State v. Boykin, ___ N.C. App. ___, ___ S.E.2d ___ (Dec. 15, 2020)

In this Sampson County case, the defendant was convicted of felony fleeing to elude, habitual felon, and habitual impaired driving. The focus of the defendant’s arguments on appeal were on the definition of “motor vehicle” as used in G.S. 20-141.5(a) and G.S. 20-4.01(23) at the time of the offenses in 2015. This definition excluded “mopeds” from the definition of “motor vehicles.” Within that statutory framework, a “moped” was defined as “[a] vehicle that has two or three wheels, no external shifting device, and a motor that does not exceed 50 cubic centimeters piston displacement and cannot propel the vehicle at a speed greater than 30 miles per hour on a level surface.” G.S. 105-164.3(22) (2015).

(1) The defendant argued that the State did not prove that the defendant was operating a motor vehicle, an element of felony speeding to elude arrest, based on the State’s repeated references to defendant’s vehicle as a “moped” at trial. The Court of Appeals disagreed, finding that the statutory definition of a “moped” differs from the ordinary, vernacular use of “moped,” and determining that the State presented sufficient evidence that the defendant’s vehicle was a “motor vehicle” within the meaning of the statute. According to the court:

Ultimately, the State’s evidence met the elements of the statutory definition of a ‘motor vehicle,’ despite its repeated use of the term ‘moped,’ and defendant’s motion to dismiss the charge of felony speeding to elude arrest was properly denied. Boykin Slip op. at 11.

(2) The defendant also argued that the trial court erred by failing to instruct the jury on the definition of “motor vehicle.” Reviewing for plain error, the Court of Appeals agreed. Because the evidence, especially the State’s repeated use of the word “moped” rather than “motor vehicle,” could have led the jury to reach a different determination if they had known the statutory definition of “motor vehicle,” the defendant was entitled to a new trial on the felony fleeing to elude offense. Because the defendant was found to be a habitual felon based on the fleeing to elude, that conviction was also vacated.