An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1712

NORTH CAROLINA COURT OF APPEALS

Filed: 18 October 2005

STATE OF NORTH CAROLINA

v .                         Ashe County
                            No. 02 CRS 50661
ROBERT CHRISTOPHER LONG

    Appeal by defendant from judgment entered 17 March 2003 by Judge Douglas Albright in Ashe County Superior Court. Heard in the Court of Appeals 23 August 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Patricia A. Duffy, for the State.

    Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Barbara S. Blackman, for defendant-appellant.

    TIMMONS-GOODSON, Judge.

    Defendant appeals his convictions for second-degree murder and driving while impaired. For the reasons stated herein, we hold that defendant received a trial free of prejudicial error, but we remand the case for resentencing.
    The State's evidence presented at trial tended to show the following: On 11 June 2002, a vehicle operated by defendant collided with a pickup truck waiting to make a left turn at the intersection of U.S. 221, N.C. 88, and N.C. 16 in East Jefferson. Defendant's vehicle spun around and collided broadside with another vehicle located behind the pickup truck. The impact threw defendant partially out of the back window of his vehicle. Defendant's passenger, Martha Kalen (“Kalen”), sustained fatalinjuries during the accident, including transection of the aorta. Kalen was pronounced dead upon arrival at the hospital. Subsequent blood tests of defendant revealed that defendant had a blood alcohol concentration of .16 at the time of the accident.
    Prior to trial, the State filed a motion in limine to exclude evidence of Kalen's blood alcohol content or alcohol consumption. In its motion, the State argued that no evidence could be produced which tended to show that Kalen's alcohol consumption was a contributing factor to her death. In response, defendant argued that Kalen's blood alcohol concentration was relevant and admissible because acute alcohol intoxication was listed on the final autopsy diagnosis; that acute and chronic alcoholism was listed on the death certificate as a significant contributing factor to Kalen's death; and that defendant intended to offer evidence that Kalen, as a result of acute alcohol intoxication, was suffering a seizure immediately prior to her death and was thrashing about in the vehicle due to the seizure.
    The trial court declined to rule upon the motion in limine until after it had heard testimony from witnesses. The trial court subsequently heard trial and voir dire testimony from Dr. Richard Calhoun (“Dr. Calhoun”), the emergency room physician who prepared the death certificate, Dr. Patrick E. Lantz (“Dr. Lantz”), the forensic pathologist who prepared the autopsy report, and Dr. Ruth Ellen Winaker (“Dr. Winaker”), the toxicologist who prepared the toxicology report. Following this testimony, the trial court ruled in the State's favor, concluding that the evidence was not relevantand that any probative value of the evidence was outweighed by the danger of misleading the jury or confusing the issues.
    At trial, witnesses testified that defendant's vehicle had been traveling at an estimated speed of sixty-five to eighty miles per hour as it approached the intersection. Defendant testified that at the time the accident occurred, he was transporting Kalen home. However, after Kalen became unable to speak, defendant accelerated his vehicle in an attempt to rush Kalen to the hospital. Defendant further testified that as the vehicle approached the intersection, Kalen grabbed the steering wheel and thus caused the accident.
    The jury found defendant guilty of both second-degree murder and driving while impaired. At the sentencing stage, the trial court found as an aggravating factor to the second-degree murder offense that defendant knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person. As mitigating factors, the trial court found that defendant has a community support system and that defendant expressed remorse. The trial court subsequently sentenced defendant to 264 months to 326 months incarceration for the second-degree murder offense, a term of imprisonment within the aggravated range of N.C. Gen. Stat. § 15A-1340.17. The trial court also sentenced defendant to eighteen to twenty-four months incarceration for the driving while impaired offense, to run concurrent with defendant's sentence for second- degree murder. Defendant appeals.

