An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA06-74


Filed: 2 January 2007


v .                         Guilford County
                            No. 04 CRS 100472
                            No. 04 CRS 100474
                            No. 05 CRS 024189    

    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.

    STEPHENS, Judge.

    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 arrested.
    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 diminished.
    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.

, 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 limit.

        . . . .

            (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 argument.
    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 698 (2003).
    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 argument.
    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 reckless driving.

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 satisfied.

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” and“circumspection” 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 overruled.
    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. Benson, 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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