An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 2 January 2007
STATE OF NORTH CAROLINA
No. 04 CRS 100472
No. 04 CRS 100474
No. 05 CRS 024189
RANDALL GRAY STONEMAN, JR.
Appeal by Defendant from judgment entered 2 September 2005 by
Judge Thomas D. Haigwood in Guilford County Superior Court. Heard
in the Court of Appeals 21 September 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Tracy Curtner, for the State.
Bruce T. Cunningham, Jr. for Defendant-Appellant.
On 21 February 2005, a grand jury indicted Defendant on
charges of misdemeanor reckless driving to endanger, felony fleeing
to elude arrest, and being an habitual felon. Defendant was tried
on these charges before the Honorable Thomas D. Haigwood in
Guilford County Superior Court between 17 August and 19 August
2005. The evidence adduced at trial tended to show the following:
Ken Whitesell, a captain with the Guilford County Sheriff's
Department, testified that on the night of 3 December and the early
morning of 4 December 2004, he was working an off-duty security
detail at Green's Supper Club (Green's). He said that, while
working, he first observed Defendant between 10:30 and 11:00 p.m. He was hanging out at the bar talking to several people. He had
a drink in his hand. I guess what really drew my attention was he
was very loud and boisterous. And as the evening continued, it
seemed like that also got louder and more boisterous. Captain
Whitesell approached Defendant around 11:30 p.m. to determine if
Defendant was capable of driving home. As he spoke with Defendant,
Captain Whitesell observed an odor of alcohol upon his person.
When asked if he was capable of driving home, Defendant told
Captain Whitesell that he was fine, that he had a friend in a
truck parked out front and they going [sic] to give him a ride
home. In talking with Defendant, Captain Whitesell formed the
opinion that he had consumed enough alcohol that his mental and
physical faculties were impaired[,] and that he could not safely
operate a motor vehicle.
After talking with Defendant, Captain Whitesell located a
pick-up truck in Green's parking lot as Defendant had described.
However, there was no one waiting in the truck to drive Defendant
home, as he had indicated. When Captain Whitesell ran the truck's
license plate information through a computer database, he learned
that it was registered to Defendant. Believing that Defendant was
going to drive himself home, Captain Whitesell called Deputy P.A.
Wiley, an on-duty patrol officer, to respond to the scene. Deputy
Wiley reported to Green's and sat in his patrol car which he had
positioned in the parking lot of an adjacent gas station. From his
vantage point, Deputy Wiley was able to observe Green's exit doors
and Defendant's truck. After re-entering Green's, Captain Whitesell observed
Defendant leaving the club around midnight and driving away in his
truck shortly thereafter. He then observed Deputy Wiley follow
Defendant in his patrol car. Deputy Wiley testified that after
following Defendant's vehicle for over a mile, he observed the
vehicle travel left of the center line on two occasions. Based on
the manner in which Defendant's vehicle was traveling, Deputy Wiley
stated that it was very obvious . . . that either there was
something wrong with the vehicle or he may have been impaired[.]
After observing Defendant's vehicle travel left of the center line,
Deputy Wiley turned on his blue lights to make Defendant pull to
the side of the road. Once Deputy Wiley activated his blue lights,
Defendant slowed down, turned right, and pulled to the shoulder of
the road. Soon after, Deputy Wiley pulled in behind Defendant;
however, Defendant immediately sped off in his truck.
As Defendant left the scene of the traffic stop, he started
accelerating at a high rate of speed and driving his truck in the
oncoming lane. Deputy Wiley followed and, during his pursuit,
observed Defendant's car traveling in excess of ninety miles per
hour and moving erratically. During the chase, on two separate
occasions, Defendant slowed his vehicle, made a U-turn and traveled
toward Deputy Wiley's patrol car in the oncoming lane. To avoid a
collision, Deputy Wiley had to pull onto the shoulder of the road,
where he made a U-turn and continued to follow Defendant.
