An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA03-625

NORTH CAROLINA COURT OF APPEALS

Filed: 18 May 2004

STATE OF NORTH CAROLINA

v .                             Orange County
                                01 CRS 54735
BRIAN KEITH BLACKWELL

    Appeal by defendant from judgment entered 15 January 2003 by Judge Dennis Jay Winner in Orange County Superior Court. Heard in the Court of Appeals 15 March 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Jeffrey R. Edwards, for the State.

    Lemuel W. Hinton for defendant-appellant.

    THORNBURG, Judge.

    Brian Keith Blackwell (“defendant”) appeals from a judgment entered after a jury found him guilty of felony speeding to elude arrest.

I. Facts

    The State's evidence tended to show that on 19 October 2001, Officer Benjamin Farrell of the Chapel Hill Police Department (“Officer Farrell”) was driving to the Pritchard Park apartment complex to assist a resident when he noticed a car exiting the nearby University Gardens Apartments. The car's tires were spinning and smoking, and the car slid as it approached Officer Farrell in his marked police vehicle. Officer Farrell recognized defendant as the car's driver and activated his blue light and siren. Defendantthen backed his car up, away from Officer Farrell. Defendant drove away and Officer Farrell followed. Defendant was driving approximately 55 to 80 miles per hour on roads where the speed limits are 25 to 35 miles per hour. Defendant was driving in such a way as to cause the tires of his vehicle to spin and smoke. Officer Farrell also observed defendant's vehicle crossing over the centerline and failing to stop at stop signs or red lights. After defendant progressed to a more populated area, Officer Farrell terminated the chase.
    Defendant was sentenced to a minimum of eleven (11) months and a maximum of fourteen (14) months in the custody of the North Carolina Department of Corrections. The sentence was suspended for thirty-six (36) months and defendant was placed on supervised probation. As a special condition of probation, defendant was to serve 135 days in the custody of the North Carolina Department of Corrections. Defendant appeals.
II. Issues
    The issues on appeal are whether the trial court erred by: (1) failing to dismiss the indictment against defendant and (2) declining to instruct the jury using defendant's proposed reckless driving instruction.
III. Failure to Dismiss the Indictment
    Defendant argues that the trial court erred in not dismissing the indictment for felony speeding to elude arrest on the grounds that the indictment: (1) did not assert facts supporting the careless and reckless element of the offense with sufficientprecision to apprise defendant of the proscribed conduct and (2) was insufficient to confer jurisdiction on the trial court.
    Defendant was indicted and charged with speeding to elude arrest in violation of N.C. Gen. Stat. . 20-141.5. This offense is either a misdemeanor or felony depending on the presence of statutory aggravating factors. Two of those factors are (1) speeding in excess of 15 miles per hour over the legal speed limit and (2) reckless driving as proscribed by N.C. Gen. Stat. . 20-140. N.C. Gen. Stat. . 20-141.5(b)(1), (3) (2003). The relevant part of defendant's indictment is as follows: “At the time of the violation, the defendant was speeding in excess of 15 miles per hour over the legal speed limit and the defendant was driving recklessly in violation of 20-140.”
    Defendant asserts on appeal that not only must the indictment allege the aggravating factors, but also that it must allege the elements of each aggravating factor. This assertion is incorrect. The United States Supreme Court has concluded that where so-called sentencing factors are actually elements of separate offenses, these factors “must be charged by indictment, proven beyond a reasonable doubt, and submitted to a jury for its verdict.” Jones v. United States, 526 U.S. 227, 252, 143 L. Ed. 2d 311, 331 (1999). Speeding in excess of 15 miles per hour over the legal speed limit and reckless driving, elements of felony speeding to elude arrest, were charged in the indictment, proven beyond a reasonable doubt, and submitted to the jury for its verdict. See State v. Lucas, 353N.C. 568, 597, 548 S.E.2d 712, 731 (2001)(explaining Jones in the context of North Carolina statutes).
    Further, “[a]s a general rule, 'an indictment couched in the language of the statute is sufficient to charge the statutory offense.'” Id. at 584, 548 S.E.2d at 724 (quoting State v. Blackmon, 130 N.C. App. 692, 699, 507 S.E.2d 42, 46, cert. denied, 349 N.C. 531, 526 S.E.2d 470 (1998)). Thus, defendant's argument that the indictment's failure to allege specific facts describing the reckless driving renders the indictment constitutionally and statutorily inadequate is without merit.
    Because the indictment sufficiently alleged every element of felony speeding to elude arrest, defendant's argument that the superior court did not have jurisdiction over the offense must also fail.
IV. Instruction on the Reckless Driving Aggravating Factor

