{ "id": 8527633, "name": "STATE OF NORTH CAROLINA v. MICHAEL GRADY MOORE, Defendant", "name_abbreviation": "State v. Moore", "decision_date": "1992-09-15", "docket_number": "No. 911SC333", "first_page": "388", "last_page": "401", "citations": [ { "type": "official", "cite": "107 N.C. App. 388" } ], "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": "20 ALR3d 473", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "64 ALR4th 166", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "214 S.E.2d 436", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "287 N.C. 263", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562242, 8562311, 8562285, 8562200, 8562330 ], "year": 1975, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/287/0263-02", "/nc/287/0263-04", "/nc/287/0263-03", "/nc/287/0263-01", "/nc/287/0263-05" ] }, { "cite": "212 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "569", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "25 N.C. App. 176", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551872 ], "year": 1975, "pin_cites": [ { "page": "180", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/25/0176-01" ] }, { "cite": "126 S.E.2d 126", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "pin_cites": [ { "page": "133" } ], "opinion_index": 0 }, { "cite": "257 N.C. 326", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567591 ], "year": 1962, "pin_cites": [ { "page": "335" } ], "opinion_index": 0, "case_paths": [ "/nc/257/0326-01" ] }, { "cite": "249 S.E.2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "452-53", "parenthetical": "quoting State v. Pope, 257 N.C. 326, 335, 126 S.E.2d 126, 133 (1962)" } ], "opinion_index": 0 }, { "cite": "39 N.C. App. 33", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550056 ], "year": 1978, "pin_cites": [ { "page": "38", "parenthetical": "quoting State v. Pope, 257 N.C. 326, 335, 126 S.E.2d 126, 133 (1962)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/39/0033-01" ] }, { "cite": "330 S.E.2d 200", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "202" } ], "opinion_index": 0 }, { "cite": "313 N.C. 580", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720397 ], "year": 1985, "pin_cites": [ { "page": "583" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0580-01" ] }, { "cite": "178 S.E.2d 227", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "229" } ], "opinion_index": 0 }, { "cite": "10 N.C. App. 297", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553500 ], "year": 1971, "pin_cites": [ { "page": "301" } ], "opinion_index": 0, "case_paths": [ "/nc-app/10/0297-01" ] }, { "cite": "195 S.E.2d 691", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 258", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558538, 8558507, 8558488, 8558555, 8558527 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0258-04", "/nc/283/0258-02", "/nc/283/0258-01", "/nc/283/0258-05", "/nc/283/0258-03" ] }, { "cite": "194 S.E.2d 227", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "228" } ], "opinion_index": 0 }, { "cite": "17 N.C. App. 374", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555663 ], "year": 1973, "pin_cites": [ { "page": "375" } ], "opinion_index": 0, "case_paths": [ "/nc-app/17/0374-01" ] }, { "cite": "167 S.E.2d 494", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "496-97" } ], "opinion_index": 0 }, { "cite": "4 N.C. App. 634", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555228 ], "year": 1969, "pin_cites": [ { "page": "637" } ], "opinion_index": 0, "case_paths": [ "/nc-app/4/0634-01" ] }, { "cite": "337 S.E.2d 862", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "315 N.C. 188", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4715712, 4720431, 4715122, 4720187, 4718559 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/315/0188-02", "/nc/315/0188-05", "/nc/315/0188-04", "/nc/315/0188-03", "/nc/315/0188-01" ] }, { "cite": "331 S.E.2d 251", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "253" } ], "opinion_index": 0 }, { "cite": "75 N.C. App. 543", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526305 ], "year": 1985, "pin_cites": [ { "page": "546" } ], "opinion_index": 0, "case_paths": [ "/nc-app/75/0543-01" ] }, { "cite": "233 S.E.2d 554", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "556" } ], "opinion_index": 0 }, { "cite": "292 N.C. 461", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570182 ], "year": 1977, "pin_cites": [ { "page": "464" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0461-01" ] }, { "cite": "323 S.E.2d 32", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "34" } ], "opinion_index": 0 }, { "cite": "71 N.C. App. 581", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525953 ], "year": 1984, "pin_cites": [ { "page": "583" } ], "opinion_index": 0, "case_paths": [ "/nc-app/71/0581-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20441", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1989, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 20474", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1989, "pin_cites": [ { "page": "(e)" }, { "page": "(e)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 20-141.