{ "id": 11241928, "name": "PAMELA NUNNERY, Plaintiff v. ERIC JONATHAN BAUCOM and BAUCOM'S NURSERY COMPANY, Defendants", "name_abbreviation": "Nunnery v. Baucom", "decision_date": "1999-11-16", "docket_number": "No. COA98-841", "first_page": "556", "last_page": "567", "citations": [ { "type": "official", "cite": "135 N.C. App. 556" } ], "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": "361 S.E.2d 909", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1987, "pin_cites": [ { "page": "919" }, { "page": "919" }, { "page": "919" }, { "page": "919", "parenthetical": "\"party asserting the error must demonstrate that he has been prejudiced thereby\"" } ], "opinion_index": 0 }, { "cite": "504 S.E.2d 102", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "107" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 616", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11469402 ], "year": 1998, "pin_cites": [ { "page": "623" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0616-01" ] }, { "cite": "511 S.E.2d 302", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "303", "parenthetical": "motion in limine insufficient to preserve for appeal question of admissibility of evidence if movant fails to object to evidence at time evidence is offered at trial" } ], "opinion_index": 0 }, { "cite": "350 N.C. 79", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132085 ], "year": 1999, "pin_cites": [ { "page": "80", "parenthetical": "motion in limine insufficient to preserve for appeal question of admissibility of evidence if movant fails to object to evidence at time evidence is offered at trial" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0079-01" ] }, { "cite": "502 S.E.2d 853", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "130 N.C. App. 154", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11466006 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc-app/130/0154-01" ] }, { "cite": "349 N.C. 361", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571654, 571592, 571577, 571515, 571486 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/349/0361-01", "/nc/349/0361-05", "/nc/349/0361-04", "/nc/349/0361-03", "/nc/349/0361-02" ] }, { "cite": "502 S.E.2d 677", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "130 N.C. App. 335", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11467500 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc-app/130/0335-01" ] }, { "cite": "133 L. Ed. 2d 153", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "516 U.S. 884", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 324545, 324386, 328131, 323172, 327332, 326430, 327472, 327185, 324946, 328048, 326327, 324376, 328606, 328191 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/us/516/0884-13", "/us/516/0884-01", "/us/516/0884-11", "/us/516/0884-03", "/us/516/0884-10", "/us/516/0884-09", "/us/516/0884-12", "/us/516/0884-04", "/us/516/0884-06", "/us/516/0884-07", "/us/516/0884-14", "/us/516/0884-08", "/us/516/0884-05", "/us/516/0884-02" ] }, { "cite": "453 S.E.2d 824", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "845-46" } ], "opinion_index": 0 }, { "cite": "339 N.C. 487", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2557546 ], "year": 1995, "pin_cites": [ { "page": "521" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0487-01" ] }, { "cite": "500 S.E.2d 664", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "665", "parenthetical": "quoting State v. Conaway, 339 N.C. 487, 521, 453 S.E.2d 824, 845-46, cert. denied, 516 U.S. 884, 133 L. Ed. 2d 153 (1995)" } ], "opinion_index": 0 }, { "cite": "348 N.C. 684", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659827 ], "year": 1998, "pin_cites": [ { "page": "685", "parenthetical": "quoting State v. Conaway, 339 N.C. 487, 521, 453 S.E.2d 824, 845-46, cert. denied, 516 U.S. 884, 133 L. Ed. 2d 153 (1995)" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0684-01" ] }, { "cite": "370 S.E.2d 533", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "545" } ], "opinion_index": 0 }, { "cite": "322 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2513005 ], "year": 1988, "pin_cites": [ { "page": "686" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0666-01" ] }, { "cite": "399 S.E.2d 113", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 88", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2541783 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0088-01" ] }, { "cite": "391 S.E.2d 204", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "208" } ], "opinion_index": 0 }, { "cite": "98 N.C. App. 432", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524954 ], "year": 1990, "pin_cites": [ { "page": "439" } ], "opinion_index": 0, "case_paths": [ "/nc-app/98/0432-01" ] }, { "cite": "265 S.E.2d 223", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 180", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560030 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0180-01" ] }, { "cite": "261 S.E.2d 506", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "508" } ], "opinion_index": 0 }, { "cite": "44 N.C. App. 567", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554361 ], "year": 1980, "pin_cites": [ { "page": "569" } ], "opinion_index": 0, "case_paths": [ "/nc-app/44/0567-01" ] }, { "cite": "425 S.E.2d 723", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "726", "parenthetical": "accident report \"sufficiently trustworthy\" and admissible under Rule 803(6) when based upon information received from drivers involved in collision who registered no objection to conclusions contained therein upon review at the collision scene" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 94", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524402 ], "year": 1993, "pin_cites": [ { "page": "98", "parenthetical": "accident report \"sufficiently trustworthy\" and admissible under Rule 803(6) when based upon information received from drivers involved in collision who registered no objection to conclusions contained therein upon review at the collision scene" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0094-01" ] }, { "cite": "254 S.E.2d 924", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "297 N.C. 302", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569792, 8569765, 8569866, 8569838, 8569820 ], "year": 1979, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0302-02", "/nc/297/0302-01", "/nc/297/0302-05", "/nc/297/0302-04", "/nc/297/0302-03" ] }, { "cite": "251 S.E.2d 717", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "720", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "39 N.C. App. 605", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553783 ], "year": 1979, "pin_cites": [ { "page": "610", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/39/0605-01" ] }, { "cite": "370 S.E.2d 257", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 610", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2516910, 2513367 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0610-01", "/nc/322/0610-02" ] }, { "cite": "365 S.E.2d 198", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1988, "pin_cites": [ { "page": "201" }, { "page": "201" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 33", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520082 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "39" } ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0033-01" ] }, { "cite": "447 S.E.2d 825", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "831", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 139", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522774 ], "year": 1994, "pin_cites": [ { "page": "148", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0139-01" ] }, { "cite": "330 S.E.2d 23", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "25" } ], "opinion_index": 0 }, { "cite": "75 N.C. App. 72", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524886 ], "year": 1985, "pin_cites": [ { "page": "74-75" } ], "opinion_index": 0, "case_paths": [ "/nc-app/75/0072-01" ] }, { "cite": "444 S.E.2d 478", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "480", "parenthetical": "where plaintiff-appellant failed to include evidence or verbatim transcript in record, appellate court will not consider assignments of error directed at trial court's findings of fact, but \"must assume that the trial court's findings of fact [we]re supported by competent evidence\"" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 337", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12128327 ], "year": 1994, "pin_cites": [ { "page": "339" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0337-01" ] }, { "cite": "309 S.E.2d 209", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "219", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "309 N.C. 726", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4764743 ], "year": 1983, "pin_cites": [ { "page": "741", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0726-01" ] }, { "cite": "76 S.E.2d 159", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1953, "pin_cites": [ { "page": "160", "parenthetical": "citations omitted" }, { "page": "160" } ], "opinion_index": 0 }, { "cite": "237 N.C. 734", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618969 ], "weight": 2, "year": 1953, "pin_cites": [ { "page": "736", "parenthetical": "citations omitted" }, { "page": "736" } ], "opinion_index": 0, "case_paths": [ "/nc/237/0734-01" ] }, { "cite": "471 S.E.2d 447", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "450" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 697", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11919698 ], "year": 1996, "pin_cites": [ { "page": "700" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0697-01" ] }, { "cite": "431 S.E.2d 778", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "784", "parenthetical": "citation omitted" }, { "page": "784" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 97", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520596 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "109", "parenthetical": "citation omitted" }, { "page": "109" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0097-01" ] }, { "cite": "364 S.E.2d 924", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "parenthetical": "quoting Doby, 49 N.C. App. at 164, 270 S.E.2d at 533" } ], "opinion_index": 0 }, { "cite": "321 N.C. 474", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2571435, 2572686, 2566866, 2568754, 2567063 ], "year": 1988, "pin_cites": [ { "parenthetical": "quoting Doby, 49 N.C. App. at 164, 270 S.E.2d at 533" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0474-05", "/nc/321/0474-03", "/nc/321/0474-02", "/nc/321/0474-04", "/nc/321/0474-01" ] }, { "cite": "87 N.C. App. 512", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358661 ], "weight": 4, "year": 1987, "pin_cites": [ { "page": "528" }, { "page": "528" }, { "page": "527" }, { "page": "528" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0512-01" ] }, { "cite": "270 S.E.2d 532", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "533" }, { "page": "533" } ], "opinion_index": 0 }, { "cite": "49 N.C. App. 162", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519978 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "163" }, { "page": "164" } ], "opinion_index": 0, "case_paths": [ "/nc-app/49/0162-01" ] } ], "analysis": { "cardinality": 1069, "char_count": 25420, "ocr_confidence": 0.738, "pagerank": { "raw": 4.1827871952096684e-07, "percentile": 0.9126234772760883 }, "sha256": "8808a01541acc7e8442a9265f4c77013464f9d1de7c8b1cf965f640d79cff5e7", "simhash": "1:c3e4042ae60f897e", "word_count": 4079 }, "last_updated": "2023-07-14T18:51:33.981101+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WALKER and McGEE concur." ], "parties": [ "PAMELA NUNNERY, Plaintiff v. ERIC JONATHAN BAUCOM and BAUCOM\u2019S NURSERY COMPANY, Defendants" ], "opinions": [ { "text": "JOHN, Judge.\nDefendants appeal the trial court\u2019s denial of their motion for judgment notwithstanding the verdict or, in the alternative, for new trial (defendants\u2019 motion). We find no reversible error.\nPertinent facts and procedural history include the following: On 15 November 1991, plaintiff Pamela Nunnery and defendant Eric Jonathan Baucom (Baucom) were each traveling eastbound on Rural Paved Road 2665 in Mecklenburg County, North Carolina. Baucom was operating an automobile registered to defendant Baucom\u2019s Nursery Company. Two vehicles separated those being operated by plaintiff and Baucom. Plaintiff stopped her automobile in a line of traffic waiting at a red light; Baucom failed to stop and struck the vehicle immediately preceding his. That automobile, driven by William Doggette, collided with the next preceding vehicle (whose driver fled the scene shortly thereafter), which in turn struck plaintiffs automobile. Sergeant V.C. Lessane of the State Highway Patrol (Sergeant Lessane) prepared an accident report (the report) in the course of his investigation of the collision and issued a citation to Baucom for \u201cfailure to reduce speed.\u201d\nPlaintiff complained of injuries at the scene and visited a local hospital emergency room the next day complaining of headache and soreness in her neck. Over the next three years, plaintiff sought treatment from numerous physicians for symptoms she attributed to the collision, including headaches, diffuse muscle pain and sleep paralysis.\nPlaintiff filed the instant suit 14 November 1994 alleging \u201csevere and painful injuries to her person\u201d caused by Baucom\u2019s negligent driving. Sometime thereafter, defendants engaged the services of Laurie Rountree (Rountree), a private investigator. Rountree, using a pretext, developed a friendly relationship with plaintiff and visited her on several social occasions. Rountree testified regarding her impressions of plaintiff\u2019s physical condition, and conceded on cross-examination that she was being paid by defendants\u2019 insurance company.\nAt trial, the jury found Baucom negligent and returned a verdict in favor of plaintiff in the amount of $350,000.00. Defendants\u2019 motion followed, based\nprimarily on the action by the Trial Court allowing an unredacted State Highway Patrol report... [to be] sent to the jury room during deliberations ....\nThe trial court denied defendants\u2019 motion 9 February 1998 and the latter timely appealed.