{ "id": 4150675, "name": "STATE OF NORTH CAROLINA v. JOSE JESUS GARCIA LOPEZ", "name_abbreviation": "State v. Lopez", "decision_date": "2009-08-28", "docket_number": "No. 95PA08", "first_page": "535", "last_page": "545", "citations": [ { "type": "official", "cite": "363 N.C. 535" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "655 S.E.2d 895", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640279 ], "year": 2008, "opinion_index": -1, "case_paths": [ "/se2d/655/0895-01" ] }, { "cite": "188 N.C. App. 553", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4155375 ], "year": 2008, "opinion_index": -1, "case_paths": [ "/nc-app/188/0553-01" ] }, { "cite": "648 S.E.2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639123 ], "year": 2007, "pin_cites": [ { "page": "804" } ], "opinion_index": 0, "case_paths": [ "/se2d/648/0788-01" ] }, { "cite": "655 S.E.2d 895", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640279 ], "year": 2008, "pin_cites": [ { "page": "900" } ], "opinion_index": 0, "case_paths": [ "/se2d/655/0895-01" ] }, { "cite": "196 S.E.2d 777", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "786", "parenthetical": "citation and internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "283 N.C. 444", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559204 ], "year": 1973, "pin_cites": [ { "page": "457", "parenthetical": "citation and internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/283/0444-01" ] }, { "cite": "454 S.E.2d 840", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "842" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 316", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918006 ], "year": 1995, "pin_cites": [ { "page": "319-20" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0316-01" ] }, { "cite": "538 S.E.2d 917", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "922" } ], "opinion_index": 0 }, { "cite": "353 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135783 ], "year": 2000, "pin_cites": [ { "page": "164" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0159-01" ] }, { "cite": "398 S.E.2d 314", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "317-18", "parenthetical": "discussing use of a weapon, whereas the case at bar involves a device, i.e., a vehicle" } ], "opinion_index": 0 }, { "cite": "327 N.C. 599", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497579 ], "year": 1990, "pin_cites": [ { "page": "605-06", "parenthetical": "discussing use of a weapon, whereas the case at bar involves a device, i.e., a vehicle" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0599-01" ] }, { "cite": "370 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "361" } ], "opinion_index": 0 }, { "cite": "322 N.C. 826", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518874 ], "year": 1988, "pin_cites": [ { "page": "829" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0826-01" ] }, { "cite": "611 S.E.2d 794", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2005, "pin_cites": [ { "page": "826", "parenthetical": "discussing use of hypothetical examples in arguments to the jury" } ], "opinion_index": 0 }, { "cite": "359 N.C. 328", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3799490 ], "year": 2005, "pin_cites": [ { "page": "372-73", "parenthetical": "discussing use of hypothetical examples in arguments to the jury" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0328-01" ] }, { "cite": "410 U.S. 284", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11957222 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "302", "parenthetical": "describing rules of evidence and procedure as \"designed to assure both fairness and reliability in the ascertainment of guilt and innocence\"" }, { "page": "313", "parenthetical": "describing rules of evidence and procedure as \"designed to assure both fairness and reliability in the ascertainment of guilt and innocence\"" } ], "opinion_index": 0, "case_paths": [ "/us/410/0284-01" ] }, { "cite": "542 U.S. 296", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5868041 ], "weight": 5, "year": 2004, "opinion_index": 0, "case_paths": [ "/us/542/0296-01" ] }, { "cite": "204 S.E.2d 817", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "829", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "285 N.C. 256", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563941 ], "year": 1974, "pin_cites": [ { "page": "273", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0256-01" ] }, { "cite": "225 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "554", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "290 N.C. 286", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560962 ], "year": 1976, "pin_cites": [ { "page": "287-88", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0286-01" ] }, { "cite": "98 L. Ed. 2d 384", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1987, "pin_cites": [ { "parenthetical": "stating that a jury argument is not improper so long as it does not \"travel into the fields of conjecture or personal opinion\"" } ], "opinion_index": 0 }, { "cite": "484 U.S. 959", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 599537, 600738 ], "year": 1987, "pin_cites": [ { "parenthetical": "stating