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1989, "pin_cites": [ { "page": "(a2)" }, { "page": "(a2)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 20-138.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "373 S.E.2d 555", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "323 N.C. 369", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2562049, 2561890, 2565383, 2565833, 2566424 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0369-05", "/nc/323/0369-02", "/nc/323/0369-01", "/nc/323/0369-04", "/nc/323/0369-03" ] }, { "cite": "369 S.E.2d 832", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "837" } ], "opinion_index": 0 }, { "cite": "90 N.C. App. 614", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525697 ], "year": 1988, "pin_cites": [ { "page": "621" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0614-01" ] }, { "cite": "265 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "year": 1980, "pin_cites": [ { "page": "78-79" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "368 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "382" } ], "opinion_index": 0 }, { "cite": "322 N.C. 349", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2515495 ], "year": 1988, "pin_cites": [ { "page": "358" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0349-01" ] }, { "cite": "133 S.E.2d 452", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "260 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575863 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/260/0663-01" ] }, { "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": "298 S.E.2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "644" } ], "opinion_index": 0 }, { "cite": "307 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562282 ], "year": 1983, "pin_cites": [ { "page": "339" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0321-01" ] }, { "cite": "302 S.E.2d 786", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "790" } ], "opinion_index": 0 }, { "cite": "308 N.C. 530", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4705445 ], "year": 1983, "pin_cites": [ { "page": "535" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0530-01" ] }, { "cite": "78 L.Ed.2d 173", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1983, "opinion_index": 0 }, { "cite": "464 U.S. 865", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6401817 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/us/464/0865-01" ] }, { "cite": "301 S.E.2d 308", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "314" } ], "opinion_index": 0 }, { "cite": "308 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4710595 ], "year": 1983, "pin_cites": [ { "page": "9" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0001-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-141", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 20-174", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(e)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1128, "char_count": 31463, "ocr_confidence": 0.78, "pagerank": { "raw": 2.76958037709797e-07, "percentile": 0.8342266286567286 }, "sha256": "a894b13d9e5f6c73801da56d29775dc511e95bda09563f9dd6ebcf19b0183c7f", "simhash": "1:a7a8c7b675235df6", "word_count": 5190 }, "last_updated": "2023-07-14T14:52:31.872261+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges EAGLES and ORR concur." ], "parties": [ "STATE OF NORTH CAROLINA v. MICHAEL GRADY MOORE, Defendant" ], "opinions": [ { "text": "COZORT, Judge.\nOn 9 July 1990, defendant Michael Grady Moore was indicted for involuntary manslaughter for the death of a pedestrian in a motor vehicle accident. On 30 November 1990, a jury found defendant guilty of misdemeanor death by motor vehicle. Judge Thomas S. Watts imposed a two-year suspended sentence conditional on service of a 120-day active term and surrender of defendant\u2019s driver\u2019s license for five years. From the conviction and sentence, defendant appeals. We find no error.\nAt trial, the State presented evidence that, in June 1990, Highway 158 in Currituck County was being widened from two lanes to five lanes. On 8 June 1990, at approximately 10:00 p.m. defendant was driving north in a van in the outermost right lane, which was closed to traffic. Defendant\u2019s vehicle struck Elizabeth Rene Speight who was walking on the newly constructed roadway. The impact damaged the vehicle\u2019s hood and windshield directly in front of the driver\u2019s seat. Immediately after the impact, defendant stopped his vehicle on the side of the road. Highway Patrol Trooper W. M. Long arrived at the scene of the accident. Trooper Long identified defendant as the driver of the damaged vehicle and asked defendant to accompany him to the patrol car. During the initial encounter, Trooper Long noticed defendant smelled strongly of alcohol. While defendant waited in the car, Trooper Long investigated the accident scene. Highway Patrol Trooper A. C. Joyner arrived on the scene shortly after Officer Long and assisted in the investigation.