NO. COA13-887

NORTH CAROLINA COURT OF APPEALS

Filed: 1 April 2014

STATE OF NORTH CAROLINA 

v. Yancey County

No. 10-CRS-304

ROMY VERDAE GEISSLERCRAIN

Appeal by Defendant from judgments entered 10 April 2013 by 

Judge Marvin P. Pope, Jr., in Yancey County Superior Court. 

Heard in the Court of Appeals 12 December 2013.

Attorney General Roy Cooper, by Special Deputy Attorney 

General Hal F. Askins, for the State.

Charlotte Gail Blake, for Defendant.

DILLON, Judge.

Romy Verdae Geisslercrain (“Defendant”) appeals from 

judgments convicting her of impaired driving and reckless 

driving to endanger, alleging errors in her sentencing and 

challenging the trial court’s denial of her motion to dismiss 

for insufficiency of the evidence. We find no error, in part, 

and we vacate and remand, in part.

I. Background
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The evidence of record tends to show the following: On the 

evening of 16 July 2010, Defendant was involved in a single 

vehicle accident on Highway 19 near Burnsville. After Defendant 

had been transported to the hospital, State Trooper Jeremy 

Carver arrived at the scene where he found Defendant’s damaged 

Ford Ranger truck in the middle of the highway. Trooper Carver 

believed that Defendant had likely driven off the right side of 

the road, after which she tried to jerk her truck back onto the 

road too quickly, resulting in the truck rolling several times

and sustaining approximately $7,000.00 in damage. Trooper 

Carver thought the truck may have been going too fast for a 

curve in the road.

Trooper Carver went to the hospital to speak with 

Defendant, who told him she had taken medications either the day 

of the incident or the day before – including Methadone, 

Clonazepam, and Adderall. She also admitted to Trooper Carver 

that she had been drinking alcohol. Trooper Carver believed 

that Defendant had consumed a sufficient quantity of impairing 

substances to appreciably impair her mental and physical 

faculties.

Defendant was indicted on charges of impaired driving and 

reckless driving to endanger. After her conviction in District 
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Court, Defendant appealed to Superior Court, where a jury found 

her guilty of both charges.

During sentencing, the trial court determined, without 

submitting the question to a jury, that an aggravating factor 

existed, specifically, that “[t]he negligent driving of 

[D]efendant led to an accident causing property damage of 

$1,000.00 or more[.]” The trial court further determined that a 

mitigating factor existed, specifically, that “[D]efendant has a 

safe driving record[.]” The trial court determined that the 

aggravating factor was substantially counterbalanced by the

mitigating factor, and, therefore, declared that “a Level Four 

punishment shall be imposed.”

The trial court entered two written judgments, one for each 

conviction. The written judgment for the impaired driving 

conviction reflects that the trial court was sentencing

Defendant as a Level Four offender, but then actually sentenced 

her to a minimum and maximum sentence of twelve months 

incarceration, which is above the range of Level Four 

punishments. Nonetheless, as reflected on the written judgment, 

the trial court suspended the active sentence on the condition 

that she be placed on twelve months supervised probation.
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The trial court also entered a written judgment on 

Defendant’s reckless driving to endanger conviction, sentencing 

her to ten days incarceration, which the trial court suspended 

on the condition that she be placed on twelve months supervised 

probation, to be served concurrently with the sentence for her 

impaired driving conviction. Defendant appeals from both 

judgments.

II. Analysis

Defendant argues on appeal that the trial court erred in 

denying her motion to dismiss her impaired driving conviction 

and also committed errors with regard to her sentence. We 

address each argument below.

A: Motion to Dismiss

Defendant argues that the trial court erred by denying her 

motion to dismiss the charge of reckless driving. We disagree.

“This Court reviews the trial court’s denial of a motion to 

dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650 

S.E.2d 29, 33 (2007). “Upon defendant’s motion for dismissal, 

the question for the Court is whether there is substantial 

evidence (1) of each essential element of the offense charged, 

or of a lesser offense included therein, and (2) of defendant’s 

being the perpetrator of such offense. If so, the motion is 
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properly denied.” State v. Fritsch, 351 N.C. 373, 378, 526 

S.E.2d 451, 455, cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 

(2000) (citation and quotation marks omitted). “Substantial 

evidence is such relevant evidence as a reasonable mind might 

accept as adequate to support a conclusion.” State v. Smith, 

300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). “In making its 

determination, the trial court must consider all evidence 

admitted, whether competent or incompetent, in the light most 

favorable to the State, giving the State the benefit of every 

reasonable inference and resolving any contradictions in its 

favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 

(1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995).

