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State v. Leopard4/15/1997
definite meaning. Utilities Comm. v. Edmisten, Atty. General, 291 N.C. 451, 232 S.E.2d 184 (1977). If, however, the provisions of a statute are ambiguous, a court must construe the statute to ascertain the legislative will. Young v. Whitehall Co., 229 N.C. 360, 49 S.E.2d 797 (1948).
"The cardinal rule of statutory construction is that 'the intent of the legislature controls the interpretation of the statute.'" State v. Bethea, 122 N.C. App. 623, 627, 471 S.E.2d 430, 432 (1996) (quoting Tellado v. Ti-Caro Corp., 119 N.C. App. 529, 533, 459 S.E.2d 27, 30 (1995)). In determining the legislative intent the language and spirit of the statute must be considered as well as what it seeks to accomplish. Id.
By assessing an additional point for commission of an offense while on probation, imprisoned, or on escape from prison, the General Assembly indicated its intention to punish an offense more severely if committed by a defendant while he is being punished for another offense. We believe the language of subsection (b)(7) is clear and unambiguous that if a defendant commits an offense while on probation, a point is assessed regardless of the type of conviction for which the probation was imposed. The trial court did not err by assessing defendant a prior record point for committing the offense while on probation.
Defendant also argues the trial court erred by instructing the jury on flight. He contends the State failed to present any evidence of flight. We disagree.
" trial court may not instruct a jury on defendant's flight unless 'there is some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime charged.'" State v. Levan, 326 N.C. 155, 164-65, 388 S.E.2d 429, 433-34 (1990) (quoting State v. Irick, 291 N.C. 480, 494, 231 S.E.2d 833, 842 (1977)). The State presented evidence in the case tending to show the following: that after defendant shot the victim, his estranged wife told him she had called "911"; that when sirens were heard in the distance, Dean Fowler told defendant they should leave; and that defendant then got into a car and left the scene. This is sufficient evidence of flight to warrant the instruction. See State v. Reeves, 343 N.C. 111, 468 S.E.2d 53 (1996) (holding that evidence showing the defendant, after shooting the victim, ran from the scene, got into a car nearby, and drove away was sufficient evidence of flight). Defendant's argument is without merit.
We hold defendant had a fair trial, free from prejudicial error.
No error.
Judges COZORT and SMITH concur.
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