\nUpon his return to the patrol car, Trooper Long questioned defendant about the accident. Defendant stated that he did not know which lane he was driving in when he struck Ms. Speight and that \u201c[s]he was just right in front of me.\u201d Defendant told Officer Long that he had consumed two beers prior to the accident, but that he had not had any alcohol since the accident. Trooper Long observed that defendant was confused about what happened in the accident, his face was flushed, his eyes were glassy, his speech slurred, and his sentences unfinished. Based upon his observations and the results of a Gaze Nystagmus test, requiring the defendant to follow the tip of an ink pen with his eyes without moving his head, Trooper Long formed the opinion that defendant was impaired. At 11:45 p.m. Trooper Long arrested defendant and transported him to the highway patrol station. Once at the highway patrol station, defendant refused to submit to a breathalyzer test and other psycho-physical tests. Trooper Joyner observed defendant at the patrol station, noting that his eyes were watery and bloodshot, his speech slow and deliberate, and that he smelled strongly of alcohol. From his observations and based on his training, Trooper Joyner concluded defendant was impaired by alcohol.\nDefendant presented evidence that he believed the portion of highway upon which he was traveling was open to traffic and that he had traveled through six intersections in that lane prior to striking Ms. Speight. Defendant testified that he consumed three beers and a small amount of wine earlier that evening, but did not have any difficulties operating his vehicle while driving. As he was driving down the center of the lane, he struck an object which he believed to be a person. He stopped his car and observed Ms. Speight lying on the shoulder of the road. Defendant\u2019s accident reconstruction expert testified that Ms. Speight would have been visible approximately 150 feet away from defendant\u2019s vehicle with the headlights on low beam. Traveling at 55 m.p.h. defendant could not have stopped his vehicle after Ms. Speight first became visible in time to avoid striking her whether or not he was impaired. He further testified as to the manner in which the newly constructed lane was partitioned off from the roadway in use by orange and white barrels set three hundred feet apart. In his opinion, the traffic control devices were inadequate to serve their function.\nOn appeal defendant contends the trial court erred in: (1) denying defendant\u2019s motion in limine to suppress evidence of the victim\u2019s pregnancy at the time of the accident, (2) limiting the testimony of the accident reconstruction witness to the issue of proximate cause, (3) denying defendant\u2019s motion to dismiss, (4) submitting the charge of misdemeanor death by vehicle, (5) instructing the jury on the provisions of N.C. Gen. Stat. \u00a7 20-174(e) as a basis for the charge of misdemeanor death by vehicle, (6) instructing the jury on the provisions of N.C. Gen. Stat. \u00a7 20-141(a) as a basis for the charge of misdemeanor death by vehicle, (7) denying defendant\u2019s motion for appropriate relief, (8) imposing the maximum sentence, and (9) signing and entering the judgment.\nIn his first assignment of error, defendant argues that the trial court erred in denying his motion in limine to suppress evidence that the victim was 8V2 months pregnant at the time of the accident. Defendant contends the evidence is irrelevant to the essential elements of involuntary manslaughter and to his defense of unavoidable accident. The State counters that the evidence is relevant to whether defendant could see the victim. The State further argues that we should apply a \u201cplain error\u201d analysis since defendant failed to properly preserve the right to appeal by not objecting to the introduction of the evidence at trial. We address the procedural issue first.\nNorth Carolina Appellate Rules of Procedure Rule 10(b)(1) (1992) provides:\n(b) Preserving Questions for Appellate Review.\n(1) General. In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party\u2019s request, objection or motion. Any such question which was properly preserved for review by action of counsel taken during the course of proceedings in the trial tribunal by objection noted or which by rule or law was deemed preserved or taken without any such action, may be made the basis of an assignment of error in the record on appeal.