{
  "id": 2646793,
  "name": "STATE OF NORTH CAROLINA v. TINY TOM CLEMENTS",
  "name_abbreviation": "State v. Clements",
  "decision_date": "1981-03-03",
  "docket_number": "No. 8020SC903",
  "first_page": "113",
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  "last_updated": "2023-07-14T20:24:29.581265+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges Martin (Robert M.) and Clark concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. TINY TOM CLEMENTS"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nDefendant first assigns error to the court\u2019s allowing the State to amend the warrant alleging death by vehicle to strike the portion alleging following too closely and to add an allegation of \u201cfailure to reduce speed to avoid an accident, a violation of G.S. 20-141(m).\u201d Defendant argues that the amendment \u201cchanged the nature of the offense charged\u201d and thus defendant was \u201cprejudiced\u201d by having to defend himself on two charges throughout the trial only to have the case submitted to the jury on a third charge. We disagree.\nG.S. \u00a7 15A-922(f) provides: \u201cA statement of charges, criminal summons, warrant for arrest, citation, or magistrate\u2019s order may be amended at any time prior to or after final judgment when the amendment does not change the nature of the offense charged.\u201d This statute conforms to the long-held principle in this State that an amendment to a warrant under which a defendant is charged is permissible as long as the amended warrant does not charge the defendant with a different offense. See, e.g., State v. Wilson, 237 N.C. 746, 75 S.E. 2d 924 (1953); State v. Hunt, 197 N.C. 707, 150 S.E. 353 (1929).\nG.S. \u00a7 20-141.4 in pertinent part provides:\n(a) Whoever shall unintentionally cause the death of another person while engaged in the violation of any State law or local ordinance applying to the operation or use of a vehicle or to the regulation of traffic shall be guilty of death by vehicle when such violation is the proximate cause of said death.\nIn the present case, the record discloses that defendant was originally charged in a proper warrant with death by vehicle in violation of G.S. \u00a7 20-141.4. The record also shows that the case was submitted to the jury on the death by vehicle charge. Although the amendment allowed by the court replaced the language \u201cfollowing too closely\u201d with the wording \u201cfailure to reduce speed to avoid an accident, a violation of G.S. 20-141(m),\u201d defendant was still charged with unintentionally causing the death of John Carelock while violating a state statute or local ordinance pertaining to the operation of motor vehicles, when such violation was the proximate cause of Carelock\u2019s death. Although the death by vehicle statute contemplates that some violation of a motor vehicle statute or ordinance be specified in a warrant charging death by vehicle, it is not essential that the motor vehicle violation alleged in the warrant as originally issued be the same as the motor vehicle violation alleged in the warrant as considered by the jury where, as here, the substituted motor vehicle violation is substantially similar to that originally alleged. The nature of the offense with which defendant was charged, death by vehicle, was not changed simply by striking the allegation of following too closely (a violation of G.S. \u00a7 20-152) and substituting therefore \u201cfailure to reduce speed to avoid an accident, a violation of G.S. 20-141(m).\u201d This assignment of error is without merit.\nBy his second assignment of error, defendant contends that the court erred in denying his motion to dismiss the charge of death by vehicle as alleged in the amended warrant. We do not agree. In ruling upon a defendant\u2019s motion to dismiss, the trial court is required to interpret the evidence in the light most favorable to the Sate, and all reasonable inferences favorable to the State must be drawn therefrom. State v. Fletcher, \u2014 N.C. \u2014, 272 S.E. 2d 859 (1981); State v. Hardy, 299 N.C. 445, 263 S.E. 2d 711 (1980).