State v. Bowen

313 S.E.2d 196 (1984)

STATE of North Carolina v. Carlton Kent BOWEN.

No. 8321SC249.

Court of Appeals of North Carolina.

April 3, 1984.

*197 Atty. Gen. Rufus L. Edmisten, Raleigh by Associate Atty. Gen. William H. Borden, Goldsboro, for the State.

Alexander & Hinshaw by Robert D. Hinshaw, Winston-Salem, for defendant-appellant.

JOHNSON, Judge.

Defendant's principal contention is that the court erred in deciding as a matter of law that the condominium driveway was a "public vehicular area," thus taking the issue from the jury. The definition of "public vehicular area" applicable to this case is found in G.S. 20-4.01(32) (Cum. Supp.1981):

Public Vehicular Area.Any drive, driveway, road, roadway, street, or alley upon the grounds and premises of any public or private hospital, college, university, school, orphanage, church, or any of the institutions maintained and supported by the State of North Carolina, or any of its subdivisions or upon the grounds and premises of any service station, drive-in theater, supermarket, store, restaurant or office building, or any other business, residential, or municipal establishment providing parking space for customers, patrons, or the public ...[*]

The trial court had sharply conflicting evidence before it. The evidence that this was a public vehicular area indicated that there was a "For Sale" sign apparently inviting in the public, and that there appeared to be no obstruction to public access; the officers were unaware that it was a condominium complex. Evidence to the contrary indicated that "No Trespassing" signs were posted, that there was no parking set aside for the public, and that the driveway had not been dedicated for public use. We conclude that the evidence did not suffice to support the trial court's conclusion as a matter of law that the driveway was a "public vehicular area" within the meaning of the statute. In so holding we follow precisely our decision in State v. Lesley, 29 N.C.App. 169, 223 S.E.2d 532 (1976).

Thus, the court erroneously removed from the jury's consideration one of the essential elements of the offense, see State v. Carter, 15 N.C.App. 391, 190 S.E.2d 241 (1972), and the only truly disputed issue. Such preemptory instructions are permissible only in rare instances in this State, where uncontradicted evidence establishes the element(s) beyond a reasonable doubt. See State v. Allred, 21 N.C.App. 229, 204 S.E.2d 214, cert. denied and appeal dismissed, 285 N.C. 591, 205 S.E.2d 724 (1974), cert. denied, 419 U.S. 1127, 95 S. Ct. 814, 42 L. Ed. 2d 828 (1975). Such was certainly not the case here; therefore, prejudicial error occurred.

Our resolution of the remaining assignment of error determines our disposition of the case. Defendant contends that the evidence was insufficient to convict, and that we should as a matter of law declare the driveway outside the statutory definition and thus dismiss the charge. In reviewing the sufficiency of the evidence, we must take all the evidence in the light most favorable to the State, and give the State the benefit of every reasonable inference therefrom; we may not consider defendant's evidence unless it is favorable to the State or does not conflict with the State's evidence. State v. Dancy, 43 N.C. App. 208, 258 S.E.2d 494, disc. review denied, 298 N.C. 807, 262 S.E.2d 2 (1979). Here, there was evidence that the driveway was open to the public highway and appeared to serve a normal apartment complex. In addition, the jury could infer from the "For Sale" sign that the public was permitted on the premises to view the condominiums, *198 and the parking spaces available were provided at least in part for such customers by the owners. Taking this evidence in the light most favorable to the State, we conclude that it was sufficient to take the case to the jury under proper instructions.

Defendant argues that the statute must nonetheless be strictly construed in his favor and the charge be dismissed. In considering a criminal statute, however, we must also construe it with regard to the evil which it is intended to suppress. State v. Spencer, 276 N.C. 535, 173 S.E.2d 765 (1970). We believe a reasonable construction of the statute in question, in light of the legislative intent to protect life and property from drivers under the influence, may include the situation before us. Therefore, defendant is not entitled to dismissal of the charge.

We conclude that although there was prejudicial error at the first trial, sufficient evidence came before the jury to support its verdict. Therefore, a new trial before a new jury is proper.

New trial.

WELLS, J., concurs.

VAUGHN, C.J., dissents.

NOTES

[*] In the Safe Roads Act of 1983 the General Assembly has since significantly expanded this definition. See 1983 N.C.Session Laws, c. 435, s. 8 (listing areas by way of illustration rather than limitation and including nondedicated subdivision roads). The new definition became effective 1 October 1983. 1983 N.C.Session Laws, c. 435, s. 46.