\nDefendants raise nine assignments of error, condensed into five main issues for our review. Assignments of error 5, 7, 8, 11, and 12 are not set out in appellant\u2019s brief and thus are deemed abandoned. See N.C.R. App. P. 28(b)(5) (\u201c[assignments of error not set out in the appellant\u2019s brief. . . will be taken as abandoned\u201d).\nDefendants first assert the trial court erroneously allowed the report to be sent to the jury room during jury deliberations. In a related argument, defendants assign error to the court\u2019s denial of their new trial motion based upon receipt of the report by the jury during deliberations. We conclude each contention is unavailing.\nIt is well settled that trial exhibits introduced into evidence may not be present in the jury room during deliberations unless both parties consent. Doby v. Fowler, 49 N.C. App. 162, 163, 270 S.E.2d 532, 533 (1980). Further,\nthe failure to make a timely objection to the taking of the exhibits to the jury room does not waive the error; \u201cspecific consent is required\u201d of all parties,\nRobinson v. Seaboard System Railroad, 87 N.C. App. 512, 528, 361 S.E.2d 909, 919 (1987), disc. review denied, 321 N.C. 474, 364 S.E.2d 924 (1988) (quoting Doby, 49 N.C. App. at 164, 270 S.E.2d at 533), and \u201can indication of an unwillingness to consent is sufficient,\u201d Dixon v. Taylor, 111 N.C. App. 97, 109, 431 S.E.2d 778, 784 (1993) (citation omitted).\nPlaintiff maintains defendants specifically consented, while defendants contend their objection was clear. Relevant portions of the trial transcript read as follows:\nThe Court: They [the jury] want the accident report and the damage estimates. I take it that means \u2014 I don\u2019t remember what exhibits they were but the car damage. I presume they are wanting the car damage estimates. I guess that\u2019s all. Do you object?\n[Defendants\u2019 Attorney]: No, I don\u2019t object for them having either one.\nThe Court: You\u2019ve both\u2014\n[Defendants\u2019 Attorney]: We\u2019ve both got to consent, that\u2019s right.\nYour Honor, let me tell you what happened. We don\u2019t object to the two appraisals, we objected to the actual report. It\u2019s got stuff on there that it\u2019s my belief should have never gone on it. I object to that going back there.\nThe Court: What do you all say.\n[Plaintiff\u2019s Attorney]: We propose sending it all back; sending the three items requested.\nThe Court: . .. Well, the Court, in its discretion, is going to allow those exhibits to be submitted to the Jury.\nInterpretations of the foregoing by plaintiff and defendants differ markedly. Plaintiff suggests that\ndefense counsel clearly consented to the requested exhibits being given to the jury during deliberations, when asked by the Trial Court[, and was merely reiterating] his previous objection to the accident report being admitted into evidence\nin the first instance. Defendants maintain their objection was unambiguously indicated by counsel\u2019s statement, \u201cI object to that going back there.\u201d\nWe conclude defendants\u2019 reading of the cited exchange is the more accurate. The first statement of defendants\u2019 counsel simply comprised a response to the trial court\u2019s inquiry as to whether there was an objection to the damage estimates being sent to the jury. Defendants\u2019 counsel stated he did not \u201cobject [to] them having either one,\u201d an apparent reference to the appraisals, and shortly thereafter clarified, \u201c[w]e don\u2019t object to the two appraisals, we objected to the actual report.... I object to that going back there\u201d (emphasis added).\nThe acknowledgment of plaintiff\u2019s counsel that \u201cthree items [were] requested\u201d and the court\u2019s directive that examination of the exhibits in the jury room was being allowed \u201cin its discretion\u201d support our reading of the transcript. As defendants point out,\n[i]f the trial judge believed that Mr. Anderson had consented, there would have been no reason for the judge to use his perceived discretionary powers in making this ruling.\nSignificantly, moreover, even under plaintiff\u2019s interpretation that defendants\u2019 counsel merely reiterated his objection to introduction of the report into evidence, nothing in the record indicates defendants registered the \u201cspecific consent\u201d required by Robinson, 87 N.C. App. at 528, 361 S.E.2d at 919, to sending the report into the jury room. To the contrary, the record reflects \u201can indication of an unwillingness to consent,\u201d Dixon, 111 N.C. App. at 109, 431 S.E.2d at 784, on the part of defendants. Accordingly, the trial court erred in allowing the report to be viewed by the jury during the latter\u2019s deliberations. See Robinson, 87 N.C. App. at 527, 361 S.E.2d at 919.\nNonetheless, defendants are \u201cnot entitled to a new trial absent a showing that the error was prejudicial.