\nConsidering the evidence in the present case in the light most favorable to the State, the evidence tends to show that the intersection at which vehicles were stopped in the lane of travel waiting to turn left was at the bottom of a long sloping hill, and signs warning of the intersection were located 300 feet from the intersection near the crest of the hill. The evidence also tends to show that visibility was unimpaired, such that vehicles coming over the crest of the hill would have ample time to see those vehicles stopped at the intersection waiting to turn, and would have ample distance to slow down in anticipation of having to stop behind the vehicles waiting to turn. In addition, the evidence tends to show that the vehicle in which John Carelock was riding had come over the crest and was in fact slowing down in anticipation of having to stop. The evidence further tends to show that the sand truck driven by defendant came over the crest of the hill sometime after the vehicle in which Carelock was a passenger, and defendant\u2019s truck then hit the right rear of the vehicle in which Carelock was riding, forcing it into the lane of oncoming traffic and precipitating the collision in which Carelock was killed. Moreover, the evidence tends to show that defendant\u2019s truck left tire impressions up to the point of \u201cimpact\u201d of approximately 187 feet in length. In our opinion, the evidence is sufficient to raise the reasonable inferences that defendant failed to reduce his speed in order to avoid a collision with the vehicle in which Carelock was a passenger, and that this failure proximately caused Carelock\u2019s death. The trial judge therefore properly denied defendant\u2019s motion to dismiss and this assignment of error is without merit.\nFinally, defendant contends that G.S. \u00a7 20-141 (m), which makes failure to reduce speed to avoid an accident a violation of the State\u2019s motor vehicle law, and G.S. \u00a7 15A-922(f), the amendment statute previously discussed, are unconstitutional. We will not consider defendant\u2019s arguments. It is well settled in this State that the appellate court cannot consider questions raised as to the constitutionality of a statute that have not been raised or considered in the trial court. City of Durham v. Manson, 285 N.C. 741, 208 S.E. 2d 662 (1974); Wilcox v. North Carolina State Highway Commission, 279 N.C. 185, 181 S.E. 2d 435 (1971); Mayton v. Hiatt\u2019s Used Cars, Inc., 45 N.C. App. 206, 26.2 S.E. 2d 860, disc. rev. denied, 300 N.C. 198, 269 S.E. 2d 624 (1980). The record in the present case indicates that defendant did not move to quash the warrant charging him with death by vehicle after the amendment of the warrant, nor did defendant move to arrest the judgment. Indeed, the record fails to disclose that a question as to the constitutionality of either G.S. \u00a7 20-141(m) or G.S. \u00a7 15A-922(f) was ever mentioned while the trial court was vested with jurisdiction, and thus the constitutional questions are not properly before us.\nWe hold that defendant had a fair trial free from prejudicial error.\nNo error.\nJudges Martin (Robert M.) and Clark concur.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Assistant Attorney General Dennis P. Myers, for the State.",
      "E.A. Hightower and H.P. Taylor, Jr., for the defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. TINY TOM CLEMENTS\nNo. 8020SC903\n(Filed 3 March 1981)\n1. Indictment and Warrant \u00a7 12.2- amendment of warrant\nIn a trial de novo in the superior court upon a warrant alleging death by vehicle, the trial court did not err in allowing the State to amend the warrant at the close of the State\u2019s evidence by striking an allegation of \u201cfollowing too closely\u201d and adding an allegation of \u201cfailure to reduce speed to avoid an accident, a violation of G.S. 20-141(m),\u201d since the nature of the offense with which defendant was charged, death by vehicle, was not changed by the amendment. G.S. 15A-922(f).\n2. Automobiles \u00a7 113.1\u2014 death by vehicle - sufficiency of evidence\nThe State\u2019s evidence was sufficient for the jury in a prosecution for death by vehicle while failing to reduce speed to avoid an accident where it tended to show two vehicles were stopped in an intersection in defendant\u2019s lane of travel waiting to make a left turn at the bottom of a long sloping hill; signs warning of the intersection were located 300 feet from the intersection near the crest of the hill; visibility was unimpaired and vehicles coming over the crest of the hill had ample opportunity to see vehicles in the intersection waiting to turn and ample opportunity to stop behind such vehicles; the vehicle in which the deceased was riding came over the crest of the hill and was slowing down in anticipation of having to stop; a sand truck driven by defendant then came over the crest of the hill and struck the right rear of the vehicle in which deceased was riding, forcing it into the lane of oncoming traffic and precipitating the collision in which deceased was killed; and defendant\u2019s truck left tire impressions up to the point of impact of approximately 187 feet in length.\n3. Criminal Law \u00a7 146.4- constitutional questions not raised in trial court\nAn appellate court cannot consider questions as to the constitutionality of a statute which have not been raised or considered in the trial court.