An unpublished opinion of the North Carolina Court of Appeals does not constitute 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. COA 15-239

Filed: 20 October 2015

Person County, Nos. 14 CRS 417, 1743, 50266

STATE OF NORTH CAROLINA

v.

DAVID LAVON FOWLER

Appeal by Defendant from judgment entered 19 November 2014 by Judge 

William Osmond Smith III in Person County Superior Court. Heard in the Court of 

Appeals 28 September 2015.

Attorney General Roy Cooper, by Assistant Attorney General J. Joy Strickland, 

for the State.

Edward Eldred, Attorney at Law, PLLC, by Edward Eldred, for DefendantAppellant.

INMAN, Judge.

David Lavon Fowler (“Defendant”) appeals from a judgment entered upon jury 

verdicts finding him guilty of driving while impaired (“DWI”), felony fleeing to elude 

arrest, driving while license revoked (“DWLR”), and reckless driving. Defendant also 

pled guilty to attaining habitual felon status. We find no error.

Factual and Procedural Background
STATE V. FOWLER

Opinion of the Court

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On 14 February 2014, Defendant was driving home when off-duty Person 

County Sheriff’s Deputy Robert McLaughlin (“Deputy McLaughlin”) noticed him 

driving at a high rate of speed and swerving between lanes. Deputy McLaughlin 

followed Defendant and alerted the Sheriff’s Department and Roxboro Police by radio. 

Because of Deputy McLaughlin’s warning, Deputy Adam Norris (“Deputy Norris”) 

waited for Defendant on the side of the road in his unmarked pickup truck. 

As Defendant approached him, Deputy Norris activated his blue lights and 

siren and attempted to initiate a traffic stop. Shortly thereafter, Defendant, Deputy 

McLaughlin, and Deputy Norris reached the city of Roxboro, and Defendant stopped 

at a red light. which allowed Deputy Norris to pull directly behind him. Nonetheless, 

Defendant proceeded down the road after the light turned green and continued 

driving until he was forced to stop by a Roxboro Police officer who was blocking the 

road. Officers removed Defendant from the car and took him into custody. 

Defendant was indicted on 10 March 2014 for habitual DWI, felony fleeing to 

elude arrest, DWLR, and reckless driving. A second indictment charging Defendant

with attaining habitual felon status was issued on 13 October 2014. Defendant was 

subsequently arrested and served with this indictment on 31 October 2014. 

Beginning 17 November 2014, Defendant was tried by a jury in Person County 

Superior Court. That morning, Defendant met with his appointed counsel, who 

informed him that his trial was set for that day. Defendant made an oral motion for 
STATE V. FOWLER

Opinion of the Court

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a continuance and to discharge appointed counsel in order to retain separate counsel. 

In support of his motion to continue, Defendant made several broad claims that he 

and his appointed counsel were “at each other’s throats” and had engaged in a 

“shouting match” earlier that morning. The court denied Defendant’s motion.

Prior to trial, the parties stipulated to Defendant’s prior DWI convictions as 

the underlying convictions for the habitual DWI charge. On 19 November 2014, the

jury returned verdicts finding Defendant guilty of one count each of DWI, felony 

fleeing to elude arrest, DWLR, and reckless driving. Following the jury’s verdicts, 

the trial court adjudicated Defendant guilty of habitual DWI based upon his 

stipulation. Defendant then pled guilty to attaining habitual felon status. After 

arresting judgment on the reckless driving and DWLR convictions, the trial court

consolidated the remaining convictions into one judgment and sentenced Defendant

to a term of 87 to 117 months of imprisonment. Defendant appeals. 

Analysis

The sole issue on appeal is whether the trial court erred in denying Defendant’s 

motion to continue. Specifically, Defendant contends that the trial court erred in 

denying his motion because he received notice of the habitual felon indictment only 

seventeen days before his trial, rather than the twenty days required by statute. We 

disagree.
STATE V. FOWLER

Opinion of the Court

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“We review a trial court’s resolution of a motion to continue for abuse of 

discretion.” State v. Morgan, 359 N.C. 131, 143, 604 S.E.2d 886, 894 (2004), cert. 

denied, 546 U.S. 830, 163 L. Ed. 2d 79 (2005). “Generally, the denial of a motion to 

continue, whether a constitutional issue is raised or not, is sufficient grounds for the 

granting of a new trial only when the defendant is able to show that the denial was 

erroneous and that he suffered prejudice as a result of the error.” State v. Rogers, 

352 N.C. 119, 124, 529 S.E.2d 671, 675 (2000).

Initially, we note that Defendant did not raise his current argument in support 

of his motion to continue at trial. Instead, Defendant sought a continuance based on 

his desire to substitute retained counsel for his appointed counsel. Defendant also

made some assertions about being unprepared for trial due to problems with his 

counsel, but he made no claims regarding the timing of the habitual felon indictment. 

“It is well established that where a theory argued on appeal was not raised before the 

trial court, the law does not permit parties to swap horses between courts in order to 

get a better mount in the appellate courts.” State v. Tellez, 200 N.C. App. 517, 521, 

684 S.E.2d 733, 736 (2009) (internal quotation marks and citation omitted). Thus, 

Defendant’s argument is not properly before us.

Moreover, even if this issue had been preserved, we find it to be without merit. 

N.C. Gen. Stat. § 14-7.3 provides:

An indictment which charges a person who is an habitual 

felon within the meaning of G.S. 14-7.1 with the 
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Opinion of the Court

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commission of any felony under the laws of the State of 

North Carolina must, in order to sustain a conviction of 

habitual felon, also charge that said person is an habitual 

felon. The indictment charging the defendant as an 

habitual felon shall be separate from the indictment 

charging him with the principal felony. . . . No defendant

charged with being an habitual felon in a bill of indictment 

shall be required to go to trial on said charge within 20 days 

of the finding of a true bill by the grand jury; provided, the 

defendant may waive this 20-day period.

N.C. Gen. Stat. § 14-7.3 (2013) (emphasis added). Defendant concedes that more than 

twenty days elapsed between the grand jury’s issuance of the habitual felon 

indictment and the start of his trial. Nevertheless, he contends that a literal reading 

of the statute would “completely annihilat[e]” the statute’s purpose of providing 

Defendants with notice of the State’s intent to try them as recidivists. 

In State v. Winstead, this Court rejected this argument, holding that “‘true bill’ 

refers to the separate indictment for the habitual felon charge. Therefore, the twentyday period runs from the time the grand jury returns an indictment on the habitual 

felon charge.” 78 N.C. App. 180, 182, 336 S.E.2d 721, 723 (1985). Since Defendant

concedes that he stood trial more than twenty days after the grand jury returned the 

habitual felon indictment, we are bound by our decision in Winstead to find his 

argument meritless. See In Re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37

(1989). Defendant received a fair trial, free from error.

NO ERROR.

Judges STROUD and DAVIS concur.
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Report per Rule 30(e).