concurring in part and dissenting in part.
If this Court could render a decision which solely addressed the issue of whether defendant Thomas Richard Jones could lawfully be subjected to possible capital punishment for causing death and serious injury while driving in a dangerously intoxicated manner, I would be more inclined to join in the majority opinion. This Court, however, cannot look at this case and its concomitant issues in such a discrete vacuum. Rather, as an appellate court we must view this case in a broader light, understanding that we cannot remain blind to the legal and societal ramifications of our decision. Ultimately, we must remain cognizant of the fact that our pronouncements transcend the rights and duties of the immediate parties by creating precédent binding upon every citizen of this State.
Examining the case sub judice under this time-tested foresight elucidates the fact that our decision concerns and affects not only intoxicated motorists, but also every North Carolina vehicular driver who utilizes our highways. Indeed, under the majority opinion, any motorist in North Carolina whose culpable negligence1 results in an accident causing at least one death and one serious injury is now potentially subject to the death penalty2. This holding has significant implications because North Carolina jurisprudence holds that a motorist can be found culpably negligent if he exceeds the posted *466speed limit or fails to keep a reasonable lookout3. See e.g. Ingle v. Roy Stone Transfer Corp., 271 N.C. 276, 284, 156 S.E.2d 265, 272 (1967) (stating that failing to keep a reasonable lookout coupled with dangerous speed constitutes reckless driving); State v. Grissom, 17 N.C. App. 374, 375, 194 S.E.2d 227, 228 (holding that excessive speed can constitute reckless driving), disc. rev. denied, 283 N.C. 258, 195 S.E.2d 691 (1973). That is, the majority has failed to draw a bright line between an intoxicated, reckless driver whose unlawful conduct results in death or serious injury and any other driver who does little more than violate this State’s traffic rules and regulations. In so doing, the majority has enveloped this State with a unique and draconian form of criminal liability.
Further, the majority opinion represents the first time that any court in this nation has determined it appropriate to subject a culpably negligent motorist to the death penalty. See Langford v. State, 354 So.2d 313, 315-16 (Ala. 1977) (“no case has been cited, or found, wherein an . . . automobile driver was found guilty of murder in the first degree”). Indeed, such a law is noticeably absent from this State or any other state’s criminal law.
In my opinion, if North Carolina desires to undertake such a far-reaching extension of its criminal law, it should do so through the legislative functions assigned to our General Assembly,4 not through a *467clever prosecutor and the majority panel of two judges on this Court. Nonetheless, the majority opinion arrogates the legislative function and usurps powers the Constitution ordained to ordinary political processes. Unfortunately, this arrogation adds vitality to the familiar charge that the “imperial judiciary” has overstepped its bounds and impermissibly intruded upon matters that our Founding Fathers intended to be left to the democratic process. See Francis J. Larkin, The Variousness, Virulence, and, Variety of Threats to Judicial Independence, 36 NO. 1 Judges’ J. 4 (1997).
With the preceding principles in mind, I examine two compelling arguments the defendant presents which challenge the validity of applying the felony-murder rule to a culpably negligent driver. First, I will address the defendant’s contention that the State violated his due process rights by applying the felony-murder rule without meeting the constitutional requisite of fair notice. Thereafter, I will analyze the defendant’s argument that the felony-murder rule was improperly utilized because the General Assembly neither contemplated nor intended that it be applied to a culpably negligent driver.
I.
The defendant first contends that the State’s novel and unforeseen application of the felony-murder rule operated as a quasiex post facto law in violation of his due process rights. Specifically, the defendant argues that the State failed to meet its constitutional mandate of providing him with fair notice that his conduct subjected him to the felony-murder rule and its stringent penalties.
Before endeavoring to analyze this issue, I must clarify a distinction of substantial import to the defendant’s due process argument. The defendant has not contended, nor am I insinuating, that the State failed to provide him with fair notice that his egregious conduct subjected him to a murder conviction. Indeed, the defendant’s brief specifically states that “[a]t the time [the defendant] committed the offense, the law that was in place would have permitted conviction of involuntary manslaughter or even second degree murder.” Therefore, the issue before us is not whether the defendant, or for that matter any other reckless driver, was provided fair notice that his conduct subjected him to a murder conviction, but rather whether he was provided fair notice that his conduct subjected him to the felony-murder rule and the potential death sentence associated with it.
North Carolina’s felony-murder rule, set forth in N.C. Gen. Stat. § 14-17 (Supp. 1996), provides in pertinent part:
*468A murder . . . which shall be committed in the perpetration or attempted perpetration of any arson, rape, or a sex offense, robbery, kidnapping, or burglary, or other felony committed or attempted with the use of a deadly weapon shall be deemed to be murder in the first degree, a Class A felony, and any person who commits such murder shall be punished with death or imprisonment in the State’s prison for life ....
(Emphasis added.) Accordingly, an individual can be convicted under the felony-murder rule if a killing occurred during the commission of a felony committed with the use of a deadly weapon. N.C. Gen. Stat. § 14-17; State v. Davis, 305 N.C. 400, 423-24, 290 S.E.2d 574, 588 (1982).
In the case sub judice, the defendant was charged with the underlying felony of assault with a deadly weapon inflicting serious injury under N.C. Gen. Stat. § 14-32(b) (1993). The elements of that crime are (1) an assault, (2) with a deadly weapon, (3) inflicting serious' injury, and (4) not resulting in death. See N.C. Gen. Stat. § 14-32(b); State v. Woods, 126 N.C. App. 581, 592, 486 S.E.2d 255, 261 (1997).
