Opinion
No. COA09-933.
January 5, 2010.
Guilford County Nos. 08 CRS 87274, 24432.
Appeal by defendant from judgment dated 16 January 2009 by Judge A. Moses Massey in Guilford County Superior Court. Heard in the Court of Appeals 9 December 2009.
Attorney General Roy Cooper, by Assistant Attorney General Donald W. Laton, for the State. Bryan Gates for defendant-appellant.
Defendant Marcus Lavern Turner was tried on three charges: robbery with a dangerous weapon, felony speeding to elude arrest and obtaining the status of habitual felon. A jury found defendant not guilty of the robbery charge, but guilty of speeding to elude arrest; defendant then pled guilty to being an habitual felon. Defendant appeals. As discussed below, we find no error.
Facts
The evidence tended to show the following. Between 11 p.m. and midnight on 30 April 2008, as Taron Cole left a convenience store to return to his car, he was accosted by a man (not defendant) armed with a handgun. The man spoke briefly to Cole, then jumped into Cole's car and drove away at a high speed. Cole returned to the store to call police and report his car stolen. Defendant, who had been in the parking lot during the theft of the car, followed Cole back into the store, confronted him, hit him on the head, and then returned to his own car. At that moment, Officer M.T. Edwards of the Greensboro Police Department happened to pull into the convenience store parking lot. Cole told Officer Edwards what had occurred. As defendant drove out of the parking lot at a high rate of speed, Officer Edwards pursued him with blue lights activated. Defendant stopped and got out of his car. Officer Edwards ordered defendant back to his car, at which point defendant drove away without lights at a high rate of speed. After defendant crashed into a brick barrier, he fled from his car. Officer Edwards and another officer who had joined the high-speed chase caught and arrested defendant after a brief foot pursuit.
On appeal, defendant presents a single argument: the trial court erred in instructing the jury that it need not be unanimous on which of two aggravating factors were present to increase the offense of speeding to elude arrest from a misdemeanor to a felony. Under our case law, we must disagree.
Analysis
Under N.C. Gen. Stat. § 20-141.5(b) (2007), speeding to elude arrest is a misdemeanor unless the State proves the presence of at least two of the eight listed aggravating factors. Defendant argues that Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 (2000) requires jurors to be unanimous about which two (or more) aggravating factors they have found because the factors serve to enhance his punishment. Defendant concedes that this Court has already approved the jury instruction procedure used here in State v. Funchess, 141 N.C. App. 302, 540 S.E.2d 435 (2000) (holding that the trial court need not instruct the jury that its members must unanimously agree on which two factors were present), but asks that we overrule that decision. It is well-established that one panel of this Court cannot overrule the prior decision of another panel. In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989).
Defendant also argues that the aggravating factors listed in the statute are not merely alternative ways of establishing a single element, citing Richardson v. United States, 526 U.S. 813, 143 L. Ed. 2d 985 (1999). However, our Court in Funchess addressed this issue in detail and determined that "the statutory [aggravating] factors are merely alternative ways of proving the crime of felonious speeding to elude arrest." 141 N.C. App. at 307, 540 S.E.2d at 438. Therefore, we find no error in defendant's sentence.
NO ERROR.
Judge HUNTER, Robert C., and JACKSON concur.
Report per Rule 30(e).