People v. Sims.
2020 COA 78. No. 18CA0528. Eluding or Attempting to Elude a Police Officer—Aggravated Driving After Revocation Prohibited—Lesser Included Offense.
May 7, 2020
A police officer observed defendant backing out of a parking space and noticed that one brake light on his car was out. The officer tried to initiate a traffic stop by activating the vehicle’s emergency lights and sounding his siren, but defendant kept driving. Another officer joined the pursuit with lights and sirens. Defendant never exceeded the speed limit but kept driving, and after pursuing him for three miles, the officers discontinued the pursuit at the city limits pursuant to their department policy.
A sergeant with the county sheriff’s department then picked up the pursuit and activated his lights and sirens, including a very loud air horn. Defendant continued to drive at the speed limit but would not pull over. After two miles, the sergeant conducted a precision immobilization technique maneuver, causing defendant’s car to spin off the road, and he arrested defendant. At trial, defendant testified that he was driving with loud music on and an earbud in one ear and he did not see or hear any police cars. The jury found him guilty of eluding or attempting to elude a police officer and aggravated driving after revocation prohibited (DARP).
On appeal, defendant argued that the evidence was insufficient to sustain his conviction for eluding or attempting to elude a police officer because eluding or attempting to elude requires a “trick” or “evasive action” that makes it harder for the police to follow. He contended that the prosecution had to show that he did something more than simply refuse to stop. However, depending on the circumstances, “elude” may simply be defined as to avoid, escape, or not be caught. Here, the officers and the sergeant pursued defendant in marked vehicles, sounded sirens, and activated their emergency lights, yet defendant continued to drive for five miles until the sergeant was able to stop him. The evidence was sufficient to support a conclusion by a reasonable juror that defendant was guilty beyond a reasonable doubt of willfully eluding or attempting to elude a police officer.
Defendant also argued that his conviction for eluding or attempting to elude a police officer is a lesser included offense and therefore should merge into his conviction for aggravated DARP. Eluding or attempting to elude a police officer is a lesser included offense of aggravated DARP.
The conviction for aggravated DARP was affirmed. The conviction for eluding or attempting to elude a police officer was vacated. The case was remanded to merge the conviction for eluding or attempting to elude a police officer into the DARP conviction.