\n(Emphasis added). N.C. Gen. Stat. \u00a7 15A-1446(a) (1988) provides:\n(a) Except as provided in subsection (d), error may not be asserted upon appellate review unless the error has been brought to the attention of the trial court by appropriate and timely objection or motion. No particular form is required in order to preserve the right to assert the alleged error upon appeal if the motion or objection clearly presented the alleged error to the trial court. Formal exceptions are not required, but when evidence is excluded a record must be made ... in order to assert upon appeal error in the exclusion of that evidence.\n(Emphasis added). Analyzing the language of Rule 10 and \u00a7 15A-1446(a), we note the use of the disjunctive term \u201cor,\u201d implying equivalency of objections and motions. Both the Rule and the statute require a party desiring to preserve an issue for appellate review to make a timely \u201cobjection or motion.\u201d (Emphasis added.) Rule 10 makes no mention of formal exceptions and only requires the trial court to rule on the request, objection or motion. N.C. Gen. Stat. \u00a7 15A-1446 specifically states that \u201c[f]ormal exceptions are not required.\u201d The Official Commentary to \u00a7 15A-1446 states:\nThe steps to be taken in the trial level have evolved over the years from the original purpose, which was in effect a statement of \u201ccharges\u201d against the judge for making an error, into what is now recognized as a need simply to bring the matter to the attention of the trial judge sufficiently to permit him to correct the error. Thus, the Rules of Civil Procedure in G.S. 1A-1, Rule 46, and the appellate rules (N.C. Appellate Rules, Rule 10 (b) make clear that formal \u201cexceptions\u201d are unnecessary and that no particular extra steps need be taken if an appropriate and timely objection has been made clear to the trial judge, at some time sufficiently close to the occurrence of the error to permit its correction. . . .\nSubsection (a) of this section is similar in basic import to G.S. 1A-1, Rule 46, of the Rules of Civil Procedure. It provides essentially that any timely objection or motion is sufficient and no particular formality is required to preserve the right to assert an alleged error upon appeal if that has been done.\nThus, we conclude neither our Appellate Rules nor the Criminal Procedure Act require a party to except after the trial court has ruled adversely to that party on an objection or motion. We are aware of State v. McDougall, 308 N.C. 1, 9, 301 S.E.2d 308, 314, cert. denied, 464 U.S. 865, 78 L.Ed.2d 173 (1983), in which the North Carolina Supreme Court concluded that, if the trial court denies defendant\u2019s motion to suppress after voir dire, defendant must renew his objection before the jury if he failed to except to the adverse ruling at the end of voir dire. McDougall is not controlling in the case at bar since it was decided prior to the 1989 amendment to North Carolina Appellate Rule 10 deleting the requirement for formal exceptions. Although referring to N.C. Gen. Stat. \u00a7 15A-1446(b), providing that a defendant waives the right to assert error on appeal if there is no timely motion or objection, the McDougall Court made no reference to Rule 10 or \u00a7 15A-1446(a). Reviewing the 1983 versions of Rule 10 and \u00a7 15A-1446(a), we note a conflict between the. rule, requiring formal exceptions, and the statute stating the opposite. In case of conflict, the Appellate Rules control. See State v. Bennett, 308 N.C. 530, 535, 302 S.E.2d 786, 790 (1983). Although the reasoning is not reflected in the opinion, the Court must have concluded that formal exception to the adverse ruling at the end of voir dire was mandated by Rule 10 despite language to the contrary in N.C. Gen. Stat. \u00a7 15A-1446(a). Thus, the Court\u2019s decision flowed logically from the Rules. Currently, however, our Appellate Rules do not specifically require formal exceptions and no longer mandate exceptions upon a denial of a motion in limine. We thus find the defendant\u2019s motion in limine was sufficient to preserve this issue for appellate review.\nAddressing the substantive issue, defendant contends evidence of the victim\u2019s pregnancy was irrelevant under N.C. Gen. Stat. \u00a7 8C-1, Rule 401 (1988), defining 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 Therefore, defendant argues, the irrelevant evidence is inadmissible under N.C. Gen. Stat. \u00a7 8C-1, Rule 402. Admission of irrelevant evidence is harmless error, unless defendant meets the burden of showing that he was prejudiced by the admission of the evidence. State v. Alston, 307 N.C. 321, 339, 298 S.E.2d 631, 644 (1983). To show prejudice, defendant must prove \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 N.C. Gen. Stat. \u00a7 15A-1443(a) (1988).\nDefendant further argues that even if relevant, evidence of the pregnancy should have been excluded because its probative value was substantially outweighed by the danger of unfair prejudice. See N.C. Gen. Stat. \u00a7 8C-1, Rule 403 (1988). \u201c[A]n undue tendency to suggest decision on an improper basis, commonly, though not necessarily, as an emotional one,\u201d is considered \u201cunfair prejudice.