State v. McVay, 2022-NCCOA-907, ___ N.C. App. ___ (Dec. 29, 2022)

In this Mecklenburg County case, the Court of Appeals found no error by the trial court when denying defendant’s motion to dismiss for insufficient evidence.

In November of 2016, a Charlotte-Mecklenburg police officer received a call from dispatch to look out for a white sedan that had been involved in a shooting. Shortly thereafter, the officer observed defendant speed through a stop sign, and the officer followed. Defendant continued to run stop signs, and after the officer attempted to pull him over, defendant led officers on a high-speed pursuit through residential areas until he was cut off by a stopped train at a railroad crossing. Defendant was indicted and eventually convicted for felonious speeding to elude arrest.

On appeal, defendant argued that the trial court erred by failing to dismiss the charge, because the state did not admit sufficient evidence showing the officer was lawfully performing his duties when attempting to arrest defendant. The crux of defendant’s argument relied on the language of the indictment, specifically that the officer was attempting to arrest defendant for discharging a firearm into an occupied vehicle. Although defendant argued that evidence had to show this was the actual duty being performed by the officer, the court explained that the description of the officer’s duty in the indictment was surplusage. Although the state needed to prove (1) probable cause to arrest defendant, and (2) that the officer was in the lawful discharge of his duties, it did not need to specifically describe the duties as that was not an essential element of the crime, and here the court found ample evidence of (1) and (2) to sustain the conviction. Slip Op. at 9-10. The court also found that defendant failed to preserve his jury instruction request on the officer’s specific duty because the request was not submitted in writing.