\nAppeal by defendant from Collier, Judge. Judgment entered 3 June 1980 in Superior Court, Anson County. Heard in the Court of Appeals 5 February 1981.\nDefendant was charged in a proper warrant with exceeding a safe speed in violation of G.S. \u00a7 20-141(a) and following too closely in violation of G.S. \u00a7 20-152(a). Defendant was also charged in a proper warrant with death by vehicle while following too closely, in violation of G.S. \u00a7 20-141.4. Defendant was first tried in the District Court and was found guilty of all charges on 9 April 1980, and he appealed to the Superior Court for a trial de novo.\nIn the Superior Court, the Sate offered evidence tending to show the following: On 7 January 1980, at approximately 5:30 p.m., Daniel Lee McRae was operating a white 1967 Ford pickup truck traveling eastbound on U.S. Highway 74 east of Wadesboro, North Carolina. McRae had one passenger, John Carelock. The weather was \u201covercast, cloudy\u201d but \u201cthe highway was dry, visibility was clear,\u201d and \u201cit was light enough\u201d that headlights were not necessary. McRae\u2019s vehicle was approaching the intersection of U.S. 74 and Rural Paved Road # 1730. U.S. 74 in that area is a \u201cstraight\u201d road, and goes up a long but \u201cnot steep\u201d slope in each direction from the intersection. Signs indicating the intersection were located on both sides of the eastbound lane of U.S. 74 approximately 300 feet from the intersection near the crest of a hill. Although the eastbound lane was normally two lanes wide, only one lane was open at the time due to road construction.\nAs McRae\u2019s vehicle came over the hill past the signs and approached the intersection McRae observed two vehicles headed in the same direction that were stopped in the lane of travel waiting to make a left turn off of U.S. 74 onto Rural Paved Road # 1730. The westbound lane approaching the intersection was \u201ccovered [with traffic] all the way back over the other hill.\u201d McRae slowed his vehicle to about 35 m.p.h., anticipating that he would have to stop. Then McRae \u201cheard something,\u201d looked in his rear-view mirror, and saw that \u201ca big radiator done hit in the back.\u201d McRae \u201cwent in the air\u201d and could not remember what happened thereafter.\nHenry Allen Snuggs, the driver of one of the vehicles stopped in the eastbound lane of U.S. 74 at the intersection, had seen McRae\u2019s truck come over the crest of the hill moments earlier and thereafter had seen a sand truck, driven by defendant, coming behind McRae\u2019s truck. Snuggs noticed that the truck being driven by McRae was reducing speed, and then Snuggs \u201clooked again and Mr. McRae\u2019s truck was still slowing down\u201d and the sand truck driven by defendant was \u201cright on his [McRae\u2019s] bumper.\u201d The sand truck then hit McRae\u2019s truck on the rear right-hand side, and McRae\u2019s truck went off to the left, into the westbound lane and the path of oncoming traffic. McRae\u2019s truck was hit by a \u201cten-wheeler\u201d truck, and Carelock was killed as a result of the collision.\nWhen O.W. Tant, a state trooper, arrived at the scene he observed that McRae\u2019s pickup truck was \u201ctotally demolished.\u201d Tant then had a conversation with defendant and the driver of the westbound truck, and after defendant was advised of his rights, he told the officer he had been following McRae\u2019s truck for approximately two miles. Tant then observed a set of tire impressions matching the tires on the sand truck driven by defendant in the eastbound lane of U.S. 74 approximately 187 feet in length ending at the \u201cpoint of impact.\u201d According to the testimony of Tant, the \u201cpoint of impact\u201d was 110 feet from the intersection.\nAt the close of the State\u2019s evidence, defendant moved to dismiss the charges of following too closely and driving at an excessive speed. The State moved to amend the warrant alleging death by vehicle to strike the following too closely allegation and to allege \u201cfailure to reduce speed to avoid an accident, a violation of G.S. 20-141(m).\u201d The court granted these motions. Defendant offered no evidence. The jury found defendant guilty as charged in the amended warrant, and from a judgment imposing a prison sentence of eighteen months, which was suspended, and a fine of $300, defendant appealed.\nAttorney General Edmisten, by Assistant Attorney General Dennis P. Myers, for the State.\nE.A. Hightower and H.P. Taylor, Jr., for the defendant appellant."
  },
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}