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    The issues on appeal are whether the trial court erred by: (I) refusing to instruct the jury on the elements of involuntary manslaughter following the jury's request for reinstruction on second-degree murder; (II) excluding evidence of Kalen's blood alcohol concentration; and (III) sentencing defendant in the aggravated range for second-degree murder.
    Defendant first argues that the trial court abused its discretion by not instructing the jury on the elements of involuntary manslaughter following the jury's request for reinstruction on second-degree murder. We disagree.
    After the jury has retired for deliberations, the trial court may give additional instructions in response to an inquiry by the jury. N.C. Gen. Stat. § 15A-1234(a)(1) (2003). When the trial court gives additional instructions, it “may also give or repeat other instructions to avoid giving undue prominence to the additional instructions.” N.C. Gen. Stat. § 15A-1234(b). In State v. Prevette, 317 N.C. 148, 345 S.E.2d 159 (1986), the jury requested clarification as to the elements of first-degree murder. In addressing the defendant's contention that the trial court erred by denying the defendant's request for an additional instruction on the elements of second-degree murder, the Court stated:
        We believe it important to note that the trial court is in the best position to determine whether further additional instruction will aid or confuse the jury in its deliberations, or if further instruction will prevent or cause in itself an undue emphasis being placed on a particular portion of the court's instructions.
Id. at 164, 345 S.E.2d at 169. Thus, given that the jury requested clarification of only one offense, the Court held that the trial court did not abuse its discretion by denying the defendant's request. Id. Similarly, in the instant case, the jury only requested further instruction regarding the elements of second- degree murder. Thus, we conclude that the trial court did not abuse its discretion in refusing to instruct the jury on the elements of involuntary manslaughter. Therefore, defendant's first argument is overruled.
    Defendant next argues that the trial court erred by excluding evidence of Kalen's blood alcohol concentration. We disagree.
    According to a toxicology report, Kalen's blood alcohol concentration at the time of her death was .39. Defendant asserts that the exclusion of this evidence restricted his ability to present his defense. In support of this assertion, defendant contends that the evidence was relevant and admissible to negate the element of malice because it demonstrates that, due to acute alcohol intoxication, Kalen was suffering a seizure and thrashing her arms consistent with defendant's testimony.
    Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.C. Gen. Stat. § 8C-1, Rule 401 (2003). “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or byconsiderations of undue delay, waste of time, or needless presentation of cumulative evidence.” N.C. Gen. Stat. § 8C-1, Rule 403 (2003). “[U]nder Rule 403, the determination of whether relevant evidence should be excluded is a matter left to the sound discretion of the trial court, and the trial court can be reversed only upon a showing of abuse of discretion.” State v. Wallace, 351 N.C. 481, 523, 528 S.E.2d 326, 352-53, cert. denied, 531 U.S. 1018, 148 L. Ed. 2d 498 (2000). A ruling under Rule 403 “may be reversed for abuse of discretion only upon a showing that the ruling was so arbitrary that it could not have been the result of a reasoned decision.” State v. Collins, 345 N.C. 170, 174, 478 S.E.2d 191, 194 (1996).
    In the instant case, the trial court's decision to hold a voir dire hearing and receive testimony from medical professionals regarding Kalen's blood alcohol concentration before issuing its ruling demonstrates that the trial court carefully weighed the probative value of the evidence against the dangers of unfair prejudice, confusion of the issues, and misleading the jury. See State v. Pierce, 346 N.C. 471, 491, 488 S.E.2d 576, 587 (1997). Furthermore, Dr. Lantz testified that Kalen was alive immediately before the infliction of her injuries and that the severity of Kalen's injuries caused her death regardless of whether she had been consuming alcohol. Although Dr. Winaker could not render an opinion as to whether Kalen was experiencing a seizure immediately prior to her death, Dr. Winaker testified that seizures are usually not a result of alcohol poisoning but are due to alcoholism and thewithdrawal of alcohol from the alcoholic person. Thus, in light of the testimony received by the trial court and its decision to delay its determination, we conclude that the trial court did not abuse its discretion by excluding evidence of Kalen's blood alcohol concentration. Therefore, defendant's second argument is overruled.