\u201d Gardner v. Harriss, 122 N.C. App. 697, 700, 471 S.E.2d 447, 450 (1996); see also Robinson, 87 N.C. App. at 528, 361 S.E.2d at 919 (\u201cparty asserting the error must demonstrate that he has been prejudiced thereby\u201d). As our Supreme Court has stated,\n[n]ew trials are not granted for error and no more. The burden is on the appellant not only to show error but also to show that he was prejudiced to the extent that the verdict of the jury was thereby probably influenced against him.\nFreeman v. Preddy, 237 N.C. 734, 736, 76 S.E.2d 159, 160 (1953) (citations omitted).\nDefendants insist that allowing the report into the jury room was prejudicial for two reasons. First, defendants maintain the jury was allowed to view an unredacted version of the exhibit. When the report was first offered into evidence, defendants objected to Sergeant Lessane\u2019s entries in the \u201cEstimated Original Traveling Speed\u201d and \u201cEstimated Speed at Impact\u201d portions of the report. The trial court received the report into evidence upon redaction of the challenged entries.\nAccording to defendants, however, an unredacted copy actually was delivered to the jury room. Defendants cite the affidavit of one juror, LaVera Bunn (juror Bunn), indicating the report sent to the jury room contained the complained of entries.\nHowever, in ruling on defendants\u2019 motion, the trial court pointedly found, on the basis of the \u201carguments of counsel as well as the papers submitted in favor of and in opposition to the [m]otion,\u201d that the copy of the report \u201cfurnished to the jury had completely redacted from it all written entries for \u2018Estimated Original Traveling Speed\u2019 and \u2018Estimated Speed At Impact.\u2019 \u201d\n[Findings of fact made by the trial judge are conclusive on appeal if supported by competent evidence, even if, arguendo, there is evidence to the contrary.\nLumbee River Electric Corp. v. City of Fayetteville, 309 N.C. 726, 741, 309 S.E.2d 209, 219 (1983) (citation omitted). Although there is contrary evidence in the form of juror Bunn\u2019s affidavit, we must presume the trial judge\u2019s findings were based upon competent evidence in that defendants failed to include in the record on appeal either evidence or the verbatim transcript of the hearing relating to defendants\u2019 motion. See Baker v. Baker, 115 N.C. App. 337, 339, 444 S.E.2d 478, 480 (1994) (where plaintiff-appellant failed to include evidence or verbatim transcript in record, appellate court will not consider assignments of error directed at trial court\u2019s findings of fact, but \u201cmust assume that the trial court\u2019s findings of fact [we]re supported by competent evidence\u201d).\nN.C.R. App. P. 9(a)(l)[(e)] requires that the record on appeal contain so much of the evidence, either in narrative form or in the verbatim transcript of the proceedings, as is necessary for an understanding of all errors assigned. See also N.C.R. App. P. 9(c). Where such evidence is not included in the record, it is presumed that the findings are supported by competent evidence, and the findings are conclusive on appeal.\nIn re Botsford, 75 N.C. App. 72, 74-75, 330 S.E.2d 23, 25 (1985).\nIn this context, we note with interest that among plaintiff\u2019s Objections to Proposed Record on Appeal was the following:\n11. Appellee objects to the failure to include in the Proposed Record on Appeal the following items:\n(d) The transcript of the hearing before the [trial court] on the Defendants\u2019 Motion for Judgment Notwithstanding the Verdict 50(B)/Motion for New Trial....\nUpon defendants\u2019 request that the trial court settle the record on appeal, the parties resolved several of plaintiffs objections. The court, after \u201chaving heard arguments of counsel\u201d on the matter, thereupon entered an order excluding the transcript. The absence of the transcript from the record thus apparently resulted from defendants\u2019 failure to include it therein and their subsequent resistance to plaintiffs objection challenging its omission.\nIn any event, defendants continue, prejudice is manifest whichever copy of the report was received by the jury because the jury was not allowed to review testimony of certain defense witnesses. According to defendants, plaintiff\u2019s \u201centire theory of [the] case . . . was based upon the accident occurring\u201d as set out in the report, and\n[i]n effect, the jurors were given a summary of the plaintiffs entire case to review, while the defendants had no similar opportunity.\nHowever, although the trial court acceded to defendants\u2019 request \u201cto send every single exhibit so that they [the jury] can look at the damage to the cars and the pictures,\u201d defendants failed to \u201cpresent^ to the trial court a timely request, objection or motion\u201d that any witness testimony be made available to the jury. N.C.R. App. P. 10(b)(1) (Rule 10(b)(1)). Therefore, defendants\u2019 argument has not been properly preserved for our review in that defendants made no \u201ctimely request\u201d to the trial court. Id.