that a jury argument is not improper so long as it does not \"travel into the fields of conjecture or personal opinion\"" } ], "opinion_index": 0, "case_paths": [ "/us/484/0959-02", "/us/484/0959-01" ] }, { "cite": "357 S.E.2d 898", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "911", "parenthetical": "stating that a jury argument is not improper so long as it does not \"travel into the fields of conjecture or personal opinion\"" } ], "opinion_index": 0 }, { "cite": "320 N.C. 233", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4723637 ], "year": 1987, "pin_cites": [ { "page": "253", "parenthetical": "stating that a jury argument is not improper so long as it does not \"travel into the fields of conjecture or personal opinion\"" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0233-01" ] }, { "cite": "131 L. Ed. 2d 879", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "514 U.S. 1124", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1340304, 1339825, 1339674, 1340510 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/us/514/1124-02", "/us/514/1124-03", "/us/514/1124-01", "/us/514/1124-04" ] }, { "cite": "112 L. Ed. 2d 7", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "498 U.S. 802", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6235240, 6238188, 6237841, 6237108, 6236790, 6236441, 6236154, 6237501, 6235838, 6235551 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/498/0802-01", "/us/498/0802-10", "/us/498/0802-09", "/us/498/0802-07", "/us/498/0802-06", "/us/498/0802-05", "/us/498/0802-04", "/us/498/0802-08", "/us/498/0802-03", "/us/498/0802-02" ] }, { "cite": "388 S.E.2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "99" } ], "opinion_index": 0 }, { "cite": "326 N.C. 56", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305472 ], "year": 1990, "pin_cites": [ { "page": "83" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0056-01" ] }, { "cite": "170 L. Ed. 2d 760", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2008, "opinion_index": 0 }, { "cite": "361 N.C. 438", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3738089 ], "year": 2007, "pin_cites": [ { "page": "465" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0438-01" ] }, { "cite": "472 S.E.2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "875" } ], "opinion_index": 0 }, { "cite": "344 N.C. 79", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867641 ], "year": 1996, "pin_cites": [ { "page": "90" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0079-01" ] }, { "cite": "558 S.E.2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "106" } ], "opinion_index": 0 }, { "cite": "355 N.C. 117", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219899 ], "year": 2002, "pin_cites": [ { "page": "131" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0117-01" ] }, { "cite": "573 S.E.2d 870", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "890", "parenthetical": "explaining that a lesser conviction will merge into a greater conviction when all the essential elements of the lesser conviction are also essential elements included in the greater conviction" } ], "opinion_index": 0 }, { "cite": "356 N.C. 446", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511417 ], "year": 2002, "pin_cites": [ { "page": "474-75", "parenthetical": "explaining that a lesser conviction will merge into a greater conviction when all the essential elements of the lesser conviction are also essential elements included in the greater conviction" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0446-01" ] }, { "cite": "188 N.C. App. 553", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4155375 ], "year": 2008, "pin_cites": [ { "page": "561" } ], "opinion_index": 0, "case_paths": [ "/nc-app/188/0553-01" ] }, { "cite": "212 S.E.2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "131", "parenthetical": "citations omitted" } ], "opinion_index": 1 }, { "cite": "286 N.C. 509", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569066 ], "year": 1975, "pin_cites": [ { "page": "515", "parenthetical": "citations omitted" } ], "opinion_index": 1, "case_paths": [ "/nc/286/0509-01" ] }, { "cite": "169 S.E.2d 846", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "848", "parenthetical": "citations omitted" } ], "opinion_index": 1 }, { "cite": "275 N.C. 584", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559259 ], "year": 1969, "pin_cites": [ { "page": "588", "parenthetical": "citations omitted" } ], "opinion_index": 1, "case_paths": [ "/nc/275/0584-01" ] }, { "cite": "308 S.E.2d 268", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "274" } ], "opinion_index": 1 }, { "cite": "309 N.C. 498", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4760504 ], "year": 1983, "pin_cites": [ { "page": "507" } ], "opinion_index": 1, "case_paths": [ "/nc/309/0498-01" ] }, { "cite": "295 S.E.2d 482", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "parenthetical": "alteration in original" } ], "opinion_index": 1 }, { "cite": "306 N.C. 745", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574240, 8574275, 8574212, 8574223, 8574259 ], "year": 1982, "pin_cites": [ { "parenthetical": "alteration in original" } ], "opinion_index": 1, "case_paths": [ "/nc/306/0745-03", "/nc/306/0745-05", "/nc/306/0745-01", "/nc/306/0745-02", "/nc/306/0745-04" ] }, { "cite": "293 S.E.2d 658", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "661", "parenthetical": "alteration in original" } ], "opinion_index": 1 }, { "cite": "58 N.C. App. 330", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524882 ], "year": 1982, "pin_cites": [ { "page": "333", "parenthetical": "alteration in original" } ], "opinion_index": 1, "case_paths": [ "/nc-app/58/0330-01" ] }, { "cite": "300 S.E.2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "697" } ], "opinion_index": 1 }, { "cite": "307 N.C. 584", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565300 ], "year": 1983, "pin_cites": [ { "page": "597" } ], "opinion_index": 1, "case_paths": [ "/nc/307/0584-01" ] }, { "cite": "542 U.S. 296", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5868041 ], "year": 2004, "opinion_index": 1, "case_paths": [ "/us/542/0296-01" ] }, { "cite": "225 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "554", "parenthetical": "stating that the parties must argue \"the law applicable to the facts of the case\" and that \"[t]he whole corpus juris is not fair game\"" } ], "opinion_index": 1 }, { "cite": "290 N.C. 286", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560962 ], "year": 1976, "pin_cites": [ { "page": "287", "parenthetical": "stating that the parties must argue \"the law applicable to the facts of the case\" and that \"[t]he whole corpus juris is not fair game\"" } ], "opinion_index": 1, "case_paths": [ "/nc/290/0286-01" ] }, { "cite": "514 U.S. 1124", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1340304, 1339825, 1339674, 1340510 ], "year": 1995, "pin_cites": [ { "parenthetical": "\"[C]ounsel's argument should not be impaired without good reason. . . .\"" } ], "opinion_index": 1, "case_paths": [ "/us/514/1124-02", "/us/514/1124-03", "/us/514/1124-01", "/us/514/1124-04" ] }, { "cite": "498 U.S. 802", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6235240, 6238188, 6237841, 6237108, 6236790, 6236441, 6236154, 6237501, 6235838, 6235551 ], "year": 1990, "opinion_index": 1, "case_paths": [ "/us/498/0802-01", "/us/498/0802-10", "/us/498/0802-09", "/us/498/0802-07", "/us/498/0802-06", "/us/498/0802-05", "/us/498/0802-04", "/us/498/0802-08", "/us/498/0802-03", "/us/498/0802-02" ] }, { "cite": "388 S.E.2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "99" }, { "page": "99-100" } ], "opinion_index": 1 }, { "cite": "326 N.C. 56", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305472 ], "year": 1990, "pin_cites": [ { "page": "83" } ], "opinion_index": 1, "case_paths": [ "/nc/326/0056-01" ] } ], "analysis": { "cardinality": 1087, "char_count": 27435, "ocr_confidence": 0.76, "pagerank": { "raw": 5.1521497837757505e-08, "percentile": 0.3247185453669307 }, "sha256": "00bfd69513627b838dee289cef8898b795869c716c924e48a0fee441a378f976", "simhash": "1:4b61d66e66ac37e6", "word_count": 4447 }, "last_updated": "2023-07-14T21:19:39.869638+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice TIMMONS-GOODSON joins in this concurring opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. JOSE JESUS GARCIA LOPEZ" ], "opinions": [ { "text": "EDMUNDS, Justice.\nIn this case we consider the extent to which a party in a criminal case may address the jury as to defendant\u2019s potential sentence. We conclude that the prosecutor\u2019s argument detailing the effect of the jury\u2019s finding of an aggravating factor on defendant\u2019s sentence was inaccurate and misleading. Therefore, the trial court erred in - overruling defendant\u2019s objection to this argument. However, because we also find that the error was harmless, we affirm the result reached by the Court of Appeals.\nAt trial, the State presented evidence that at approximately six o\u2019clock p.m. on 19 December 2004, defendant Jose Jesus Garcia Lopez was driving his Jeep between eighty and one hundred miles per hour when he crossed the highway center line and collided with a Mazda being driven by Natalie Housand. Housand was killed in the collision and her passenger, Adam Melton, was injured. Defendant disappeared into nearby woods, but later emerged a short distance away and was arrested. Retrograde extrapolation indicated that, at the time of the accident, defendant had a blood alcohol concentration of 0.18.\nDefendant was indicted for second-degree murder pursuant to N.C.G.S. \u00a7 14-17, felony death by vehicle pursuant to N.C.G.S. \u00a7 20-141.4, and felony hit and run pursuant to N.C.G.S. \u00a7 20-166(a), all relating to the death of Housand. Defendant also was indicted for assault with a deadly weapon inflicting serious injury on Melton pursuant to N.C.G.S. \u00a7 14-32(b). The court conducted a bifurcated trial consisting of a guilt-innocence phase followed by a separate sentencing proceeding.