State v. McBrideState v. McBride
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- Before:
- Martin
The question presented by this appeal is whether the trial court erred by finding as a factor in aggravation of punishment under the Fаir Sentencing Act that defendant knowingly created a great risk of death to more than one person by means of a device which would normally be hazardous to the lives of more than one person. We find no error.
On the night of 28 December 1989 defendant was involved in a motor vehicle collision. After weaving in and out of his lane of travel and into the oncoming lane of traffic, defendant crossed over into the oncoming lane of traffic and struck an automobile containing three passengers. One of the passengers died as a result of the collision and the other two passengers were seriously injured.
Defendant was legally intoxicated at the time of the collision. A blood alcohol test revealed defendant had an alcohоl concentration of .183 grams of alcohol per 100 milliliters of blood.
Immediately after the collision, witnesses noticed dеfendant exit the driver’s side of his vehicle. He had a strong odor of alcohol about him and slurred speech. When questioned by рolice, defendant denied having operated the automobile and stated the driver had run away after the collision.
The evidence at trial indicated that on the night of the collision defendant was driving while his license was permanently revoked. The evidence also revealed defendant had lied about the ownership of his automobile to obtain an inspectiоn sticker and had placed illegal license tags bn the car. Defendant’s prior record included convictions for driving while impaired in 1981 and 1982, and driving while license revoked in 1982, 1984, and 1986.
On 26 February 1990 defendant was indicted for second degree murder and driving while impaired. On 3 May 1991 the jury convicted defendant of second degree murder and driving while impaired. Defendant appealed to the North Carolina Court of Appeals, and this case was subsequently remanded to the Superior Court of Rowan County for resentencing. State v. McBride, 109 N.C. App 64, 425 S.E.2d 731 (1993). On 27 September 1993 Judge James M. Webb conducted the resentencing hearing in Rowan County Superior Court and sentenced defendant to twenty-five years imprisonment.
*318 On appeal defendant contends the trial court erred by finding, as a factor in aggravation оf punishment, the automobile constituted a weapon or device knowingly used by defendant which created a great risk of death to more than one person.
The challenged aggravating factor is codified at
Defendant сontends the automobile he was driving does not qualify as a weapon or device which in its normal use is hazardous to the lives of more than one person. We disagree.
To qualify as a weapon or device which in its. normal use is hazardous to the lives of more than one person, the instrumentality must be one which is “indiscriminate in [its] hazardous power.” State v. Bethea, 71 N.C. App. 125, 129, 321 S.E.2d 520, 523 (1984). The focus of the inquiry is therefore upon “the destructive capabilities of the weapon or device,” State v. Moose, 310 N.C. 482, 497, 313 S.E,2d 507, 517 (1984), and the circumstances of its use. See State v. Carver, 319 N.C. 665, 668, 356 S.E.2d 349, 351 (1987) (use of weаpon or device determines degree of danger to lives).
In
State v. Garcia-Lorenzo,
110 N.C. App. 319, 430 S.E.2d 290 (1993), this Court addressed whether the trial court erred by applying
On appeal defendant in
Garcia-Lorenzo
contended the trial court erred in applying
Although defendant in
Garcia-Lorenzo
did not challenge the application of
We conclude the trial court did not err in finding that defendant’s automobile, under the circumstances surrounding its use in the present case, constituted a device which in its normal use is hazardous to the lives of more than one person. Cf. State v. Carver, supra.
The remaining question is whether defendant knowingly created this great risk of deаth.
Defendant’s prior convictions for driving while impaired and his reckless operation of his automobile on the night in question, together with his factual misrepresentations, all support the conclusion defendant knowingly created this risk. However, apart frоm this overwhelming evidence, we hold any reasonable person should know that an automobile operated by a legally intoxicated driver is reasonably likely to cause death to any and all persons who may find *320 themselves in the automobile’s path. Therefore, we conclude the defendant created this risk knowingly.
No Error.
Judges JOHNSON and JOHN concur.