Although there is no statutory definition of assault, our Supreme Court has defined it as “an overt act or an attempt, or the unequivocal appearance of an attempt, with force and violence, to do some immediate physical injury to the person of another, which show of force or menace of violence must be sufficient to put a person of reasonable firmness in fear of immediate bodily harm.” State v. Roberts, 270 N.C. 655, 658, 155 S.E.2d 303, 305 (1967). With respect to the mens rea or criminal intent requirement for assault, I note there is conflict among our jurisprudence. Indeed, while this Court stated in State v. Curie, 19 N.C. App. 17, 20, 198 S.E.2d 28, 30 (1973), that “[i]ntent is not an element of . . . assault with a deadly weapon,” it also stated in State v. Coffey, 43 N.C. App. 541, 543, 259 S.E.2d 356, 357 (1979) (citations omitted), that “intent is an essential element of the crime of assault.” Because it is undisputed that the defendant had the requisite mens rea, I need not confront this discrepancy.
Proceeding, “[a] deadly weapon is any article, instrument, or substance that is likely to produce great bodily harm or death.” State v. Hales, 344 N.C. 419, 426, 474 S.E.2d 328, 332 (1996). The focus of the inquiry is upon “the destructive capabilities of the weapon or device” and the “circumstances of its use.” See State v. McBride, 118 N.C. App. 316, 318, 454 S.E.2d 840, 841-42 (1995). It is well settled that a motor vehicle, if used in a dangerous or reckless manner, can consti*469tute a deadly weapon. Eason, 242 N.C. at 65, 86 S.E.2d at 778; State v. Sudderth, 184 N.C. 753, 755, 114 S.E. 828, 829-30 (1922); McBride, 118 N.C. App. at 318; 454 S.E.2d at 841. Notably, our Supreme Court has stated that the operator of a motor vehicle may be convicted of assault with a deadly weapon when, by means thereof, he strikes and injures a person so long as there is either (1) an actual intent to inflict injury, or (2) culpable or criminal negligence from which such intent may be implied. See Eason, 242 N.C. at 65, 86 S.E.2d at 778.
In this case, all the elements of assault with a deadly weapon inflicting serious injury are present. The defendant drove his motor vehicle, a deadly weapon, in a culpably or criminally negligent manner. As a result thereof, the defendant inflicted serious injuries upon Aline J. Iodice, Melinda P. Warren, and Lea Temple Billmeyer. Accordingly, the defendant was properly convicted of these crimes.
Given that the defendant was properly convicted of assault with a deadly weapon inflicting serious injury, the language of our felony-murder statute ostensibly condones his felony-murder conviction. Indeed, I concur with the majority’s acceptance of the State’s syllo-gistical reasoning: (1) one can be convicted of a felony-murder crime if a killing occurs during a felony that involves the use of a deadly weapon; (2) an individual who recklessly drives a motor vehicle into another causing a serious injury but not death has committed the felony of assault with a deadly weapon inflicting serious injury; (3) the defendant killed one person and seriously injured others while recklessly driving his motor vehicle; (4) accordingly, the defendant is guilty of assault with a deadly weapon inflicting serious injury; (5) therefore, the defendant is also guilty of felony murder.
Although the State’s reasoning appears sound, syllogistic logic does not end our analysis. Specifically, a thorough and proper analysis of a criminal conviction also requires this Court to analyze the constitutional considerations surrounding this matter. It is in this respect that I analyze the defendant’s argument that his due process rights were violated by the State’s quasi ex post facto application of the felony-murder rule. Because the defendant’s due process argument involves principles and tenets of ex post facto jurisprudence, I begin this analysis with a brief introduction and outline of ex post facto law.
Since it’s earliest decisions, the United States Supreme Court has defined an ex post facto law as one which: (1) makes an action criminal which was done before the passing of the law and which was *470innocent when done, (2) aggravates a crime or makes it greater than when it was committed, (3) allows imposition of a different or greater punishment than was permitted when the crime was committed, or (4) alters the legal rules of evidence to permit different or less testimony to convict the offender than was required at the time the offense was committed. See Collins v. Youngblood, 497 U.S. 37, 42, 111 L. Ed. 2d 30, 38-39 (1990); Calder v. Bull, 3 U.S. 386, 390, 1 L. Ed. 648, 650 (1798); State v. Vance, 328 N.C. 613, 620, 403 S.E.2d 495, 500 (1991). “Two critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.” Weaver v. Graham, 450 U.S. 24, 29, 67 L. Ed. 2d 17, 23 (1981).
The prohibition against ex post facto laws set forth in both Article I, Section 10 of the United States Constitution and Article I, Section 16 of the North Carolina Constitution is directed toward legislative action. See Marks v. United States, 430 U.S. 188, 191-92, 51 L. Ed. 2d 260, 264-65 (1977); Vance, 328 N.C. at 620, 403 S.E.2d at 500. Nonetheless, the United States Supreme Court has held that “[i]f a state legislature is barred by the Ex post facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction.” Bouie v. City of Columbia, 378 U.S. 347, 353-54, 12 L. Ed. 2d 894, 900 (1964). Consequently, “an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution forbids,” Id. at 353, 12 L. Ed. 2d at 899, and therefore is unconstitutional under the Due Process Clauses of the Fifth and Fourteenth Amendments to the Constitution of the United States. See Vance, 328 N.C. at 620, 403 S.E.2d at 500.