    Defendant asserts that the trial court erred by not giving defendant's proposed instruction regarding the definition of careless and reckless driving. During the charge conference, the trial judge indicated that he planned to modify the jury instruction to include a definition of careless and reckless driving which did not mention speeding. The defendant objected and proposed the following modification:        
        These two factors are separate and independent. Therefore, if you find that the defendant was speeding in excess of 15 miles over the legal speed limit, you must consider whether the driving was reckless, independent of the speed in excess of 15 miles over the legal speed limit. That is to say, [if you] do not find, or have a reasonable doubt as towhether the reckless driving factor is sufficiently supported by evidence other than speeding in excess of 15 miles per hour over the legal speed limit, you will not find the reckless driving factor to be present.
The trial court noted defendant's objection and gave the following instruction:
        And fourth, that the following factors were present at that time: Speeding in excess of 15 miles per hour over the legal speed limit and reckless driving. Reckless driving is driving a vehicle upon a highway in a manner that is careless and heedless in willful or wanton disregard of the rights or safety of others or is in a manner so as to endanger or be likely to endanger any person or property.
Defendant objected to that instruction and asserts that the trial court committed reversible error by failing to give his proposed instruction. We disagree.
    “A judge must provide the jury with the substance of the instruction requested by a party if the instruction is correct and supported by the evidence at trial.” State v. West, 146 N.C. App. 741, 743, 554 S.E.2d 837, 839 (2001) (citing State v. Harvell, 334 N.C. 356, 364, 432 S.E.2d 125, 129 (1993)). Failure to give the requested instruction where required is reversible error. See State v. Ataei-Kachuei, 68 N.C. App. 209, 214, 314 S.E.2d 751, 754 (1984), disc. rev. denied, 311 N.C. 763, 321 S.E.2d 146 (1984). Further, “it is improper for the trial court to submit two aggravating circumstances supported by the same evidence.” State v. Gay, 334 N.C. 467, 495, 434 S.E.2d 840, 856 (1993).
    A review of the testimony at trial reveals that ample evidence was presented describing defendant's driving to enable the jury touse separate evidence to find that defendant was (1) speeding in excess of 15 miles per hour over the legal speed limit and (2) engaged in reckless driving. The trial court's instruction addressed defendant's concern that the jury not use the same evidence to find both aggravating factors, but the instruction also did not prohibit the jury from considering the relevant testimony of the speeds defendant was driving throughout the chase in its determination of whether the defendant drove recklessly as defined by North Carolina law. See id. (“[W]here there is separate evidence to support each aggravating circumstance, it is not improper for both of the circumstances to be submitted even though the evidence supporting each may overlap.”). Because we find no reversible error in the trial court's modification of defendant's proposed instruction, this assignment of error is overruled.
    Defendant's other arguments concerning this instruction, namely that it raises double jeopardy concerns and that it includes disjunctive phraseology, are raised for the first time in defendant's appellate brief. Defendant contends that this Court should review these arguments under the plain error rule. However, the plain error rule “does not waive the requirements of N.C. R. App. P. 10(a) which limits the scope of appellate review to those assignments of error set out in the record on appeal.” State v. Lovett, 119 N.C. App. 689, 694, 460 S.E.2d 177, 181 (1995). As defendant did not assign these arguments as error in the record on appeal, we decline to review this alleged error.
    No error.     Judges TIMMONS-GOODSON and LEVINSON concur.
    Report per Rule 30(e).

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