{ "id": 8525019, "name": "STATE OF NORTH CAROLINA v. JAMES BYRON FERGUSON", "name_abbreviation": "State v. Ferguson", "decision_date": "1992-03-17", "docket_number": "No. 9130SC550", "first_page": "692", "last_page": "696", "citations": [ { "type": "official", "cite": "105 N.C. App. 692" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "240 S.E.2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 220", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572419 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0220-01" ] }, { "cite": "355 S.E.2d 492", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "319 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4742094 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/319/0437-01" ] }, { "cite": "289 S.E.2d 86", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "56 N.C. App. 358", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521056 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/56/0358-01" ] }, { "cite": "336 S.E.2d 78", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "82" } ], "opinion_index": 0 }, { "cite": "314 N.C. 618", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4696312 ], "year": 1985, "pin_cites": [ { "page": "626" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0618-01" ] }, { "cite": "340 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "435", "parenthetical": "quoting State v. Thompson, 314 N.C. 618, 626, 336 S.E.2d 78, 82 (1985)" } ], "opinion_index": 0 }, { "cite": "315 N.C. 724", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720164 ], "year": 1986, "pin_cites": [ { "page": "731", "parenthetical": "quoting State v. Thompson, 314 N.C. 618, 626, 336 S.E.2d 78, 82 (1985)" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0724-01" ] }, { "cite": "317 S.E.2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "69 N.C. App. 477", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526471 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/69/0477-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-138.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1988, "opinion_index": 0 } ], "analysis": { "cardinality": 511, "char_count": 10271, "ocr_confidence": 0.744, "pagerank": { "raw": 8.939015746183625e-08, "percentile": 0.5010585559235307 }, "sha256": "044b244ebe32769a135fff55a2fc1bfef39f5b8c65513f786f85c372cdca2a68", "simhash": "1:95bed5e65ff24e14", "word_count": 1636 }, "last_updated": "2023-07-14T19:24:40.355340+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Johnson and Greene concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JAMES BYRON FERGUSON" ], "opinions": [ { "text": "COZORT, Judge.\nOn 13 November 1990 defendant was convicted in Haywood District Court of driving while impaired. On appeal to superior court, the jury found defendant guilty as charged. Defendant received a one-year suspended sentence. From the judgment, defendant appeals. We find no error.\nThe State presented the following evidence: On 13 February 1990 Highway Patrol Trooper James Gladden went to defendant\u2019s home at approximately 5:35 p.m. to investigate a hit-and-run automobile accident possibly involving a car registered to defendant\u2019s wife. As he was leaving the house, Trooper Gladden met a 1964 Buick approaching the house. Trooper Gladden observed defendant exiting the car on the driver\u2019s side and Ray White exiting the car on the passenger side. As Trooper Gladden approached defendant to question him concerning the hit-and-run, he noticed defendant smelled strongly of alcohol. He also observed that defendant was unsteady on his feet, had slightly slurred speech, and his eyes had a glazed look. From his observations, Trooper Gladden formed the opinion that defendant was impaired. He placed defendant under arrest for driving while impaired in violation of N.C. Gen. Stat. \u00a7 20-138.1 (1988). The chemical breath analysis test administered according to state law indicated defendant\u2019s blood alcohol level was 0.12.\nDefendant offered the following evidence: Ray White and defendant were returning to defendant\u2019s house from an American Legion meeting. Since defendant knew he had consumed too much alcohol at the meeting to drive, Mr. White drove them both to defendant\u2019s house. Mr. White testified that he was the operator of the vehicle immediately prior to the encounter with Trooper Gladden. J. C. Cashwell testified that he was at the American Legion meeting and observed Mr. White enter the car on the driver\u2019s side and defendant enter the car on the passenger\u2019s side.