Significantly, it is of no import that the defendant knew his conduct was criminal at the time it occurred. As stated by the United States Supreme Court, “[t]he enhancement of a crime, or penalty, seems to come within the same mischief as the creation of a crime or penalty” and is accordingly equally prohibited. Collins, 497 U.S. at 44, 111 L. Ed. 2d at 40. In fact, the bulk of ex post facto jurisprudence involves claims that a law inflicted a greater punishment than the law annexed to the crime when committed. See Lynce v. Mathis, 519 U.S. 433, 441, 137 L. Ed. 2d 63, 72 (1997). This jurisprudence summarily holds that constitutional-due-process protections, like ex post facto protections, proscribe judicially enforced changes in legal interpreta*471tions which unforeseeably expand the punishment accompanying a conviction beyond that which an actor could have anticipated at the time he committed the criminal act. See Helton v. Fauver, 930 F.2d 1040, 1045 (3rd Cir. 1991); Dale v. Haeberlin, 878 F.2d 930, 934 (6th Cir. 1989), cert. denied, 494 U.S. 1058, 108 L. Ed. 2d 767 (1990).
Concomitant with the due-process analysis relating to ex post facto laws is the due-process requirement of fair notice. That is, if an actor has fair notice that his conduct is proscribed by a statute or a judicial construction of that statute, then the actor has no rightful due-process claim that a later judicial construction operated like a quasi ex post facto law.
The fair-notice requirement has three related manifestations. First, the vagueness doctrine bars enforcement of a “statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.” Connally v. General Constr. Co., 269 U.S. 385, 391, 70 L. Ed. 322, 328 (1926). Second, “as a sort of ‘junior version of the vagueness doctrine,’ the canon of strict construction of criminal statutes, or rule of lenity, ensures fair notice by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered.” United States v. Lanier, 520 U.S. 259, 266, 137 L. Ed. 2d 432, 442 (1997) (citation omitted). Third, “although clarity at the requisite level may be supplied by judicial gloss on an otherwise uncertain statute, due process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed within its scope.” Id.; see also Marks, 430 U.S. at 191-92, 51 L. Ed. 2d at 260. Accordingly, a criminal statute may only be used as the basis for a conviction or an increased penalty if the statute and its accompanying interpretation meet all three of the fair-notice requirements.
In this case, this Court is asked to determine whether the defendant was provided fair notice that his culpably negligent driving would subject him to our felony-murder rule and possible capital punishment. The majority opinion concludes that the defendant’s current and prior convictions for drunk driving evidence that he received constitutionally adequate notice that a culpably negligent driver in North Carolina could be subjected to the death penalty. Specifically, the majority opinion contends that the defendant was provided adequate notice because any reasonably intelligent person knows that driving while intoxicated subjects him to potentially harsh sanctions. In support of this argument, the majority opinion cites State v. Trott, *472190 N.C. 674, 130 S.E. 627 (1925), where our Supreme Court upheld the defendant’s conviction for second-degree murder when, while intoxicated, he allowed another intoxicated person to operate his motor vehicle.
The majority opinion, by citing Trott, sets forth the proposition that the defendant had adequate notice that he could be convicted of second-degree murder. I concur in this proposition because it is well supported by North Carolina jurisprudence. See N.C. Gen. Stat. § 14-17; N.C. Gen. Stat. § 20-141.4; State v. Rich, 1999 WL 100916 (1999) (affirming second-degree murder conviction for driver who was speeding and veered out of his lane of travel); State v. Snyder, 311 N.C. 391, 317 S.E.2d 394 (1984) (affirming second-degree murder conviction in facts substantially similar to those in the case sub judice). Indeed, I conclude this dissent by noting that the State could have constitutionally obtained two life sentences against the defendant if it had charged him with second-degree murder.
Nonetheless, I emphasize that Trott fails to support the majority opinion’s proposition that a culpably negligent motorist, regardless of his level of sobriety, can be lawfully convicted of first-degree-felony murder when, as a result of his unlawful conduct, death and serious injury occur. The majority opinion implies that Trott supports such a proposition by noting that the defendants in that case were indicted for first-degree murder. It is unclear from the opinion, however, whether the defendants were in fact charged in this manner5. More importantly, the defendants were ultimately convicted of second-degree murder and accordingly our Supreme Court never addressed the pertinent issue of whether the charged defendants could have been lawfully convicted of first-degree murder. Id. Therefore, the majority opinion’s reliance on Trott is unfounded.
Additionally, the majority opinion states that the defendant was provided fair notice because he knew that “he was taking serious risks — and facing serious consequences — when he continued to operate his automobile under the influence of drugs and alcohol.” This reasoning is unpersuasive. Just because an individual knows that his conduct is risky and subjects him to potential sanctions, that *473does not mean that the individual can be prosecuted under any law. Indeed, specific laws are created and passed to address specific issues. It would be absurd, for example, to say that an embezzler could be lawfully convicted of murder because he knew that his unlawful acts were risky and subjected him to serious consequences. That is, a distinction must be made between having notice that your actions are unlawful and having notice with respect to which laws and punishments apply to that unlawful conduct. Perhaps more distressing is the majority opinion’s continued and significant reliance on the defendant’s intoxicated state as providing him with constitutionally fair notice that his conduct subjected him to the felony-murder rule and possible capital punishment. A proper examination of the record illustrates that the defendant’s intoxicated state, though morally repugnant, beared no legal consequence to his felony-murder conviction. The defendant’s intoxication was legally immaterial because the underlying felony supporting his felony-murder conviction was assault with a deadly weapon, not felonious driving while impaired.