\nAfter the parties made their closing arguments at the conclusion of the guilt-innocence phase, the court submitted to the jury separate verdict sheets for each offense. As to the charge of second-degree murder, the verdict sheet permitted the jury to find defendant guilty of second-degree murder, involuntary manslaughter, or misdemeanor death by motor vehicle, or to find defendant not guilty. The jury found defendant guilty of involuntary manslaughter and guilty of the other three crimes. Because involuntary manslaughter is a lesser-included offense of felony death by vehicle, the involuntary manslaughter conviction merged into the conviction of felony death by vehicle. See State v. Kemmerlin, 356 N.C. 446, 474-75, 573 S.E.2d 870, 890 (2002) (explaining that a lesser conviction will merge into a greater conviction when all the essential elements of the lesser conviction are also essential elements included in the greater conviction).\nDuring the sentencing proceeding that followed, the State argued to the jury that it should find the aggravating factor that defendant \u201cknowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person.\u201d N.C.G.S. \u00a7 15A-1340.16(d)(8) (2007). Defendant contends the trial court abused its discretion by overruling his objections and allowing the State to make the following jury argument and accompanying blackboard presentation during the sentencing proceeding:\nFolks, I\u2019m going to write up some numbers. These numbers are the \u2014 basically, the sentencing grid for the offenses that you found the Defendant guilty of.\n([Prosecutor] writes on blackboard.)\nThis is the involuntary manslaughter. Presumptive range is 13 to 16 months. Assault with a deadly weapon inflicting serious injury, presumptive range is 20 to 25 months. This is the hit and run. The presumptive range, 5 to 6 months. Now, there was a felony death by motor vehicle, and that merged in because it had a lot of the same elements of this manslaughter conviction, so it merges in here. All right. So, that\u2019s kind of already in; that\u2019s why I didn\u2019t put it up here.\nThe judge sentences within this presumptive range, and that\u2019s what I\u2019ve highlighted for you, unless the State puts up an aggravating factor. Okay? We have to present to you an aggravating factor, and you have to find it beyond a reasonable doubt. Just like anything else that we present to you, you have to make a determination, we have to prove it to you beyond a reasonable doubt.\nIf we prove aggravators, which I\u2019ve submitted one to you, then that gives the option for the judge to return a sentence in this range. Okay? It doesn\u2019t mean that\u2019s where it comes from, it just gives her that option.\nNow, the State of North Carolina \u2014 I\u2019m going to put a couple more numbers up here for you. We have a minimum and then we have a maximum. Okay. In other words, the minimum, say if the minimum was 13 months, there would be a corresponding maximum sentence that goes with that. All right. If we got up to this range, this aggravator, say we\u2019re in the aggravated range of 20, there would be a corresponding maximum that goes with that. And this one would be 24. This one would be 47. And this one would be 10. And these are all in months. Okay?\nThe jury found the aggravating factor to be present beyond a reasonable doubt. After hearing additional testimony and argument from both defendant and the State, the court found two factors in mitigation, but determined that they were outweighed by the aggravating factor. The court imposed aggravated sentences in each judgment, to be served consecutively, resulting in a total of fifty-nine to eighty-one months incarceration.\nDefendant appealed. The Court of Appeals found that the trial court erred in allowing the State to explain merger and sentencing possibilities in its sentencing proceeding argument but concluded that this error was harmless. State v. Lopez, 188 N.C. App. 553, 561, 655 S.E.2d 895, 900 (2008). This Court granted petitions for discretionary review filed by the State and by defendant.\nDefendant contends that the prosecutor\u2019s argument relating to the effect of an aggravating factor on the sentencing grid was irrelevant to the jury\u2019s decision whether the aggravating factor was present. Defendant further asserts that the argument had the effect of advising the jury that, because two of the convictions merged, one of its verdicts had no practical effect. The State responds that the argument was proper. While we find that the jury\u2019s understanding of aggravating factors is relevant to sentencing, we also find that the prosecutor\u2019s argument introduced error into the trial. The State\u2019s discussion of the application of the sentencing grids was inaccurate. In addition, the State\u2019s argument was misleading because it indicated potential specific sentencing ranges for defendant when defendant\u2019s sentencing range had not been, and in this case could not be, determined at the time the argument was made. However, because there is no reasonable possibility that but for the error a different result would have been reached, we affirm the result of the Court of Appeals.\nThe standard under which we review allegedly \u201cimproper closing arguments that provoke timely objection from opposing counsel is whether the trial court abused its discretion by failing to sustain the objection.\u201d State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 97, 106 (2002). An abuse of discretion occurs only when a ruling \u201c \u2018could not have been the result of a reasoned decision.