{ "id": 8354084, "name": "STATE OF NORTH CAROLINA v. LUVIE ALLEN HIGHSMITH, Defendant", "name_abbreviation": "State v. Highsmith", "decision_date": "2005-10-04", "docket_number": "No. COA04-1675", "first_page": "600", "last_page": "608", "citations": [ { "type": "official", "cite": "173 N.C. App. 600" } ], "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": "615 S.E.2d 688", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633348 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/615/0688-01" ] }, { "cite": "591 S.E.2d 519", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "358 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987846 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc/358/0132-01" ] }, { "cite": "586 S.E.2d 467", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "471-72" } ], "opinion_index": 0 }, { "cite": "357 N.C. 466", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491531, 491824, 491857, 491733, 491544, 491514, 491899, 491549 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0466-03", "/nc/357/0466-04", "/nc/357/0466-08", "/nc/357/0466-05", "/nc/357/0466-07", "/nc/357/0466-02", "/nc/357/0466-01", "/nc/357/0466-06" ] }, { "cite": "579 S.E.2d 467", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "157 N.C. 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Stat.", "year": 2004, "opinion_index": 0 }, { "cite": "430 S.E.2d 914", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "918-19", "parenthetical": "internal citations and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "334 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529175 ], "year": 1993, "pin_cites": [ { "page": "75-76", "parenthetical": "internal citations and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0067-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "36", "parenthetical": "holding that \"one panel of the Court of Appeals may not overrule the decision of another panel\"" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384", "parenthetical": "holding that \"one panel of the Court of Appeals may not overrule the decision of another panel\"" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "123 S. 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Ed. 2d", "year": 2002, "pin_cites": [ { "parenthetical": "\"Habitual impaired driving ... is a substantive offense and a punishment enhancement (or recidivist, or repeat-offender) offense.\"" } ], "opinion_index": 0 }, { "cite": "537 U.S. 833", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9206784, 9206433, 9206402, 9206337, 9206560, 9206598, 9206247, 9206728, 9206279, 9206636, 9206679, 9206842, 9206523, 9206492 ], "year": 2002, "pin_cites": [ { "parenthetical": "\"Habitual impaired driving ... is a substantive offense and a punishment enhancement (or recidivist, or repeat-offender) offense.\"" } ], "opinion_index": 0, "case_paths": [ "/us/537/0833-13", "/us/537/0833-05", "/us/537/0833-04", "/us/537/0833-03", "/us/537/0833-08", "/us/537/0833-09", "/us/537/0833-01", "/us/537/0833-12", "/us/537/0833-02", "/us/537/0833-10", "/us/537/0833-11", "/us/537/0833-14", "/us/537/0833-07", "/us/537/0833-06" ] }, { "cite": "559 S.E.2d 794", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "355 N.C. 222", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 219970, 220069, 220081, 220021, 220031 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/355/0222-03", "/nc/355/0222-02", "/nc/355/0222-01", "/nc/355/0222-04", "/nc/355/0222-05" ] }, { "cite": "552 S.E.2d 697", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "700" } ], "opinion_index": 0 }, { "cite": "146 N.C. 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App.", "case_ids": [ 8438167 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "524" }, { "page": "524" } ], "opinion_index": 0, "case_paths": [ "/nc-app/171/0518-01" ] }, { "cite": "595 S.E.2d 381", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "413" } ], "opinion_index": 0 }, { "cite": "358 N.C. 243", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987693 ], "year": 2004, "pin_cites": [ { "page": "292" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0243-01" ] } ], "analysis": { "cardinality": 868, "char_count": 18903, "ocr_confidence": 0.723, "pagerank": { "raw": 6.56399371175534e-08, "percentile": 0.40219140189254277 }, "sha256": "9946c87dbd8338ef4d74839f5f217487ded86829a0f8f66720f428f9c06cb7cf", "simhash": "1:8b6874a3582f27d2", "word_count": 3077 }, "last_updated": "2023-07-14T20:45:28.578783+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TIMMONS-GOODSON and ELMORE concur." ], "parties": [ "STATE OF NORTH CAROLINA v. LUVIE ALLEN HIGHSMITH, Defendant" ], "opinions": [ { "text": "HUDSON, Judge.