State v. Rogers

Opinions

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA25-46

Filed 3 December 2025

Stanly County, No. 23CR000070-830

STATE OF NORTH CAROLINA

v.

DERRICK ANTONIO ROGERS

Appeal by defendant from judgments entered 10 April 2024 by Judge Patrick

Thomas Nadolski in Stanly County Superior Court. Heard in the Court of Appeals 24

September 2025.

Attorney General Jeff Jackson, by Assistant Attorney General Jonathan J. Evans, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Sterling Rozear, for defendant-appellant.

ZACHARY, Judge.

Defendant Derrick Antonio Rogers appeals from the trial court’s judgments

entered upon a jury’s verdicts finding him guilty of identity theft and driving while

impaired. On appeal, Defendant argues that the court erred by failing to dismiss the

charges. After careful review, we conclude that the trial court did not err.

Opinion of the Court

I. Background

On 13 February 2023, a Stanly County grand jury indicted Defendant for

identity theft and habitual driving while impaired. On 9 April 2024, Defendant’s case

came on for jury trial in Stanly County Superior Court.

At trial, the State first introduced Samantha Mendenhall, who testified that

as she was driving on Hatley Farm Road during the later evening hours of 24 March

2019, she observed a “motorcycle headlight go off of the pavement into [a] ditch” and

“the headlight kind of bounce back and forth like it was riding the ditch line.” As Ms.

Mendenhall drove closer, she noticed Defendant next to a motorcycle “in the ditch”

on the side of the road and pulled over on the shoulder of the road to offer assistance;

the motorcycle was “laid over” and Defendant was standing by it. No one else was

present at the scene. Ms. Mendenhall spoke to the responding highway patrolman

when he arrived on the scene and relayed what had happened.

The State also introduced Trooper Whit Efird with the North Carolina State

Highway Patrol, who was accepted by the trial court as an expert in the field of

horizontal gaze nystagmus (“HGN”), an eye test used to determine impairment.

Trooper Efird testified that on the night of 24 March, he responded to a call regarding

a motorcycle accident on Hatley Farm Road. At a curve in the road, Trooper Efird

observed a motorcycle in a ditch. Trooper Efird interviewed Ms. Mendenhall and then

spoke to Defendant, who “had a grass stain on his sweater from sliding in the grass

and . . . grass all in his hair.” Defendant smelled of alcohol and marijuana; he “had a

-2-

very strong odor of alcohol coming from his breath. His eyes were red and glassy. He

was swaying on his feet.” Additionally, “[h]is speech was slow and slightly slurred”

and “his attitude was extremely relaxed.”

Defendant explained to Trooper Efird “that he was helping someone get the

bike out of the ditch. He said he didn’t know what was going on, but he would take

full responsibility for it.” Trooper Efird asked Defendant “to perform a roadside test.”

Defendant consented and Trooper Efird administered the HGN test, during which he

observed all six indicators of impairment. Defendant then refused to submit to

additional field sobriety tests or a breathalyzer. Throughout, Defendant maintained

that “he was helping someone else get the bike out of the ditch” until he eventually

admitted that “he was just out riding and [it was] his girlfriend’s bike.”

Trooper Efird further testified that at the scene, Defendant “gave . . . the name

of Eric Antwon Rogers” and a birthdate. Trooper Efird identified a person named Eric

A. Rogers through the North Carolina CJLEADS database and made a record of that

name, birthdate, and the corresponding driver’s license number. Trooper Efird then

completed a citation for impaired driving for Defendant with the name Eric Antwon

Rogers together with Eric Antwon Rogers’s address and driver’s license number.

Defendant was placed under arrest and transported to the Stanly County Detention

Center, where he was advised of his rights and refused further testing for

impairment.

Defense counsel made a motion to dismiss at the close of the State’s evidence,

-3-

which the trial court denied. Defendant presented no evidence.

On 10 April 2024, the jury returned verdicts finding Defendant guilty of

identity theft and impaired driving. Noting Defendant’s prior record level and pretrial

stipulation to three prior DWI convictions, the trial court consolidated Defendant’s

convictions for impaired driving and habitual impaired driving and entered judgment

against Defendant, sentencing him to a term of 15 to 27 months’ imprisonment in the

custody of the North Carolina Department of Adult Correction. The court sentenced

Defendant to a consecutive term of 16 to 29 months’ imprisonment for his conviction

for identity theft.