\u2019 \u201d Id. (quoting State v. Burrus, 344 N.C. 79, 90, 472 S.E.2d 867, 875 (1996)). The trial court \u201chas broad discretion to control the scope of closing arguments,\u201d State v. Cummings, 361 N.C. 438, 465, 648 S.E.2d 788, 804 (2007), cert. denied, \u2014 U.S. -, 170 L. Ed. 2d 760 (2008), and generally, \u201ccounsel\u2019s argument should not be impaired without good reason,\u201d State v. Price, 326 N.C. 56, 83, 388 S.E.2d 84, 99, sentence vacated on other grounds, 498 U.S. 802, 112 L. Ed. 2d 7 (1990), cert. denied, 514 U.S. 1124, 131 L. Ed. 2d 879 (1995). However, argument that misinforms a jury by purporting to present accurate information when that information is misleading is just such a good reason. State v. Zuniga, 320 N.C. 233, 253, 357 S.E.2d 898, 911, cert. denied, 484 U.S. 959, 98 L. Ed. 2d 384 (1987) (stating that a jury argument is not improper so long as it does not \u201ctravel into the fields of conjecture or personal opinion\u201d).\n\u201cIn jury trials the whole case as well of law as of fact may be argued to the jury.\u201d N.C.G.S. \u00a7 7A-97 (2007). In interpreting this statute, we have held that the penalty prescribed for a criminal offense is part of the law of the case and that \u201c [i]t is, consequently, permissible for a criminal defendant in argument to inform the jury of the statutory punishment provided for the crime for which he is being tried.\u201d State v. McMorris, 290 N.C. 286, 287-88, 225 S.E.2d 553, 554 (1976) (emphasis added). Thus, \u201c[c]ounsel may ... in any case, read or state to the jury a statute or other rule of law relevant to such case, including the statutory provision fixing the punishment for the offense charged.\u201d State v Britt, 285 N.C. 256, 273, 204 S.E.2d 817, 829 (1974) (emphasis added).\nHowever, sentencing procedure has changed significantly since this Court decided Britt and McMorris. See generally Stevens H. Clarke, Law of Sentencing, Probation, and Parole in North Carolina 46-52 (Inst. of Gov\u2019t, Chapel Hill, N.C., 2d ed. 1997) (discussing the history and effect of indeterminate sentencing, Fair Sentencing, and Structured Sentencing). When this Court considered Britt and McMorris, the sentencing range ordinarily could be determined simply by reference to the statute defining the offense. See id. at 47. Now, under Structured Sentencing, most criminal statutes define an offense as being of a particular class. See, e.g., N.C.G.S. \u00a7 14-27.2(b) (2007) (stating that first-degree rape is a Class B1 felony). Except for Class A felonies and other offenses for which a particular punishment is set by statute, the range of sentences that the trial court may impose becomes known only after a series of findings and calculations. After a jury returns its verdict or verdicts, it must then determine whether any submitted aggravating factors exist, thereby permitting a defendant\u2019s sentence to be enhanced. Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004). In addition, the court independently determines whether any submitted mitigating factors also exist and, if so, whether the factors in aggravation outweigh the factors in mitigation, or the factors in mitigation outweigh the factors in aggravation, or the factors are in equilibrium. N.C.G.S. \u00a7 15A-1340.16 (2007). After weighing aggravating factors found by the jury and mitigating factors found by the court, the court decides whether to impose an aggravated, presumptive, or mitigated sentence.\nWhen a defendant is convicted of more than one offense, the court has the option to consolidate offenses or to impose concurrent or consecutive sentences. Id. \u00a7 15A-1340.15 (2007). The court also calculates a defendant\u2019s criminal history category based on the number and gravity of any prior convictions. Only after all these findings are made and calculations completed does the court determine the minimum sentencing range by reference to a statutory grid that takes these factors into account. Id. \u00a7 15A-1340.17(c) (2007). Once the court decides on a minimum sentence, the corresponding maximum sentence is found in another grid. Id. \u00a7 15A-1340.17(d), (e) (2007).\nThus, a criminal sentence under Structured Sentencing is determined through numerous interlocking decisions and findings made by the trial court after the jury has completed its work. As a result, even though a jury has returned its verdict in the guilt-innocence proceeding, counsels\u2019 jury arguments forecasting the sentence are usually no better than educated estimates.\nThe perils of attempting to predict a sentence to a jury are amply demonstrated in the case at bar. The prosecutor advised the court before making its sentencing argument that \u201cI\u2019m just putting the numbers up, and I\u2019ll have the minimum on the high end, and I\u2019m also going to put up the highest [defendant] could possibly get on the high end.\u201d However, while the record on appeal does not contain a copy of the blackboard presentation used during the prosecutor\u2019s argument, the transcript indicates that the numbers the prosecutor quoted to the jury were misleading. For instance, the prosecutor told the jury, \u201cThis is the involuntary manslaughter. Presumptive range is 13-16 months.