{ "id": 9125227, "name": "STATE OF NORTH CAROLINA v. WILLIAM JASPER GOODMAN, JR.", "name_abbreviation": "State v. Goodman", "decision_date": "2002-03-05", "docket_number": "No. COA00-1417", "first_page": "57", "last_page": "73", "citations": [ { "type": "official", "cite": "149 N.C. App. 57" } ], "court": { "name_abbreviation": "N.C. Ct. 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App. 596", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11469174 ], "year": 1998, "pin_cites": [ { "page": "598", "parenthetical": "certified computer printout from Administrative Office of the Courts sufficiently reliable to prove defendant's prior conviction" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0596-01" ] }, { "cite": "516 S.E.2d 605", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "349 N.C. 374", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571576, 571621, 571590 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/349/0374-01", "/nc/349/0374-03", "/nc/349/0374-02" ] }, { "cite": "502 S.E.2d 49", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "51" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 113", "category": "reporters:state", "reporter": "N.C. 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App. 106", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9495959 ], "year": 2000, "pin_cites": [ { "page": "114" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0106-01" ] }, { "cite": "457 S.E.2d 728", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "732", "parenthetical": "error in failing to submit requested instruction to jury is harmless where defendant cannot show prejudice as a result" } ], "opinion_index": 0 }, { "cite": "340 N.C. 338", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790207 ], "year": 1995, "pin_cites": [ { "page": "343", "parenthetical": "error in failing to submit requested instruction to jury is harmless where defendant cannot show prejudice as a result" } ], "opinion_index": 0, "case_paths": [ "/nc/340/0338-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-141.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. 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App.", "case_ids": [ 11197067 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc-app/131/0048-01" ] }, { "cite": "545 S.E.2d 724", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "352 N.C. 681", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684881, 685105, 685010, 684922, 685020 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/352/0681-03", "/nc/352/0681-05", "/nc/352/0681-01", "/nc/352/0681-02", "/nc/352/0681-04" ] }, { "cite": "530 S.E.2d 859", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "863", "parenthetical": "evidence is only excluded under Rule 404(b) if its sole probative value is to show defendant's propensity to commit the crime" }, { "page": "863" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 252", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11079314 ], "weight": 3, "year": 2000, "pin_cites": [ { "page": "257" }, { "page": "258" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0252-01" ] }, { "cite": "527 S.E.2d 299", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "307", "parenthetical": "introduction of prior driving convictions to establish malice element of second degree murder not in violation of N.C. Gen. Stat. \u00a7 8C-1, Rule 404(b) (1999" }, { "page": "307" }, { "page": "307", "parenthetical": "evidence of defendant's prior speeding violations relevant to establish defendant's malice in prosecution for second degree murder resulting from defendant's driving while impaired" } ], "opinion_index": 0 }, { "cite": "351 N.C. 386", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155839 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "400", "parenthetical": "introduction of prior driving convictions to establish malice element of second degree murder not in violation of N.C. Gen. Stat. \u00a7 8C-1, Rule 404(b) (1999" }, { "page": "400" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0386-01" ] }, { "cite": "538 S.E.2d 917", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "928", "parenthetical": "prior charge of driving while intoxicated sufficient to establish malice element of second degree murder; such evidence demonstrates \"defendant was aware that his conduct leading up to the collision at issue here was reckless and inherently dangerous to human life\"" } ], "opinion_index": 0 }, { "cite": "353 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135783 ], "year": 2000, "pin_cites": [ { "page": "173" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0159-01" ] }, { "cite": "543 S.E.2d 201", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 2001, "pin_cites": [ { "page": "204" }, { "page": "205" }, { "page": "205" }, { "page": "205" }, { "page": "204" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 435", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9441585 ], "weight": 4, "year": 2001, "pin_cites": [ { "page": "440" }, { "page": "440" }, { "page": "440" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0435-01" ] }, { "cite": "402 S.E.2d 380", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "385" } ], "opinion_index": 0 }, { "cite": "328 N.C. 515", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2542671 ], "year": 1991, "pin_cites": [ { "page": "522" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0515-01" ] }, { "cite": "467 S.E.2d 28", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "342 N.C. 580", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795978 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/342/0580-01" ] }, { "cite": "148 L. Ed. 2d 997", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "536 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "352 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685065 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/352/0227-01" ] }, { "cite": "556 S.E.2d 316", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "323", "parenthetical": "citing State v. Steen, 352 N.C. 227, 536 S.E.2d 1 (2000), cert. denied, 531 U.S. 1167, 148 L. Ed. 2d 997 (2001); State v. Gregory, 342 N.C. 580, 467 S.E.2d 28 (1996)" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 386", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9379729 ], "year": 2001, "pin_cites": [ { "parenthetical": "citing State v. Steen, 352 N.C. 227, 536 S.E.2d 1 (2000), cert. denied, 531 U.S. 1167, 148 L. Ed. 2d 997 (2001); State v. Gregory, 342 N.C. 580, 467 S.E.2d 28 (1996)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0386-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "379" } ], "opinion_index": 1 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "661" } ], "opinion_index": 1, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "322 N.C. 585", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2514083 ], "year": 1988, "pin_cites": [ { "page": "590" } ], "opinion_index": 1, "case_paths": [ "/nc/322/0585-01" ] }, { "cite": "108 L. Ed. 2d 604", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 1 }, { "cite": "494 U.S. 1023", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 4836, 5158, 4882, 5207, 5176 ], "year": 1990, "opinion_index": 1, "case_paths": [ "/us/494/1023-04", "/us/494/1023-03", "/us/494/1023-05", "/us/494/1023-02", "/us/494/1023-01" ] }, { "cite": "384 S.E.2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "481" } ], "opinion_index": 1 }, { "cite": "325 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2492599 ], "year": 1989, "pin_cites": [ { "page": "299" } ], "opinion_index": 1, "case_paths": [ "/nc/325/0278-01" ] }, { "cite": "432 S.E.2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "354" } ], "opinion_index": 1 }, { "cite": "334 N.C. 402", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2532283 ], "year": 1993, "pin_cites": [ { "page": "412" } ], "opinion_index": 1, "case_paths": [ "/nc/334/0402-01" ] }, { "cite": "369 S.E.2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1988, "pin_cites": [ { "page": "824" }, { "page": "825" }, { "parenthetical": "Supreme Court specifically rejects argument that \"lapse of time between prior occurrences and the offenses charged goes only to the weight and credibility\"" } ], "opinion_index": 1 }, { "cite": "543 S.E.2d 201", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "205" } ], "opinion_index": 1 }, { "cite": "142 N.C. App. 435", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9441585 ], "year": 2001, "pin_cites": [ { "page": "440" } ], "opinion_index": 1, "case_paths": [ "/nc-app/142/0435-01" ] } ], "analysis": { "cardinality": 1218, "char_count": 40080, "ocr_confidence": 0.768, "pagerank": { "raw": 6.907721740003826e-07, "percentile": 0.964871697153 }, "sha256": "acca41196e0b6ab452bfc017a64db0977d31b2c2bbee9fe0c89b77aebd5897d4", "simhash": "1:8b2248215c67bcda", "word_count": 6450 }, "last_updated": "2023-07-14T21:06:37.161258+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge TYSON concurs.", "Judge GREENE dissents in a separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. WILLIAM JASPER GOODMAN, JR." ], "opinions": [ { "text": "HUNTER, Judge.\nWilliam Jasper Goodman, Jr. (\u201cdefendant\u201d) appeals his conviction and sentence for the second degree murder of Lewis Watford. We hold defendant\u2019s trial was free from prejudicial error; however, we remand for resentencing.\nThe evidence presented at trial tended to establish that on 11 February 1999 at approximately 11:30 a.m., seventy-three year-old Lewis Watford was driving a Mercury Grand Marquis on U.S. 321 in Gastonia. Watford\u2019s vehicle was stopped at a red light in the left northbound lane of U.S. 321 at the intersection of Hudson Boulevard. When the light turned green, Watford proceeded into the intersection to make a left turn when his vehicle was struck on the passenger side by defendant\u2019s truck. Defendant had run a light as he proceeded west on Hudson Boulevard. Witness Tracy Moose testified she saw defendant\u2019s head and arm hanging out the driver\u2019s side window of his truck as he ran the red light. Defendant was traveling at approximately forty to forty-five miles per hour when he struck Watford\u2019s passenger-side door. A blood test performed on defendant at the hospital revealed his blood alcohol content was .138. Watford died four days later as a result of injuries sustained in the accident.\nDefendant was indicted on 1 March 1999 for second degree murder, driving while impaired, and failure to stop at a red light. He was also indicted for possession of marijuana and carrying a concealed weapon, both of which were recovered from defendant\u2019s truck after the accident. On 1 November 1999, defendant was indicted for possession of a firearm by a convicted felon, based upon the discovery of the firearm in defendant\u2019s vehicle and his 1980 conviction for assault upon a law enforcement officer. Defendant pled guilty to possession of marijuana and driving while impaired on 28 March 2000.\nDefendant\u2019s second degree murder charge and possession of a firearm by a felon charge were both tried to a jury. During trial, the State introduced defendant\u2019s driving record which contained numerous convictions for traffic violations, including several prior convictions for driving while impaired. Defendant did not testify. On 31 March 2000, defendant was convicted of second degree murder. He was acquitted of possession of a firearm by a convicted felon. The trial court arrested judgment on the charge of driving while impaired, and consolidated defendant\u2019s convictions for possession of marijuana and second degree murder. Based upon his prior record level, the trial court sentenced defendant to a minimum of 251 and a maximum of 311 months\u2019 imprisonment. He appeals.\nDefendant brings forth six arguments on appeal, contending the trial court erred in (1) failing to dismiss the charge of second degree murder for insufficient evidence of malice; (2) failing to submit the possible verdict of misdemeanor death by vehicle to the jury; (3) failing to charge the jury with a limiting instruction regarding the 1980 conviction for assault upon a law enforcement officer; (4) admitting testimony that Watford was a good person; (5) admitting defendant\u2019s driving record; and (6) sentencing defendant based upon incompetent evidence of defendant\u2019s prior convictions. For reasons stated herein, we find no prejudicial error in the guilt phase of defendant\u2019s trial, but remand for resentencing.