N.C. Gen. Stat. § 20-140(a) and (b) provide two definitions 

of reckless driving. A person may violate N.C. Gen. Stat. § 20-

140 by either of the courses of conduct defined in subsection 

(a) and (b), or in both respects. State v. Dupree, 264 N.C. 

463, 142 S.E.2d 5 (1965). Most pertinent to this case, 

subsection (b) provides the following: “Any person who drives 

any vehicle upon a highway or any public vehicular area without 

due caution and circumspection and at a speed or in a manner so 

as to endanger or be likely to endanger any person or property 

shall be guilty of reckless driving.” Id.
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On appeal, Defendant specifically argues the trial court 

erroneously denied her motion to dismiss because the evidence 

shows that she merely failed to keep a reasonable lookout. 

“Mere failure to keep a reasonable lookout does not constitute 

reckless driving[;] [t]o this must be added dangerous speed or 

perilous operation.” State v. Dupree, 264 N.C. 463, 466, 142 

S.E.2d 5, 7 (1965). We disagree and believe that there was 

substantial evidence in this case to support the elements of 

reckless driving, and, when viewed in the light most favorable 

to the State, that there was more than a mere failure to keep a 

reasonable lookout. Specifically, the State presented evidence 

that Defendant was intoxicated; that all four tires of 

Defendant’s vehicle had gone off the road; that distinctive 

“yaw” marks were left on the road indicating that Defendant had 

lost control of the vehicle; that Defendant’s vehicle overturned 

twice; and that the vehicle traveled 131 feet from the point it 

went off the road before it flipped, and another 108 feet after 

it flipped. Therefore, the trial court did not err by denying 

Defendant’s motion. See, e.g., State v. Coffey, 189 N.C. App. 

382, 387, 658 S.E.2d 73, 77 (2008); see generally Bank v. 

Lindsey, 264 N.C. 585, 587, 142 S.E.2d 357, 360 (1965) (stating 

that “operation of [a vehicle] in a drunken condition 
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constituted a driving of it upon the public highway without due 

caution and circumspection and in a manner so as to endanger 

persons or property, and was reckless driving within the intent 

and meaning of G.S. § 20-140(b)”). Accordingly, Defendant’s 

argument is overruled.

B: Sentencing

Defendant contends that there were reversible errors 

regarding the sentencing on her impaired driving conviction as a 

Level Four offender. Specifically, Defendant argues that (1) 

the trial court erred in determining the existence of an 

aggravating factor, rather than submitting this issue to the 

jury; (2) she did not receive proper notice that the State would 

be seeking aggravating factors; and (3) her sentence was outside 

(above) the Level Four punishment range. We address each 

argument below.

i. Trial Court’s Finding of Aggravating Factor

Defendant argues the trial court committed reversible error 

by determining, itself, that an aggravating factor existed, 

rather than submitting the aggravating factor to the jury for 

determination, citing the United States Supreme Court decision 

Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004) in 

which that Court applied the rule it stated in Apprendi v. New 
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Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455 (2000) – that 

“[o]ther than the fact of a prior conviction, any fact that 

increases the penalty for a crime beyond the prescribed maximum 

must be submitted to the jury and proved beyond a reasonable 

doubt” – to aggravating factors. Blakely, 542 U.S. at 301, 159 

L. Ed. 2d at 412. We agree.

Sentencing defendants convicted of impaired driving is 

governed by N.C. Gen. Stat. § 20-179 (2011). Under G.S. § 20-

179, there are six sentencing ranges. Like the sentencing 

scheme found in the Structured Sentencing Act, codified at N.C. 

Gen. Stat. § 15A-1340.16 (2011), a defendant’s sentencing range

under N.C. Gen. Stat. § 20-179 is determined by the existence 

and balancing of aggravating and mitigating factors. However, 

the trial court is afforded much less discretion in sentencing 

under N.C. Gen. Stat. § 20-179 than under the Structured 

Sentencing Act. See State v. Weaver, 91 N.C. App. 413, 415-16, 

371 S.E.2d 759, 760 (1988) (stating that the sentencing scheme 

found in N.C. Gen. Stat. § 20-179 is “quite systematic and 

tiered, thus leaving little room to exercise discretion”).

The three most severe punishment levels under N.C. Gen. 

Stat. § 20-179, which are Aggravated Level One, Level One, and 

Level Two, are imposed only where a “grossly aggravating factor” 
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is found to exist. Where there are no grossly aggravating 

factors present, a defendant convicted of impaired driving must 

be sentenced in one of the three remaining ranges, namely, 

either under Level Three, Level Four, or Level Five. See id.

