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State v. Thompson12/17/2002
law enforcement officer in the lawful performance of his duties. Violation of the statute is at least a Class 1 misdemeanor. Where at least two of the eight aggravating factors set out in the statute are present, however, the offense is a Class H felony. Although many of the enumerated aggravating factors are in fact separate crimes under various provisions of our General Statutes, they are not separate offenses . . ., but are merely alternate ways of enhancing the punishment for speeding to elude arrest from a misdemeanor to a Class H felony. Id. at 309, 540 S.E.2d at 439.
In the case at bar, defendant stipulated that his license was revoked at the time of the incident. Thus, one of the two aggravating factors set out in the statute is met. The only question remaining for the trial court to decide was whether substantial evidence was present of any other aggravating factor set forth in N.C. Gen. Stat. ยง 20-141.5(b).
Here, defendant contends that there is substantial evidence that he was speeding to elude arrest, but not to show that his driving was reckless. In support of his contention, defendant argues that his driving was not reckless because the incident occurred on a weekday; he reduced his speed at the checkpoint; the officers failed to testify that they felt endangered; defendant was not intoxicated or otherwise impaired; defendant's actions did not lead to an accident; there were no skid marks from defendant'stires; and a "plate of food" in the car "did not spill" while he was driving. In essence, defendant submits that because his excessive speed did not result in any damage to property or personal injury , his driving was not careless or reckless. However, reckless driving does not rest on the factors argued by defendant.
In State v. Floyd, 15 N.C. App. 438, 190 S.E.2d 353, disc. review denied, 281 N.C. 760, 191 S.E.2d 363 (1972), the defendant made the precise argument presented in the present case. In Floyd, the defendant contended that the evidence showed he was driving sixty to seventy miles per hour in a forty-five mile per hour speed zone, and suddenly applied his brakes which resulted in the vehicle "fishtailing." Defendant argued that the evidence did not show that his driving was reckless. This Court rejected the argument presented in Floyd and held that " he evidence was sufficient for jury determination as to whether defendant was exercising due caution and circumspection and whether his speed, or his manner of driving, endangered or was likely to endanger any person or property including himself, his passenger, his property, or the person or property of others . . . ." Id. at 440, 190 S.E.2d at 354. Evidence of defendant's recklessness is certainly as pronounced as Floyd. In the case sub judice, defendant accelerated to seventy miles per hour in a forty-five mile per hour zone in a residential area. Defendant drove at night, with law enforcement officers in pursuit, and failed to reduce his speed at a sharpninety-degree curve. The evidence was sufficient for a jury to determine whether defendant's driving was careless and reckless.
With defendant's stipulation that his license was revoked, the jury could properly find that at least two aggravating factors were present to support the charge of felonious operation of a motor vehicle. We reject defendant's first assignment of error.
In his second assignment of error, defendant argues that the trial court erred by imposing judgment and sentence against him pursuant to the Habitual Felon Act. Defendant contends that his right to be free from cruel and unusual punishment under the United States Constitution and the North Carolina Constitution was violated. Defendant, however, does not argue
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