\nOn appeal defendant contends the trial court (1) lacked jurisdiction to hear the case, (2) committed prejudicial error in admitting Trooper Gladden\u2019s testimony that he was at defendant\u2019s residence to investigate a hit-and-run accident, (3) committed plain error in admitting Trooper Gladden\u2019s testimony that he was at defendant\u2019s residence to investigate a hit-and-run accident, (4) committed prejudicial error in admitting Trooper Gladden\u2019s testimony that the normal mission of his dog was interstate drug interdiction, and (5) erred in denying defendant\u2019s motion to dismiss the charge at the close of all the evidence.\nIn his first assignment of error, defendant argues the trial court lacked jurisdiction over the offense charged because neither he nor Trooper Gladden signed the citation indicating delivery to defendant. N.C. Gen. Stat. \u00a7 15A-302 (Cum. Supp. 1991) requires a copy of the citation to be delivered to the cited person who may sign a receipt on the original. If the cited person refuses to sign, the officer issuing the citation must sign the original indicating delivery. Id. Although Trooper Gladden signed the citation once, he did not sign in the designated space to indicate delivery of the citation to defendant. We find defendant has waived his right to challenge the sufficiency of the citation by entering his plea and proceeding to trial without a motion to quash the indictment. See State v. Perry, 69 N.C. App. 477, 317 S.E.2d 428 (1984).\nIn his second assignment of error, defendant contends the trial court committed prejudicial error in admitting Trooper Gladden\u2019s testimony that he was at defendant\u2019s residence for the purpose of investigating a hit-and-run accident possibly involving a car registered to defendant\u2019s wife. Specifically, defendant argues that the hit-and-run investigation was irrelevant to the impaired driving charge and should be excluded pursuant to N.C. Gen. Stat. \u00a7 8C-1, Rule 402 (1988). Alternatively, defendant argues, if relevant, the evidence should have been excluded pursuant to N.C. Gen. Stat. \u00a7 8C-1, Rule 403 because the probative value was outweighed by the prejudicial effect of repeated implications that defendant was connected in some way to another crime involving the driving of a motor vehicle.\nWe find no error. N.C. Gen. Stat. \u00a7 8C-1, Rule 401 (1988) defines relevant evidence as \u201chaving any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\u201d Upon reviewing the transcript, we find the statements were relevant to explain the officer\u2019s presence at defendant\u2019s residence, his reason for approaching defendant, and the nature of the conversation between the officer and defendant.\nWe further conclude the probative value of the evidence was not outweighed by unfair prejudice. Unfair prejudice is defined as \u201cundue tendency to suggest decision on an improper basis, commonly, though not necessarily, as an emotional one.\u201d Commentary, N.C. Gen. Stat. \u00a7 8C-1, Rule 403 (1988). The admission of evidence under Rule 403 is within the sound discretion of the trial court and the court\u2019s ruling \u201cmay be reversed for an abuse of discretion only upon a showing that it \u2018was so arbitrary that it could not have been the result of a reasoned decision.\u2019 \u201d State v. Mason, 315 N.C. 724, 731, 340 S.E.2d 430, 435 (1986) (quoting State v. Thompson, 314 N.C. 618, 626, 336 S.E.2d 78, 82 (1985)). There was evidence presented to the jury that the hit-and-run investigation did not center on the vehicle defendant was driving, but rather his wife\u2019s vehicle, and defendant was not charged in connection with the hit-and-run accident. Considering the context of the officer\u2019s statements and all the evidence presented, we find no abuse of discretion since the statements were not so prejudicial as to cause the jury to find defendant guilty on an improper basis.