Criminal Practice – Fleeing to Elude Arrest – Driver’s Identity – ‘Bluish Van’ – Drug Possession

State v. Lindsey (Lawyers Weekly No. 12-07-0266, 30 pp.) (Linda M. McGee, J.) (Sanford L. Steelman Jr., J., concurring in part & dissenting in part) Appealed from Caldwell County Superior Court. (Timothy S. Kincaid, J.) N.C. App. Full-text opinion.

Holding: The state failed to present sufficient evidence to go to the jury on the issue of whether the “bluish” van that sped away from Officer Lee was the “bluish-greenish” van that crashed at a nearby Wendy’s several minutes later, from which defendant was seen running away.

We reverse the trial court’s denial of defendant’s motion to dismiss the charges of felonious operation of a motor vehicle to elude arrest, possession of cocaine, and possession of marijuana.

On direct examination, Officer Lee testified that he recognized the van at Wendy’s to be the van that he had pursued earlier in the evening.

However, on cross-examination, counsel alluded to another “bluish” van that was found at a Wal-Mart shortly after Officer Lee lost sight of the van he had been pursuing. Counsel remarked, “So, it could have well been a van that either went towards Wal-Mart or a van that went elsewhere that never got seen.”

Officer Lee responded, “It could possibly be. Like I said, I did lose sight of the vehicle once I got on top of Stonewall and Patterson.”

Officer Lee’s testimony can only be interpreted as an admission by Officer Lee at trial that the van he observed in the Wendy’s parking lot could have been a different van than the one that he had lost sight of some 10 to 15 minutes earlier.

The state cites no case in which our appellate courts have upheld the denial of a motion to dismiss on facts similar to those in this case, and we can find none.

Not only did Officer Lee fail to see the driver of the “bluish” van that sped away from him, but Officer Lee was also unable to definitively identify the “greenish-bluish” van with a large silver stripe that crashed as being the same van he had been pursuing earlier that night.

We hold only that, on the facts before us, there was sufficient time between when Officer Lee lost track of the van he was pursuing and when Sergeant Penley observed a van crash in the Wendy’s parking lot, that the complete absence of any identification of the driver of the van that fled Officer Lee is determinative of this issue.

No witness saw the driver of the “bluish” van before or during Officer Lee’s pursuit. In addition, a different “bluish” van was stopped that night at a Wal-Mart.

Given that there is no evidence as to the driver’s identity before or during the pursuit, no evidence concerning what might have occurred in the period of time between when Officer Lee lost sight of the van he was pursuing and when Sgt. Penley observed defendant’s van crash in the Wendy’s parking lot, nor substantial evidence that the “greenish-bluish” van with a silver stripe that defendant was driving was the same van that fled Officer Lee, we reverse the trial court’s ruling on defendant’s motion to dismiss the charge of fleeing to elude arrest. On these facts, there was not substantial evidence presented at trial that defendant was driving the van that fled from Officer Lee.

Assuming arguendo that the van fleeing from Officer Lee was the same van that crashed in the Wendy’s parking lot some minutes later, the state presented no evidence identifying the person driving the van that fled from Officer Lee, and further presented no evidence concerning that van’s activities during the time its whereabouts were unknown.

With respect to the drug possession charges, (1) though Sgt. Penley observed defendant exit the vehicle and scramble over the wall fleeing the Wendy’s parking lot, he did not see defendant take any actions consistent with disposing of the marijuana and cocaine that were in two separate locations in the Wendy’s parking lot; (2) there was no physical evidence linking defendant to the drugs recovered; and (3) there were no drugs found on or in defendant’s vehicle. The only suspicious circumstances were the large amount of cash recovered, the drugs found in a public parking lot near defendant’s van, the presence of a wrapper in the van that could be used to smoke tobacco or marijuana, and the fact that defendant fled from police after the crash.

This evidence only raises a suspicion of possession. We must therefore reverse the trial court’s denial of defendant’s motion to dismiss the charges of felony possession.

Reversed.

Concurrence & Dissent

(Steelman, J.) Officer Lee’s direct testimony established that he recognized the van at Wendy’s as the same van he had pursued earlier. Moreover, the van Officer Lee pursued had a license plate number beginning with “W” as did the van at Wendy’s.

There was no evidence of an additional person being present in the minivan. Officer Lee arrived at the parking lot “no more than 10 or 15 minutes” after he lost sight of the mini-van that fled from him.

Since, once he lost sight of the mini-van, Officer Lee drove down North Main Street rather than proceeding directly to U.S. Highway 321, only a short period of time elapsed from when Officer Lee lost the mini-van until it was sighted by Sgt. Penley. This gives rise to a reasonable inference that the same person was operating the mini-van on both occasions.

Contradictions and discrepancies do not warrant dismissal of the case — they are for the jury to resolve.

I would hold that the evidence gave rise to a reasonable inference that defendant was the operator of the mini-van that fled from Officer Lee, and was sufficient to warrant the submission of the charge of felony fleeing to elude arrest to the jury.

As to the cocaine possession charge, the state offered testimony concerning the bag of cocaine found in the parking lot. Officer Lee testified that the bag was found “less than a car length away,” “at an angle where the vehicle had curved and hit the pole.” There was no other evidence offered as to where in relationship to the mini-van, or to the defendant’s flight route, the cocaine was found. I agree with the majority that this evidence was insufficient to submit the charge of possession of cocaine to the jury.

However, as to the marijuana possession charge, Officer Love testified that the marijuana was found on the passenger side of the mini-van near a corral where the Wendy’s dumpster was located. While Officer Lee testified that the bag containing the marijuana was three to four feet from the mini-van, Officer Love testified that it was “a car length, give or take a few feet.” According to Officer Love, the clear plastic bag had not been run over, was not dirty, was not torn, and was not worn in any way. This testimony raises an inference that the bag had been in the parking lot only for a short period of time.

Next, Officer Love testified that the passenger side window was down, which he found to be unusual given that it was “very cold” that night. He then testified that the marijuana was “on the passenger’s side window side on the ground,” and that “it would have been somewhere between five or ten feel [sic] away from where the van was shortly before it struck the pole.”

Officer Love found a “blunt wrapper” in the mini-van, under defendant’s wallet. He testified that this was “often associated with — with smoking marijuana.”

Officer Love also found about $800 in or beside the wallet containing defendant’s identification card.

The defendant’s flight, the location of the marijuana, the condition of the bag, the blunt wrapper in the mini-van, and the money in the mini-van are sufficient incriminating circumstances to warrant the submission of the possession of marijuana charge to the jury.