Recognizing and addressing this distinction is of paramount importance because the State was not required to present any evidence of the defendant’s intoxication to provide the jury with sufficient evidence to convict him of assault with a deadly weapon. Accordingly, the majority, by classifying the defendant as an intoxicated culpably-negligent driver, rather than simply as a culpably negligent driver, ignored the distinction between an individual whose felony-murder conviction is supported by a charge of assault with a deadly weapon and an individual whose felony-murder conviction is supported by felonious driving while impaired.
The majority’s failure to discern this distinction results in an opinion that addresses this watershed issue too narrowly. In effect, the majority opinion examines this case only with respect to how it affects intoxicated motorists as opposed to motorists in general. Moreover, the majority opinion addresses the defendant’s arguments only as they pertain to an intoxicated motorist, disregarding the fact that we must determine these issues as they pertain to a culpably negligent driver. Significantly, the majority opinion analyzed the issue of whether the defendant received fair notice by determining whether an intoxicated motorist knew or should have known that his conduct would subject him to potential capital punishment. If the underlying felony in this case had been felonious driving while impaired, such an analysis would have been warranted. However, since the underlying *474felony in the case sub judice was assault with a deadly weapon, the appropriate analysis involves a determination as to whether a culpably negligent driver — whether intoxicated or sober — knew or should have known that his conduct subjects him to potential capital punishment. Because the majority opinion failed to make this distinction, I now proceed to analyze this compelling issue.
Undoubtedly, a culpably negligent driver in North Carolina should contemplate that his conduct requires punitive repercussions; however, such repercussions are expected to be proportional to the unlawful conduct. See generally State v. Kirkpatrick, 345 N.C. 451, 454, 480 S.E.2d 400, 405 (1997) (“A primary purpose of sentencing is to punish an offender with the degree of severity that his culpability merits.”). Prior to the case sub judice, no culpably negligent driver in this State had ever been prosecuted under the felony-murder rule. Accordingly, North Carolina drivers most assuredly had no precedent alerting them that culpably negligent driving may subject them to a capital trial and the prospect of the death penalty.
To emphasize this point, consider the following hypothetical case: a grandmother is involved in an accident when, in an effort to get to her grandchild’s school on time, she weaves through traffic at eighty miles-per-hour in a sixty-five mile-per-hour zone. Although this hypothetical appears factually distinct from the case sub judice— comparing a drunk driver who has a pattern of reckless behavior with a woman who only appears to be violating a traffic regulation— legally speaking, these cases are indistinguishable. Reiterating, because the underlying offense for the defendant’s felony-murder conviction was assault with a deadly weapon inflicting serious injury, the fact that the defendant was impaired at the time of the offense is immaterial to the legal issue in this case. It was the accident at the University Parkway intersection, coupled with the defendant’s speeding and driving in the wrong lane of travel, which standing alone constituted the culpable or criminal negligence needed to support his conviction for assault with a deadly weapon inflicting serious injury.
To clarify, a North Carolina motor vehicle operator may properly be convicted of assault with a deadly weapon when he strikes and injures a person while operating his vehicle in a culpably or criminally negligent manner. See Eason, 242 N.C. at 65, 86 S.E.2d at 778. Culpable or criminal negligence, as defined by our Supreme Court, is “such recklessness or carelessness, proximately resulting in injury or *475death, as imports a thoughtless disregard of consequences or a heedless indifference to the safety and rights of others.” State v. Cope, 204 N.C. 28, 30, 167 S.E. 456, 458 (1933). Significantly,
[t]he violation of a safety statute which results in injury or death will constitute culpable negligence if the violation is wilful, wanton, or intentional. But, where there is an unintentional or inadvertent violation of the statute, . . . [it] must be accompanied by recklessness of probable consequences of a dangerous nature, when tested by the rule of reasonable prevision, amounting altogether to a thoughtless disregard of consequences or of a heedless indifference to the safety of others.
State v. Hancock, 248 N.C. 432, 435, 103 S.E.2d 491, 494 (1958).
Under the preceding rules, the evidence sufficiently indicates that the defendant drove in a culpably or criminally negligent manner. However, under jurisprudence set by our Supreme Court, the speeding driver in our hypothetical could also be found to have driven in a culpably or criminally negligent manner.
For example, in State v. Wilson, 218 N.C. 769, 12 S.E.2d 654 (1941), our Supreme Court upheld the defendant’s conviction for reckless driving6 when the State’s evidence tended to show that he was exceeding the speed limit by driving sixty miles-per-hour and, as a result thereof, he crashed into the rear of a car being driven in the same direction. On this evidence alone, the Court upheld the defendant’s conviction. Id.
Similarly, in State v. Steelman, 228 N.C. 634, 46 S.E.2d 845 (1948), our Supreme Court affirmed the defendant’s reckless-driving conviction when the evidence showed that he drove at an excess rate of speed and thereafter ran into the rear end of a car traveling in the same direction. The only evidence in that case was that the extent of resultant damage to both vehicles indicated “excessive speed and the absence of proper regard for the rights and safety of others.” Id. at 636, 46 S.E.2d at 846.