\nIn his next assignment of error, defendant contends the trial court erred in admitting Trooper Gladden\u2019s testimony that a dog was in the patrol car for use in drug interdiction missions. Specifically, defendant argues the evidence was irrelevant to the crime charged and unduly prejudicial because of the implication that defendant was involved in interstate drug trafficking, since the dog was present in the car at the time of the arrest. On cross-examination defendant initially questioned Trooper Gladden about the dog\u2019s presence. On redirect the State elicited the testimony at issue. Defendant opened the door on the issue of the dog\u2019s presence and cannot now be heard to complain that the evidence was irrelevant. Once elicited by defendant on cross-examination, the State had the right to examine the officer on the new information. See State v. Erby, 56 N.C. App. 358, 289 S.E.2d 86 (1982).\nIn his final assignment of error, defendant argues the trial court erred in denying his motion to dismiss the charge at the close of all the evidence. Defendant concedes there was sufficient evidence of each element of the crime charged. He argues nonetheless that Trooper Gladden\u2019s testimony was not credible because of lack of memory concerning the incident, missing notes, and a missing alcohol information sheet. On a motion to dismiss, the trial court need only consider whether, giving the State every reasonable inference, there is substantial evidence to support a finding that the offense charged has been committed and the defendant was the perpetrator. State v. Stocks, 319 N.C. 437, 355 S.E.2d 492 (1987). Questions of credibility are left solely to the jury. State v. Lester, 294 N.C. 220, 240 S.E.2d 391 (1978). Defendant\u2019s argument is without merit.\nNo error.\nJudges Johnson and Greene concur.", "type": "majority", "author": "COZORT, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General Hal F. Askins, for the State.", "Roy H. Patton Jr., for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JAMES BYRON FERGUSON\nNo. 9130SC550\n(Filed 17 March 1992)\n1. Indictment and Warrant \u00a7 15 (NCI3d)\u2014 sufficiency of citation\u2014 waiver of right to challenge\nWhen defendant entered his plea and proceeded to trial without a motion to quash the citation charging him with DWI, defendant waived his right to challenge the sufficiency of the citation on the ground that neither he nor the issuing officer signed portions of the citation indicating delivery to defendant.\nAm Jur 2d, Indictments and Informations \u00a7 3.\n2. Evidence and Witnesses \u00a7 724 (NCI4th)\u2014 DWI case \u2014 investigation of hit-and-run accident \u2014relevancy \u2014probative value outweighing prejudice\nAn officer\u2019s testimony that he was investigating a hit-and-run accident possibly involving a car registered to defendant\u2019s wife when he arrested defendant for DWI was relevant to explain the officer\u2019s presence at defendant\u2019s home, his reason for approaching defendant when defendant drove up to the home, and the nature of the conversation between the officer and defendant. Furthermore, the probative value of this evidence was not outweighed by unfair prejudice because the hit-and-run investigation did not center on the vehicle defendant was driving and defendant was not charged in connection with the hit-and-run accident. N.C.G.S. \u00a7 8C-1, Rules 401, 402, and 403.\nAm Jur 2d, Evidence \u00a7 321.\n3. Evidence and Witnesses \u00a7 765 (NCI4th)\u2014 DWI case-dog in patrol car for drug interdiction \u2014opening door to testimony\nThe trial court in a DWI prosecution did not err in admitting testimony by the arresting officer that a dog was in his patrol car for use in drug interdiction missions where defendant opened the door to such testimony by initially questioning the officer about the dog\u2019s presence in his patrol car.\nAm Jur 2d, Evidence \u00a7 254.\n4. Criminal Law \u00a7 612 (NCI4th)\u2014 DWI case \u2014 motion to dismiss\u2014 incredible testimony \u2014 jury question\nThe trial court properly denied defendant\u2019s motion to dismiss a DWI charge on the ground that the arresting officer\u2019s testimony was incredible because of a lack of memory concerning the incident, missing notes and a missing alcohol information sheet where there was sufficient evidence of each element of the crime charged, since questions of credibility are left solely to the jury.\nAm Jur 2d, Witnesses \u00a7 658.\nDEFENDANT appeals from Judgment entered 15 January 1991 by Judge J. Marlene Hyatt in HAYWOOD County Superior Court. Heard in the Court of Appeals 18 February 1992.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Hal F. Askins, for the State.\nRoy H. Patton Jr., for defendant appellant." }, "file_name": "0692-01", "first_page_order": 720, "last_page_order": 724 }