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					No. COA05-1552                                        District 15A

                   NORTH CAROLINA COURT OF APPEALS

                   *******************************

STATE OF NORTH CAROLINA  )
                         )
          vs.            )     From Alamance County
                         )      No. 04 CRS 23566, 58608, 58611-14
COREY ALGERNON ALSTON    )
               Defendant )


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                   DEFENDANT-APPELLANT'S BRIEF


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                      QUESTION PRESENTED

    No. 1. WHETHER THE TRIAL COURT’S DENIALS OF DEFENDANT’S

MOTIONS TO DISMISS THE CHARGE OF “FLEEING and/or ELUDE ARREST

WITH MOTOR VEHICLE” AT THE CLOSE OF THE STATE’S EVIDENCE AND ALL

THE EVIDENCE WERE ERRONEOUS, ON THE GROUND THAT THERE WAS

INSUFFICIENT EVIDENCE PRESENTED TO THE JURY TO PROVE THAT
DEFENDANT WILLFULLY AND INTENTIONALLY FLED OR ATTEMPTED TO ELUDE

OFFICER L.L. VALENCIA WHILE THE OFFICER WAS ATTEMPTING A TRAFFIC

STOP, AS ALLEGED IN THE INDICTMENT IN 04 CRS 58608.




                                  1
                     STATEMENT OF THE CASE

      On September 26, 2004, the Defendant Corey Algernon Alston

was charged in case number 04 CR 58608 with violating N.C.G.S.

20-141.5(b) by “fleeing and attempting to elude a law

enforcement officer, L. Valencia, [who was] in the lawful

performance of the officer’s duties, attempting a traffic stop.”

(R.p. 2.) On October 18, 2004, in 04 CRS 58608, he was indicted

on this felony charge, as well as on the misdemeanors of

possessing an open container of alcohol (G.S. 20-138.7) and for

running a stop sign/red light (20-158).      (R.pp. 7-8.)

      Alston was also cited for several misdemeanors arising out

of the same September 26th event:

      04 CR 58611 -- Driving while impaired (G.S. 20-138.1),

driving while license revoked (G.S. 20-28);

      04 CR 58612 -- reckless driving to endanger (G.S.20-

140(b));

      04 CR 58613 --fail to heed light or siren (G.S.20-157(a));

and
      04 CR 58614 -- speeding 84 MPH in a 35 MPH zone (G.S. 20-

141(j1)).

(R.pp. 3-6.)

      He was indicted on these misdemeanors on October 18, 2004.

(R.pp. 9-12.) On October 18th, he was also indicted in 04 CRS

23566 as an habitual felon. (G.S. 14-7.1) (R.p. 13.)

      These cases came on for trial during the July 18, 2005,


                                 2
Criminal Session of the Alamance County Superior Court, the Hon.

Orlando Hudson, Presiding. (R.p.1.) At the beginning of the

trial, Alston tendered pleas of guilty to the misdemeanor

charges of “open container, failure to stop at a stop sign, DWI,

driving while license revoked, reckless driving and speeding.”

He pleaded not guilty to the felony charge and to the

misdemeanor “failure to heed to a siren and speeding to elude

arrest.” (R.p. 24, T.p. 3.) The Court thereupon took the pleas,

heard a factual basis for them, and continued judgment until the

conclusion of the trial on the two contested charges. (T.pp. 5-

12.)

       On July 20th, after submitting a question to the Court

concerning the Court’s instructions on the “flee/elude” charge

(R.p. 21, T.p. 215-222), the jury returned guilty verdicts as to

both contested charges. (R.p. 22-23, T.p. 223.)

       The Court then addressed the Defendant’s alleged status as

an habitual felon, a discussion about belated discovery of one

of the underlying felonies ensued (R.pp. 13-18, T.pp. 230-235),
and the Court denied Defendant’s motion to continue. (T.p.235.)

After a short pause in the proceedings, however, the Defendant

agreed to stipulate to his habitual felon status (T.p. 235), and

he formally entered his admission pursuant to a plea agreement

that he would receive a sentence in the mitigated range. (R.pp.

27-30, T.pp. 236-239.)

       The parties and the Court then addressed the Defendant’s


                                  3
prior record level, with the prosecutor agreeing to reduce the

points from 13 to 5 to avoid double-counting, resulting in a

prior record level III for habitual felony sentencing purposes,

to which the parties stipulated. (R.pp. 31-32, T.pp. 241-242.)