These cases demonstrate instances whereby an individual may be found culpably or criminally negligent for doing little more than traveling at an excessive rate of speed. See also Swicegood v. Cooper, 341 *476N.C. 178, 181, 459 S.E.2d 206, 208 (1995) (stating that “[w]hether a driver exceeds the [speed] limit by fifteen miles per hour in a thirty-five mile per hour zone or a fifty mile per hour zone, he endangers those around him”); Ingle, 271 N.C. at 284, 156 S.E.2d at 272 (stating that failing to keep reasonable lookout coupled with dangerous speed equates to reckless driving); Grissom, 17 N.C. App. at 375, 194 S.E.2d at 228 (holding that excessive speed can constitute reckless driving); State v. Floyd, 15 N.C. App. 438, 440, 190 S.E.2d 353, 355 (affirming reckless driving conviction when defendant drove sixty to seventy miles-per-hour in a forty-five mile-per-hour zone and swerved), disc. rev. denied, 281 N.C. 760, 191 S.E.2d 363 (1972).
Under the preceding cases, both the defendant and the speeding grandmother from our hypothetical were driving in a culpably or criminally negligent manner. Accordingly, because a driver need only be found culpably or criminally negligent to sustain an assault with a deadly weapon charge, both the defendant and the speeding grandmother could properly be convicted of that crime. Therefore, following the majority’s holding that assault with a deadly weapon inflicting serious injury, when the deadly weapon is a motor vehicle, is an enumerated felony under our felony-murder rule, both the defendant and the speeding grandmother could properly be charged with felony murder. Surely, the speeding grandmother in the hypothetical did not have fair notice that by violating a traffic regulation she would be subjecting herself to the felony-murder rule and the death penalty.
Although the defendant’s conduct is moré egregious than the speeding grandmother’s, the egregiousness of that conduct did not provide the defendant with any more notice than the grandmother that the felony-murder rule applies to a culpably negligent driver who seriously injures at least one person and kills another. Moreover, while it may appear distinguishing to point out that the defendant had more notice than the speeding grandmother because he knew or should have known that by driving after drinking and taking narcotics he was subjecting himself to harsh penalties; legally, the defendant’s impaired state was not material to his conviction because the underlying felony supporting his felony-murder conviction was assault with a deadly weapon inflicting serious injury, not felonious driving while impaired. Thus, as to the defendant’s felony-murder conviction, he would be in the same tenuous legal position regardless of whether he was impaired.
I find further support for my conclusion that the defendant was not provided with fair notice by looking to the history of our felony-*477murder rule. Our felony-murder rule was codified by the General Assembly in 1893 and our Supreme Court first characterized a motor vehicle as a deadly weapon in 1922. See generally State v. Streeton, 231 N.C. 301, 305, 56 S.E.2d 649, 652 (1949). Despite this longstanding jurisprudence, neither this State, nor any other state, has ever applied the felony-murder rule to a culpably negligent driver. Thus, despite over seventy-five years of applying and interpreting our felony-murder rule, no driver has ever been prosecuted in this manner, nor has there been even the slightest foreshadowing of such use. Indeed, the fact that our felony-murder rule has never been used in this manner illustrates that the only notice the State provided the defendant regarding the application of the felony-murder rule to a culpably negligent driver is that it would not be used in this manner. See e.g. Snyder, 311 N.C. 391, 317 S.E.2d 394 (finding defendant guilty of second-degree murder, not felony murder, when his reckless and impaired driving caused three deaths).
In sum, I would hold that the State violated the defendant’s due process rights. Specifically, the defendant was not provided fair notice that his conduct would subject him to the felony-murder rule and possible capital punishment. I undertook this extensive analysis to demonstrate that this Court should not allow the egregious facts of this case to guide its decision. Should we let the particular facts of this case be our sole guide, we would be letting bad facts make bad law. Moreover, we would be setting a dangerous precedent that could lead to even more egregious injustices, especially since those injustices will be sanctioned by this Court and this State. As stated by Justice Jackson in his dissent in Korematsu v. United States, 323 U.S. 214, 246, 89 L. Ed. 194, 214 (1944), “once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle.”
II.
Assuming arguendo that the State may constitutionally apply the felony-murder rule to the defendant in this case, I nonetheless would hold that the defendant’s first-degree murder conviction must be vacated because the State’s use of the felony-murder rule in this manner was neither contemplated nor intended by our General Assembly.
At the outset, I address the majority’s contention that the defendant failed to present this issue in his brief and therefore abandoned *478his right to have this Court consider it on appeal. Admittedly, the defendant failed to precisely label any of his arguments as relating to legislative intent. Nonetheless, the defendant argued with respect to legislative intent within his contention that the term “deadly weapon” is unconstitutionally vague. Specifically, the defendant cited to State v. Beale, 324 N.C. 87, 371 S.E.2d 1 (1989), to illustrate the proposition that we must endeavor to discern legislative intent when determining whether a felony was intended by our General Assembly to sustain a charge of felony murder. Immediately thereafter, the defendant argued that “[h]ad the legislature intended to include [vehicular homicide based upon culpable negligence] within the purview of the felony murder rule in section 14-17, it could have done so explicitly.” This argument, albeit improperly labeled, undoubtedly pertains to the legislative intent behind the felony-murder rule. It follows that the defendant properly preserved this argument on appeal. Therefore, this Court should examine whether the State’s novel application of the felony-murder rule comports with the General Assembly’s intent in codifying and amending our felony-murder rule.