In the present case, no grossly aggravating factors were 

found to exist, so the trial court was required to determine 

whether a Level Three, Level Four, or Level Five punishment was 

appropriate by weighing those factors pursuant to N.C. Gen. 

Stat. § 20-179(f). Under N.C. Gen. Stat. § 20-179(f)(1), if the 

trial court determines that “[t]he aggravating factors 

substantially outweigh any mitigating factors,” the trial court 

must impose a Level Three punishment. We also believe that if 

there are only aggravating factors present – and no mitigating 

factors present – then the aggravating factors “substantially 

outweigh” the mitigating factors (as there are none) as a matter 

of law, and the trial court must impose a Level Three 

punishment. See id.

Likewise, if the trial court determines that “[t]he 

mitigating factors substantially outweigh any aggravating 

factors,” the trial court must impose a Level Five punishment. 

N.C. Gen. Stat. § 20-179(f)(3). And if there are only 
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mitigating factors present – and no aggravating factors present 

– the trial court must impose a Level Five punishment. See id.

If there are no aggravating or mitigating factors present 

or, alternatively, if the aggravating and mitigating factors are 

“substantially counterbalanced,” then the trial court must

impose a Level Four punishment. N.C. Gen. Stat. § 20-179(f)(2).

In this case, the trial court sentenced Defendant to a 

Level Four punishment, concluding that the single aggravating 

factor, which the trial court, and not the jury, found, was 

substantially counterbalanced by the single mitigating factor. 

If the aggravating factor had not been considered by the trial 

court, then there would have been only the single mitigating 

factor present; and the trial court would have been required to 

sentence Defendant to a Level Five punishment. See N.C. Gen. 

Stat. § 20-179(f)(3). Accordingly, the aggravating factor in 

this case, which was improperly found by the judge, “increase[d] 

the penalty for [the] crime beyond the prescribed maximum,” 

Blakely, supra, and Defendant’s Level Four punishment must be 

vacated.

The State, however, argues that no Blakely error occurred 

because a Level Four punishment is similar to a defendant being 

sentenced within the presumptive range under the Structured 
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Sentencing Act. Our Supreme Court has held that, in the context 

of a defendant sentenced under the Structured Sentencing Act,

Blakely is not implicated when a trial court improperly finds 

aggravating factors, rather than submitting those factors to the 

jury, so long as the defendant is sentenced within the 

presumptive range, reasoning that a trial judge “does not exceed 

his proper authority until he inflicts [enhanced] punishment . . 

. the jury’s verdict alone does not allow.” State v. Norris, 

360 N.C. 507, 514, 517, 630 S.E.2d 915, 919, 921, cert. denied, 

549 U.S. 1064, 166 L. Ed. 2d 535 (2006) (holding that “[t]he 

trial court did not violate defendant’s Sixth Amendment right to 

a jury trial when it found a statutory aggravating factor but 

sentenced defendant within the presumptive range”)(citation and 

quotation marks omitted).

Norris is not applicable to the present case. Under the 

Structured Sentencing Act the trial court has the discretion to 

sentence a defendant within the presumptive range even where

only mitigating factors are properly found. However, in the 

context of the sentencing scheme in N.C. Gen. Stat. § 20-179, 

the trial court does not have the discretion to sentence a 

defendant to a Level Four punishment where only mitigating 

factors are properly found, but rather, it is required to
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sentence the defendant to a Level Five punishment. In other 

words, where a defendant is sentenced under the Structured 

Sentencing Act within the presumptive range where mitigating 

factors are present, Blakely is not implicated if the trial 

court itself – and not the jury – finds aggravating factors to 

exist as well. This is because the trial court had the 

authority to sentence the defendant within the presumptive range 

even without finding aggravating factors to counterbalance the 

mitigating factors. However, under G.S. § 20-179, the trial 

court has no discretion to sentence a defendant to a Level Four 

punishment where only mitigating factors are properly found to 

exist. Therefore, in this case, Blakely has been implicated 

because, without the presence of an aggravating factor, the 

trial court was required to sentence Defendant to a Level Five 

punishment, a sentence which could not have been enhanced to a 

Level Four punishment without the jury finding the aggravating 

factor - which had been improperly found by the trial court -

beyond a reasonable doubt.