\nAs noted above, it is defendants\u2019 burden to demonstrate prejudice resulting from erroneous receipt by the jury during deliberations of the report absent defendants\u2019 consent. Freeman, 237 N.C. at 736, 76 S.E.2d at 160. Having rejected defendants\u2019 two arguments asserting prejudice, we conclude they have failed to meet this burden.\nIn addition,\n[t]he granting or denial of a motion for new trial rests within the sound discretion of the trial judge, and his ruling will not be disturbed on appeal in the absence of a manifest abuse of such discretion or determination that his ruling is clearly erroneous.\nPinckney v. Van Damme, 116 N.C. App. 139, 148, 447 S.E.2d 825, 831 (1994) (citations omitted). Having held defendants failed to demonstrate prejudice resulting from the jury\u2019s viewing of the report during deliberations without defendant\u2019s consent, we cannot say the trial corut abused its discretion in denying defendants\u2019 motion based upon the jury\u2019s receipt of the report.\nDefendants also challenge the admission into evidence of certain notations contained in the report as well as the receipt of testimony from Sergeant Lessane related to the report. Defendants concede the report was admissible pursuant to N.C.G.S. \u00a7 8C-1, Rule 803(6) (1992) (Rule 803(6)); see also Wentz v. Unifi, Inc., 89 N.C. App. 33, 365 S.E.2d 198, disc. review denied, 322 N.C. 610, 370 S.E.2d 257 (1988). However, defendants take issue with: (1) the notation therein that Baucom\u2019s \u201cfailure to reduce speed\u201d was a \u201ccontributing circumstance[];\u201d (2) the entry indicating $3500.00 as \u201cestimated damages\u201d to the Baucom and Doggette vehicles; (3) the diagram of the accident scene reflecting the location of \u201cvehicle no. 3,\u201d the hit and run vehicle; and, (4) the portions of Sergeant Lessane\u2019s testimony wherein he repeated to the jury entries in the \u201cdescribe what happened\u201d and \u201ctire impressions before impact\u201d sections of the report.\nPlaintiff interjects that several of defendants\u2019 contentions have not been properly preserved for appeal. We agree, based on the following portion of the trial transcript:\n[Plaintiff\u2019s Attorney]: Your Honor, at this time, I would move Plaintiffs Exhibit Number One [the accident report] into evidence.\n[Defendants\u2019 Attorney]: Judge, we would object just to portions of that report.\nThe Court: All right, to what do you object?\n[Defendants\u2019 Attorney]: Judge, we would just simply object to the narrative portion where trooper \u2014 where Sergeant Lessane indicates that this was a four-car collision initiated by Mr. Baucom.\n[A]nd we would also object to the diagram that was drawn. The diagram was based upon where the vehicles were when Sergeant Lessane arrived at the scene.\nThe Court: Is there any other portion to the accident report to which you object?\n[Defendants\u2019 Attorney]: Judge, we just object to the diagram and the description.\nThe Court: Overruled as to that.\nThe foregoing reveals that defendants\u2019 objection at the time the report was introduced into evidence was limited to (a) the diagram of the accident scene and (b) the narrative contained in the \u201cdescribe what happened\u201d portion of the report. Therefore, defendants\u2019 assertions of error relating to sections of the report labeled \u201ccontributing circumstances,\u201d \u201cestimated damages\u201d and \u201ctire impressions before impact\u201d have not been properly preserved for our review. See Rule 10(b)(1). Notwithstanding, defendants point to a later objection to testimony related to the tire impression portion of the report. However,\n[h]aving once allowed th[e] evidence to come in without objection, the defendants waived their objections to the evidence and lost the benefit of later objections to the same evidence.\nState v. Burnett, 39 N.C. App. 605, 610, 251 S.E.2d 717, 720, cert. denied, 297 N.C. 302, 254 S.E.2d 924 (1979) (citations omitted).\nDefendants\u2019 surviving contentions both find fault with admission into evidence of descriptions in the report concerning \u201cvehicle no. 3.\u201d Specifically, defendants assert that, in view of the failure of Sergeant Lessane to interview the operator of that automobile who fled the scene, the designation on the diagram of \u201cvehicle no. 3\u201d as being in contact with plaintiff\u2019s automobile should have been redacted, as well as that portion of the narrative \u201cdealing with the motions and actions of vehicle no. 3.\u201d We do not agree.