    The Court formally ruled that Defendant had reached prior

record level III for misdemeanor sentencing purposes. (T.p.

246.) The Court also ruled that Defendant deserved Level IV

punishment for his impaired driving violation and imposed a 120-

day sentence, to run concurrently with the sentences on the

other charges. (R.pp. 33-34, T.pp 249-250.) The Court then

entered judgment consolidating all the remaining charges into a

sentence of 70 months minimum, 93 months maximum, representing

the low end of the mitigated range for Class C felony punishment

at prior record level III. (R.pp. 35-38, T.pp. 250-251.)

    (Note: On August 3, 2005, the Department of Correction

questioned the correctness of the judgment and commitment in 04

CRS 58608. (R.p. 42.) Appellate counsel respectfully contends

that the Trial Court’s sentence does correctly follow the felony
punishment chart.)

    The Defendant-Appellant promptly gave oral notice of appeal

(T.p. 255), and the undersigned was later appointed as Appellate

Counsel (R.p. 41). The Record on Appeal was settled on November

21, 2005 (R.p.44), timely filed on November 28, 2005, and

docketed on December 28, 2005.(R.p.1.)




                                4
                Basis of Appellate Jurisdiction:

    This appeal is from a final order in the Superior Court.

Pursuant to Rule 28(b)(4) of the Rules of Appellate Procedure,

jurisdiction for this appeal is granted from N.C.G.S. 7A-27(b),

15A-1442, 15A-1444 and/or 15A-1446.

                    STATEMENT OF THE FACTS

    Officer Bruce Crostic of the Burlington Police Department

was on patrol around 3:30 a.m. on September 26, 2004, when he

heard a call about a speeding silver truck. He and several other

patrol units had just left the area near the Club Rendezvous,

two or three blocks away, in the vicinity of Ireland and Mebane

Streets in downtown Burlington. (T.pp. 124, 134.) As he drove

his vehicle along Holt Street toward the intersection of Holt

and Ireland Streets, he saw a truck “speed past the Short Stop

on Ireland heading north towards Main Street.” At that time he

made a U-turn and activated his lights and siren. (T.pp. 123-

124.) After Crostic turned on to Fonville Street and came up

behind a vehicle driven by Sergeant White, the silver truck
drove through a stop sign at approximately 55 to 65 miles per

hour on Sellers Street between the two police cars. As Crostic

completed a wide turn on to Sellers Street, he saw that the

truck “just jumps in the air, comes down on the other side and

loses a front tire and continues going.” (T.pp. 124-125, 132.)

The truck then turned right from Sellars on to Ruffin Street,

the next street down from Holt. (T.pp.126, 134.) Alston brought


                                5
the truck to a stop on Ruffin and got out with his hands in the

air. Crostic described Alston as being “cooperative,” saying

“it’s me. You know me,” and showing the officer that he was not

armed. Crostic placed Alston under arrest. (T.pp. 125-126.) At

that point, Corporal (now Sergeant) Hamlett arrived at the scene

and took custody of Alston for further investigation. (T.p.

127.)

    Sgt. Billy White contended that he “was stationary” on

Fonville Street at Main Street “with my blue lights on” when he

saw the truck run the stop sign at Sellars and Fonville in front

of him. He claimed that the driver looked in his direction as he

drove by at a speed of about 55 MPH and had “a smile” on his

face. (T.p. 138.) Sgt. White testified on cross examination that

he would have been looking at the driver’s side of the truck,

thus at the left side of the driver’s face. White also confirmed

that Alston has a physical deformity that prohibits his left eye

from opening all the way. (T.pp. 140-141.) White proceeded to

Church Street to set up a “spike strip” there, but when the
truck didn’t come back that way, he drove around the block to

Ruffin Street and found Officer Crostic there with Alston and

the silver truck. (T.p. 137.)

    Sergeant (then Corporal) Jody Hamlett was training patrol

Officer Leslie Valencia on that evening. They were among the

patrol units that had just cleared a large crowd away from Club

Rendezvous. (T.p. 142.) As they were discussing the use of the


                                6
radar, he heard a loud motor and saw a truck speed by, hit the

brakes and speed up again; he clocked the truck at 85 MPH on

their radar. He was able to see the truck at the intersection of

Main and Ireland Streets traveling at what he visually estimated

to be 100 MPH. Officer Valencia was driving; after the truck

turned on to Ireland Street, she turned their police vehicle

around and activated the blue light and siren. Meanwhile,

Hamlett put out a call that a silver Dodge hemi with a black

male driver was seen traveling at a high rate of speed. (T.pp.