\u201d Commentary to N.C. Gen. Stat. \u00a7 8C-1, Rule 403. The admission or exclusion of evidence under Rule 403 is within the sound discretion of the trial court, \u201cand his ruling may 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)).\nThe trial court determined that evidence of the victim\u2019s pregnancy was relevant to the defense of Unavoidable accident and misadventure, since a pregnant woman near term is not able to move as quickly or agilely as a woman who is not pregnant. We find no error in that ruling. Furthermore, we do not find an abuse of discretion in the admission of the evidence. We do not believe evidence of pregnancy is of such an inflammatory nature as to cause the jury to make its decision on an improper basis. We also note that, even if the evidence was irrelevant, the defendant has failed to show that absent the admission of the victim\u2019s pregnancy, the jury would have reached a different result. As we discuss below, there is substantial evidence to support a conviction for misdemeanor manslaughter.\nIn his second assignment of error, defendant contends the trial court erred in limiting the testimony of the accident reconstruction expert solely to the issue of proximate cause. Defendant argues that the jury should have been permitted to consider the evidence substantively in deciding whether the accident was unavoidable and whether he violated traffic laws supporting the misdemeanor death by vehicle charge. Defendant relies upon N.C. Gen. Stat. \u00a7 8C-1, Rule 702 and Rule 704 (1988). Rule 702 provides:\nIf scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion.\nRule 704 permits an expert to present opinion testimony embracing the ultimate issue at trial.\nMr. Williford was tendered and accepted by the trial court as an expert in the fields of transportation engineering and accident reconstruction. After voir dire, the trial court instructed the jury to consider Mr. Williford\u2019s testimony solely on the issue of proximate cause. Although the trial court properly admitted the testimony on the issue of proximate cause, see State v. Harrington, 260 N.C. 663, 133 S.E.2d 452 (1963), we can find no basis for the instruction limiting the evidence solely to the issue of proximate cause. Mr. Williford\u2019s testimony would have provided some assistance to the jury in determining whether defendant was violating any traffic laws serving as the basis for the misdemeanor death by vehicle charge. We do not find, however, that defendant has shown a reasonable possibility that the result of the trial would have been different if the error had not occurred.\nIn his third assignment of error, defendant argues the trial court erred in denying his motion to dismiss. Upon a motion to dismiss, \u201cthe trial court must view the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn from it.\u201d State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 382 (1988). If there is substantial evidence to support the charge against the defendant, the charge must be submitted to the jury. Id. \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). Giving every reasonable inference to the State, we conclude there was substantial evidence for the case to go to the jury on the charge of involuntary manslaughter while driving under the influence of alcohol. The charge of involuntary manslaughter required the State to prove (1) defendant was driving a motor vehicle, (2) on a highway, (3) under the influence of an impairing substance causing appreciable impairment of his normal mental and bodily functions, and (4) his impaired driving proximately but unintentionally caused the death of Ms. Speight. See State v. Williams, 90 N.C. App. 614, 621, 369 S.E.2d 832, 837, disc. review denied, 323 N.C. 369, 373 S.E.2d 555 (1988); N.C. Gen. Stat. \u00a7\u00a7 20-138.1 and 20-141.4 (1989).\nThe evidence showed that while driving his mini-van at 55 m.p.h. on a paved portion of Highway 158 under construction in Currituck County, defendant struck and killed Ms. Speight. Defendant told Trooper Long at the scene that he had consumed two beers prior to the accident. Defendant later testified that he had consumed three beers and some wine prior to the accident. After speaking to defendant and conducting field sobriety tests, Trooper Long determined that defendant was impaired and placed him under arrest. Officer Joyner assisted in the accident investigation, observed defendant at the highway patrol station, and formed the opinion that defendant was impaired by alcohol. Defendant told Trooper Long that he did not know in which lane he was driving when he struck the victim. Defendant\u2019s expert testified that the victim should have been visible at a distance of 150 feet with defendant traveling with his headlights on low beam. Defendant testified that he did not see the victim and made no attempt to stop his vehicle or swerve to avoid hitting her. From the evidence, the jury could reasonably conclude that the defendant had committed involuntary manslaughter. Therefore, we find the trial court properly denied the motion to dismiss.