\nThis Court has previously held accident reports may be admissible under the business records exception to the hearsay rule, Rule 803(6), if several requirements are met:\nsuch reports must be authenticated by their writer, prepared at or near the time of the act(s) reported, by or from information transmitted by a person with knowledge of the act(s), [and] kept in the course of a regularly conducted business activity ....\nWentz, 89 N.C. App. at 39, 365 S.E.2d at 201.\nDefendants do not dispute that the report herein was authenticated, prepared near the time of the acts, and kept in the regular course of business. Rather, defendants maintain that virtually no information relative to \u201cvehicle no. 3\u201d should have been admitted because the driver thereof was not present when Sergeant Lessane prepared the report. However, the record indicates several other witnesses \u201cwith knowledge of the act(s),\u201d id., were present.\nThe business records exception expressly provides for the use of information from those having first-hand knowledge of the incident in question.\nId. at 40, 365 S.E.2d at 201. Sergeant Lessane testified he prepared the report \u201cfrom the statements that were presented to me by the drivers at the scene,\u201d each of which possessed \u201cfirst-hand knowledge,\u201d id., of the collision and the involvement therein of \u201cvehicle no. 3,\u201d and that none, including Baucom, objected to the narrative contained in the report. The trial court thus did not err in admitting the report notwithstanding that Sergeant Lessane was unable to obtain a statement from the operator of \u201cvehicle no. 3.\u201d See id.; see also Keith v. Polier, 109 N.C. App. 94, 98, 425 S.E.2d 723, 726 (1993) (accident report \u201csufficiently trustworthy\u201d and admissible under Rule 803(6) when based upon information received from drivers involved in collision who registered no objection to conclusions contained therein upon review at the collision scene).\nLastly, defendants maintain the trial court erroneously admitted evidence relating to the existence of liability insurance during cross-examination of Rountree. Preliminarily, we examine plaintiffs assertion that this assignment of error has not been properly preserved for appellate review. See Rule 10(b). Based upon a recent ruling of our Supreme Court, we hold it was not.\nDefendants filed a pre-trial motion in limine to exclude all references to \u201cinsurance companies, proceeds, policies, et cetera.\u201d Several days later, after reading the transcript of Rountree\u2019s deposition and after conducting two voir dire examinations of Rountree, the trial court ruled that Rountree could be \u201ccross-examined about [being] employed by [defendants\u2019] insurance company,\u201d but that it would instruct the jury to consider this testimony only as it related to witness bias. Defendants concede they interjected no objections to individual questions regarding insurance during plaintiff\u2019s cross-examination of Rountree.\nA motion in limine seeks \u201cpretrial determination of the admissibility of evidence proposed to be introduced at trial,\u201d and is recognized in both civil and criminal trials. State v. Tate, 44 N.C. App. 567, 569, 261 S.E.2d 506, 508, rev\u2019d on other grounds, 300 N.C. 180, 265 S.E.2d 223 (1980). The trial court has wide discretion regarding this advance ruling and will not be reversed absent an abuse of discretion. Webster v. Powell, 98 N.C. App. 432, 439, 391 S.E.2d 204, 208 (1990), aff'd, 328 N.C. 88, 399 S.E.2d 113 (1991).\nIn addition, a trial court\u2019s ruling on a motion in limine is not final, but rather interlocutory or preliminary in nature, and the court\u2019s ruling on such motion is subject to modification during the course of the trial. State v. Swann, 322 N.C. 666, 686, 370 S.E.2d 533, 545 (1988). Accordingly,\n[t]he rule is that \u201c[a] motion in limine is insufficient to preserve for appeal the question of the admissibility of evidence if the [movant] fails to further object to the evidence at the time it is offered at trial.\u201d\nMartin v. Benson, 348 N.C. 684, 685, 500 S.E.2d 664, 665 (1998) (quoting State v. Conaway, 339 N.C. 487, 521, 453 S.E.2d 824, 845-46, cert. denied, 516 U.S. 884, 133 L. Ed. 2d 153 (1995)).\nDefendants insist a different rule should apply, citing simultaneous decisions by this Court in Pack v. Randolph Oil Co., 130 N.C. App. 335, 502 S.E.2d 677, disc. review denied, 349 N.C. 361, - S.E.2d -(1998), and State v. Hayes, 130 N.C. App. 154, 502 S.E.2d 853 (1998), which appeared to alter the established rule. However, these cases have recently been expressly \u201cdisavow[ed]\u201d and the \u201cold\u201d rule reaffirmed by our Supreme Court in the appeal from the Hayes decision. See State v. Hayes, 350 N.C. 79, 80, 511 S.E.2d 302, 303 (1999) (motion in limine insufficient to preserve for appeal question of admissibility of evidence if movant fails to object to evidence at time evidence is offered at trial).