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[T] State v. Osteen8/3/2004
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.
On 8 September 2001, defendant Trinity Osteen was arrested and charged with driving while impaired pursuant to G.S. . 138.1 and misdemeanor child abuse pursuant to G.S. . 14-318.2. Following a bench trial at the 11 March 2003 Criminal Session of Superior Court in Buncombe County, the court found defendant guilty as charged. At sentencing, counsel for defendant stipulated that defendant was a Level One for sentencing on the DWI conviction pursuant to G.S. . 20-179(c), and the trial court thereupon sentenced defendant to a minimum of 24 months imprisonment. See G.S. . 20-179(g). On the misdemeanor child abuse conviction, the trial court sentenced defendant to 120 months imprisonment, to run concurrently with theDWI sentence. Defendant appeals, contending that the trial court erred by using an element of a joined offense as proof an aggravating factor. For the following reasons, we find no error.
The pertinent evidence tended to show that on 8 September 2001 at approximately 12:50 a.m., Lt. Don Frazier of the Buncombe County Sheriff's Department, was in an unmarked police vehicle in a grocery store parking lot in Asheville. He noticed a 1980's model "Firebird or Camaro" enter the parking lot at a speed greater than most cars. As the vehicle passed, Lt. Frazier observed defendant sitting in the front passenger seat "raising a container to his lips in a drinking-type motion." Because he suspected the passenger to be drinking an alcoholic beverage, he followed the car around the grocery store building. Lt. Frazier temporarily lost sight of the car, and when he finally reacquired sight of it, he noticed defendant was now in the driver's seat. Lt. Frazier approached the car, and noticed a strong smell of alcohol emanating from inside the car. Defendant stepped out of the car, and Lt. Frazier noticed that defendant was unsteady, had bloodshot eyes and his voice was slurred. Lt. Frazier arrested defendant for DWI.
While continuing his investigation, Lt. Frazier looked in the backseat and observed a fourteen or fifteen month old baby boy in a child car seat. He also saw a half-empty bottle of beer in between the two front seats and several empty beer bottles on the rear floor. Lt. Frazier also found two unopened bottles of beer in the baby's diaper bag. Thereafter, Lt. Frazier called theSheriff's Department and requested that the State Highway Patrol be dispatched to the scene.
Trooper Brian Tucker arrived at the scene at approximately 1:20 a.m. Trooper Tucker corroborated Lt. Frazier's observations regarding defendant's impaired faculties, the presence of the child in the car and the presence of opened and unopened beer bottles in the car. Trooper Tucker transported defendant to the Buncombe County Detention Facility, where he advised defendant of his Miranda rights and administered a breathalizer test. The results of the test indicated that defendant's blood alcohol concentration was 0.17.
Defendant's sole argument is that the trial court erred in sentencing him for misdemeanor child abuse and finding as a grossly aggravating factor in the DWI sentence that he was driving while impaired while a child under the age of sixteen was present in the car. Defendant contends that the use of an element of an offense to prove a factor in aggravation of a joined offense constitutes double jeopardy. For the following reason, we do not reach the merits of defendant's argument.
In State v. Degree, 110 N.C.
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