\nI.\nDefendant first argues the trial court erred in failing to dismiss the charge of second degree murder on the basis there was insufficient evidence to establish defendant acted with malice. Defendant failed to properly renew his motion to dismiss at the close of all evidence as required by Rule 10(b)(3) of the Rules of Appellate Procedure. Although he urges us to review this assignment of error for plain error, our Supreme Court \u201chas only elected to review unpreserved issues for plain error that involve instructional errors or the admissibility of evidence.\u201d State v. Carpenter, 147 N.C. App. 386, 556 S.E.2d 316, 323 (2001) (citing State v. Steen, 352 N.C. 227, 536 S.E.2d 1 (2000), cert. denied, 531 U.S. 1167, 148 L. Ed. 2d 997 (2001); State v. Gregory, 342 N.C. 580, 467 S.E.2d 28 (1996)). However, in our discretion, we may suspend application of Rule 10(b)(3) in this case. See N.C.R. App. P. 2. We elect to do so here, and will review defendant\u2019s argument.\nIn order to convict a defendant of second degree murder, the State must establish that defendant committed an unlawful killing of a human being with malice, but need not establish premeditation or deliberation. State v. Brewer, 328 N.C. 515, 522, 402 S.E.2d 380, 385 (1991). It is well-established that the malice element of second degree murder in cases such as this may be proved through the introduction of prior driving convictions.\nIn State v. Miller, 142 N.C. App. 435, 543 S.E.2d 201 (2001), this Court recently reiterated this principle, holding that the defendant\u2019s prior driving convictions dating as far back as sixteen years could be used to establish the defendant acted with malice when he hit the decedent while driving under the influence of alcohol. Id. at 439, 543 S.E.2d at 204; see also State v. Jones, 353 N.C. 159, 173, 538 S.E.2d 917, 928 (2000) (prior charge of driving while intoxicated sufficient to establish malice element of second degree murder; such evidence demonstrates \u201cdefendant was aware that his conduct leading up to the collision at issue here was reckless and inherently dangerous to human life\u201d); State v. Rich, 351 N.C. 386, 400, 527 S.E.2d 299, 307 (2000) (introduction of prior driving convictions to establish malice element of second degree murder not in violation of N.C. Gen. Stat. \u00a7 8C-1, Rule 404(b) (1999); such convictions are for the permissible purpose of establishing defendant\u2019s \u201c \u2018totally depraved mind\u2019 \u201d and \u201c \u2018recklessness of the consequences\u2019 \u201d).\nMoreover, this Court in Miller rejected defendant\u2019s argument that his convictions, dating as far back as sixteen years prior to the accident at issue, were too remote in time to be admissible. In so holding, we noted that the Supreme Court in Rich had held a prior conviction dating back nine years to be admissible; that this Court in State v. McAllister, 138 N.C. App. 252, 530 S.E.2d 859, appeal dismissed, 352 N.C. 681, 545 S.E.2d 724 (2000), had held a seven year-old conviction for driving while intoxicated admissible to establish malice; and that in State v. Grice, 131 N.C. App. 48, 505 S.E.2d 166 (1998), disc. review denied, 350 N.C. 102, 533 S.E.2d 473 (1999), we held prior convictions over ten years old to be admissible to establish malice. Miller, 142 N.C. App. at 440, 543 S.E.2d at 205.\nApplying these principles to the present case, we hold the State introduced ample evidence of defendant\u2019s malice to defeat a motion to dismiss. The State introduced evidence of defendant\u2019s extensive driving-related convictions, including most recently, convictions in January 1997 for failing to yield the right of way; October 1995 for illegal passing; April 1990 for driving while impaired; October 1990 for refusing to submit to a chemical test; September 1988 for speeding; May 1982 for driving while intoxicated; March 1982 for driving while intoxicated; and August 1981 for driving while intoxicated. The evidence further showed that defendant ran the red light while traveling approximately forty to forty-five miles per hour with his head and arm hanging out of the window. The trial court did not err in submitting the charge of second degree murder to the jury.\nII.\nDefendant next argues he is entitled to a new trial because the trial court erred in failing to submit to the jury a possible verdict of misdemeanor death by motor vehicle, N.C. Gen. Stat. \u00a7 20-141.4(a2) (1999). The trial court submitted to the jury three possible verdicts: second degree murder; involuntary manslaughter; and not guilty. Assuming, arguendo, that such failure was error, defendant is unable to establish the requisite prejudice that would entitle him to a new trial. See State v. Riddick, 340 N.C. 338, 343, 457 S.E.2d 728, 732 (1995) (error in failing to submit requested instruction to jury is harmless where defendant cannot show prejudice as a result).\nIn State v. Moss, 139 N.C. App. 106, 114, 532 S.E.2d 588, 594, disc. review denied, 353 N.C. 275, 546 S.E.2d 387 (2000), this Court held that where the jury was instructed on possible verdicts of second degree murder and involuntary manslaughter, any error in failing to submit a defense of accident was harmless. We observed that because the jury had found all of the elements of second degree murder, it precluded the possibility that the same jury would have found the defendant guilty of anything less than involuntary manslaughter, which it rejected. Id.) see also State v. Johnston, 344 N.C. 596, 602-03, 476 S.E.2d 289, 292 (1996) (where jury convicted defendant of first degree murder out of three possible verdicts of first degree murder, second degree murder, or not guilty, any error in failing to instruct on voluntary manslaughter could not have prejudiced defendant).\nSimilarly, in State v. Wagner, 343 N.C. 250, 259, 470 S.E.2d 33, 38 (1996), in which the defendant was convicted of first degree murder, our Supreme Court determined the defendant could not have been prejudiced by the trial court\u2019s failure to instruct on voluntary manslaughter. The Court reasoned that \u201c \u2018[s]ince the jury rejected second-degree murder, it would also have rejected the lesser offense of voluntary manslaughter.