    Defendant next argues that the trial court improperly considered factors outside the record while imposing defendant's sentence. During the sentencing hearing, the trial court made comments regarding religion, drug and alcohol abuse, and drug smuggling, while engaging in colloquies with the prosecutor, defendant's attorney, and defendant. Specifically, the trial court queried whether Kalen had time for a “last prayer” before her death, expressed amazement at how persons consume illegal drugs while refusing to take an aspirin if the seal is broken, and commented about a television program concerning a drug smuggling cartel. While the better practice would have been for the trial court to not have made these statements, nothing in the record suggests that the trial court considered these matters in imposing defendant's sentence. Therefore, defendant's third argument is overruled.
    In a motion for appropriate relief filed with his appeal, defendant argues that the trial court erred by sentencing him in the aggravated range for second-degree murder.   (See footnote 1)  Defendant assertsthat the trial court was prohibited from sentencing him in the aggravated range because the aggravating factor was not submitted to the jury. We agree.
    In State v. Allen, 359 N.C. 425, 615 S.E.2d 256 (2005), our Supreme Court recently examined the constitutionality of North Carolina's structured sentencing scheme in light of the United States Supreme Court's decisions in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004). In Allen, the Court concluded that, when “[a]pplied to North Carolina's structured sentencing scheme, the rule of Apprendi and Blakely is: Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed presumptive range must be submitted to a jury and proved beyond a reasonable doubt.” 359 N.C. at 437, 615 S.E.2d at 264-65 (citing Blakely, 542 U.S. at ___, 159 L. Ed. 2d at 413-14; Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455; N.C. Gen. Stat. §§ 15A-1340.13, 15A-1340.14, 15A-1340.16, 15A-1340.17).
    In the instant case, following defendant's conviction for second-degree murder, the trial court enhanced defendant's sentence after unilaterally finding that defendant knowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person. The trial court did not submit the issue to the jury for proof beyond a reasonable doubt. In light of the Supreme Court's decision in Allen, we conclude that the trial court erred.
    The State contends that this error was harmless because,according to the State, had the issue been submitted to the jury, the jury would have found that defendant's conduct fell within the aggravating factor utilized by the trial court. However, we note that in Allen, our Supreme Court rejected application of the harmless error doctrine to such sentencing errors, noting that “[b]ecause 'speculat[ion] on what juries would have done if they had been asked to find different facts' is impermissible, the Washington Supreme Court concluded, as do we, that '[h]armless error analysis cannot be conducted on Blakely Sixth Amendment violations.'” 359 N.C. at 448, 615 S.E.2d at 271-72 (quoting State v. Hughes, 154 Wash. 2d 118, 148, 110 P.3d 192, 208 (2005)). Thus, in light of the foregoing, we conclude that the trial court committed reversible error by sentencing defendant in the aggravated range for second-degree murder, and therefore, we remand the case for resentencing.   (See footnote 2) 
    No error at trial; remanded for resentencing.
    Judges CALABRIA and LEVINSON concur.
    Report per Rule 30(e).    


Footnote: 1
     Defendant makes no argument regarding the propriety of his sentence for driving while impaired. Thus, the issue is not before this Court.
Footnote: 2
     Defendant also asserts that the trial court was prohibited from sentencing him in the aggravated range because the State failed to allege the pertinent aggravating factor in the second- degree murder indictment. However, our Supreme Court expressly rejected the same assertion by the defendant in Allen. 359 N.C. at 438, 615 S.E.2d at 265 (overruling language in State v. Lucas, 353 N.C. 568, 548 S.E.2d 712 (2001), “requiring sentencing factors which might lead to a sentencing enhancement to be alleged in an indictment[,]” finding no error in the State's failure to include aggravating factors in the defendant's indictment, and noting that in State v. Hunt, “[T]his Court concluded that 'the Fifth Amendment would not require aggravators, even if they were fundamental equivalents of elements of an offense, to be pled in a state-court indictment.'” (quoting State v. Hunt, 357 N.C. 257, 272, 582 S.E.2d 593, 603, cert. denied, 539 U.S. 985, 156 L. Ed. 2d 702 (2003))). Accordingly, defendant's assertion in the instant case is overruled as well.

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