Defendant gave oral notice of appeal.

II. Discussion

Defendant argues that the trial court erred by denying his motion to dismiss

the charges of identity theft and impaired driving “for insufficiency of the evidence.”1

1 We note that while Defendant properly made a motion to dismiss at the close of the State’s

evidence, a review of the transcript reveals that he did not renew his motion at the close of all evidence. Our appellate rules provide that if a defendant makes a motion to dismiss “after the State has presented all its evidence and has rested its case and that motion is denied and the defendant then introduces evidence, [the] defendant’s motion for dismissal . . . made at the close of the State’s evidence is waived.” N.C.R. App. P. 10(a)(3). “Such a waiver precludes the defendant from urging the denial of such motion as a ground for appeal.” Id. Here, Defendant did not present any evidence. “[W]hen a defendant puts on no evidence, the motion to dismiss must be made at the close of the State’s evidence.” Elizabeth Brooks Scherer & Matthew Nis Leerberg, North Carolina Appellate Practice and Procedure, § 4.03[7][a][ii] (2022); see also State v. Juran, 294 N.C. App. 81, 84, 901 S.E.2d 872, 876 (2024) (“Under Rule 10(a)(3),[ ]a defendant in a criminal case may not make the sufficiency of the State’s evidence at trial the basis of his issue on appeal unless he made a motion to dismiss at trial. The motion to dismiss may be made at the close of the State’s evidence and/or at the close of all evidence.” (citation omitted)). Accordingly, Defendant has preserved this issue for appeal by making a motion to dismiss at the close of the State’s evidence.

-4-

We disagree.

A. Standard of Review

“We review the trial court’s denial of a motion to dismiss de novo. Under a de

novo standard of review, this Court considers the matter anew and freely substitutes

its own judgment for that of the trial court.” State v. Walters, 276 N.C. App. 267, 270,

854 S.E.2d 607, 610 (2021) (citation and italics omitted).

B. Identity theft

Defendant contends that his “motion to dismiss should have been granted” as

to the charge of identity theft because “[p]roviding police officers [with] another

person’s name and date of birth is not identity theft.” The State responds that “this

[wa]s sufficient evidence for the jury to determine whether Defendant provided this

information with the intent of convincing [Trooper Efird] that he was actually

[another person] in order to avoid legal consequence”; thus, “[t]he trial court correctly

determined that the evidence met the definition of identifying information” and

properly denied Defendant’s motion to dismiss.

“A defendant’s motion to dismiss should be denied if there is substantial

evidence (1) of each essential element of the offense charged, or of a lesser offense

included therein, and (2) of [the] defendant’s being the perpetrator of such offense.”

State v. Faucette, 285 N.C. App. 501, 504, 877 S.E.2d 782, 785 (2022) (citation

omitted). “Substantial evidence is relevant evidence that a reasonable person might

accept as adequate, or would consider necessary to support a particular conclusion.”

-5-

State v. Jones, 367 N.C. 299, 304, 758 S.E.2d 345, 349 (2014) (citation omitted).

“In this determination, all evidence is considered in the light most favorable to

the State, and the State receives the benefit of every reasonable inference supported

by that evidence.” Id. (citation omitted). “If there is substantial evidence—whether

direct, circumstantial, or both—to support a finding that the offense charged has been

committed and that the defendant committed it, the case is for the jury and the

motion to dismiss should be denied.” Id. (cleaned up). “Circumstantial evidence may

withstand a motion to dismiss and support a conviction even when the evidence does

not rule out every hypothesis of innocence.” State v. Chekanow, 370 N.C. 488, 492,

809 S.E.2d 546, 550 (2018) (citation omitted).

N.C. Gen. Stat. § 14-113.20(a) “provides, in pertinent part, that identity theft

exists when a person knowingly obtains, possesses, or uses identifying information of

another person, living or dead, with the intent to fraudulently represent that the

person is the other person for the purpose of avoiding legal consequences.” Faucette,

285 N.C. App. at 505, 877 S.E.2d at 785 (cleaned up); N.C. Gen. Stat. § 14-113.20(a)

(2023). “The term ‘identifying information’ includes, inter alia, social security

numbers, state identification card numbers, and any other numbers or information

that can be used to access a person’s financial resources.” State v. Sexton, 223 N.C.