\u2019 \u201d Id. (quoting State v. Lyons, 340 N.C. 646, 664, 459 S.E.2d 770, 779 (1995)).\nHere, misdemeanor death by vehicle is a lesser included offense of involuntary manslaughter. State v. Moore, 107 N.C. App. 388, 398, 420 S.E.2d 691, 698, cert. denied, 332 N.C. 670, 424 S.E.2d 414 (1992), overruled on other grounds, State v. Hayes, 350 N.C. 79, 511 S.E.2d 302 (1999). Therefore, since the jury rejected involuntary manslaughter in favor of second degree murder, it would also have rejected the lesser offense of misdemeanor death by vehicle. This assignment of error is overruled.\nIII.\nBy his third argument, defendant contends he is entitled to a new trial because the trial court failed to include a limiting instruction in the jury charge regarding evidence of defendant\u2019s 16 June 1980 conviction for assault on a law enforcement officer. Evidence of the assault charge was introduced to prove the underlying felony in defendant\u2019s charge for possession of a firearm by a convicted felon, which charge was consolidated for trial with the murder charge. At the charge conference, defendant requested that the trial court provide a limiting instruction that the assault charge should have no effect on the verdict in the murder charge. The trial court agreed to so instruct the jury; however, the trial court neglected to give the limiting instruction during the charge.\nAlthough we agree with defendant that the trial court should have provided the limiting instruction, we do not agree that such omission entitles defendant to a new trial. In order to show prejudice necessary for a new trial, a defendant alleging error must show \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) (1999). Defendant argues he was prejudiced because without the instruction, the jury could have used the assault conviction to find the malice element of second degree murder, and also because evidence of the 1980 conviction was \u201cextremely inflammatory.\u201d We disagree.\nThe trial court\u2019s instructions to the jury throughout the trial and during the charge made clear that it was the evidence of defendant\u2019s prior driving convictions which were being offered to prove malice. During the trial, the court instructed the jury that defendant\u2019s driving record was being admitted \u201cto establish a pattern of reckless and inherently dangerous conduct to substantiate malice.\u201d Again, during the charge, the trial court twice instructed the jury that defendant\u2019s \u201cprior traffic violations\u201d were to be used in assessing whether the State had met its burden of establishing malice. Although defendant excerpts a single statement made by the trial court in which it instructed the jury that they \u201cmay consider [defendant\u2019s] prior record\u201d to establish malice, the statement came directly after the trial court made clear the record it was referring to was defendant\u2019s traffic record.\nThe trial court\u2019s charge to the jury \u201c \u2018. . . \u201cmust be read as a whole ... , in the same connected way that the judge is supposed to have intended it and the jury to have considered it \u201d State v. Hooks, 353 N.C. 629, 634, 548 S.E.2d 501, 505 (2001) (citations omitted). The charge must \u201c. . . \u2018be construed contextually, and isolated portions will not be held prejudicial when the charge as [a] whole is -correct. . . . [T]he fact that some expressions, standing alone, might be considered erroneous will afford no ground for reversal.\u2019 \u201d Id. (citations omitted).\nMoreover, in subsequently instructing the jury on the charge of possession of a firearm by a convicted felon, the court clearly stated that the jury must find that defendant was convicted of a felony in Gaston County Superior Court on 16 June 1980. Thus, the trial court was clear in instructing the jury that the purpose of the evidence of the 16 June 1980 conviction was to determine whether defendant was guilty of possessing a firearm as a felon.\nWe also disagree with defendant that evidence of the 1980 assault conviction was overly inflammatory. The only evidence of the assault charge presented was in the form of testimony of Mandy Cloninger, Deputy Clerk of Superior Court, whose testimony simply verified the documents showing that defendant pled guilty to assault on a law enforcement officer in 1980 as a result of pointing a gun. Any limiting instruction would not have affected the admissibility or the inflammatory nature of the evidence. Given the overwhelming evidence of defendant\u2019s prior traffic violations, he has failed to show a reasonable possibility that absence of the limiting instruction on his 1980 assault conviction likely caused the jury to convict him of second degree murder. This assignment of error is overruled.\nIV.\nDefendant next argues he is entitled to a new trial because the trial court allowed Eddie Watford, Lewis Watford\u2019s son, to testify to his father\u2019s good character. Defendant failed to object at trial to the admission of this evidence, but he argues the error rises to the level of plain error. Plain error is error \u201c \u2018so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.\u2019 \u201d State v. Parker, 350 N.C. 411, 427, 516 S.E.2d 106, 118 (1999) (citation omitted), cert. denied, 528 U.S. 1084, 145 L. Ed. 2d 681 (2000).\nEddie Watford testified that his father owned Blue Gas Company, and that he always had time for his customers. Eddie testified:\n[Lewis Watford] had time for everybody. He would go out of his way for customers. ... He would loan people that had hard times \u2014 he would loan them money. He just \u2014 you know, he was easy going. He didn\u2019t have any problem with anybody and he was, you know, coming to work doing what he was supposed to be doing, what he wanted to do. He didn\u2019t have to work. He wanted to do it.\nAlthough defendant is correct that such character evidence is generally not admissible under these circumstances, \u201c \u2018[t]he admission of evidence which is technically inadmissible will be treated as harmless unless prejudice is shown such that a different result likely would have ensued had the evidence been excluded.