As stated, the felony-murder rule has always been a part of our common law and was codified by our General Assembly in 1893. See Streeton, 231 N.C. at 305, 56 S.E.2d at 652. There are three main justifications for the rule’s existence: (1) it deters negligent and accidental killings during the commission of felonies; (2) it deters the commission of the dangerous felonies themselves; and (3) an individual who commits or attempts to commit a felony has the necessary culpability to be found guilty of murder. Roth and Sundby, The Felony murder Rule: A Doctrine At Constitutional Crossroads, 70 Cornell L. Rev. 446, 450 (1985).
Our Supreme Court has stated that the rationale behind the felony-murder rule is
that one who commits a felony is a bad person with a bad state of mind, and he has caused a bad result, so that we should not worry too much about the fact that the fatal result he accomplished was quite different and a good deal worse than the bad result he intended.
State v. Richardson, 341 N.C. 658, 666-67, 462 S.E.2d 492, 498 (1995) (quoting State v. Wall, 304 N.C. 609, 626, 286 S.E.2d 68, 78 (1982) (Copeland, J., dissenting).). (Emphasis added.)
Despite the long-standing use of the felony-murder rule in this State, in 1977 the General Assembly amended the rule to both limit *479and expand its coverage. Prior to 1977, felony murder was defined as a killing “committed in the perpetration or attempt to perpetrate any arson, rape, robbery, burglary, or other felony.” 1949 N.C. Sess. Laws Ch. 299 § 1. (Emphasis added.) Currently, felony murder is defined as a killing “committed in the perpetration or attempted perpetration of any arson, rape, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon.” N.C. Gen. Stat. § 14-17. (Emphasis added.)
Our current definition of felony murder is more expansive than the previous one because it contains more enumerated felonies. Specifically, while our earlier definition listed “arson, rape, robbery, [and] burglary” as enumerated felonies, our current definition not only enumerates those felonies, but also enumerates any rape, sex offense, or kidnapping.
At the same time, our current definition is less expansive because the earlier definition contained vague “other felony” language. This vague “other felony” language was interpreted by our Supreme Court to refer to any felony which “creates any substantial foreseeable human risk and actually results in the loss of life.” State v. Thompson, 280 N.C. 202, 211, 185 S.E.2d 666, 672 (1972). Accordingly, by changing the statutory language from “other felonies” to those “committed or attempted with the use of a deadly weapon,” our General Assembly has limited the “other felonies” which would support a felony-murder charge. See Wall, 304 at 614, 286 at 72. This latter change is of particular import to the case sub judice.
By limiting the coverage of the “other felony” language of the felony-murder rule, our General Assembly must have intended to limit the coverage of the felony-murder rule itself. Logically, the amendment limited the “other felonies” which could form the básis of a felony-murder charge from those which “create]] substantial foreseeable human risk and actually result[] in the loss of life” to only those felonies which involve the “use of a deadly weapon.” Clearly, by limiting the number of felonies that support a felony-murder conviction, the General Assembly must have intended to reign in the felony-murder rule’s expansion.
At first glance, it appears that although the General Assembly limited the felonies which could be used to form the basis of a felony-murder charge, it nonetheless intended to include assault with a deadly weapon within the group of enumerated felonies as demonstrated by the plain language of the amended statute. While the plain *480language of the statute ostensibly mandates this conclusion, it persuasively appears that the General Assembly did not contemplate the State’s novel application of that language in this case.
“When a literal interpretation of the statutory language yields absurd results ... or contravenes clearly expressed legislative intent, the reason and purpose of the law shall control and the strict letter thereof shall be disregarded.” Charlotte Housing Auth. v. Patterson, 120 N.C. App. 552, 556, 464 S.E.2d 68, 71 (1995). Further, the General Assembly is not presumed to intend innovations upon the common law and accordingly innovations not within the Assembly’s intentions shall not be carried into effect. See Buck v. U.S. Fidelity & Guaranty Co., 265 N.C. 285, 290, 144 S.E.2d 34, 37 (1965); Price v. Edwards, 178 N.C. 493, 101 S.E. 33 (1919). As recently stated by another court, “[w]hile inventive and clever applications of statutes may have their place in some legal settings, they have no place in an indictment charging someone with [a] serious felon[y] . . . .” United States v. Hsia, 24 F. Supp. 2d 33, 54 (D.D.C. 1998).
In the case sub judice, although the plain language of N.C. Gen. Stat. § 14-17 includes as an enumerated felony one which is committed with the use of a deadly weapon, the history of this legislation indicates the General Assembly did not intend to include within the ambit of N.C. Gen. Stat. § 14-17 a culpably negligent driver whose conduct results in at least one injury and one death. First, as stated, the General Assembly has taken action to limit rather than expand the coverage of the felony-murder rule. This limiting trend indicates that the General Assembly did not intend to enumerate a crime that in many circumstances involves an individual wholly lacking in intent and malice. Such circumstances exist in cases like that posed by our earlier hypothetical, Wilson, and Steelman.