After the second such maneuver, Defendant turned off his
headlights and eluded Deputy Wiley's further pursuit. When he wasunable to locate Defendant's vehicle, Deputy Wiley met with Captain
Whitesell at the law enforcement center where Captain Whitesell
identified Defendant from a DMV photograph. Based on Captain
Whitesell's identification and Deputy Wiley's account of the chase,
an arrest warrant was issued for Defendant and he was later
At the end of the trial, the jury found Defendant guilty of
reckless driving, felonious operation of a motor vehicle to elude
arrest, and being an habitual felon. Based on the jury's verdict
and Defendant's prior record level, Judge Haigwood sentenced
Defendant, within the presumptive range, to a minimum term of 150
months and a maximum term of 189 months imprisonment. Defendant
appeals. We find no error.
By his first argument, Defendant contends that the trial court
erred by not instructing the jury on the defense of diminished
capacity and that his trial counsel was ineffective for not
requesting that jury instruction. Specifically, Defendant argues
that the evidence raised a substantial issue of whether his
capacity to form the specific intent to flee to elude arrest was
With regard to the trial court's failure to give the
instruction, because Defendant's trial counsel did not object to
the jury instructions at trial, or specifically request an
instruction on diminished capacity, we review this argument under
the plain error rule. State v. Garcia, 174 N.C. App. 498, 621S.E.2d 292 (2005). In order to succeed under plain error review,
Defendant must show that
after reviewing the entire record, it can be
said the claimed error is a fundamental
error, something so basic, so prejudicial, so
lacking in its elements that justice cannot
have been done, or where [the error] is
grave error which amounts to a denial of a
fundamental right of the accused, or the
error has 'resulted in a miscarriage of
justice or in the denial to appellant of a
fair trial' or where the error is such as to
seriously affect the fairness, integrity or
public reputation of judicial proceedings or
where it can be fairly said the instructional
mistake had a probable impact on the jury's
finding that the defendant was guilty.
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)
(quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th
Cir.)(footnotes omitted), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d
513 (1982)). It is also well settled that
[a]n instruction on diminished capacity is
warranted where the evidence of the
defendant's mental condition is sufficient to
raise a reasonable doubt in the mind of a
rational trier-of-fact as to whether the
defendant had the ability to form the
necessary specific intent to commit the crimes
for which he is charged.
Garcia, 174 N.C. App. at 505, 600 S.E.2d at 297 (citing State v.
Clark, 324 N.C. 146, 377 S.E.2d 54 (1989)).
Under North Carolina law,
(a) It shall be unlawful for any person to
operate a motor vehicle on a street,
highway, or public vehicular area while
fleeing or attempting to elude a law
enforcement officer who is in the lawful
performance of his duties. Except as
provided in subsection (b) of this
section, violation of this section shall
be a Class 1 misdemeanor. (b) If two or more of the following
aggravating factors are present at the
time the violation occurs, violation of
this section shall be a Class H felony.
(1) Speeding in excess of 15 miles
per hour over the legal speed
. . . .
(3) Reckless driving as proscribed
by G.S. 20-140.
N.C. Gen. Stat. § 20-141.5 (2003). Defendant does not contest
Officer Wiley's testimony regarding the manner in which he operated
his truck. Rather, he contends that his impairment rendered him
incapable of forming the specific intent necessary to flee to elude
arrest. In his brief to this Court, Defendant argues that Deputy
Wiley's testimony that Defendant may have been impaired, and
Captain Whitesell's testimony that Defendant had consumed enough
alcohol that his mental and physical faculties were impaired[,]
are sufficient to warrant a jury instruction on diminished
capacity. We disagree.
It is clear in the context of all their testimony that both
Captain Whitesell and Deputy Wiley described Defendant's potential
impairment in terms of his ability to safely operate an automobile,
not as an expression of their opinion on his ability to form the
specific intent to flee to elude arrest. For example, on cross-
examination, Captain Whitesell said that he called Deputy Wiley
out because [he] thought [Defendant] was too impaired to drive[.]
(emphasis added). Additionally, Deputy Wiley thought Defendant
may have been impaired based on his erratic driving and crossing
left of the center line. Moreover, prior to operating his automobile and fleeing from
Deputy Wiley, Defendant maintained enough of his mental faculties
to concoct a story regarding the presence of a friend in the
parking lot available to drive him home. If Defendant was lucid
enough to fabricate this story, he certainly maintained enough of
his mental faculties to form the specific intent necessary to flee
to elude arrest. In addition, the evasive maneuvers that Defendant
performed while operating his truck, in an effort to avoid
apprehension, is further evidence of his capacity to form the
specific intent to commit the crime. For example, when Deputy
Wiley activated his blue lights, Defendant drove his truck to the
side of the road, creating the appearance of surrender, only to
speed off when Deputy Wiley pulled his patrol car in behind
Defendant's truck. Additionally, Defendant drove at a high rate of
speed, braked suddenly, made U-turns, and drove toward Deputy
Wiley's patrol car in the oncoming lane, forcing him to drive his
car onto the shoulder of the road. Finally, in an effort to avoid
apprehension by Deputy Wiley, Defendant thought to extinguish his
headlights so that his truck could not easily be followed.