\u2019 \u201d State v. Quick, 329 N.C. 1, 26, 405 S.E.2d 179, 194 (1991) (citation omitted). In Quick, our Supreme Court held that the defendant could not show prejudice from testimony related to the victim\u2019s good character. Id. The Court concluded that although \u201cthe evidence against defendant was not overwhelming, we are convinced that exclusion of the witness\u2019s statement that the victim was a good man who helped people in the community would not likely have changed the result in this case.\u201d Id.\nIn the present case, we believe the evidence against defendant was, in fact, overwhelming, in light of evidence of defendant\u2019s several alcohol-related driving convictions within the past few years. As was our Supreme Court in Quick, we too are convinced that exclusion of Eddie Watford\u2019s testimony would not likely have changed the result in this case. Defendant has failed to show that any error was error \u201c \u2018so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.\u2019 \u201d Parker, at 427, 516 S.E.2d at 118 (citation omitted). Accordingly, this argument is rejected.\nV.\nIn his fifth argument, defendant maintains he is entitled to a new trial because the trial court erroneously admitted his driving record, which detailed his prior driving convictions. Specifically, defendant argues such evidence violates N.C. Gen. Stat. \u00a7 8C-1, Rule 404(b) (1999), which provides:\nEvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 404(b).\nInitially, we note that although defendant excepted to the trial court\u2019s denial of his motion in limine regarding his driving record, defendant did not object to the introduction of his driving record at trial. Rulings on motions in limine \u201care preliminary in nature and subject to change at trial,... and \u2018thus an objection to an order granting or denying the motion \u201cis insufficient to preserve for appeal the question of the admissibility of the evidence.\u201d \u2019 \u201d State v. Hayes, 350 N.C. 79, 80, 511 S.E.2d 302, 303 (1999) (citations omitted).\nDefendant contends, however, that he reasonably relied upon the assurances of the trial court that pre-trial objections would remain in effect at trial. After ruling on another of defendant\u2019s motions in lim-ine, the trial court assured defendant that his objection as to that issue would remain effective, and that he would not need to re-object at trial. When the trial court subsequently denied defendant\u2019s motion regarding his driving record, defendant objected, but did not do so again at trial.\nIn State v. Gray, 137 N.C. App. 345, 348, 528 S.E.2d 46, 48, disc. review denied, 352 N.C. 594, 544 S.E.2d 792 (2000), the defendant sought a standing objection to evidence discussed during motions in limine. The trial court in that case granted the defendant\u2019s request that the objections remain effective for trial. Id. We held that regardless of the trial court\u2019s ruling that the objections would remain effective at trial, \u201c[bjased on the established law of this State, because defendant failed to object to the admission of the evidence at the time it was offered, he has failed to preserve [the] issue for... review.\u201d Id. Nonetheless, at defendant\u2019s urging, we will review this argument for plain error.\nOur Supreme Court has held:\n\u2022Rule 404(b) state[s] a clear general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged.\nState v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990); see also McAllister, 138 N.C. App. at 257, 530 S.E.2d at 863 (evidence is only excluded under Rule 404(b) if its sole probative value is to show defendant\u2019s propensity to commit the crime). \u201c \u2018The admissibility of evidence under this rule is guided by two further constraints\u2014 similarity and temporal proximity.\u2019 \u201d State v. Barnett, 141 N.C. App. 378, 389-90, 540 S.E.2d 423, 431 (2000) (citation omitted), affirmed, 354 N.C. 350, 554 S.E.2d 644 (2001).\n\u201cThe demonstration of malice is a proper purpose for admission of evidence of other crimes, wrongs, or acts by the defendant.\u201d McAllister, 138 N.C. App. at 258, 530 S.E.2d at 863. As discussed in detail in section I of this opinion, prior driving convictions are a proper means of establishing the malice element of second degree murder, and such admission does not violate Rule 404(b). See Rich, 361 N.C. at 400, 527 S.E.2d at 307.\nWe agree with defendant that some of the convictions contained in his driving record, dating back to 1962, are too remote in time to be probative of defendant\u2019s malice in the crime at issue. We therefore hold the trial court erred in admitting defendant\u2019s entire driving record. Nevertheless, in light of defendant\u2019s numerous convictions, including four convictions for driving while intoxicated or impaired which occurred within the approximate time-frame held to be permissible in Miller, we hold admission of the entire record did not prejudice defendant to the extent required under a plain error analysis. Even absent evidence of convictions which were too remote, there is ample evidence to conclude the jury would have determined defendant acted with malice.\nAs previously discussed, this Court in Miller held that convictions dating back to sixteen years prior to the crime at issue are not considered remote for purposes of Rule 404(b), however, we expressed no opinion as to whether convictions more than sixteen years prior are too remote for purposes of Rule 404(b). See Miller, 142 N.C. App. at 440, 543 S.E.2d at 205. In this case, defendant was convicted of the following offenses within sixteen years of the date of the offense at issue: failure to yield the right of way; illegal passing; driving while impaired with an accident resulting; refusal to submit to a chemical test; and speeding. Moreover, defendant was convicted of driving while intoxicated seventeen years prior to the crime at issue, and was convicted twice of driving while intoxicated eighteen years prior. Because these three additional convictions for driving while intoxicated occurred outside the sixteen-year time-frame of Miller, they are considered remote to the crime at issue.