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State v. Thompson12/17/2002
t assignment of error, defendant argues that the trial court erred by failing to grant his motion to dismiss. Defendant contends that there was insufficient evidence to support the charge of felonious operation of a motor vehicle. Defendant specifically argues that the State failed to show that his driving was reckless. We disagree. When ruling on a motion to dismiss, the trial court must consider the evidence in the light most favorable to the State. State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 652 (1982). In considering a motion for dismissal, the trial court is to determine whether there is substantial evidence "(a) of each essential element of the offense charged, or of a lesser offense included therein, and (b) of defendant's being the perpetrator of the offense. If so, the motion to dismiss is properly denied." Id. at 65-66, 296 S.E.2d at 651-52. "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990). The trial court only needs to consider whether the evidence is sufficient to be presented to the jury and does not need to be concerned with the weight of the evidence. Earnhardt, 307 N.C. at 67, 296 S.E.2d at 652. "'If the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, the motion should be allowed.'" State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993) (quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)). "The State is entitled to every reasonable intendment and inference to be drawn from the evidence, and any contradictions and discrepancies are to be resolved in favor of the State." State v. Malloy, 309 N.C. 176, 179, 305 S.E.2d 718, 720 (1983).
As amended, North Carolina General Statutes section 20-141.5 provides in pertinent part that: (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 subsection (b) of this section, violation of this section shall be a Class 1 misdemeanor.
(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.
(1) Speeding in excess of 15 miles per hour over the legal speed limit.
(3) Reckless driving as proscribed by G.S. 20-140.
(5) Driving when the person's drivers license is revoked.
N.C. Gen. Stat. § 20-141.5 (2001).
North Carolina General Statutes section 20-140 defines the offense of reckless driving as follows:
(a) Any person who drives any vehicle upon a highway or any public vehicular area carelessly and heedlessly in willful or wanton disregard of the rights or safety of others shall be guilty of reckless driving.
(b) Any person who drives any vehicle upon a highway or any public vehicular area without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property shall be guilty of reckless driving. N.C. Gen. Stat. § 20-140(a)(2001).
This Court interpreted for the first time the provision in N.C. Gen. Stat. § 20-141.5, which created the offense of feloniousspeeding to elude arrest in State v. Funchess, 141 N.C. App. 302, 540 S.E.2d 435 (2000). In upholding the trial court's instructions to the jury, the Court held N.C. Gen. Stat. § 20-141.5 seeks to punish a single wrong: attempting to flee in a motor vehicle from a
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