142-144, 146, 156.)   Hamlett testified that the two officers

lost sight of the truck as it sped along Ireland Street. (T.pp.

143-144.) Ireland Street is hilly, and it is difficult to see

more than a block or so ahead. (T.p. 155.) Officer Valencia

slowed down their vehicle, stopped, then proceeded about two

blocks to the location where Officer Crostic had apprehended

Alston. (T.pp. 147, 154, 157.)

    Referring to how much time elapsed from the moment Hamlett

first saw the truck until he heard that the driver was picked
up, Hamlett stated, “ . . . it was a short time -- this all took

place within 30 to 45 seconds. It was very fast -- there was no

way we could have got up to the truck if the other units were

not in the area [,] how fast he was traveling.” (T.p.144, 157.)

    At the scene of the arrest, the officers found a bottle of

“some homemade stuff” in the truck. Alston actually passed out

after being taken to the police station; according to Hamlett,


                                 7
“He actually pushed the table out of the way and laid on the

floor.” (T.p. 159.) The officers “had to wake him up to take the

test,” but he told the officers “you guys know I’m drunk. I

don’t need to take this test.” (T.p. 148-149.)

    Alston told the police that “he was looking for his 16 year

old daughter who snuck off and was supposedly over at Club

Rendezvous” and that “she does that quite often and that’s why

he was going out to find her.”   When asked about his vehicle,

Alston replied “that thing had a hemi. I didn’t realize how fast

it was.” (T.pp. 148-149, 158.)

                            ARGUMENT

    ARGUMENT No. 1. THE TRIAL COURT’S DENIALS OF DEFENDANT’S

MOTIONS TO DISMISS THE CHARGE OF “FLEEING and/or ELUDE ARREST

WITH MOTOR VEHICLE” AT THE CLOSE OF THE STATE’S EVIDENCE AND ALL

THE EVIDENCE WERE ERRONEOUS, ON THE GROUND THAT THERE WAS

INSUFFICIENT EVIDENCE PRESENTED TO THE JURY TO PROVE THAT

DEFENDANT WILLFULLY AND INTENTIONALLY FLED OR ATTEMPTED TO ELUDE

OFFICER L.L. VALENCIA WHILE THE OFFICER WAS ATTEMPTING A TRAFFIC
STOP, AS ALLEGED IN THE INDICTMENT IN 04 CRS 58608.

    Assignment of Error No. 1 -- transcript pages 164, 170.

Standard of Review.

    The Standard of Review applicable to this Argument is well-

established: In considering a motion to dismiss based upon

insufficiency of the evidence, “the trial court is to determine

whether as a matter of law there is substantial evidence (a) of


                                 8
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.” State v. Earnhardt, 307 N.C. 62,

65-66, 296 S.E.2d 649, 651 (1982). Substantial evidence is “such

relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79,

265 S.E.2d 164, 169 (1980). The evidence must be considered in

the light most favorable to the State, and the State must be

given the benefit of every reasonable inference from that

evidence. State v. Lucas, 353 N.C. 568, 581, 548 S.E.2d 712, 721

(2001). If the trial court finds substantial evidence exists, it

may submit the charges to the jury for its consideration; the

weight and credibility of such evidence is a question for the

jury. State v. Vause, 328 N.C. 231, 236-37, 400 S.E.2d 57, 61

(1991). However, 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, the

motion to dismiss must be allowed.” State v. Molloy, 309 N.C.
176, 179, 305 S.E.2d 718, 720 (1983). “This is true even though

the suspicion cited by the evidence is strong.” Id. (internal

citations omitted). The undersigned counsel believes the

appellate court is to analyze de novo this “matter of law.”

The Felony Charged.

    N.C.G.S. 20-141.5(a) provides that “It shall be unlawful

for any person to operate a motor vehicle on a street, highway


                                9
or public vehicular area while fleeing or attempting to elude a

law enforcement officer who is in the lawful performance of his

duties.” The act of “attempting to flee in a motor vehicle from

a law enforcement officer in the lawful performance of his

duties” is the “single wrong” the statute is seeks to punish.

State v. Funches, 141 N.C. App. 302, 309, 540 S.E.2d 435, 439

(2000).