\nHowever, it is well-established that,\nremoteness in time between evidence of other crimes .. . and the charged crime is less significant when the prior conduct is used to show intent, motive, knowledge, or lack of accident [as opposed to a common scheme or plan]. Indeed, \u201c \u2018remoteness in time generally affects only the weight to be given such evidence, not its admissibility.\u2019 \u201d'\nState v. Parker, 354 N.C. 268, 287, 553 S.E.2d 885, 899 (2001) (citations omitted); see also e.g., State v. Wilds, 133 N.C. App. 195, 202, 515 S.E.2d 466, 473 (1999) (under 404(b), \u201cremoteness in time generally goes to the weight of the evidence rather than to its admissibility\u201d). While the dissent argues this proposition is erroneous based upon State v. Jones, 322 N.C. 685, 369 S.E.2d 822 (1988), we rely on the Supreme Court\u2019s most recent statement of the law. See Parker, 354 N.C. at 287, 553 S.E.2d at 899. Although we agree that some of the convictions dating back to 1962 are too remote, and thus should not have been admitted, the remoteness of defendant\u2019s three convictions for driving while intoxicated occurring only one and two years outside the permissible period should go to the weight of that evidence, not its admissibility. Several of defendant\u2019s convictions, including three convictions for driving while intoxicated, one for driving while impaired which resulted in an accident, and one for refusing to submit to a chemical test, occurred within the approximate time-frame held to be permissible in Miller. See Miller, 142 N.C. App. at 440, 543 S.E.2d at 205.\nIn addition to these alcohol-related offenses, defendant was convicted of other traffic violations within the permissible time-frame under Rule 404(b), as set forth above. Although defendant maintains the non-alcohol-related convictions are too dissimilar to be admissible, we held in Miller that prior convictions for reckless driving were admissible to prove malice in the defendant\u2019s killing of another as a result of driving while impaired. Id. at 439, 543 S.E.2d at 204; see also Rich, 351 N.C. at 400, 527 S.E.2d at 307 (evidence of defendant\u2019s prior speeding violations relevant to establish defendant\u2019s malice in prosecution for second degree murder resulting from defendant\u2019s driving while impaired); State v. Fuller, 138 N.C. App. 481, 484, 531 S.E.2d 861, 864 (defendant\u2019s prior convictions for reckless driving, speeding and driving while license revoked admissible to establish malice element of second degree murder resulting from defendant\u2019s driving while impaired), disc. review denied, 353 N.C. 271, 546 S.E.2d 120 (2000). \u201cThese cases establish that a wide range of prior convictions have been held admissible to establish malice in cases where an impaired driver causes a death and is charged with second-degree murder.\u201d Gray, 137 N.C. App. at 349, 528 S.E.2d at 49.\nIn summary, we emphasize defendant\u2019s driving record was introduced for the permissible purpose of proving malice. The trial court properly instructed the jury as follows:\n[T]he state has introduced into evidence defendant\u2019s prior traffic violations and the jury can consider such evidence to establish a pattern of reckless and inherently dangerous conduct to substantiate malice and to show the absence of accident. You may not convict the defendant in this case because of something he may have done in the past but you may consider his prior record to establish a pattern of reckless and inherently dangerous conduct to substantiate malice ....\nDefendant\u2019s driving record was not offered to show his propensity to commit the crime charged, and its admission therefore does not violate Rule 404(b). Although we agree that the entire driving record should not have been admitted due to concerns of temporal proximity, to the extent three convictions for driving while intoxicated occurred only one and two years outside of the permissible time-frame set forth in Miller, the jury must assess the weight and credibility to afford that evidence. Further, defendant\u2019s prior non-alcohol-related driving convictions, such as failing to yield the right of way, illegal passing, reckless driving, and speeding, are not too dissimilar to be probative of a pattern of recklessness and inherently dangerous conduct which could substantiate defendant\u2019s malice in the present case.\nEven excluding evidence of defendant\u2019s convictions prior to eighteen years before the conviction at issue, there is ample evidence to conclude the jury would have found defendant acted with malice. Defendant cannot therefore establish that a different result would have occurred absent any error. He has failed to show plain error, and this argument is therefore overruled.\nVI.\nIn his final argument, defendant contends he is entitled to a new sentencing hearing because the State failed to prove his prior convictions with competent evidence, and therefore, the trial court\u2019s finding of defendant\u2019s prior record level is not supported by the evidence. Specifically, defendant argues the State failed to prove defendant\u2019s prior convictions as required by N.C. Gen. Stat. \u00a7 15A-1340.14(f) (1999):\nA prior conviction shall be proved by any of the following methods:\n(1) Stipulation of the parties.\n(2) An original or copy of the court record of the prior conviction.\n(3) A copy of records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or of the Administrative Office of the Courts.\n(4) Any other method found by the court to be reliable.\nN.C. Gen. Stat. \u00a7 15A-1340.14(f). The statute further provides that the State \u201cbears the burden of proving, by a preponderance of the evidence, that a prior conviction exists and that the offender before the court is the same person as the offender named in the prior conviction.\u201d N.C. Gen. Stat. \u00a7 15A-1340.14(f). Originals or copies of court records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or of the Administrative Office of the Courts constitute prima facie evidence of a prior conviction. N.C. Gen. Stat. \u00a7 15A-1340.14(f). \u201cThe prosecutor shall make all feasible efforts to obtain and present to the court the offender\u2019s full record.