\nBased on the foregoing, we hold that defendants have failed to preserve for our review their objection to testimony by Rountree tending to show the existence of liability insurance. See Rule 10(b)(1) (to preserve question for appellate review, party \u201cmust have presented to the trial court a timely ... objection . . . stating the specific grounds for the ruling the party desired\u201d; complaining party must also obtain a ruling on the objection). We further note that\nthe apparent rule change in Pack and Hayes came well after trial of the case sub judice, so [defendants] could in no wise have been prejudiced by any language therein.\nHeatherly v. Industrial Health Council, 130 N.C. App. 616, 623, 504 S.E.2d 102, 107 (1998).\nNo Error.\nJudges WALKER and McGEE concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Crews & Klein, P.C., by Paul I. Klein and James N. Freeman, Jr., for 'plaintiff-appellee.", "Caudle & Spears, P.A., by L. Cameron Caudle, Jr. and J. Scott Lewis, and Anderson, Daniel & Coxe, by Henry L. Anderson, Jr., for defendants-appellants." ], "corrections": "", "head_matter": "PAMELA NUNNERY, Plaintiff v. ERIC JONATHAN BAUCOM and BAUCOM\u2019S NURSERY COMPANY, Defendants\nNo. COA98-841\n(Filed 16 November 1999)\n1. Trials\u2014 allowance of exhibit in jury room \u2014 absence of consent by defendants \u2014 failure to show prejudice\nAlthough the trial court erred in a four-car automobile colli-' sion case by allowing the police report to go to the jury room during jury deliberations without defendants\u2019 consent, defendants are not entitled to a new trial because defendants have failed to show any prejudice since: (1) the trial court found the copy of the report delivered to the jury room was the redacted version and defendants failed to include in the record on appeal either evidence or the verbatim transcript of the hearing relating to defendants\u2019 motion under N.C. R. App. P. 9(a)(1)(e); and (2) defendants\u2019 contention that prejudice is manifest regardless of which copy of the report was received by the jury in light of the fact the jury was not allowed to review testimony of certain defense witnesses is not preserved because defendants failed to present to the trial court a timely request, objection, or motion that any witness testimony be made available to the jury under N.C. R. App. P. 10(b)(1).\n2. Evidence\u2014 police report and testimony relating to police report \u2014 waiver of objections\nThe trial court did not err in a four-car automobile collision case by admitting into evidence certain notations contained in the police report and the testimony of a sergeant relating to the report because: (1) defendants\u2019 objection at the time the report was introduced into evidence was limited to the diagram of the accident scene and the narrative contained in the \u201cdescribe what happened\u201d portion of the report; and (2) having once allowed the evidence to come in without objection, defendants waived their objections to the evidence.\n3. Evidence\u2014 hearsay \u2014 business records exception \u2014 descriptions in police report \u2014 first-hand knowledge\nThe trial court did not err in a four-car automobile collision case by admitting into evidence descriptions in the police report relating to vehicle #3 even though that vehicle fled the scene since the business records hearsay exception under Rule 803(6) expressly provides for the use of information of those having first-hand knowledge of the incident in question and the record indicates several other witnesses with knowledge of the acts were present.\n4. Appeal and Error\u2014 preservation of issues \u2014 liability insurance \u2014 motion in limine \u2014 failure to object at trial\nThe trial court did not err in a four-car automobile collision case by admitting into evidence the existence of liability insurance during cross-examination of a witness employed by the insurance company because defendants\u2019 pre-trial motion in lim-ine to exclude all references to insurance is insufficient to preserve for appeal the question of the admissibility of evidence if the movant fails to further object to the evidence at the time it is offered at trial under Rule 10(b)(1).\nAppeal by defendants from order entered 9 February 1998 by Judge Dennis J. Winner in Mecklenburg County Superior Court. Heard in the Court of Appeals 25 February 1999.\nCrews & Klein, P.C., by Paul I. Klein and James N. Freeman, Jr., for 'plaintiff-appellee.\nCaudle & Spears, P.A., by L. Cameron Caudle, Jr. and J. Scott Lewis, and Anderson, Daniel & Coxe, by Henry L. Anderson, Jr., for defendants-appellants." }, "file_name": "0556-01", "first_page_order": 590, "last_page_order": 601 }