\nAt the 19 July 2004 Criminal Session of the superior court in Craven County, a jury found defendant Luvie Allen Highsmith guilty of driving while impaired (\u201cDWI\u201d) and driving left of center. Based on defendant\u2019s stipulation, the court found defendant guilty of habitual driving while impaired and found him a prior record level II for purposes of sentencing. The court then consolidated the charges and sentenced defendant to 19 to 23 months in prison. Defendant appeals. For the reasons discussed below, we find no error.\nThe evidence tended to show that, on the afternoon of 7 November 2003, Trooper Gary Fox saw defendant driving a pickup truck on Brices Creek Road. As Trooper Fox followed, defendant\u2019s truck crossed the center line several times, once running off the left side of the road. Trooper Fox pulled defendant over, and found his movements sluggish and his speech slurred, but did not smell alcohol on defendant. When Trooper Fox asked defendant what was wrong, defendant replied that he was on his way home from the dentist and was on a pain medication called Floricet. Based on his observations and defendant\u2019s statement, Trooper Fox arrested defendant and took him to the Craven County Sheriff\u2019s Department. Trooper Fox did not administer an Intoxilyzer or blood test to defendant. Kevin Popkin, an expert in pharmaceuticals, testified about the impairing effects of Floricet.\nDefendant first argues that the court erred in allowing defendant\u2019s uncorroborated statements into evidence to prove an element of the charges against him. We disagree.\nDefendant contends that the court erred in denying his motion in limine to exclude the statements he made to Trooper Fox about taking Floricet because they were contradictory and uncorroborated. Defendant did not object to this evidence at trial. Our Courts have long held that \u201ca motion in limine is not sufficient to preserve for appeal the question of admissibility of evidence if the defendant does not object to that evidence at the time it is offered at trial.\u201d State v. Roache, 358 N.C. 243, 292, 595 S.E.2d 381, 413 (2004). The General Assembly attempted to change this law by amending Rule 103(a) of the North Carolina Rules of Evidence to provide: \u201cOnce the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 103(a)(2) (2004). This amendment applies to the case before us. 2003 N.C. Sess. Laws ch. 101 (stating that the amendment applies to rulings made on or after 1 October 2003).\nThis Court has recently held that \u201cto the extent that N.C. Gen. Stat. \u00a7 8C-1, Rule 103(a)(2) is inconsistent with N.C. R. App. P. 10(b)(1), it must fail.\u201d State v. Tutt, 171 N.C. App. 518, 524, 615 S.E.2d 688, - (2005). N.C. R. App. P. 10(b)(1) states:\nIn order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.\nHowever, because it\nwould be a manifest injustice to Defendant to not review his appeal on the merits after he relied on a procedural statute that was presumed constitutional at the time of trial, we [will review] the evidence at our discretion pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure.\nTutt, 171 N.C. App. at 524, 615 S.E.2d at -(citing N.C. R. App. P. 2).\nDefendant asserts that the admission of his statements to Trooper Fox that he had been given pain medication at his dentist office violates the corpus delicti rule. This rule \u201crequires that there be corroborative evidence, independent of the defendant\u2019s confession, which tends to prove the commission of the crime charged.\u201d State v. Parker, 315 N.C. 222, 229, 337 S.E.2d 487, 491 (1985). The Supreme Court went on to state that\nindependent evidence of the corpus delicti . . . does not equate with independent evidenc.e as to each essential element of the offense charged. Applying the more traditional definition of corpus delicti, the requirement for corroborative evidence would be met if that evidence tended to establish the essential harm, and it would not be fatal to the State\u2019s case if some elements of the crime were proved solely by the defendant\u2019s confession.\nId. at 232, 337 S.E.2d at 493. Here, testimony from Mr. Popkin about the effects of Floricet and from Trooper Fox about defendant\u2019s behavior corroborate defendant\u2019s statement about consuming Floricet. Thus, we overrule this assignment of error.