\u201d Yet, in the sentencing grid set out in section 15A-1340.17(c), thirteen to sixteen months is the presumptive range of minimum sentences for a defendant who is convicted of involuntary manslaughter, a Class F offense, and who has no criminal history. A court sentencing such a defendant chooses a minimum sentence in the thirteen to sixteen month range set out in the grid found in section 15A-1340.17(c), then locates the corresponding maximum sentence from the grid found in section 15A-1340.17(d). Thus, the prosecutor\u2019s statement that thirteen to sixteen months was the presumptive range for defendant\u2019s involuntary manslaughter conviction was inaccurate and misleadingly low. The ranges represented by the prosecutor for defendant\u2019s assault and hit and run convictions are similarly problematic.\nThe rules of procedure and evidence are meant to assure that the evidence a jury hears and considers is reliable. See Chambers v. Mississippi, 410 U.S. 284, 302, 35 L. Ed. 2d 297, 313 (1973) (describing rules of evidence and procedure as \u201cdesigned to assure both fairness and reliability in the ascertainment of guilt and innocence\u201d); accord N.C.G.S. \u00a7 8C-1, Rule 102(a) (2007) (\u201cThese rules [of evidence] shall be construed ... to the end that the truth may be ascertained and proceedings justly determined.\u201d). Jury arguments should be similarly accurate. However, as the preceding discussion demonstrates, even a well-intentioned argument purporting to forecast a sentence under Structured Sentencing will almost invariably be misleading. If the jury believed from the prosecutor\u2019s argument that it understood the exact effect of the decision it was being called upon to make, it was mistaken.\nNevertheless, while attempts to forecast a sentence are fraught with risk, a jury\u2019s understanding that its determination of the existence of any aggravating factors may have an effect on the sentence imposed is relevant to its role in a sentencing proceeding. As a result, consistent with section 7A-97, parties may explain to a jury the reasons why it is being asked to consider aggravating factors and may discuss and illustrate the general effect that finding such factors may have, such as the fact that a finding of an aggravating factor may allow the court to impose a more severe sentence or that the court may find mitigating factors and impose a more lenient sentence. State v. Chapman, 359 N.C. 328, 372-73, 611 S.E.2d 794, 826 (2005) (discussing use of hypothetical examples in arguments to the jury).\nAccordingly, while we are aware that the capable trial judge could not foresee the analysis we undertake today, we conclude that the trial court abused its discretion in overruling defendant\u2019s objection to the State\u2019s argument, which argument contained misleading information.\nAlthough the trial court erred, nonconstitutional errors warrant reversal only when \u201cthere is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.\u201d Id. \u00a7 15A-1443(a) (2007). \u201cThe burden of showing such prejudice under this subsection is upon the defendant.\u201d Id.) see, e.g., State v. Rosier, 322 N.C. 826, 829, 370 S.E.2d 359, 361 (1988). Defendant argues that the jury\u2019s realization that one conviction would merge with another, thereby reducing defendant\u2019s sentence, may have persuaded jurors to find the aggravating factor. Because the impact of the improper argument cannot be ascertained, defendant contends that a new sentencing hearing is necessary.\nOur review of the record reveals that defendant has not met his burden of establishing that, but for the error, there is a reasonable possibility that the jury would have reached a different result. To establish the aggravating factor that defendant \u201cknowingly 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,\u201d N.C.G.S. \u00a7 15A-1340.16(d)(8), the State must show that defendant used the device in a way that would normally be hazardous to the lives of more than one person and that a great risk of death was knowingly created. See, e.g., State v. Rose, 327 N.C. 599, 605-06, 398 S.E.2d 314, 317-18 (1990) (discussing use of a weapon, whereas the case at bar involves a device, i.e., a vehicle).\nAs to whether defendant\u2019s Jeep was hazardous to the lives of more than one person, \u201c [i]t is well settled in North Carolina that an automobile can be a deadly weapon if it is driven in a feckless or dangerous manner.\u201d State v. Jones, 353 N.C. 159, 164, 538 S.E.2d 917, 922 (2000). The conclusion is unavoidable that a vehicle driven at a high rate of speed by an intoxicated operator is normally hazardous to the lives of more than one person. See State v. McBride, 118 N.C. App. 316, 319-20, 454 S.E.2d 840, 842 (1995) (holding that a recklessly operated vehicle \u201cconstituted a device which in its normal use is hazardous to the lives of more than one person\u201d and \u201cany 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 themselves in the automobile\u2019s path\u201d).