G.S.20-141.5(b) provides a list of “aggravating factors,” the

existence of two or more of which convert the misdemeanor

violation of subsection (a) into a Class H felony. (In keeping

with his guilty pleas, the Defendant-Appellant does not

challenge on appeal the existence of at least two of these

statutory aggravating factors. He behaved badly, and he admitted

it. As is implicitly argued below, he just did not commit the

charged felony.)

    The indictment charging Alston with felony “FLEE and/or

ELUDE ARREST WITH MOTOR VEHICLE” stated that “the Defendant

named above unlawfully, willfully and feloniously did operate a
motor vehicle on a street and/or highway while fleeing or

attempting to elude OFFICER L.L. VALENCIA a law enforcement

officer, who was in the lawful performance of her duties, to

wit: ATTEMPTING A TRAFFIC STOP.” The indictment went on to

charge two or more aggravating factors. (R.p. 7.)

    Pursuant to G.S. 20-141.5 and to N.C.P.I.--Crim. 270.54A,

the Trial Court informed the jury that the third element (of


                               10
four elements) to be proven beyond a reasonable doubt was “that

the defendant was fleeing or attempting to elude a law

enforcement officer who was in the lawful performance of his

duties.” (T.p. 205.) It is the evidence supporting this third

element, as speci- fically spelled out in the indictment, which

Alston challenges on appeal as being insufficient to allow the

jury to consider whether he violated G.S. 20-141.5. While the

testimony of the State’s witnesses might raise some suspicion

that Alston was actually fleeing from and trying to elude

Officer Valencia, the evidence was nonetheless legally

insufficient as a matter of law to go to the jury on the issue

whether Mr. Alston knowingly, willfully and intentionally fled

from Officer Valencia and thereby attempted to elude the officer

in the performance of her duties.

    In order to highlight the most important issue on appeal,

Alston has elected not to challenge the sufficiency of the

evidence to go to the jury on the misdemeanor charge of failing

to stop for a blue light and siren, G.S. 20-157(a), to which the
jury also returned a guilty verdict. (R.p. 23.) The trial judge

properly instructed the jury on the six elements of that offense

pursuant to N.C.P.I.--Crim 270.65. (T.pp. 208-209.) But the last

of those six elements -- “that the defendant did not immediately

drive his vehicle to a position as near as possible and parallel

to the right hand curb or edge of the highway clear of any

intersection and stop” -- is a factually distinguishable event


                               11
from the third element of the felony charge (i.e., “that the

defendant was fleeing or attempting to elude a law enforcement

officer who was in the lawful performance of his duties”). The

misdemeanor charge mandates an immediate act of compliance by a

motorist as soon as he becomes aware of the presence of a police

vehicle displaying a blue light and sounding a siren. Arguably,

when considered in the light most favorable to the State, Mr.

Alston failed to immediately pull over and stop the very moment

he ostensibly spotted a police car nearby. On the other hand,

the act of “fleeing or attempting to elude” central to the

felony charge necessarily contemplates an action occurring over

a period of time longer than the “immediate” moment. The event

might not have to be extended over a period of several minutes.

But in the case on appeal, the evidence considered in the light

most favorable to the State merely shows that the entire event -

- from the time Alston blew past Officer Valencia and Cpl.

Hamlett until these two officers heard that Alston had been

apprehended -- took place no more than 30 to 45 seconds. (T.pp.
144, 157.)

A Case of First Impression.

    The standard of review described above has been applied on

two recent published decisions by the Court of Appeals to

motions to dismiss charges brought under G.S. 20-141.5. In State

v. Davis, 163 N.C.App. 587, 589, 594 S.E.2d 57, 59-60 (2004),

the defendant unsuccessfully challenged the sufficiency of the


                               12
subsection (b) “aggravating factor” evidence that he had sped in

excess of 15 MPH over the speed limit or had driven recklessly.

The defendant also unsuccessfully challenged the sufficiency of

aggravating factor evidence of speeding and gross impairment in

State v. Stokes, _____ N.C. App. _____, 621 S.E.2d, 311, 2005

N.C. App. LEXIS 2495 (filed Nov. 15, 2005). Counsel is unaware

of any North Carolina decisions challenging the sufficiency of

the evidence proving that a defendant intentionally attempted to

flee or elude an officer; therefore, we believe this appeal

presents a case of first impression to our courts.

Precedents Worth Considering.