\nDefendant next assigns error to the court\u2019s failure to bifurcate defendant\u2019s trial. Defendant acknowledges that under current law, because habitual DWI is a substantive offense for which predicate convictions are an element which must be proven at trial, habitual DWI cases are not bifurcated as habitual felon cases are. State v. Burch, 160 N.C. App. 394, 396-97, 585 S.E.2d 461, 462-63 (2003). Defendant stipulated to prior DWI convictions pursuant to N.C. Gen. Stat. \u00a7 15A-928(c) (2004). \u201cThe purpose of this procedure is to afford the defendant an opportunity to admit the prior convictions which are an element of the offense and prevent the State from presenting evidence of these' convictions before the jury.\u201d Burch, 160 N.C. App. at 397, 585 S.E.2d at 463. Defendant contends, however, that the current law prejudices him and violates his constitutional rights. Defendant did not challenge the constitutionality of N.C. Gen. Stat. \u00a7 15A-928 at trial, and he may not raise a constitutional claim here for the first time. State v. Golphin, 352 N.C. 364, 411, 533 S.E.2d 168, 202 (2000), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001).\nN.C. Gen. Stat. \u00a7 20-138.5 defines habitual DWI as both a status and a substantive offense. See also State v. Vardiman, 146 N.C. App. 381, 385, 552 S.E.2d 697, 700 (2001), appeal dismissed, 355 N.C. 222, 559 S.E.2d 794 (2002), cert. denied, 537 U.S. 833, 154 L. Ed. 2d 51, 123 S. Ct. 142 (2002) (\u201cHabitual impaired driving ... is a substantive offense and a punishment enhancement (or recidivist, or repeat-offender) offense.\u201d). Defendant\u2019s contentions for a change in the current law on habitual DWI are more properly addressed to the General Assembly than to this Court. We are bound by the holding in Burch. In re Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 36 (1989) (holding that \u201cone panel of the Court of Appeals may not overrule the decision of another panel\u201d). This assignment of error is overruled.\nDefendant also argues that the court erred in denying his motion to dismiss for insufficiency of the evidence. We disagree.\nThe standard of review on denial of a motion to dismiss for insufficiency of the evidence is well-established:\nIn reviewing challenges to the sufficiency of evidence, we must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve. The test for sufficiency of the evidence is the same whether the evidence is direct or circumstantial or both. Circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence. If the evidence presented is circumstantial, the' court must consider whether a reasonable inference of defendant\u2019s guilt may be drawn from the circumstances. Once the court decides that a reasonable inference of defendant\u2019s guilt may be drawn from the circumstances, then it is for the jury to decide whether the facts, taken singly or in combination, satisfy [it] beyond a reasonable doubt that the defendant is actually guilty.\nState v. Barnes, 334 N.C. 67, 75-76, 430 S.E.2d 914, 918-19 (1993) (internal citations and quotation marks omitted). Defendant contends that the State failed to present evidence that defendant knowingly consumed an impairing substance.\n\u201cA person commits the offense of impaired driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this State . . . [w]hile under the influence of an impairing substance . . . .\u201d N.C. Gen. Stat. \u00a7 20-138.1 (2004). In upholding the DWI statute against a claim of unconstitutional vagueness, the Supreme Court has stated:\nAlthough drivers may not know precisely when they cross the forbidden line, they do know the line exists; and they do know that drinking enough alcohol before or during driving may cause them to cross it. Persons who drink before or while driving take the risk they will cross over the line into the territory of proscribed conduct. This kind of forewarning is all the constitution requires. It is not a violation of constitutional protections \u201cto require that one who goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line.\u201d Boyce Motor Lines v. United States, 342 U.S. 337 (1952).\nThere are other criminal statutes which clearly prohibit certain conduct although not in terms which permit persons to know precisely when conduct in which they are engaging actually crosses the line into criminal behavior. In these cases the law simply places persons who engage in certain conduct at risk that their conduct will at some point exceed acceptable behavior.\nState v. Rose, 312 N.C. 441, 445, 323 S.E.2d 339, 341-42 (1984). An expert in pharmaceuticals, Kevin Poplin, testified that Floricet was an impairing substance and that a healthcare professional should have warned defendant of its effects. Defendant knew or should have known that a prescription medication such as Floricet could impair him, and was thus on notice that, by driving after taking Floricet, he risked \u201ccross [ing] over the line into the territory of proscribed conduct.