\nWe consider defendant\u2019s next three assignments of error concurrently. Defendant contends the trial court erred in submitting the charge of misdemeanor death by motor vehicle, N.C. Gen. Stat. \u00a7 20-141.4(a2) (1989), and instructing the jury on the provisions of N.C. Gen. Stat. \u00a7 20474(e) (1989) and N.C. Gen. Stat. \u00a7 20441(a) (1989) as bases for the charge of misdemeanor death by motor vehicle. We note initially that misdemeanor death by vehicle is a lesser included offense of involuntary manslaughter. State v. Lackey, 71 N.C. App. 581, 583, 323 S.E.2d 32, 34 (1984). N.C. Gen. Stat. \u00a7 20-141.4(a2) provides:\nA 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 under G.S. 20-138.1, and commission of that violation is the proximate cause of the death.\nThe provisions of \u00a7 20474(e) and \u00a7 20441(a) are set forth below.\n\u201cThe purposes of the trial judge\u2019s charge to the jury are to clarify the issues, eliminate extraneous matters and declare and explain the law arising on the evidence.\u201d State v. Cousin, 292 N.C. 461, 464, 233 S.E.2d 554, 556 (1977). In deciding whether a particular instruction is mandated by the evidence, the trial \u201ccourt must consider whether there is any evidence in the record which might convince a rational trier of fact to convict defendant of the offense.\u201d State v. Moore, 75 N.C. App. 543, 546, 331 S.E.2d 251, 253, disc. review denied, 315 N.C. 188, 337 S.E.2d 862 (1985).\nAddressing violations of the underlying traffic offenses first, we conclude there was sufficient evidence to convince a rational trier of fact that defendant violated either \u00a7 20471(e) or \u00a7 20441(a) or both. N.C. Gen. Stat. \u00a7 20474(e) requires \u201cevery driver of a vehicle [to] exercise due care to avoid colliding with any pedestrian upon any roadway, and [to] give warning by sounding the horn when necessary.\u201d Due care requires a motorist to \u201coperate his vehicle at a reasonable rate of speed, keep a lookout for persons on or near the highway, decrease his speed when any special hazard exists with respect to pedestrians, and, if the circumstances warrant, he must give warning of his approach by sounding his horn.\u201d Morris v. Minix, 4 N.C. App. 634, 637, 167 S.E.2d 494, 496-97 (1969). We find that a reasonable person could conclude from the evidence as set forth above that defendant failed to exercise due care as required by \u00a7 20474(e).\nThe evidence also supports a conclusion that a reasonable person could find that defendant violated \u00a7 20441(a), providing \u201c[n]o person shall drive a vehicle on a highway or in a public vehicular area at a speed greater than is reasonable and prudent under the conditions then existing.\u201d Although defendant testified that he was traveling at 55 m.p.h., such speed may not be considered reasonable under the circumstances. State v. Grissom, 17 N.C. App. 374, 375, 194 S.E.2d 227, 228, cert. denied, 283 N.C. 258, 195 S.E.2d 691 (1973). The jury must decide whether defendant\u2019s speed was \u201creasonable and prudent under the conditions\u201d which existed at the time of the accident. Peterson v. Taylor, 10 N.C. App. 297, 301, 178 S.E.2d 227, 229 (1971). The trial court instructed the jury to consider\nthe hour of day or night, the lighting conditions, the weather conditions, the extent of other traffic, the nature and width of the roadway, the progress or status of any road construction project in the area, and any other circumstances shown to exist at that time at the scene.\nDefendant argues that the trial court improperly permitted the jury to consider Mr. Williford\u2019s expert testimony to support a finding of excessive speed under \u00a7 20441(a), after instructing the jury to consider the testimony solely for the issue of proximate cause. Although the trial court did state in the charge conference that \u201cit could be argued based on the testimony of Mr. Williford that a speed of fifty-five miles per hour by any average driver under those conditions would be greater than was reasonable and prudent under the circumstances,\u201d the jury did not hear the trial court\u2019s statement. Excluding Mr. Williford\u2019s testimony, there was ample evidence presented by Trooper Long, the State\u2019s medical expert, and defendant as to the construction area, the accident scene, and defendant\u2019s speed. From the remaining evidence, a reasonable person could conclude defendant was traveling \u201cat a speed greater than is reasonable and prudent under the circumstances.\u201d We find no error in the instruction on \u00a7 20-141(a).