\nAs to whether defendant knowingly created a great risk of death, the overwhelming evidence found by the jury beyond a reasonable doubt established that defendant was voluntarily intoxicated and driving between eighty and one hundred miles per hour when he crossed the center line and collided with Housand\u2019s Mazda. No reasonable person could fail to know that such behavior creates a great risk of death. Although defendant testified that he did not remember driving, as a general rule \u201cthe law does not permit a person who commits a crime in a state of intoxication to use his own vice or weakness as a shelter against the normal legal consequences of his conduct.\u201d State v. Bunn, 283 N.C. 444, 457, 196 S.E.2d 777, 786 (1973) (citation and internal quotation marks omitted). Defendant cannot shelter behind his own claim that he drank himself into a stupor.\nAccordingly, we perceive no likelihood that the result of the trial would have been different if the jury had not heard the improper argument. We affirm the Court of Appeals decision upholding the judgments of the trial court.\nAFFIRMED.\n. In fact, an arresting number of sentencing permutations arise from defendant\u2019s convictions. Each felony of conviction had a different classification and therefore fell within a different range. Treating the conviction of involuntary manslaughter as Count 1, the conviction of felony hit and run as Count 2, and the conviction of felony assault as Count 3, the trial court could have:\n1. Consolidated all three counts and imposed a mitigated sentence;\n2. Consolidated all three counts and imposed a presumptive sentence;\n3. Consolidated all three counts and imposed an aggravated sentence;\n4. Imposed consecutive aggravated sentences on each count (as happened in fact);\n5. Imposed consecutive presumptive sentences on each count;\n6. Imposed consecutive mitigated sentences on each count;\n7. Consolidated Counts 1 and 2 but imposed a consecutive sentence on Count 3;\n8. Consolidated Counts 1 and 3 but imposed a consecutive sentence on Count 2;\n9. Consolidated Counts 2 and 3 but imposed a consecutive sentence on Count 1;\n10.Found that as to Count 1 the mitigating factors outweighed the aggravating factor, but not as to Counts 2 and 3;\nII. Found that as to Count 2, the mitigating factors and aggravating factor were in equilibrium, that the aggravating factor outweighed the mitigating factors as to Count 1, and that the mitigating factors outweighed the aggravating factor as to Count 3;\n12.Etc.", "type": "majority", "author": "EDMUNDS, Justice." }, { "text": "Justice BRADY\nconcurring in the result only.\nI disagree with the majority\u2019s conclusion that the calculation of aggravating factors in a defendant\u2019s sentence is relevant to the jury\u2019s understanding of the presence of an aggravating factor. I would rule that the trial court abused its discretion by allowing the State to present to the jury any information relating to the effect of an aggravating factor on defendant\u2019s sentence. However, because overwhelming evidence in support of the aggravating factor exists, I believe the trial court\u2019s error was harmless, and I concur in the majority\u2019s result only.\nIn accordance with the decision of the Supreme Court of the United States in Blakely v. Washington, 542 U.S. 296 (2004), thGeneral Assembly enacted N.C.G.S. \u00a7 15A-1340.16(al) in 2005, which provides that absent an admission from the defendant, \u201conly a jury may determine if an aggravating factor is present in an offense.\u201d This is the trial jury\u2019s sole role under section 15A-1340.16 in a noncapital case. This responsibility is accomplished through a factual evaluation of the evidence presented at the guilt-innocence phase of the trial, unless the court determines that a separate sentencing proceeding is required. N.C.G.S. \u00a7 15A-1340.16(al) (2007). Section 15A-1340.16 further provides that after a jury finds an aggravating factor, it is the trial court\u2019s responsibility to determine the defendant\u2019s sentence. See also State v. Ahearn, 307 N.C. 584, 597, 300 S.E.2d 689, 697 (1983) (stating that a trial judge has \u201c \u2018discretion to increase or reduce sentences from the presumptive term upon findings of aggravating or mitigating factors, the weighing of which is a matter within [his] sound discretion\u201d (quoting with approval State v. Davis, 58 N.C. App. 330, 333, 293 S.E.2d 658, 661, disc. rev. denied, 306 N.C. 745, 295 S.E.2d 482 (1982) (alteration in original))).\nIn the case sub judice, the State\u2019s closing argument was an attempt to circumvent the sentencing process set forth in section 15A-1340.16. By discussing the merger doctrine and displaying the presumptive minimum and maximum ranges of possible sentences, the State was enticing the jury to contemplate the duration of defendant\u2019s imprisonment. This is wholly improper under the framework of section 15A-1340.16.\nCounsel should be given wide latitude when arguing before the jury. See State v. Price, 326 N.C. 56, 83, 388 S.E.2d 84, 99, sentence vacated on other grounds, 498 U.S. 802 (1990) cert. denied, 514 U.S. 1124 (1995) (\u201c[C]ounsel\u2019s argument should not be impaired without good reason. . . .