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Criminal Practice – Fleeing to Elude Arrest – Indictment Surplusage – Reason for Pursuit

Where the indictment alleged the elements of fleeing to elude arrest, the indictment’s additional allegation regarding the specific duty the officer was performing at the time of the arrest was mere surplusage. The indictment alleged that defendant was arrested for discharging a weapon into an occupied vehicle, but defendant was not convicted of that offense. Nevertheless, the arresting officer saw defendant drive through several stop signs and speed through residential neighborhoods, so the officer had probable cause to believe defendant was committing a crime – reckless driving – and it was within the officer’s authority to make a warrantless arrest.

We find no error in defendant’s conviction for felonious speeding to elude arrest.

Since the indictment’s allegation as to discharging a weapon into an occupied vehicle was surplusage, the variance between this unnecessary allegation and the proof offered at trial was immaterial.

Defendant made an oral request for jury instructions regarding the specific duty the officer was performing. Because defendant did not make a written request for this special instruction, the issue of the trial court’s refusal to give such an instruction was not preserved for appellate review.

State v. McVay (Lawyers Weekly No. 011-244-22, 15 pp.) (Hunter Murphy, J.) Appealed from Mecklenburg County Superior Court (Lisa Bell, J.) Milind Dongre for the state; Amanda Zimmer for defendant. 2022-NCCOA-907


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