\nAccordingly, we find no error in the submission of the misdemeanor death by motor vehicle charge as defined in \u00a7 20-141.4(a2) since there was sufficient evidence to convince a rational trier of fact that defendant unintentionally caused the death of Ms. Speight while engaged in the violation of either \u00a7 20-174(e) or \u00a7 20-141(a), or both, and that such violation(s) proximately caused the death of Ms. Speight.\nIn his seventh assignment of error, defendant contends the trial court erred in denying his motion for appropriate relief. It is within the sound discretion of the trial court to grant or deny motions for appropriate relief. Absent a clear showing of abuse, we will not reverse the trial court\u2019s decision. State v. Bates, 313 N.C. 580, 583, 330 S.E.2d 200, 202 (1985). Based upon the evidence as set forth above, we find no abuse of discretion. Therefore, defendant\u2019s motion was properly denied.\nDefendant next assigns as error the trial court\u2019s imposition of the maximum two-year sentence suspended on the conditions that defendant serve 120 days\u2019 active term and surrender his driver\u2019s license for five years. Specifically, defendant first argues that the trial court did not consider his lack of criminal record when imposing the maximum sentence and maximum active term. Second, defendant argues that the trial court required him to surrender his license for five years rather than one year for the sole purpose of making his punishment more severe. The trial court abused its discretion, defendant contends, because the punishment is not rationally related to his rehabilitation.\nAddressing defendant\u2019s first argument, \u00a7 20-141.4(a2)(b) specifically provides that \u201c[m]isdemeanor death by vehicle is a misdemeanor punishable by a fine of not more than five hundred dollars ($500.00), imprisonment for not more than two years, or both, in the discretion of the court.\u201d Unlike sentencing after a conviction for impaired driving under N.C. Gen. Stat. \u00a7 20-138.1, the trial court is not required to find factors in aggravation and mitigation before imposing sentence after a conviction for misdemeanor death by motor vehicle. \u201c \u2018A judgment will not be disturbed because of sentencing procedures unless there is a showing of abuse of discretion, procedural conduct prejudicial to defendant, circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play.\u2019 \u201d State v. Lane, 39 N.C. App. 33, 38, 249 S.E.2d 449, 452-53 (1978) (quoting State v. Pope, 257 N.C. 326, 335, 126 S.E.2d 126, 133 (1962)). The trial court imposed sentence as authorized by statute. We find no abuse of discretion or other reason to justify resentencing.\nAs to defendant\u2019s second contention regarding sentencing, N.C. Gen. Stat. \u00a7 15A-1343(a) (Cum. Supp. 1991) states: \u201cThe court may impose conditions of probation reasonably necessary to insure that the defendant will lead a law-abiding life or to assist him to do so.\u201d N.C. Gen. Stat. \u00a7 15A-1343(bl)(4) (Cum. Supp. 1991) permits the trial court to order a defendant to submit his license for a period of time specified by the court as a special condition of probation. Defendant was convicted of misdemeanor' death by motor vehicle based upon violation of state traffic law(s). Surrender of defendant\u2019s driver\u2019s license is a condition \u201cdirectly related to and [growing] out of the offense for which [he] was convicted and [is] consistent with proper punishment for the crime.\u201d See State v. Simpson, 25 N.C. App. 176, 180, 212 S.E.2d 566, 569, cert. denied, 287 N.C. 263, 214 S.E.2d 436 (1975) (citations omitted). Defendant\u2019s argument is without merit.\nDefendant\u2019s remaining assignment of error that the trial court erred in signing and entering the judgment has been completely addressed in our discussion above.\nFor the reasons set forth above, we find\nNo error.\nJudges EAGLES and ORR concur.", "type": "majority", "author": "COZORT, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General Linda Anne Morris, for the State.", "D. Keith Teague, P.A., by D. Keith Teague, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MICHAEL GRADY MOORE, Defendant\nNo. 911SC333\n(Filed 15 September 1992)\n1. Appeal and Error \u00a7 147 (NCI4th)\u2014 no necessity for formal exceptions \u2014issue preserved on appeal\nIn a prosecution of defendant for involuntary manslaughter, neither the Rules of Appellate Procedure nor the Criminal Procedure Act requires a party to except after the trial court has ruled adversely to that party on an objection or motion. Defendant\u2019s motion in limine was sufficient to preserve for appellate review the trial court\u2019s alleged error in allowing evidence that the victim was eight and one-half months pregnant, even though defendant did not make formal exceptions.\nAm Jur 2d, Appeal and Error \u00a7 558; Trial \u00a7 485.