\u201d Id.\nIn the present case, the State did not offer into evidence any document which tended to prove that defendant had been convicted of the prior crimes. The State submitted its prior record level worksheet in which it calculated defendant\u2019s record level based upon his prior convictions. Defendant objected to the worksheet, contending that not all convictions listed on the worksheet were correct. Although the prosecutor stated that the worksheet was based upon a criminal information printout which she had and which she provided to defense counsel, it does not appear from the record that the State ever offered the printout into evidence and to the trial court. The trial court sentenced defendant based upon the information provided by the State\u2019s unverified prior record level worksheet.\nWe hold that the State failed to prove by a preponderance of the evidence that defendant was the same person convicted of the prior crimes listed on his prior record level worksheet. Indeed, the State did not submit any evidence tending to prove that fact. Although we recognize that the trial court can accept any method of proof which it deems reliable, the trial court in this case made no findings regarding the reliability of the information provided by the State.\nThe requirements of proving a prior conviction are not stringent. See State v. Rich, 130 N.C. App. 113, 116, 502 S.E.2d 49, 51 (computerized printout containing record of defendant\u2019s criminal history as maintained by the Division of Criminal Information sufficiently reliable to prove defendant\u2019s prior convictions under N.C. Gen. Stat. \u00a7 15A-1340.14(f)), disc. review denied, 349 N.C. 374, 516 S.E.2d 605 (1998); State v. Ellis, 130 N.C. App. 596, 598, 504 S.E.2d 787, 789 (1998) (certified computer printout from Administrative Office of the Courts sufficiently reliable to prove defendant\u2019s prior conviction), cert. denied, 352 N.C. 151, 544 S.E.2d 231 (2000). Nevertheless, we believe the law requires more than the State\u2019s unverified assertion that a defendant was convicted of the prior crimes listed on a prior \u2022 record level worksheet.\nThis case is remanded for a resentencing hearing, at which the State shall prove defendant\u2019s prior convictions by a preponderance of the evidence using any method allowable under N.C. Gen. Stat. \u00a7 15A-1340.14(f) or which the trial court deems reliable. Defendant\u2019s conviction for second degree murder is undisturbed.\nNo error in part; remanded for resentencing.\nJudge TYSON concurs.\nJudge GREENE dissents in a separate opinion.", "type": "majority", "author": "HUNTER, Judge." }, { "text": "GREENE, Judge,\ndissenting.\nThe majority holds that although the trial court erred in admitting defendant\u2019s entire driving record, the \u201cadmission of the entire record did not prejudice defendant to the extent required under a plain error analysis.\u201d I disagree.\nI agree that prior driving convictions of a defendant are admissible to show malice, and the showing of malice in a second-degree murder case is a proper puj\u00f3se within the meaning of Rule 404(b). The admissibility of any evidence under Rule 404(b), however, is guided by two \u201cconstraints \u2014 similarity and temporal proximity.\u201d State v. Lynch, 334 N.C. 402, 412, 432 S.E.2d 349, 354 (1993).\nRule 404(b) evidence is limited by a temporal proximity requirement because even though offenses may be similar, if they \u201care distanced by significant stretches of time, commonalities become less striking, and the probative value of the analogy attaches less to the acts than to the character of the actor,\u201d a purpose for which 404(b) evidence is excluded. State v. Artis, 325 N.C. 278, 299, 384 S.E.2d 470, 481 (1989), sentence vacated on other grounds, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990). Moreover, after the passage of time, the \u201c[a]dmission of other crimes ... allows the jury to convict [a] defendant because of the kind of person he is, rather than because the evidence discloses, beyond a reasonable doubt, that he committed the offense charged.\u201d State v. Jones, 322 N.C. 585, 590, 369 S.E.2d 822, 824 (1988). Thus, \u201cthe passage of time must play an integral part in the balancing process to determine admissibility.\u201d Id. at 590, 369 S.E.2d at 825. To relegate the remoteness question to one of \u201cweight\u201d and not of \u201cadmissibility,\u201d as the majority does in this case, decimates Rule 404(b) and the fundamental principles on which it is based, and thus is contrary to Jones. Id. (Supreme Court specifically rejects argument that \u201clapse of time between prior occurrences and the offenses charged goes only to the weight and credibility\u201d).\nIn this case, the admission of defendant\u2019s driving record dating back to 1962 (some 37 years) violates the temporal proximity requirement of Rule 404(b) and thus constitutes error. Although defendant has six prior driving while impaired convictions dating back to 1962, only one of those occurred in the sixteen years prior to the crime at issue and none within the eight years prior to the crime at issue. Furthermore, defendant\u2019s driving record contained convictions older than sixteen years of reckless driving, driving while license suspended, hit and run with property damage, unsafe moving violations, speeding, driving too fast for conditions, and driving on the wrong side of the road. This error is of a fundamental nature and, in my opinion, had a \u201cprobable impact on the jury\u2019s finding of guilt\u201d and thus constitutes plain error. State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 379 (1983). From the record, it appears the jury had difficulty in determining whether defendant had acted with malice because during its deliberations, the jury requested to have the definition of malice read twice. The jury later requested the trial court permit it to have a written definition of malice along with defendant\u2019s driving record to consider during its deliberations. Accordingly, I would grant defendant a new trial.