\u201d). However, if the arguments counsel advances are irrelevant, they should be limited by the trial court. Id. at 83-84, 388 S.E.2d at 99-100 (stating that a \u201cgood reason\u201d to limit the scope of counsel\u2019s closing argument is irrelevance (citing, inter alia, Watson v. White, 309 N.C. 498, 507, 308 S.E.2d 268, 274 (1983))). The jury was charged with answering one question: Did the evidence presented support the finding of the aggravating factor? This is purely a factual question, and much like in the guilt-innocence phase of the trial, the jury is asked to evaluate whether the State presented sufficient evidence to prove its case. This Court has ruled that in the guilt-innocence phase, \u201c[t]he amount of punishment which a verdict of guilty will empower the judge to impose is totally irrelevant to the issue of a defendant\u2019s guilt. It is, therefore, no concern of the jurors\u2019.\u201d State v. Rhodes, 275 N.C. 584, 588, 169 S.E.2d 846, 848 (1969) (citations omitted). The same logic applies here. The jury is being asked solely whether the aggravator is present. Information regarding the effect of the aggravating factor on the trial court\u2019s ultimate sentencing decision is irrelevant to this determination.\nTherefore, I cannot conclude with the majority that \u201ca jury\u2019s understanding that its determination of the existence of any aggravating factors may have an effect on the sentence imposed is relevant to its role in a sentencing proceeding.\u201d Furthermore, I disagree that N.C.G.S. \u00a7 7A-97 entitles parties to \u201cexplain to a jury the reasons why it is being asked to consider aggravating factors and . . . discuss and illustrate the general effect that finding such factors may have, such as the fact that a finding of an aggravating factor may allow the court to impose a more severe sentence.\u201d Under section 7A-97, \u201c[i]n jury trials the whole case as well of law as of fact may be argued to the jury.\u201d N.C.G.S. \u00a7 7A-97 (2007). However, even under section 7A-97, counsel may not argue \u201cprinciples of law not relevant to the case.\u201d See State v. Monk, 286 N.C. 509, 515, 212 S.E.2d 125, 131 (1975) (citations omitted); see also State v. McMorris, 290 N.C. 286, 287, 225 S.E.2d 553, 554 (1976) (stating that the parties must argue \u201cthe law applicable to the facts of the case\u201d and that \u201c[t]he whole corpus juris is not fair game\u201d). As explained above, the effect of an aggravating factor on a defendant\u2019s sentence is simply not relevant to the jury\u2019s determination of the existence of the factor. I would hold that it is error in any case for a trial court to allow either party to explain the effect an aggravating factor could have on a defendant\u2019s sentence.\nWhile I disagree that the effect of an aggravating factor is ever relevant to a jury\u2019s determination of the presence of an aggravating factor, I agree with the majority\u2019s ultimate result finding that there was overwhelming evidence to support the existence of the aggravating factor. From the evidence presented in the guilt-innocence phase of the trial, it is clear that defendant knowingly operated his vehicle at a dangerously high rate of speed while he was intoxicated. Any reasonable jury would have made such a determination, even without the State\u2019s inappropriate closing argument. Therefore, defendant was not prejudiced by the error of the trial court. I therefore concur in the majority\u2019s result only.\nJustice TIMMONS-GOODSON joins in this concurring opinion.", "type": "concurrence", "author": "Justice BRADY" } ], "attorneys": [ "Roy Cooper, Attorney General, by Isaac T. Avery, III, Special Counsel, for the State-appellant/appellee.", "Nora Henry Hargrove for defendant-appellee/appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOSE JESUS GARCIA LOPEZ\nNo. 95PA08\n(Filed 28 August 2009)\nSentencing\u2014 prosecutor\u2019s argument \u2014 sentencing grid and aggravating factor \u2014 relevant but inaccurate\nThe trial court erred during a sentencing proceeding for involuntary manslaughter and other offenses arising from drunken driving by allowing the prosecutor\u2019s argument concerning the sentencing grid, the effect of an aggravating factor, and merger. A jury\u2019s understanding that its determination of aggravating factors may have an effect on the sentence is relevant to its role in a sentencing proceeding, but the prosecutor\u2019s argument here was inaccurate and misleading. However, there was no likelihood of a different result without the argument and no prejudice.\nJustice BRADY concurring in the result only.\nJustice TIMMONS-GOODSON joins in the concurring opinion.\nOn discretionary review pursuant to N.C.G.S. \u00a7 7A-31 of a unanimous decision of the Court of Appeals, 188 N.C. App. 553, 655 S.E.2d 895 (2008), finding no error at trial and no prejudicial error in a sentencing proceeding which resulted in judgments entered on 30 May 2006 by Judge Ola M. Lewis in Superior Court, Columbus County. Heard in the Supreme Court 31 March 2009.\nRoy Cooper, Attorney General, by Isaac T. Avery, III, Special Counsel, for the State-appellant/appellee.\nNora Henry Hargrove for defendant-appellee/appellant." }, "file_name": "0535-01", "first_page_order": 573, "last_page_order": 583 }