The State also argues that we are bound by our decision in 

State v. Green, 209 N.C. App. 669, 707 S.E.2d 715 (2011). Green 

involved a prosecution for impaired driving where two 

aggravating factors and two mitigating factors were found to 
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exist, and the defendant was sentenced to a Level Four 

punishment. Id. at 681, 707 S.E.2d at 723-24. On appeal, the 

defendant argued that the trial court had inappropriately found 

one of the two aggravating factors instead of submitting that 

factor to the jury. Id. The defendant made no argument that the 

trial court inappropriately found the other aggravating factor, 

which involved the defendant’s driving record1. Id. Accordingly, 

the defendant was effectively arguing that there was only one 

valid aggravating factor, instead of two, which, by itself, did 

not substantially counterbalance the two mitigating factors. Id.

at 681-82, 707 S.E.2d at 723-24. This Court, specifically 

relying on the rationale in Norris, expressly held that the

“level four punishment imposed by the trial court [under G.S. § 

20-179] was tantamount to a sentence within the presumptive 

range [in a structured sentencing case], so that the trial court 

did not enhance defendant’s sentence even after finding 

aggravating factors [and, therefore,] Blakely is not 

implicated.” Id. at 681-82, 707 S.E.2d at 724.

We hold Green is distinguishable from the present case. In 

Green, even with the error, there remained one valid aggravating 

 

1 We note that Blakely is not implicated where the fact found by 

the trial court, and not the jury, which is used to enhance a 

defendant’s punishment is the existence of a prior conviction.
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factor to counterbalance the two mitigating factors. See id. 

Even where only one aggravating factor, rather than two, is

found along with two mitigating factors, the trial court still 

has the discretion to sentence the defendant to a Level Four 

punishment since it could have determined, within its 

discretion, that the one aggravating factor “substantially 

counterbalanced” the two mitigating factors. However, in the 

present case, without any aggravating factors properly found, 

the trial court had no discretion but to sentence Defendant to a 

Level Five punishment. Accordingly, we believe that this 

Court’s rationale in Green does not apply.

ii. Notice

Defendant contends the State failed to provide notice that 

it intended to seek aggravating factors as required by N.C. Gen. 

Stat. § 20-179(a1)(1). We agree that the State’s failure to 

provide the required notice was error.

N.C. Gen. Stat. § 20-179(a1)(1) provides the following with 

regard to notice of aggravating factors:

If the defendant appeals to superior court, 

and the State intends to use one or more 

aggravating factors under subsections (c) or 

(d) of this section, the State must provide 

the defendant with notice of its intent. The 

notice shall be provided no later than 10 

days prior to trial and shall contain a 

plain and concise factual statement 
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indicating the factor or factors it intends 

to use under the authority of subsections 

(c) and (d) of this section. The notice must 

list all the aggravating factors that the 

State seeks to establish.

On appeal, the State does not dispute that it failed to provide 

proper notice; but rather, since Defendant was sentenced to a

Level Four punishment, which the State argues is a “presumptive” 

sentence, the State’s failure to provide notice was harmless 

error. However, because we have concluded that a Level Four 

punishment in this case was inappropriate, the State’s argument 

must fail.

Generally, when the State has failed to provide proper 

notice pursuant to N.C. Gen. Stat. § 20-179(a1)(1), this Court 

has vacated Defendant’s sentence and remanded for resentencing. 

State v. Reeves, __ N.C. __, 721 S.E.2d 317 (2012). In Reeves, 

this Court stated, “[i]t is evident that the State failed to 

provide Defendant with the statutorily required notice of its 

intention to use an aggravating factor under N.C.G.S. § 20-

179(d). We must therefore vacate Defendant’s sentence as to the 

DWI charge and remand to the trial court for resentencing.” Id. 

at __, 721 S.E.2d at 322.

Following our rationale in Reeves and other decisions of 

this Court, we believe the proper resolution in the present case 
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is to remand the matter to the trial court, directing it to 

resentence Defendant to a Level Five punishment.

iii. Sentence Outside the Level Four Punishment Range

Defendant argues that the trial court improperly sentenced 

her to a punishment outside the Level Four range. However, 

having concluded that Defendant’s punishment must be vacated and 

this matter remanded for resentencing in the Level Five range, 

we conclude that Defendant’s argument is moot and, therefore, do 

not address its merits.

III. Conclusion

Based on the foregoing, the trial court erred by sentencing 

Defendant to a Level Four punishment on her conviction of 

impaired driving. Accordingly, we vacate and remand the 

judgment on this charge only, directing the trial court to 

resentence Defendant to a Level Five punishment. Otherwise, we 

find no error.

NO ERROR, in part; VACATED and REMANDED, in part.

Judge STROUD and Judge HUNTER, JR. concur.