Defendant's actions plainly support the trial court's
instruction to the jury on the elements of fleeing to elude arrest
and, just as plainly, defeat his argument that an instruction on
diminished capacity should have been given. We find no error in
the court's failure to instruct on diminished capacity.
Defendant also argues that his trial counsel's failure to
request a jury instruction on diminished capacity is evidence ofineffective assistance of counsel. We likewise reject this
To successfully establish ineffective assistance of counsel,
a defendant must show that his counsel's conduct fell below an
objective standard of reasonableness. State v. Braswell, 312 N.C.
553, 561-62, 324 S.E.2d 241, 248 (1985) (citing Strickland v.
Washington, 466 U.S. 668, 80 L. Ed. 2d 674, reh'g denied, 467 U.S.
1267, 82 L. Ed. 2d 864 (1984)). To meet this burden, a defendant
must satisfy a two-part test established by the United States
Supreme Court and adopted by our Supreme Court in Braswell:
First, the defendant must show that counsel's
performance was deficient. This requires
showing that counsel made errors so serious
that counsel was not functioning as the
'counsel' guaranteed the defendant by the
Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced
the defense. This requires showing that
counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose
result is reliable.
Braswell, 312 N.C. at 562, 324 S.E.2d at 248 (quoting Strickland,
466 U.S. at 687, 80 L. Ed. 2d at 693). It is not enough for
Defendant to show only that the errors had some conceivable effect
on the outcome of the proceeding. Virtually every act or omission
of counsel would meet that test[.] Strickland, 466 U.S. at 693, 80
L. Ed. 2d at 697 (citation omitted). Rather, error does not
warrant reversal 'unless there is a reasonable probability that,
but for counsel's errors, there would have been a different result
in the proceedings.' State v. Cummings, 174 N.C. App. 772, 777,
622 S.E.2d 183, 186 (2005) (quoting Braswell, 312 N.C. at 563, 324S.E.2d at 248). A reasonable probability is a probability
sufficient to undermine confidence in the outcome. Strickland, 466
U.S. at 694, 80 L. Ed. 2d at 698.
As the preceding discussion regarding Defendant's first
argument establishes, we are of the opinion that the evidence would
not support a diminished capacity instruction. However, even
assuming arguendo that Defendant's trial counsel erred in not
requesting such an instruction, because of the amount and nature of
the evidence against Defendant, he fails to demonstrate prejudice,
and thus, does not meet the second prong of the Strickland test.
In this case, Defendant did more than simply drive at a high
rate of speed to elude arrest by Deputy Wiley; he also performed
several evasive maneuvers in an attempt to flee from Deputy Wiley's
pursuit. Defendant sped, braked suddenly, and, on two occasions,
made U-turns and drove toward Deputy Wiley's patrol car in a manner
which forced Deputy Wiley to drive onto the shoulder of the road.
Based on Defendant's repeated evasive maneuvers, we do not believe
that the jury would have reached a different result, even if trial
counsel had requested, and the court had given, an instruction on
diminished capacity. Therefore, we hold that Defendant was not
prejudiced by any alleged error committed by his trial counsel.
This assignment of error is overruled. See, e.g., State v. Adams,
156 N.C. App. 318, 326, 576 S.E.2d 377, 383 (finding no prejudice
from alleged error because there was such overwhelming evidence of
defendant's guilt), disc. review denied, 357 N.C. 166, 580 S.E.2d
Next, Defendant argues that the trial court erred in
sentencing him within the presumptive range because Judge Haigwood
failed to make findings establishing the existence of
uncontroverted mitigating factors. In particular, Defendant
contends that the trial court should have made findings regarding
his employment and the financial support that he provides to his
family; and that if the trial court had made such findings,
Defendant would have been sentenced in the mitigated range.