App. 341, 344, 734 S.E.2d 295, 297 (2012) (cleaned up); see N.C. Gen. Stat. § 14-

113.20(b).

“Intent is seldom provable by direct evidence and ordinarily must be proved by

-6-

circumstances from which it may be inferred.” Jones, 367 N.C. at 305, 758 S.E.2d at

350 (cleaned up). Additionally, where “a specific mental intent or state is an essential

element of the crime charged, evidence may be offered of such acts or declarations of

the accused as tend to establish the requisite mental intent or state, even though the

evidence discloses the commission of another offense by the accused.” Id. (citation

omitted).

In the instant case, Trooper Efird testified that at the scene Defendant “gave

. . . the name of Eric Antwon Rogers” and a birthdate. Trooper Efird identified a

person named Eric A. Rogers with the birthdate supplied by Defendant through the

North Carolina CJLEADS database and completed Defendant’s citation for impaired

driving using that name, birthdate, and corresponding driver’s license number. He

provided Defendant with numerous documents—including the citation for impaired

driving, an affidavit reporting Defendant’s refusal to submit to a chemical analysis of

his breath, and a form advising Defendant of his rights—each of which contained the

name and birthdate that he had given Trooper Efird. At no point did Defendant

indicate that the name on the documents was incorrect. Eventually, it was discovered

that Defendant had used the name and birthdate of his twin (although as twins they

share a birthdate).

In State v. Miles, this Court addressed a similar situation. 267 N.C. App. 78,

833 S.E.2d 27 (2019), disc. review denied, 373 N.C. 588, 837 S.E.2d 891 (2020). The

defendant exchanged gunfire with another man and, when the defendant went to the

-7-

hospital for treatment, provided “a name, date of birth, and address other than his

own.” Id. at 80–81, 833 S.E.2d at 29–30. On appeal, the defendant argued that our

General Assembly intended the list of examples of identifying information provided

by § 14-113.20(b) to be “distinctive and exclusive.” Id. at 88, 833 S.E.2d at 34. This

Court disagreed, noting first that “the statute itself disproves [the] defendant’s

contention of exclusivity by usage of the term ‘includes’ before listing the fourteen

examples” and further that, even if the list were exclusive, the “defendant’s conduct

would fall under subsection (10)—‘any other numbers or information that can be used

to access a person’s financial resources.’ ” Id. at 88–89, 833 S.E.2d at 34 (cleaned up);

see also N.C. Gen. Stat. § 14-113.20(b).

Defendant’s contention that “[t]he use of a name and date of birth are not

included within the definition of ‘identifying information’ under [N.C. Gen. Stat.] §

14-113.20” fails to persuade. As this Court concluded in Miles: “Another person’s

name, date of birth, and address are possible forms of identifying information where

a defendant . . . uses the information for the purpose[ ] of escaping arrest or other

legal consequences.” Miles, 267 N.C. App. at 89, 833 S.E.2d at 34. Although

Defendant contends that “Miles was simply wrong in holding that a name, birthdate,

and address, constituted ‘identifying information’ under [N.C. Gen. Stat.] § 14-

113.20,” (emphasis omitted) we note that our Supreme Court denied discretionary

review in Miles and it remains undisturbed as binding precedent. See In re Civil

Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“Where a panel of the Court of

-8-

Appeals has decided the same issue, albeit in a different case, a subsequent panel of

the same court is bound by that precedent, unless it has been overturned by a higher

court.”).

Moreover, it is well settled that “[l]egislative intent controls the meaning of a

statute” and “[t]he intent of the General Assembly may be found first from the plain

language of the statute, then from the legislative history, the spirit of the act and

what the act seeks to accomplish.” State v. James, 371 N.C. 77, 87, 813 S.E.2d 195,

203 (2018) (cleaned up). In reviewing N.C. Gen. Stat. § 14-113.20, “[w]e consider

[that] the purpose behind enacting the identity theft statute was to protect against

using misrepresentation to achieve a benefit.” Miles, 267 N.C. App. at 88–89, 833

S.E.2d at 34. “Where a person presents himself to be another person and then uses

that identification to obtain a favorable result, such actions were intended to be

covered under N.C. Gen. Stat. § 14-113.20 to support identity theft convictions.” Id.

at 89, 833 S.E.2d at 34.