\n. Although I am bound by this Court\u2019s holding in State v. Miller, 142 N.C. App. 435, 440, 543 S.E.2d 201, 205 (2001), that driving convictions dating back sixteen years are admissible to prove malice, any conviction dating beyond sixteen years, however slight, runs afoul of the temporal proximity requirement of Rule 404(b).", "type": "dissent", "author": "GREENE, Judge," } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Assistant Attorney General Philip A. Lehman, for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defenders Jarvis John Edgerton, IV and Daniel R. Pollitt, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WILLIAM JASPER GOODMAN, JR.\nNo. COA00-1417\n(Filed 5 March 2002)\n1. Homicide\u2014 second-degree murder \u2014 driving while intoxicated \u2014 malice\u2014sufficiency of evidence\nThe trial court did not err by failing to dismiss the charge of second-degree murder arising out of defendant\u2019s driving while intoxicated based on the sufficiency of the evidence concerning malice, because: (1) the State introduced evidence of defendant\u2019s extensive driving-related convictions, including prior convictions for driving while impaired; and (2) the evidence also showed that defendant ran a red light while traveling approximately forty to forty-five miles per hour with his head and arm hanging out of the window.\n2. Homicide\u2014 second-degree murder \u2014 driving while intoxicated \u2014 failure to submit misdemeanor death by vehicle\nThe trial court did not err in a second-degree murder case arising out of defendant\u2019s driving while intoxicated by failing to submit to the jury the possible verdict of misdemeanor death by vehicle under N.C.G.S. \u00a7 20-141.4(a2), because misdemeanor death by vehicle is a lesser included offense of involuntary manslaughter, and since the jury rejected involuntary manslaughter in favor of second-degree murder, it would aiso have rejected the lesser offense of misdemeanor death by vehicle.\n3. Evidence\u2014 prior crimes or bad acts \u2014 assault upon a law enforcement officer \u2014 failure to give limiting instruction\nAlthough the trial court erred in a second-degree murder case arising out of defendant\u2019s driving while intoxicated by failing to charge the jury with a limiting instruction regarding defendant\u2019s 1980 conviction for assault upon a law enforcement officer, the omission does not entitle defendant to a new trial because: (1) the trial court\u2019s instructions to the jury throughout the trial and during the charge made clear that it was the evidence of defendant\u2019s prior driving convictions which were being offered to prove malice; (2) the trial court was clear in instructing the jury that the purpose of the evidence of the 16 June 1980 conviction was to determine whether defendant was guilty of possessing a firearm as a felon; and (3) any limiting instruction would not have affected the admissibility or the inflammatory nature of the evidence.\n4. Evidence\u2014 victim\u2019s good character \u2014 no plain error\nThe trial court did not commit plain error in a second-degree murder case arising out of defendant\u2019s driving while intoxicated by admitting testimony from the victim\u2019s son concerning the victim\u2019s good character, because: (1) although such character evidence is generally inadmissible, the evidence was harmless in light of the evidence of defendant\u2019s alcohol-related convictions within the past few years; and (2) defendant has failed to show that any error was so fundamental as to amount to a miscarriage of justice or would have resulted in a different verdict.\n5. Evidence\u2014 prior crimes or bad acts \u2014 driving record \u2014 driving convictions\nAlthough the trial court erred in a second-degree murder case arising out of defendant\u2019s driving while intoxicated by admitting defendant\u2019s entire driving record which detailed his prior driving convictions under N.C.G.S. \u00a7 8C-1, Rule 404(b) when some of his convictions were too remote in time to be probative, the trial court did not commit plain error because: (1) prior driving convictions are a proper means of establishing the malice element of second-degree murder; (2) defendant had numerous convictions, including four convictions for driving while intoxicated or impaired which occurred within the appropriate time frame of within sixteen years of the date of the offense at issue; (3) the remoteness of defendant\u2019s three convictions for driving while intoxicated, occurring only one and two years outside the permissible period of sixteen years, goes to the weight of the evidence rather than its admissibility; (4) defendant\u2019s non-alcohol related convictions including failing to yield the right of way, illegal passing, reckless driving, and speeding are not too dissimilar to be probative of a pattern of recklessness and inherently dangerous conduct which substantiate defendant\u2019s malice in the present case; and (5) defendant cannot establish that a different result would have occurred absent any error.\n6. Sentencing\u2014 second-degree murder \u2014 failure to prove prior convictions\nDefendant is entitled to a new sentencing hearing in a second-degree murder case arising out of defendant\u2019s driving while intoxicated based on the State\u2019s failure to prove defendant\u2019s prior convictions as required by N.C.G.S. \u00a7 15A-1340.14(f), because: (1) the State did not offer into evidence any document which tended to prove that defendant had been convicted of the prior crimes; and (2) the trial court sentenced defendant based upon the information provided by the State\u2019s unverified prior record level worksheet.\nJudge Greene dissenting.\nAppeal by defendant from judgment entered 31 March 2000 by Judge James C. Davis in Gaston County Superior Court. Heard in the Court of Appeals 8 January 2002.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General Philip A. Lehman, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defenders Jarvis John Edgerton, IV and Daniel R. Pollitt, for defendant-appellant." }, "file_name": "0057-01", "first_page_order": 91, "last_page_order": 107 }