An argument identical to Defendant's has been rejected by this
Court in State v. Chavis, 141 N.C. App. 553, 540 S.E.2d 404 (2000).
In Chavis, the defendant presented evidence that he supports his
family, . . . and . . . is gainfully employed[,] and argued that
the trial court erred by failing to make findings regarding these
mitigating factors, sentencing him instead within the presumptive
range. Id. at 561, 540 S.E.2d at 411. In rejecting the
defendant's argument in Chavis, this Court held that the trial
court is required to take 'into account factors in aggravation and
mitigation only when deviating from the presumptive range in
sentencing.' Id. at 568, 540 S.E.2d at 415 (quoting State v.
Caldwell, 125 N.C. App. 161, 162, 479 S.E.2d 282, 283 (1997)).
In this case, as in Chavis, because the trial court sentenced
Defendant within the presumptive range, it was not necessary for
the court to address mitigating factors. Accordingly, this
assignment of error is overruled. By a Motion for Appropriate Relief (MAR) filed 4 May 2006,
Defendant additionally argues that [a]s a result of the line of
Sixth Amendment cases decided by the United States Supreme Court,
the Structured Sentencing Law was amended to provide that juries
must determine the existence of aggravating factors[,] and,
therefore, it follows that trial judges must find sufficiently
proven mitigators for the defendant[.] We reject Defendant's
While Defendant does not provide any citations to the Sixth
Amendment cases on which he relies, we note that Blakely v.
Washington, 542 U.S. 296, 159 L. Ed. 2d 403, reh'g denied, 542 U.S.
961, 159 L. Ed. 2d 851 (2004), and the cases that followed,
addressed this issue. Defendant is correct that these cases
establish the requirement that juries, not judges, must find
aggravating factors to justify an enhanced sentence. See, e.g.,
State v. Norris, 360 N.C. 507, 630 S.E.2d 915, cert. denied, ___
U.S. ___, ___ L. Ed. 2d ___ (2006). These decisions do not,
however, impact the authority of a judge to find or not find
mitigating factors. We decline to extend the holdings in the
Blakely line of cases to require judges to make findings on all
mitigating factors presented by a defendant, especially when the
sentence imposed is in the presumptive range. Accordingly,
Defendant's MAR is denied.
By his third argument, Defendant contends that the trial court
erred by failing to require a unanimous verdict on the charge ofreckless driving. Since Defendant did not object to the jury
charge at trial, we once again review for plain error.
Defendant was charged with reckless driving in violation of
N.C. Gen. Stat. § 20-140(b), which provides:
(b) Any person who drives any vehicle upon a
highway or any public vehicular area
without due caution and circumspection
and at a speed or in a manner so as to
endanger or be likely to endanger any
person or property shall be guilty of
N.C. Gen. Stat. § 20-140(b) (2003). The trial court instructed the
jury that, to find Defendant guilty of reckless driving, the State
had to prove three things beyond a reasonable doubt:
First, that the defendant drove a vehicle on a
highway. McKnight Mill Road is a highway.
Second, he drove that vehicle while exceeding
the posted speed limit, weaving in his lane of
travel, making U-turns, driving on the wrong
side of the road, and that in doing so, he
acted without due caution or circumspection;
And third, that he drove at a speed or in a
manner so as to endanger or be likely to
endanger any person or property.
This language tracks both the pattern jury instruction on reckless
driving and also the statute under which Defendant was criminally
charged. N.C.P.I.__Crim. 270.81 (2001); N.C. Gen. Stat. § 20-
140(b). However, Defendant contends that the use of the
disjunctive or in the instructions allowed the jury to convict
him of reckless driving without requiring all members of the jury
to agree on the manner in which Defendant's driving was reckless.
We are not persuaded by Defendant's argument. The North Carolina Constitution provides that [n]o person
shall be convicted of any crime but by the unanimous verdict of a
jury in open court. N.C. Const. art. I, § 24. Two lines of cases
have developed in our State concerning the propriety of disjunctive
jury instructions. The leading case in each line is State v. Diaz,
317 N.C. 545, 346 S.E.2d 488 (1986), and State v. Hartness, 326
N.C. 561, 391 S.E.2d 177 (1990).
