{ "id": 8521496, "name": "STATE OF NORTH CAROLINA v. JOSEPH BEVERLY RICHARDSON", "name_abbreviation": "State v. Richardson", "decision_date": "1989-11-07", "docket_number": "No. 8919SC102", "first_page": "270", "last_page": "272", "citations": [ { "type": "official", "cite": "96 N.C. App. 270" } ], "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": "N.C. Gen. Stat. \u00a7\u00a7 20441.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 20-141.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(al)" } ], "opinion_index": 0 }, { "cite": "226 S.E.2d 524", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "526" } ], "opinion_index": 0 }, { "cite": "30 N.C. App. 224", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553295 ], "year": 1976, "pin_cites": [ { "page": "227" } ], "opinion_index": 0, "case_paths": [ "/nc-app/30/0224-01" ] }, { "cite": "326 S.E.2d 90", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "92", "parenthetical": "quoting State v. Chester, 30 N.C. App. 224, 227, 226 S.E.2d 524, 526 (1976)" } ], "opinion_index": 0 }, { "cite": "73 N.C. App. 248", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523181 ], "year": 1985, "pin_cites": [ { "page": "251", "parenthetical": "quoting State v. Chester, 30 N.C. App. 224, 227, 226 S.E.2d 524, 526 (1976)" } ], "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": "N.C. Gen. Stat. \u00a7 20-28", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 368, "char_count": 6165, "ocr_confidence": 0.782, "pagerank": { "raw": 1.1000511769002031e-07, "percentile": 0.5680997231884948 }, "sha256": "b6be55e951cc35fa76eed37b9ea873213eea3261c9099ef1bb90c2085fd1aab2", "simhash": "1:e6ef31e153da9075", "word_count": 1011 }, "last_updated": "2023-07-14T18:28:35.242103+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ARNOLD and BECTON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JOSEPH BEVERLY RICHARDSON" ], "opinions": [ { "text": "COZORT, Judge.\nDefendant was charged with and convicted of driving while impaired, felony death by vehicle, and driving while his license was revoked; he was sentenced to a total of six years in prison. On appeal, the defendant contends that there was insufficient evidence to convict him of the last charge. We agree.\nThe State offered evidence tending to show that, on 2 August 1987, defendant Joseph Richardson had been drinking heavily. The evidence included the defendant\u2019s admission that, during the morning of 2 August 1987, he and a friend, Billy Lichtenberg \u201cdrank two beers apiece and some Canadian Mist. [Lichtenberg] had some Ever-Clear and we drank some of this\u201d and by mid-afternoon \u201cwe were pretty drunk. Everything was fuzzy.\u201d At approximately 3:40 in the afternoon, with the defendant driving, he and Lichtenberg left the Millboro Trailer Park in a 1980 Ford pickup truck.\nThe State\u2019s evidence also tended to show that the defendant was at the wheel a short time later when that truck flipped end-over-end as the driver attempted to pass other vehicles on U.S. Highway 64 between Asheboro and Ramseur. Lichtenberg was severely injured in the accident and died en route to the hospital.\nWithout objection from the defendant, Sergeant Billy Ray McLeod testified at trial that the defendant\u2019s driver\u2019s license had been revoked prior to the accident. On that issue the State presented no other evidence.\nThe defendant offered no evidence.\nOn appeal the defendant raises two issues: (1) whether the evidence was sufficient to convict him of driving while his license was revoked and (2) whether, on that charge, defendant was denied effective assistance of counsel.\nWe note first that a \u201cdefendant in a criminal case may not assign as error the insufficiency of the evidence to prove the crime charged unless he moves to dismiss the action, or for judgment as in case of nonsuit, at trial.\u201d Rule 10(b)(3), N.C. Rules App. Proc. However, we suspend that requirement to prevent manifest injustice to the defendant. Rule 2, N.C. Rules App. Proc.\nTo 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. State v. Atwood, 290 N.C. 266, 271, 225 S.E.2d 543, 545 (1976). The State must also prove that the defendant had \u201cactual or constructive knowledge of the . . . revocation in order for there to be a conviction under this statute.\u201d Id. With regard to notice, the \u201cState 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 ....\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)).\nIn the case below the State offered no evidence that defendant was notified that his license was revoked. The defendant\u2019s plea of not guilty required the State to prove beyond a reasonable doubt every element of the offense charged. The State failed to do so. As the State forthrightly conceded in its brief, \u201cthe insufficiency of the evidence rises to a fundamental error in the conviction for driving while license revoked. The conviction for that charge should be reversed.\u201d In view of our holding on this issue, we need not reach the question of effective assistance of counsel.\nAlthough it was not raised by the defendant, we take note, pursuant to Rule 2 of the Rules of Appellate Procedure, of the State\u2019s contention that a separate sentence for the defendant\u2019s conviction of driving while impaired was improper. Under N.C. Gen. Stat. \u00a7 20-141.4(al), driving while impaired is a lesser included offense of felony death by vehicle. Upon conviction of felony death by vehicle the lesser offense merges into the greater. Thus, it is error to sentence a defendant both for felony death by vehicle and the lesser included offense of driving while impaired.\nFelony death by vehicle is a Class I felony, punishable by a maximum sentence of imprisonment for five years and a presumptive sentence of imprisonment for two years. N.C. Gen. Stat. \u00a7\u00a7 20441.4(b), 14-l.l(a)(9), 15A-1340.4(f)(7) (1988). In the case below the defendant received a four-year sentence for felony death by vehicle and a consecutive two-year sentence for driving while impaired. The total sentence exceeded the maximum allowed by law for felony death by vehicle. Upon remand the trial court may consider mitigating and aggravating factors applicable to the felony death by vehicle conviction.\nThe defendant\u2019s conviction of driving while license revoked is reversed. The sentence for driving while impaired is vacated, and the trial court\u2019s judgment as to felony death by vehicle is remanded for resentencing.\nRemanded for judgment.\nJudges ARNOLD and BECTON concur.", "type": "majority", "author": "COZORT, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General Linda Anne Morris, for the State.", "Appellate Defender Malcolm Ray Hunter, by Assistant Appellate Defender Teresa A. McHugh, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOSEPH BEVERLY RICHARDSON\nNo. 8919SC102\n(Filed 7 November 1989)\n1. Automobiles and Other Vehicles \u00a7 3.4 (NCI3d)\u2014 driving while licensed revoked \u2014 notice to defendant \u2014 insufficiency of evidence\nThe evidence was insufficient to convict defendant under N.C.G.S. \u00a7 20-28(a) of driving while his license was revoked where the State offered no evidence that defendant was notified that his license was revoked.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7 148.\n2. Automobiles and Other Vehicles \u00a7 110 (NCI3d)\u2014 felony death by vehicle \u2014 lesser offense of driving while impaired \u2014 sentence for both improper\nIt is error to sentence a defendant both for felony death by vehicle and the lesser included offense of driving while impaired. N.C.G.S. \u00a7 20-141.4(al).\nAm Jur 2d, Automobiles and Highway Traffic \u00a7\u00a7 310, 330, 339, 344.\nAPPEAL by defendant from judgment of Judge Carlton E. Fellers entered 2 August 1988 in RANDOLPH County Superior Court. Heard in the Court of Appeals 31 August 1989.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Linda Anne Morris, for the State.\nAppellate Defender Malcolm Ray Hunter, by Assistant Appellate Defender Teresa A. McHugh, for defendant appellant." }, "file_name": "0270-01", "first_page_order": 302, "last_page_order": 304 }