\u201d Rose, 312 N.C. at 445, 323 S.E.2d at 341. This assignment of error is overruled.\nDefendant next argues that the court erred in failing to instruct the jury on involuntary intoxication and on the permitted inferences arising from Trooper Fox\u2019s failure to administer an Intoxilyzer or blood test to him. We disagree.\n\u201cThe trial court bears the burden of declaring and explaining the law arising on the evidence relating to each substantial feature of the case.\u201d State v. Moore, 339 N.C. 456, 464, 451 S.E.2d 232, 236 (1994) (internal quotation marks omitted). In addition,\na trial court is required to comprehensively instruct the jury on a defense to the charged crime when the evidence viewed in the light most favorable to the defendant reveals substantial evidence of each element of the defense. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\nState v. Ferguson, 140 N.C. App. 699, 706, 538 S.E.2d 217, 222 (2000) (internal citations and quotation marks omitted).\nDefendant first contends that the court erred in denying his request for an instruction on involuntary intoxication.\n[I]nvoluntary intoxication is a very rare thing, and can never exist where the person intoxicated knows what he is drinking, and drinks the intoxicant voluntarily, and without being made to do so by force or coercion. . . . [I]t is only when alcohol has been introduced into a person\u2019s system without his knowledge or by force majeure that his intoxication will be regarded as involuntary.\nState v. Bunn, 283 N.C. 444, 457, 196 S.E.2d 777, 786 (1973). Defendant presented no evidence that he was forced to consume the medication he took; rather he asserts that he took the substance voluntarily, but did not know it was intoxicating. These facts do not support an instruction on involuntary intoxication.\nDefendant also contends that the court erred in rejecting \u25a0 his request for an instruction on the law of Intoxilyzer and blood tests results. Specifically, defendant asserts that because a fact-finder may infer that a defendant who refuses to take an Intoxilyzer or blood test does so because he is impaired, the inference should also arise that the State failed to administer these tests because defendant was not impaired. Defendant cites no authority for this assertion, and we can find none. There is no logical relationship between these two inferences. This assignment of error is overruled.\nDefendant also assigns error to the court\u2019s failure to declare a mistrial after the State made improper comments during closing. We disagree.\nDuring closing, the prosecutor rhetorically asked the jury, \u201c[I]f he says he went to the dentist and went under anesthesia, how come he didn\u2019t produce those records, where is the evidence?\u201d Defendant objected and moved for a mistrial, and the court sustained the objection, denied the motion, and gave the jury a curative instruction. Defendant contends that this question was an impermissible comment on his right not to testify and requires a new trial. See State v. Elmore, 337 N.C. 789, 792, 448 S.E.2d 501, 502 (1994). \u201cA violation of the defendant\u2019s rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt.\u201d N.C. Gen. Stat. \u00a7 15A-1443(b) (2004). The State bears the burden of showing such an error is harmless. Id.\nPursuant to N.C. Gen. Stat. \u00a7 15A-1061, a \u201cjudge must declare a mistrial upon the defendant\u2019s motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant\u2019s case.\u201d The decision as to whether substantial and irreparable prejudice has occurred lies within the court\u2019s discretion and, absent a showing of abuse of that discretion, the decision of the trial court will not be disturbed on appeal. State v. McNeill, 349 N.C. 634, 646, 509 S.E.2d 415, 422-23 (1998), cert. denied, 528 U.S. 838, 145 L. Ed. 2d 87 (1999). The trial court\u2019s decision is to be given great deference because the trial court is in the best position to determine whether the degree of influence on the jury was irreparable. State v. Hill, 347 N.C. App. 275, 297, 493 S.E.2d 264, 276 (1997). In State v. McCollum, a first-degree murder case in which a police officer testified that, in an unrelated case, police seized a gun that appeared to be the gun defendant used to kill defendant\u2019s victim, this Court refused to reverse defendant\u2019s conviction because defendant did not show that the jury failed to follow the court\u2019s curative instruction. 