    The undersigned was unable to locate cases in other juris-

dictions treating the sufficiency of the evidence support “flee”

and/or “elude” convictions. However, there exist decisions which

can shed useful light on the issue; these cases are collected in

Annot: What Constitutes Obstructing or Resisting Officer in

Absence of Actual Force, 66 A.L.R.5th 397, in Sec. 21, “Flight -

- involving motor vehicle.” Most of the cases described in the
Annotation held the evidence to be sufficient to find the

defendants guilty of obstructing or resisting an officer in the

performance of his duties, an offense analogous to our N.C.G.S.

14-223. But several of these cases present a fact pattern

comparable to, yet easily distinguishable from, the case now on

appeal. That is, the facts of these upheld convictions could

have also supported a conviction for fleeing and attempting to


                                13
elude a law enforcement officer.

    For example, in People v. Martenson, 76 Cal.App. 763, 245

P.1101 (3rd Dist. 1926), the defendant had actually been

stopped, had refused to hand over his driver’s license or

disclose his name, and only then attempted to flee in his car.

In Cunningham v. State, 222 Ga.App. 740, 475 S.E.2d 924 (1996),

after the defendant ran his vehicle off the road, he bolted and

ran by foot after seeing marked police cars -- one with blue

lights activated -- and uniformed officers in pursuit of him.

In Daniel v. State, 524 N.E.2d 1275 (Ind., 1988), the defendant

accelerated away from an officer; after several officers joined

the chase, the driver was stopped a full twenty-two (22) blocks

away. In State v. Chamberlin, 872 S.W.2d 615 (Mo.Ct. App. W.D.

1994), the defendant led officers on a high-speed chase for

about five (5) miles, then stopped his vehicle and began

running. People v. Pena, 962 P.2d 285 (Colo.Ct.App. 1997),

involved a chase which continued for another quarter of a mile

after the officer activated his lights and siren, but it was
only after the lights and siren were activated that the

defendant saw the officer and then accelerated his car.

    In Finlon v. State, 228 Ga.App. 213, 491 S.E.2d 458 (1997),

the defendant continued to speed for more than three (3) miles

after the officer activated his lights and siren, and at one

point during the chase the defendant looked back at the officer.

In yet another case from our neighboring state, Elliott v.


                               14
State, 230 Ga.App. 855, 497 S.E.2d 817 (1998), the defendant

initially gave officers his consent to search his vehicle at a

routine license and insurance checkpoint, but when he was asked

to turn off his engine, he rolled up the window and drove away;

in his flight from the police, he crashed into a police car and

led officers on a high speed chase until he abandoned his car

and fled on foot.   Chisholm v. State, 231 Ga.App. 835, 500

S.E.2d 14 (1998) and Wilson v. State, 233 Ga.App. 688, 505

S.E.2d 774 (1998) -- which are also described in Sec. 21(a) of

the Annota- tion -- provide two more distinguishable examples of

other extended high-speed chases. Finally, in State v. Wallace,

313 N.J.Super. 435, 712 A.2d 1270 (App.Div. 1998), a blue Honda

passed some officers, who turned their vehicle around and

activated their lights and siren; the Honda accelerated and

circled the block twice, traveling erratically in an apparent

effort to evade the police vehicle; the officers had to pursue

the Honda for about a mile, covering 13 or 14 city blocks.

    Section 21(b) of the Annotation presents a few cases in
which the evidence was held not to be sufficient to support a

conviction, only one of which offers a usefully comparable fact

pattern. In State v. Ternes, 92 Ohio Misc.2d 76, 700 N.E.2d 435

(Ohio Mun. 1998), the defendant -- who was seen driving 20 MPH

in a 35 MPH zone for a distance of two-tenths (.2) of a mile --

did not stop immediately upon the officer’s activating his

lights and siren, but stopped his vehicle approximately a half-


                                15
mile further away. The Ohio court held that these facts, “after

construing the evidence most favorably to the state,” was

insufficient to sustain a conviction of the statutory offense of

“obstructing official business.” 700 N.E.2d at 437.

The Evidence Does Not Support a Conviction for the Offense

Charged.