\n2. Evidence and Witnesses \u00a7 190 (NCI4th)\u2014 misdemeanor death by vehicle \u2014 evidence of victim\u2019s pregnancy \u2014 admission not error\nIn a prosecution of defendant for involuntary manslaughter while driving under the influence of alcohol, the trial court did not err in allowing evidence that the victim was eight and one-half months pregnant, since the evidence was relevant to the defense of unavoidable accident and misadventure, as a pregnant woman near term is not able to move as quickly or as agilely as a woman who is not pregnant; evidence of pregnancy was not of such an inflammatory nature as to cause the jury to make its decision on an improper basis; and even if the evidence was irrelevant, defendant failed to show that, absent the admission of the evidence of the victim\u2019s pregnancy, the jury would have reached a different result. N.C.G.S. \u00a7 8C-1, Rule 401.\nAm Jur 2d, Evidence \u00a7\u00a7 251, 260.\n3. Evidence and Witnesses \u00a7 2366 (NCI4th(\u2014 expert testimony \u2014 improper limiting instruction \u2014no prejudicial error\nThough the trial court in a prosecution for a misdemeanor death by vehicle erred in instructing the jury to consider the testimony of an expert in transportation engineering and accident reconstruction solely on the issue of proximate cause, defendant failed to show a reasonable possibility that the result of the trial would have been different if the error had not occurred. N.C.G.S. \u00a7 8C-1, Rules 702 and 704.\nAm Jur 2d, Evidence \u00a7 263.\n4. Automobiles and Other Vehicles \u00a7 797 (NCI4th)\u2014 involuntary manslaughter while driving under the influence of alcohol\u2014 sufficiency of evidence\nIn a prosecution of defendant for involuntary manslaughter while driving under the influence of alcohol, the trial court properly denied defendant\u2019s motion to dismiss where the evidence tended to show that defendant was driving his minivan at night at 55 m.p.h. on a paved portion of a highway under construction and not open to the public; he struck and killed the victim; defendant told investigating officers and testified at trial that he had consumed beer and wine prior to the accident; two investigating officers were of the opinion that defendant was impaired; defendant did not know in which lane he was driving when he struck the victim; defendant\u2019s expert testified that the victim should have been visible at a distance of 150 feet with defendant traveling with his headlights on low beam; and defendant testified that he did not see the victim and made no attempt to stop his vehicle or swerve to avoid hitting her.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7\u00a7 330, 344.\nAlcohol-related vehicular homicide: nature and elements of offense. 64 ALR4th 166.\n5. Automobiles and Other Vehicles \u00a7 789 (NCI4th) \u2014 involuntary manslaughter prosecution \u2014 lesser offense of misdemeanor death by motor vehicle \u2014submission proper\nIn a prosecution of defendant for involuntary manslaughter, the trial court did not err in submitting the charge of misdemeanor death by motor vehicle, since a reasonable person could conclude from the evidence that defendant failed to exercise due care to avoid striking the pedestrian victim in violation of N.C.G.S. \u00a7 20-174(e) and failed to operate his vehicle at a speed which was reasonable and prudent under the circumstances in violation of N.C.G.S. \u00a7 20-141(a), that defendant unintentionally caused the death of the victim while engaged in the violation of either statute, and that such violation proximately caused the death.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7 342.\nWhat amounts to negligence within meaning of statutes penalizing negligent homicide by operation of motor vehicle. 20 ALR3d 473.\n6. Automobiles and Other Vehicles \u00a7\u00a7 78, 786 (NCI4th)\u2014 misdemeanor death by motor vehicle \u2014sentence to maximum active term \u2014surrender of driver\u2019s license \u2014proper sentence\nWhere defendant was convicted of misdemeanor death by motor vehicle, the trial court did not err in imposing the maximum two-year sentence suspended on the conditions that defendant serve 120 days\u2019 active term and surrender his driver\u2019s license for five years, since the trial court was not required to find factors in aggravation and mitigation before imposing sentence, N.C.G.S. \u00a7 20-141.4(a2)(b), and surrender of defendant\u2019s driver\u2019s license was a reasonable condition of probation directly related to and growing out of the offense for which defendant was convicted. N.C.G.S. \u00a7 15A-1343(bl)(4).\nAm Jur 2d, Automobiles and Highway Traffic \u00a7 342.\nAppeal by defendant from Judgment entered 30 November 1990 by Judge Thomas S. Watts in CURRITUCK County Superior Court. Heard in the Court of Appeals 14 January 1992.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Linda Anne Morris, for the State.\nD. Keith Teague, P.A., by D. Keith Teague, for defendant appellant." }, "file_name": "0388-01", "first_page_order": 416, "last_page_order": 429 }