Further, as stated, the primary rationale for our felony-murder rule is that “one who commits a felony is a bad person with a bad state of mind, ... so that we should not worry too much about the fact that the fatal result he accomplished was quite different and a good deal worse than the bad result he intended.” Richardson, 341 N.C. at 666-67, 462 S.E.2d at 498. Although this rationale may apply to the case sub judice, it does not necessarily apply to the average person who drives in excess of the posted-speed limit or in some other manner which may be considered culpably negligent.
Again, my hypothetical, along with the Smith and Wilson cases, demonstrate situations where a person can be found guilty of assault *481with a deadly weapon even if he is not a “bad person with a bad state of mind.” In these situations, the rationale behind the felony-murder rule does not apply. Nonetheless, under the majority opinion, those individuals would be subject to the felony-murder rule and possibly capital punishment.
I find further support for my conclusion that our General Assembly did not intend to include these situations within the ambit of the felony-murder rule by looking to the punishments the felony-murder rule proscribes. Under N.C. Gen. Stat. § 14-17, if a person is found guilty of felony murder, the jury must decide between two punishments, death or life imprisonment. N.C. Gen. Stat. § 14-17. Reconsidering my hypothetical, should the State decide to prosecute the speeding driver for felony murder, the trier of fact upon a finding of guilt would be forced to either sentence the driver to death, to life imprisonment, or use its inherent power of jury nullification and acquit. Accordingly, the jury would be facing a Hobson’s choice. I do not believe our General Assembly would intend such a result.
Perhaps more distressing is that under the State’s syllogistic argument, it can prosecute any individual for felony murder if that person’s reckless driving results in at least one serious injury and one death. Significantly, once the State has demonstrated culpable or criminal negligence, the individual is guilty of assault with a deadly weapon inflicting serious injury and therefore guilty of an enumerated felony. Thus, under the State’s argument, the jury is forced to convict the individual of felony murder based on the plain language of the statute. Thereafter, the jury is forced to sentence the individual to life imprisonment or death.
Precedent established by our Supreme Court further supports my conclusion. In State v. Beale, 324 N.C. 87, 376 S.E.2d 1 (1989), the Supreme Court of North Carolina was asked to determine whether the unlawful, willful and felonious killing of a viable but unborn child constituted felony murder under N.C. Gen. Stat. § 14-17. In deciding this issue, the Court had to determine whether the term “murder,” as utilized in that statute, included the killing of a viable but unborn child. Id. After using the rule of lenity and analyzing the legislative intent behind the felony-murder rule, the Court concluded that such a killing was not within the purview of the felony-murder rule. Id. at 93, 376 S.E.2d at 4. The Court supported its conclusion by stating that the legislature did not intend the intentional destroying of a fetus to be within the felony-murder rule by pointing to N.C. Gen. Stat. § 14-44 through 14-46 which deal with the crimes of abortion and *482kindred offenses. Id. at 92, 376 S.E.2d at 4. According to the Court, “[t]he legislature has considered the question of intentionally destroying a fetus and determined the punishment therefor.” Id. That is, the aforementioned specific statutes demonstrated to the Court that the legislature intended these crimes to be handled in a manner separate and distinct from felony murder.
Similarly, in this case, there are specific statutes, felonious and misdemeanor death by vehicle, dealing with the specific criminal acts undertaken by the defendant. See N.C. Gen. Stat. § 20-141.4. Significantly, these statutes were cited by the Court in Beale to illustrate other crimes that are not within the purview of the felony-murder rule. See Beale, 324 N.C. at 92, 376 S.E.2d at 4. This explicit recognition is of such import that I recite the entire paragraph below:
The creation and expansion of criminal offenses is the prerogative of the legislative branch of the government. The legislature has considered the question of intentionally destroying a fetus and determined the punishment therefor. (Citations omitted). It has adopted legislation dealing generally with the crimes of abortion and kindred offenses. (Citations omitted). It has also created the new offenses of felony and misdemeanor death by vehicle. (Citations omitted.) It has amended N.C. Gen. Stat. § 14-44 and N.C. Gen. Stat. § 14-17 on more than one occasion. Nothing in any of the statutes or amendments shows a clear legislative intent to change the common law rule ....
Id. (Emphasis added.)
Like Beale, the Court in the instant case is asked to determine whether the legislature intended a certain criminal act to be within the purview of the felony-murder rule. This Court may not depart from our Supreme Court’s reasoning in Beale. That is, both the felony in this case and the felony in Beale were not considered adequate bases for application of the felony-murder rule at common law. Moreover, in both cases the underlying felony had never before been used as the underlying felony for application of the felony-murder rule — despite their long-standing recognition as a crime. Lastly, in both cases the General Assembly had considered the exact conduct at issue and decided to apply a unique set of rules and punishments applicable to that conduct.
In summation, the State has failed to recognize that our General Assembly never contemplated nor intended the felony-murder rule to *483be used as a means of prosecuting a culpably negligent driver. Rather, the State decided to use statutory gymnastics to judicially legislate a law that bears harshly upon every citizen of this State. Justice Scalia most recently condemned such judicial legislation when he stated “[i]f to state this case is not to decide it, the law has departed further from the meaning of the language than is appropriate for a government that is supposed to rule (and to be restrained) through the written word.” United States v. Rodriquez-Moreno, 119 S. Ct. 1239, 1245 (1999) (Scalia, J., dissenting).