Defendant also asserts that the charge of identity theft was based solely on

“the use of a name and date of birth” of his twin. In fact, Defendant also used the

driver’s license number—a type of “identifying information” listed in N.C. Gen. Stat.

§ 14-113.20(b)—of another. N.C. Gen. Stat. § 14-113.20(b)(2). In Sexton, we concluded

that from the inclusion of another person’s social security number “on the citation

issued to [the d]efendant, the jury could conclude that [the d]efendant ‘used’ or

‘possessed’ the social security number to avoid legal consequences.” 223 N.C. App. at

-9-

345, 734 S.E.2d at 298. Likewise, here, from the inclusion of the driver’s license

number corresponding to another person’s name “on the citation issued to Defendant,

the jury could conclude that Defendant ‘used’ or ‘possessed’ the [driver’s license]

number to avoid legal consequences.” Id. We therefore agree with the State that this

was “sufficient evidence for a jury to determine that Defendant ‘used’ the identifying

information included by [Trooper Efird] on the citation, regardless of whether or not

it was provided by Defendant.”

Here, viewing the facts “in the light most favorable to the State,” Jones, 367

N.C. at 304, 758 S.E.2d at 349 (citation omitted), there was sufficient evidence that

Defendant used the identifying information of another “with the intent to fraudulently

represent that [he was another] for the purpose of avoiding legal consequences.”

Faucette, 285 N.C. App. at 505, 877 S.E.2d at 785 (cleaned up); see also N.C. Gen.

Stat. § 14-113.20(a). Consequently, the trial court did not err in denying Defendant’s

motion to dismiss the charge of identity theft.

C. Impaired Driving

Defendant also argues that the trial court erred by denying his motion to

dismiss the charge of impaired driving. He specifically contends that there was

insufficient evidence that he “was driving the motorcycle” and that “the motorcycle

was ever on a highway, street, or public vehicular area.”

“A person commits the offense of impaired driving if he drives any vehicle upon

any highway, any street, or any public vehicular area within this State while under

- 10 -

the influence of an impairing substance.” State v. McGaha, 274 N.C. App. 232, 236,

851 S.E.2d 659, 662 (2020) (cleaned up); see N.C. Gen. Stat. § 20-138.1. Both alcohol

and marijuana are considered impairing substances. N.C. Gen. Stat. §§ 20-4.01(14a),

90-94(b)(1). “A person commits the offense of habitual impaired driving if he drives

while impaired as defined in [N.C. Gen. Stat. §] 20-138.1 and has been convicted of

three or more offenses involving impaired driving as defined in [N.C. Gen. Stat. §] 20-

4.01(24a) within 10 years of the date of this offense.” Id. § 20-138.5(a).

Defendant does not dispute that he was under the influence of an impairing

substance or that he stipulated to having three prior convictions for impaired driving.

Rather, he limits his challenge to the sufficiency of the evidence that he drove the

motorcycle on a highway, street, or public vehicular area.

“A person ‘drives’ within the meaning of the statute if he is in actual physical

control of a vehicle which is in motion or which has the engine running.” State v.

Ingram, 283 N.C. App. 85, 89, 872 S.E.2d 148, 151 (2022) (cleaned up), appeal

dismissed, 385 N.C. 614, 894 S.E.2d 752 (2023).

In the instant case, there were no eyewitnesses to Defendant driving the

motorcycle on a public road. Nevertheless, as noted above, “[c]ircumstantial evidence

may withstand a motion to dismiss and support a conviction even when the evidence

does not rule out every hypothesis of innocence.” Chekanow, 370 N.C. at 492, 809

S.E.2d at 550 (citation omitted). “If the evidence supports a reasonable inference of

[the] defendant’s guilt based on the circumstances, then it is for the jurors to decide

- 11 -

whether the facts, taken singly or in combination, satisfy them beyond a reasonable

doubt that the defendant is actually guilty.” State v. Campbell, 359 N.C. 644, 682,

617 S.E.2d 1, 24 (2005) (cleaned up), cert. denied, 547 U.S. 1073, 164 L. Ed. 2d 523

(2006); see also State v. Simpson, 292 N.C. App. 532, 540–41, 897 S.E.2d 915, 922

(2024) (determining that trial court properly denied the defendant’s motion to dismiss

the charge of impaired driving where there was no eyewitness testimony but there

was circumstantial evidence sufficient to support the charge).

