aggravating factors required to make this offense a felony.\nAppeal by defendant from judgment entered 24 September 2009 by Judge Judson D. DeRamus, Jr., in Forsyth County Superior Court. Heard in the Court of Appeals 2 November 2010.\nAttorney General Roy Cooper, by Assistant Attorney General William R Hart, Jr., for the State.\nPaul Y.K. Castle for defendant-appellant." }, "file_name": "0187-01", "first_page_order": 197, "last_page_order": 203 }