    Except for the very high speed of Alston’s vehicle, the

case on appeal presents a fact pattern resembling that in State

v. Ternes much more closely than those in the other comparable

cases described in the Annotation, in that both Alston and

Ternes stopped their vehicles a relatively short distance after

being seen by the police. The instant case does not involve an

offender who had been either slowed down or stopped by the

police only to drive away from them without permission. This

case does not involve a high speed chase over an extended

distance. This case does not involve an offender who tried to

run away on foot from the police after his hotly pursued vehicle

had come to an eventual stop.
    The case on appeal does involve a drunken fool, mad as

hell, barrelling down some city streets at a high rate of speed

at 3:30 a.m., furiously trying to discover whether his wild and

crazy teenage daughter was hanging out at a rowdy nightclub in

Burlington, North Carolina. (T.pp. 148-149, 158.) The evidence

in this case   indicates that Alston was not in a position to

discern that after he sped by Officer Valencia’s police vehicle


                                16
at night at some 85 MPH, Valencia had made a U-turn and had

activated her blue lights and siren. (T.pp. 143, 156.) Unless

his eyes were riveted on his rear view mirror, Alston would not

have been able to see her vehicle again until she and Cpl.

Hamlett arrived at the location on Ruffin Street where Officer

Crostic was apprehen- ding Alston. (T.pp. 147, 154, 157.) The

evidence simply does not support a finding that Alston was aware

that Officer Valencia might be pursuing his speeding vehicle.

Therefore, he could not willfully “flee” from Officer Valencia

or attempt to “elude” her in the performance of her duties, as

alleged in the indictment. It must be concluded that the

evidence does not support the conviction of the felony alleged

in the indictment.

    “It is well settled that the evidence in a criminal case

must correspond to the material allegations in an indictment,

and where the evidence tends to show the commission of an

offense not charged in the indictment, there exists a fatal

variance between the allegations and the proof [thus] requiring
dismissal.” State v. Williams, 303 N.C. 507, 509, 279 S.E.2d

592, 594 (1981). That principle should resolve this Argument in

a manner favorable to the Defendant-Appellant.



The Evidence Does Not Support A Felony Conviction At All.

    Defendant is mindful, however, that an indictment is

consti- tutionally sufficient if it apprises the defendant of


                               17
the charge against him with enough certainty to enable him to

prepare his defense, protect him from subsequent prosecution for

the same offense, and enable the court to proceed to judgment.

State v. Pallett, 283 N.C. 705, 708, 198 S.E.2d 433, 434 (1973).

So, in an abundance of caution, Mr. Alston confidently contends

that the evidence is likewise insufficient to prove that he

willingly, knowingly and intentionally fled from and tried to

elude any police officers during that 30-45 second period of

time, whether or not they were named in the indictment.

    First, our argument pertaining to Officer Valencia applies

equally to then-Corporal Hamlett, who was the passenger in the

vehicle driven by Ms. Valencia.

    Second, as for Officer Crostic, the evidence fails to show

that Alston would have seen him at the time the officer made the

U-turn and activated his lights and siren.(T.pp. 123-124.) There

is no evidence that Alston actually saw Crostic’s vehicle

shortly thereafter, at the point where Alston drove his truck

through the stop sign at Sellers Street, for the truck
immediately went airborne over the “crown road,” came down on

the other side, lost a front tire and continued going. (T.pp.

124-125, 132.) After landing, Alston immediately turned from

Sellars on to Ruffin Street, the next street down from Holt.

(T.pp.126, 133.) And Alston did not thereafter act like a man

who had been trying to get away from the cops. Instead of trying

to drive further, he brought the truck to a stop. Instead of


                                  18
running, he got out with his hands in the air. Instead of giving

the officer a hard time, Alston was “cooperative,” telling

Crostic “it’s me. You know me,” and showing the officer that he

was not armed. (T.pp. 125-126.)

    The only evidence that would create a mere suspicion or

conjecture that Alston was aware that there were police in the

area came from the testimony of Sgt. Billy White, who contended

that he “was stationary” on Fonville with his blue lights on”

when he saw Alston’s truck run the stop sign at Sellars and

Fonville in front of him. White claimed that the driver looked

in his direction and had “a smile” on his face. (T.p. 138.) This

testimony is inherently incredible. White testified on cross

examination that he would have been looking at the driver’s side

of the truck, thus at the left side of the driver’s face, but he

admitted that Alston has a physical deformity that prohibits his

left eye from opening all the way. (T.pp. 140-141.) Further-

more, Officer Crostic had earlier testified that after Crostic

had turned on to Fonville Street and fell in behind a vehicle
driven by Sergeant White, he saw a silver truck drive through

stop sign on Sellers Street between the two police cars. (T.p.

125.) This conflicting testimony indicates that either Crostic

is mistaken as to the position of the two police vehicles vis-a-

vis the speeding truck, or that White was either mistaken or was

laying it on a bit thick in an effort to prove that Alston saw

him and knew he was a law enforcement officer.