III. CONCLUSION
Initially, I would affirm the defendant’s conviction for assault with a deadly weapon inflicting serious injury with respect to Aline J. Iodice, Melinda P. Warren, and Lea Temple Billmeyer. Moreover, I would affirm the defendant’s conviction for assault with a deadly weapon upon Margaret Fiona Penney and his conviction for driving while impaired.
However, I would vacate the defendant’s first-degree murder conviction because the State violated the defendant’s due process rights by applying the felony-murder rule in a novel manner that failed to accord him a fair notice. Further, I would hold that even without the constitutional infirmities surrounding this case, the defendant’s first-degree murder conviction must be vacated because our General Assembly neither contemplated nor intended the felony-murder rule to apply to a culpably negligent driver whose conduct results in at least one injury and one death.
Importantly, it should be noted that the State could have charged the defendant with a plethora of other offenses including felonious death by vehicle, involuntary manslaughter, and second-degree murder. See N.C. Gen. Stat. § 14-17; N.C. Gen. Stat. § 20-141.4; Rich, 1999 WL 100916 (1999) (affirming second-degree murder conviction for driver who was speeding and veered out of his lane of travel); Snyder, 311 N.C. 391, 317 S.E.2d 394 (affirming second-degree murder conviction in facts substantially similar to those in the case sub judice). Moreover, under structured sentencing, if the State had charged the defendant with second-degree murder and he was convicted thereof, the trial court, if it found aggravating circumstances, could have sentenced the defendant to two consecutive sentences of life imprisonment. See N.C. Gen. Stat. § 15A-1340.16(b) (Supp. 1996); State v. Dickens, 346 N.C. 26, 45, 484 S.E.2d 553, 563 (1997) (affirming sentence of life imprisonment when defendant was convicted of a *484class C felony with aggravating circumstances). Indeed, I am profoundly concerned with this country’s drunk driving epidemic and believe that individuals like the defendant deserve and ultimately should bear harsh sanction for their actions. Accordingly, my decision would not ameliorate the potential to appropriately punish the defendant for his unlawful conduct, but rather would have set forth a constitutionally sound manner of doing so.
I would hold:
NO ERROR, REMAND FOR SENTENCING, 96 CRS 36858, assault with a deadly weapon inflicting serious injury upon Aline J. Iodice.
NO ERROR, REMAND FOR SENTENCING, 96 CRS 36861, assault with a deadly weapon inflicting serious injury upon Melinda P. Warren.
NO ERROR, 96 CRS 36862, assault with a deadly weapon upon Margaret Fiona Penney.
NO ERROR, REMAND FOR SENTENCING, 97 CRS 07301, assault with a deadly weapon inflicting serious injury upon Lea Temple Billmeyer.
NO ERROR, 97 CRS 07301, driving while impaired.
VACATE, 96 CRS 34278, first-degree murder of Julie Marie Hansen.
VACATE, 96 CRS 34279, first-degree murder of Maia Witzl.
. Under State v. Eason, 242 N.C. 59, 65, 86 S.E.2d 774, 778 (1955), a driver charged with assault with a deadly weapon must have a mens rea requirement of at least culpable negligence to be lawfully convicted of that crime. Accordingly, I will analyze this issue with respect to that mens rea requirement.
. The majority opinion holds that a culpably negligent motorist whose conduct results in at least one death and one serious injury can be lawfully prosecuted for felony murder. Under our statutory framework, an individual convicted of felony murder must be sentenced to death or life imprisonment.
. Although the cases holding this involve persons convicted of reckless driving, they are equally applicable to our analysis given that “[t]he language in each section of the reckless driving statute defines culpable negligence.” Ingle v. Roy Stone Transfer Corp., 271 N.C. 276, 284, 166 S.E.2d 266, 271 (1967). (citations omitted).
. In fact, our General Assembly has already contemplated situations similar to the one in the case sub judice and has legislated appropriate sanctions. Specifically, our General Assembly passed N.C. Gen. Stat. § 20-141.4 entitled “Felony and Misdemeanor Death By Vehicle” which provides in pertinent part,
(al) Felony Death by Vehicle — A person commits the offense of felony death by vehicle if he unintentionally causes the death of another person while engaged in the offense of impaired driving ....
(a2) Misdemeanor Death by Vehicle — A person commits the offense of misdemeanor death by vehicle if he unintentionally causes the death of another person while engaged in the violation of any State law or local ordinance applying to the operation or use of a vehicle or to the regulation of traffic, other than impaired driving....
N.C. Gen. Stat. § 20-141.4 (1993). Significantly, the sanctions associated with these crimes are substantially less draconian than the capital trial the defendant faced. That is, the General Assembly has demonstrated its belief that the conduct undertaken by the defendant, though egregious and deserving of sanction, does not warrant the severity of sanctions concomitant with felony-murder prosecution.
. Specifically, the opinion states that “[t]he defendant and one Robert Michael were jointly indicted for the murder of Evelyn Rowe. When the case was called for trial, the solicitor announced that the State would prosecute the defendants only for murder in the second degree, or for manslaughter. Both were convicted of murder in the second degree.” Trott, 190 N.C. at 674, 130 S.E. at 627. I do not interpret this language as evidence that the defendants were indicted for first-degree murder.
. As previously stated, although Wilson and Steelman involve persons convicted of reckless driving, they axe equally applicable to our analysis given that “[t]he language in each section of the reckless driving statute defines culpable negligence.” Ingle, 271 N.C. at 284, 156 S.E.2d at 271. (citations omitted).