In Ingram, this Court was presented with similar facts to those of the case at

bar. There, two first responders testified that the defendant “was found alone,

wearing a helmet, lying on the double yellow line in the middle of a road and mounted

on the seat of the fallen moped while it rested on top of one of his legs.” Ingram, 283

N.C. App. at 89, 872 S.E.2d at 151. There were no eyewitnesses to the defendant’s

control of the moped. Id. Regarding it significant that the defendant was alone at the

scene of a moped accident, see also State v. Burris, 289 N.C. App. 535, 538, 890 S.E.2d

539, 541 (2023), aff’d, 386 N.C. 600, 906 S.E.2d 465 (2024) (concluding that evidence

that the defendant “was found alone at the accident scene” was proper circumstantial

evidence that the defendant had been driving the vehicle), we concluded that this

evidence was “sufficient to establish that [the d]efendant was in actual physical

control of the moped while it was in motion or had the engine running”—despite the

facts that the defendant 1) “was not injured”; 2) “there was no debris and were no tire

marks in the road”; 3) “there was no evident damage to the moped or his helmet”; 4)

- 12 -

“the moped was not running when [the d]efendant was found”; and 5) “there was no

evidence that the moped was hot to the touch or that a key was in the moped or on

[the d]efendant’s person.” Ingram, 283 N.C. App. at 89, 872 S.E.2d at 151. Reasoning

that these facts were “appropriately addressed to the jury, which [wa]s charged with

weighing whether the evidence provided [the d]efendant’s guilt beyond a reasonable

doubt,” we determined that “the State presented sufficient circumstantial evidence

to establish that [the d]efendant drove the moped.” Id.

Similarly, in State v. Rouse, there was “no one else nearby”; the vehicle “was

in a spot where vehicles are not normally parked, i.e., in a ditch by the side of the

road, unless they have been driven there recently”; and the defendant asked someone

“for assistance in removing his [vehicle] from the ditch, indicating his continued

intent to possess and control his [vehicle].” 284 N.C. App. 473, 489, 876 S.E.2d 107,

120, disc. review denied, 383 N.C. 686, 881 S.E.2d 308 (2022), cert. denied, 599 U.S.

4, 216 L. Ed. 2d 1228 (2023). This Court concluded that this circumstantial evidence

was sufficient to establish that the defendant had driven the vehicle. Id.

Here, the State presented evidence that Defendant’s motorcycle headlight was

seen going “off of the pavement into [a] ditch” where the motorcycle was discovered

just moments later, “a spot where [motorcycles] are not normally parked . . . unless

they have been driven there recently,” see id.; that Defendant was the only person at

the scene of the accident; that Defendant remained by the wrecked motorcycle; that

Defendant had a grass stain on his clothing and grass in his hair; and that Defendant

- 13 -

told Trooper Efird that “he was just out riding.”

“Viewing the evidence in the light most favorable to the State, we conclude that

there was sufficient evidence to support a jury’s conclusion that Defendant was

driving” the motorcycle and that he was driving it on a highway, street, or public

vehicular area. State v. Reeves, 218 N.C. App. 570, 574, 721 S.E.2d 317, 321 (2012)

(determining that there was sufficient evidence that the defendant was driving the

vehicle where the only evidence presented was an extrajudicial confession and

circumstantial evidence). Accordingly, the trial court properly denied Defendant’s

motion to dismiss the charge of impaired driving.

III. Conclusion

For the foregoing reasons, we conclude that the trial court did not err in

denying Defendant’s motion to dismiss the charges of identity theft and impaired

driving.

NO ERROR.

Judges HAMPSON and WOOD concur.

Report per Rule 30(e).

- 14 -