157 N.C. App. 408, 415, 579 S.E.2d 467 (2003), cert. denied, 357 N.C. 466, 586 S.E.2d 467, 471-72 (2003), aff\u2019d, without op., 358 N.C. 132, 591 S.E.2d 519 (2004). Here, defendant has made no showing that the jury failed to follow the trial court\u2019s curative instruction.\nNo error.\nJudges TIMMONS-GOODSON and ELMORE concur.", "type": "majority", "author": "HUDSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Isaac T. Avery, III, for the State.", "McCotter, Ashton & Smith, RA., by Rudolph A. Ashton, III, and Kirby H. Smith, III, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. LUVIE ALLEN HIGHSMITH, Defendant\nNo. COA04-1675\n(Filed 4 October 2005)\n1. Evidence\u2014 motion in limine \u2014 defendant\u2019s statement he took pain medication \u2014 corroboration\u2014corpus delicti rule\nThe Court of Appeals exercised its discretion pursuant to N.C. R. App. P. 2 and determined that the trial court did not err in a habitual driving while impaired case by denying defendant\u2019s motion in limine to exclude the statement defendant made to a trooper that he had taken the pain medication called Floricet, because testimony from a pharmaceuticals expert about the effects of Floricet and the testimony from the trooper about defendant\u2019s behavior corroborate defendant\u2019s statement about consuming Floricet, and admission of the statement did not violate the corpus delicti rule.\n2. Motor Vehicles\u2014 habitual driving while impaired \u2014 trial not bifurcated \u2014 constitutionality of statute\nThe trial court did not err by failing to bifurcate defendant\u2019s trial for habitual impaired driving because habitual impaired driving is a substantive offense for which predicate convictions are an element which must be proven at trial. Furthermore, defendant could not challenge the constitutionality on appeal of N.C.G.S. \u00a7 15A-928, which permits a defendant to stipulate to prior DWI convictions and thus prevent the State from presenting evidence of those convictions before the jury, where he did not challenge the constitutionality of the statute at trial.\n3. Motor Vehicles\u2014 habitual driving while impaired \u2014 motion to dismiss \u2014 sufficiency of evidence \u2014 knowing consumption of impairing substance\nThe trial court did not err in a habitual driving while impaired case by denying defendant\u2019s motion to dismiss based on alleged insufficient evidence that defendant knowingly consumed an impairing substance, because: (1) an expert in pharmaceuticals testified that the pain medication Floricet was an impairing substance and that a healthcare professional should have warned defendant of its effects; and (2) defendant knew or should have known that a prescription medication such as Floricet could impair him, and he was on notice that he risked crossing over the line into the territory of proscribed conduct by driving after taking Floricet.\n4. Motor Vehicles\u2014 habitual driving while impaired \u2014 involuntary intoxication \u2014 no inference based on failure to administer Intoxilyzer or blood test\nThe trial court did not err in a habitual driving while impaired \u2022 case by failing to instruct the jury on involuntary intoxication and on the permitted inferences arising from a trooper\u2019s failure to administer an Intoxilyzer or blood test to defendant, because: (1) defendant presented no evidence that he was forced to consume the medication he took, but instead that he took the substance voluntarily without knowing it was intoxicating; and (2) there is no legal authority for defendant\u2019s assertion that an inference should arise that he was not intoxicated based on the State\u2019s failure to administer the Intoxilyzer or to administer a blood test.\n5. Criminal Law\u2014 motion for mistrial \u2014 curative instruction\nThe trial court did not abuse its discretion in a habitual driving while impaired case by failing to declare a mistrial after the State\u2019s comment during closing arguments that defendant says he went to the dentist and went under anesthesia, but he did not provide evidence as such, because: (1) the trial court gave the'jury a curative instruction; and (2) defendant did not make a showing that the jury failed to follow the trial court\u2019s curative instruction.\nAppeal by defendant from judgment entered 19 July 2004 by Judge Benjamin G. Alford in the Superior Court in Craven County. Heard in the Court of Appeals 25 August 2005.\nAttorney General Roy Cooper, by Special Deputy Attorney General Isaac T. Avery, III, for the State.\nMcCotter, Ashton & Smith, RA., by Rudolph A. Ashton, III, and Kirby H. Smith, III, for defendant-appellant." }, "file_name": "0600-01", "first_page_order": 630, "last_page_order": 638 }