STATE OF NORTH CAROLINA
v
.
Alamance County
No. 99CRS 57105
JAMES THOMAS SCOTT, III
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General Hal F. Askins, for the State.
George E. Kelly, III for defendant-appellant.
HUNTER, Judge.
James Thomas Scott, III (“defendant”) appeals his resentencing
for involuntary manslaughter based on the trial court's allegedly
erroneous findings in aggravation. We affirm.
This is the second time issues regarding defendant's
sentencing have appeared before this Court. During our review of
defendant's original sentence, the facts were found to be as
follows: Shortly before 1:00 p.m. on 2 October 1999, defendant
approached a stop sign at an intersection about one-half mile from
his home. Traveling at an estimated speed of seventy-five to
eighty-five miles per hour, defendant hit a Ford Escort driven by
Sue Williams (“Williams”). A sergeant with the State Highway
Patrol testified that defendant's speed was estimated based onthere being twenty-nine feet of skid marks present before the time
of impact. The impact knocked the Escort 174 feet, at which time
it hit a tree. Williams survived the collision, but suffered
significant injuries. The passenger in Williams' car, her four-
year-old granddaughter, died shortly after the collision.
Edna Robbins (“Robbins”), a school bus driver, testified that
she had known defendant for years and saw him drive through the
same intersection without stopping at the stop sign in the month
preceding the collision. Robbins estimated that the black truck
driven by defendant was traveling at a speed between fifty and
seventy miles per hour at that time. However, defendant presented
several witnesses who testified that he had always stopped for the
stop sign when they rode with him. In addition, defendant's
stepfather testified that he had the only set of keys to the black
truck and was the only driver of that vehicle.
On 14 June 2000, a jury found defendant guilty of involuntary
manslaughter, assault with a deadly weapon inflicting serious
injury, reckless driving, exceeding the posted speed limit, and
failure to stop for a stop sign. The trial court imposed a
sentence of twenty-four to twenty-nine months (which is in excess
of the presumptive range) based inter alia on its finding as an
aggravating factor that defendant's vehicle was used as a deadly
weapon at the time of the crime. Defendant appealed.
Defendant's appeal was heard on 13 August 2001. In an
unpublished opinion, this Court held that the trial court erred
because defendant's operation of the vehicle was an element of theoffense and therefore could not be considered an aggravating factor
in determining his sentence for involuntary manslaughter. The case
was remanded for resentencing.
Defendant's resentencing hearing was held on 11 December 2001.
At the conclusion of the hearing, the trial court found two
statutory aggravating factors: (1) the defendant knowingly created
a great risk of death to more than one person by means of a device
which would normally be hazardous to more than one person, and (2)
the victim was young. The court further found as a non-statutory
aggravating factor that:
The defendant engaged in a pattern or course
of conduct that violated the rules of the road
and the duty of care imposed on him as a
licensed driver in N.C. so egregiously as to
be dangerous to society . . . . Record does
show the defendant was sober. This took place
in the middle of the day. Defendant knew what
he was doing, very familiar with the area. He
had driven in a similar manner before at this
intersection[.] It's apparent that he had no
care whatsoever of the outcome of his conduct.
Although the court also found three mitigating factors (defendant's
good character and reputation, defendant's good employment history,
and defendant's expression of sorrow and remorse for his actions),
it found “each aggravating factor, in and of itself, outweigh[ed]
all mitigating factors.” Thus, defendant was sentenced in the
aggravated range from twenty-four months to twenty-nine months.
Defendant appeals again.
“When a defendant assigns error to the sentence imposed by the
trial court, our standard of review is 'whether [the] sentence is
supported by evidence introduced at the trial and sentencinghearing.'” State v. Deese, 127 N.C. App. 536, 540, 491 S.E.2d 682,
685 (1997) (quoting N.C. Gen. Stat. § 15A-1444(a1) (Cum. Supp.
1996)). The State has the burden of proving the existence of
aggravating factors by a preponderance of the evidence. N.C. Gen.
Stat. § 15A-1340.16(a) (2001). Where aggravating and/or mitigating
factors are used to determine a defendant's sentence, the “court
shall consider evidence of [such] factors present in the offense
that make an aggravated or mitigated sentence appropriate, but the
decision to depart from the presumptive range is in the discretion
of the court.” Id. Nevertheless, the general rule is that if a
sentence is imposed on defendant beyond the presumptive term based
on a finding or findings in aggravation that are subsequently ruled
to be error, the case must be remanded for a new sentencing
hearing. State v. Ahearn, 307 N.C. 584, 602, 300 S.E.2d 689, 701
(1983).
Furthermore, the weight given aggravating or mitigating
factors is within the sound discretion of the sentencing judge and
should not be re-evaluated by the appellate courts. Id. Thus,
“[a] sentencing judge properly may determine in appropriate cases
that one factor in aggravation outweighs more than one factor in
mitigation and vice versa.” State v. Parker, 315 N.C. 249, 258,
337 S.E.2d 497, 502 (1985). In the present case, we note that the
trial court stated on the “Felony Judgment Findings of Aggravating
and Mitigating Factors” sheet that “each aggravating factor, in and
of itself, outweigh[s] mitigating factors.” Because the trial
court “specifically noted its weight distribution . . . , iteliminated the need for remand if this Court were to determine that
the trial court had erred in finding an aggravating factor.” State
v. Norman, 151 N.C. App. 100, 104, 564 S.E.2d 630, 633 (2002). In
light of this exception to the general rule, “we must only
determine whether the evidence supported one of the aggravating
factors found by the trial court.” Id.
By his first assignment of error, defendant argues the trial
court erred by finding, as a factor in aggravation of punishment,
that the vehicle constituted a device knowingly used by him to
create a great risk of death to more than one person. Defendant
specifically contends that his operation of the vehicle cannot be
used to find this aggravating factor because it was an element of
the offense of involuntary manslaughter. However, this Court has
held on at least two occasions that the manner in which a defendant
operates a vehicle, i.e. reckless operation, can be an appropriate
basis for finding this aggravating factor when it results in a
vehicular-related death. See State v. McBride, 118 N.C. App. 316,
454 S.E.2d 840 (1995); State v. Garcia-Lorenzo, 110 N.C. App. 319,
430 S.E.2d 290 (1993).
Here, the court found that defendant drove his vehicle through
a stop sign at a high rate of speed at 1:00 p.m. in the afternoon.
Defendant was sober and fully understood what he was doing. His
reckless actions and the operation of the vehicle caused an
accident that resulted in substantial injuries to Williams, as well
as the death of her granddaughter. Thus, the trial court did not
err in finding, as an aggravating factor, that defendant knowinglycreated a great risk of death to more than one person by the use of
a vehicle.
Additionally, in Garcia-Lorenzo, this Court held that a
“[d]efendant's reckless driving of his automobile in a neighborhood
where he was likely to injure a number of people is not an element
of the involuntary manslaughter charge.” Id. at 336, 430 S.E.2d at
300. “[A] panel of the Court of Appeals is bound by a prior
decision of another panel of the same court addressing the same
question, but in a different case, unless overturned by an
intervening decision from a higher court.” In the Matter of Appeal
from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989).
Since Garcia-Lorenzo addresses the same question presented in this
case and has not been overturned, we are bound by its decision.
Having concluded the evidence supported at least one of the
aggravating factors found by the trial court, it is unnecessary for
this Court to address the remaining two aggravating factors brought
forth by defendant as his second and third assignments of error.
Accordingly, defendant's resentencing was free of error.
Affirmed.
Judges WYNN and TIMMONS-GOODSON concur.
Report per Rule 30(e).
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