There is a critical difference between the
lines of cases represented by Diaz and
Hartness. The former line establishes that a
disjunctive instruction, which allows the jury
to find a defendant guilty if he commits
either of two underlying acts, either of which
is in itself a separate offense, is fatally
ambiguous because it is impossible to
determine whether the jury unanimously found
that the defendant committed one particular
offense. The latter line establishes that if
the trial court merely instructs the jury
disjunctively as to various alternative acts
which will establish an element of the
offense, the requirement of unanimity is
State v. Lyons, 330 N.C. 298, 302-03, 412 S.E.2d 308, 312 (1991).
'The difference [between the Diaz and the Hartness line] is
whether the two underlying acts are separate offenses or whether
they are merely alternative ways to establish a single offense.'
State v. Johnston, 123 N.C. App. 292, 297, 473 S.E.2d 25, 29
(quoting State v. Almond, 112 N.C. App. 137, 144, 435 S.E.2d 91, 96
(1993)), disc. review denied, 344 N.C. 737, 478 S.E.2d 10 (1996).
In this case, Defendant first argues the jury was allowed to
reach a nonunanimous verdict because the instruction required them
to find that Defendant acted without due caution or
circumspection[.] We disagree. As due caution andcircumspection are synonyms, the verdict of the jury was
unanimous. That is, because both terms have the same meaning, even
if some jury members found that Defendant acted without due
caution and others found that he acted without circumspection[,]
the behavior that all members of the jury agreed upon was the same.
Defendant's argument is without merit. See State v. Jones, 242
N.C. 563, 565, 89 S.E.2d 129, 131 (1955) (But where terms laid in
the alternative are synonymous, the indictment is good).
Defendant also contends that the jury was not required to
reach a unanimous verdict because the instruction directed that, to
find Defendant guilty, they must find beyond a reasonable doubt
that he drove at a speed or in a manner so as to endanger or be
likely to endanger any person or property. In particular,
Defendant argues that the jury members could have split their
verdict on the manner in which he violated the statute. For
example, some may have found that he drove at a speed likely to
endanger any person, while others may have found that he drove in
a manner so as to endanger property. We also find this argument to
be without merit.
We believe that the statute and instruction fall in line with
the holding in Hartness. In that case, our Supreme Court held that
because the statute proscribing indecent liberties does not list,
as elements of the offense, discrete criminal activities in the
disjunctive[,] a nonunanimous verdict could not be reached.
Hartness, 326 N.C. at 564, 391 S.E.2d at 179. In so holding, the
Court reasoned that [e]ven if we assume that some jurors foundthat one type of sexual conduct occurred and others found that
another transpired, the fact remains that the jury as a whole would
unanimously find that there occurred sexual conduct within the
ambit of [the statute]. Id. at 565, 391 S.E.2d at 179. The same
holds true in this case. That is, the reckless driving statute
simply lists several ways in which to commit one offense.
Therefore, even if we assume that some jurors found that one type
of irresponsible driving occurred and others found that another
transpired, the fact remains that the jury as a whole would have
unanimously found that there occurred reckless driving within the
ambit of the statute. Therefore, Defendant's argument is
Finally, Defendant argues that his conviction of being an
habitual felon, without the State having called any witnesses to
testify as to this charge, violated his constitutional rights under
the Sixth Amendment confrontation clause. At trial, after
Defendant was found guilty of felony fleeing to elude arrest and
reckless driving, the State offered, and the trial court admitted
in evidence, certified copies of Defendant's prior felony judgments
and convictions. The State offered no witnesses to establish
Defendant's habitual felon status, instead relying on the
documentary evidence. Defendant did not object, on constitutional
grounds, to the introduction of these documents. Consequently,
Defendant did not properly preserve the alleged constitutional
error for our review, and we will not consider this argument. State v. Lloyd
, 354 N.C. 76, 86-87, 552 S.E.2d 596, 607 (2001)
(Constitutional issues not raised and passed upon at trial will
not be considered for the first time on appeal) (citing State v.
, 323 N.C. 318, 372 S.E.2d 517 (1988)).
In the trial of Defendant, we find
Judges STEELMAN and GEER concur.
Report per Rule 30(e).
The judges concurred and submitted this opinion for filing
prior to 31 December 2006.
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