                                  19
    But of course “the weight and credibility of such evidence

is a question for the jury.” State v. Vause, supra. Even so, the

argument pertaining to Officer Crostic applies as well to Sgt.

White: just after Alston drove his truck through the stop sign

at Sellers Street, his truck immediately went airborne over the

“crown road,” came down on the other side, and lost a front

tire, whereupon Alston turned from Sellars on to Ruffin Street.

(T.pp.124-126, 132-133.) This was not an extended chase, over

either time or distance. Therefore, the evidence is also

insufficient to prove that Alston fled from and attempted to

elude either Officer Crostic or Sgt. White.



                         CONCLUSION

    For the reasons stated in Argument No. 1, the Court of

Appeals should arrest the Judgment and Commitment under which

Defendant was sentenced as a felon and remand the case for a new

sentencing proceeding on the various misdemeanors of which he

has been properly found guilty.
    Respectfully submitted on this the ____ day of January,

2006.


                              ________________________________
                              WILLIAM B. GIBSON
                              Attorney for Defendant-Appellant
                              8 West Third St., Suite 610
                              Winston-Salem, NC 27101
                              (336) 722-6851
                              State Bar # 8284


                                  20
billgibson@earthlink.net




 21
                    CERTIFICATE OF SERVICE

     This is to certify that the undersigned has this date
served this Defendant-Appellant's BRIEF in the above-entitled
action upon the State of North Carolina by depositing a copy
hereof in a postpaid wrapper in a post office or official
repository under the exclusive care and custody of the United
States Postal Service properly addressed to the attorney or
attorneys for said parties, to wit:

Hon. Roy A. Cooper
Attorney General
N.C. Department of Justice
P.O. Box 629
Raleigh, NC 27602

    This the ___ day of ____________, 2006.



                                    ___________________________




                               22
         ATTACHMENT TO APPEAL INFORMATION STATEMENT

                    QUESTION PRESENTED

     No. 1. WHETHER THE TRIAL COURT’S DENIALS OF DEFENDANT’S
MOTIONS TO DISMISS THE CHARGE OF “FLEEING and/or ELUDE ARREST
WITH MOTOR VEHICLE” AT THE CLOSE OF THE STATE’S EVIDENCE AND ALL
THE EVIDENCE WERE ERRONEOUS, ON THE GROUND THAT THERE WAS
INSUFFICIENT EVIDENCE PRESENTED TO THE JURY TO PROVE THAT
DEFENDANT WILLFULLY AND INTENTIONALLY FLED OR ATTEMPTED TO ELUDE
OFFICER L.L. VALENCIA WHILE THE OFFICER WAS ATTEMPTING A TRAFFIC
STOP, AS ALLEGED IN THE INDICTMENT IN 04 CRS 58608.


                    CERTIFICATE OF SERVICE

     This is to certify that the undersigned has this date
served this APPEAL INFORMATION STATEMENT in the above-entitled
action upon the State of North Carolina by depositing a copy
hereof in a postpaid wrapper in a post office or official
repository under the exclusive care and custody of the United
States Postal Service properly addressed to the attorney or
attorneys for said parties, to wit:

Hon. Roy A. Cooper
Attorney General
N.C. Department of Justice
P.O. Box 629
Raleigh, NC 27602

    This the _______ day of _______________, 2006.


                                    ___________________________




                               23
No. COA05-1552                                       District 15A

                   NORTH CAROLINA COURT OF APPEALS

                   *******************************

STATE OF NORTH CAROLINA  )
                         )
          vs.            )     From Alamance County
                         )      No. 04 CRS 23566, 58608, 58611-14
COREY ALGERNON ALSTON    )
               Defendant )


                 ******************************

                   DEFENDANT-APPELLANT'S BRIEF


                 ******************************




                                 24
                              INDEX


TABLE OF CASES AND AUTHORITIES ............................. ii

QUESTIONS PRESENTED ........................................    1

STATEMENT OF THE CASE ......................................    2

STATEMENT OF THE FACTS .....................................    5

ARGUMENT:
     No. 1. THE TRIAL COURT’S DENIALS OF DEFENDANT’S
MOTIONS TO DISMISS THE CHARGE OF “FLEEING and/or ELUDE
ARREST WITH MOTOR VEHICLE” AT THE CLOSE OF THE STATE’S
EVIDENCE AND ALL THE EVIDENCE WERE ERRONEOUS, ON THE GROUND
THAT THERE WAS INSUFFICIENT EVIDENCE PRESENTED TO THE JURY
TO PROVE THAT DEFENDANT WILLFULLY AND INTENTIONALLY FLED OR
ATTEMPTED TO ELUDE OFFICER L.L. VALENCIA WHILE THE OFFICER
WAS ATTEMPTING A TRAFFIC STOP, AS ALLEGED IN THE INDICTMENT
IN 04 CRS 58608.............................................    8

Standard of Review..........................................    8
The Felony Charged..........................................    9
A Case of First Impression..................................   12
Precedents Worth Considering................................   12
The Evidence Does Not Support a Conviction for the Offense
Charged....................................................    15
The Evidence Does Not Support A Felony Conviction At All....   17

CONCLUSION ................................................. 19

CERTIFICATE OF SERVICE ..................................... 20




                               25
i




26
                 TABLE OF CASES AND AUTHORITIES

Constitutions -- none cited

Federal Cases -- none cited

State Cases -- North Carolina

State v. Davis, 163 N.C.App. 587, 594 S.E.2d 57 (2004)..... 12

State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982) ....   8

State v. Funches, 141 N.C. App. 302, 540 S.E.2d 435 (2000).   9

State v. Lucas, 353 N.C. 568, 548 S.E.2d 712 (2001)........   8

State v. Molloy, 309 N.C. 176, 305 S.E.2d 718 (1983).......   9

State v. Pallett, 283 N.C. 705, 198 S.E.2d 433 (1973)...... 17

State v. Smith, 300 N.C. 71, 265 S.E.2d 164 (1980) ........   8

State v. Stokes, _____ N.C. App. _____, 621 S.E.2d, 311,
     2005 N.C. App. LEXIS 2495 (filed Nov. 15, 2005)....... 12

State v. Vause, 328 N.C. 231, 400 S.E.2d 57 (1991).........   9

State v. Williams, 303 N.C. 507, 279 S.E.2d 592 (1981)..... 16

State Cases -- Other Jurisdictions

Chisholm v. State, 231 Ga.App. 835, 500 S.E.2d 14 (1998)... 14

Cunningham v. State, 222 Ga.App. 740, 475 S.E.2d 924
     (1996)................................................ 13

Daniel v. State, 524 N.E.2d 1275 (Ind., 1988).............. 13

Elliott v. State, 230 Ga.App. 855, 497 S.E.2d 817 (1998)... 14

Finlon v. State, 228 Ga.App. 213, 491 S.E.2d 458 (1997).... 14

People v. Martenson, 76 Cal.App. 763, 245 P.1101 (3rd
     Dist. 1926)........................................... 13


                                27
People v. Pena, 962 P.2d 285 (Colo.Ct.App. 1997)........... 13

State v. Chamberlin, 872 S.W.2d 615 (Mo.Ct. App. W.D.1994). 13

                              ii
State v. Ternes, 92 Ohio Misc.2d 76, 700 N.E.2d 435 (Ohio
     Mun. 1998)............................................ 15

State v. Wallace, 313 N.J.Super. 435, 712 A.2d 1270 (App.
     Div. 1998)............................................ 14

Wilson v. State, 233 Ga.App. 688, 505 S.E.2d 774 (1998).... 14

Statutes

N.C.G.S. 7A-27 ............................................   4

N.C.G.S. 14-7.1 ...........................................   2

N.C.G.S.15A-1442 ..........................................   4

N.C.G.S.15A-1444 ..........................................   4

N.C.G.S.15A-1446 ..........................................   4

N.C.G.S. 20-28 ............................................   2

N.C.G.S. 20-138.1 .........................................   2

N.C.G.S. 20-138.7 .........................................   2

N.C.G.S. 20-140(b).........................................   2

N.C.G.S. 20-141(j1)........................................   2

N.C.G.S. 20-141.5(b).......................................   2

N.C.G.S. 20-157(a).........................................   2

N.C.G.S. 20-158 ...........................................   2

Other Authorities

N.C. Rules App. Pro., Rule 28(b)(4)........................   4


                               28
N.C.P.I.--Crim. 270.54A ................................... 10

N.C.P.I.--Crim 270.65...................................... 11

Annot: What Constitutes Obstructing or Resisting Officer
     in Absence of Actual Force, 66 A.L.R.5th 397, Sec. 21,
     “Flight -- involving motor vehicle”................... 12


                              iii




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