{
  "id": 8522812,
  "name": "STATE OF NORTH CAROLINA v. RANDALL RAY KELLEY",
  "name_abbreviation": "State v. Kelley",
  "decision_date": "1983-11-15",
  "docket_number": "No. 8322SC229",
  "first_page": "159",
  "last_page": "161",
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    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name": "N.C."
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      "category": "reporters:state_regional",
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      "year": 1977,
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        8564105
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      "year": 1977,
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  "last_updated": "2023-07-14T21:11:09.312138+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges Hill and Becton concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. RANDALL RAY KELLEY"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nAt the outset we note defendant\u2019s failure to comply with Rule 28, North Carolina Rules of Appellate Procedure, in the organization of his brief. Defendant\u2019s violation of Rule 28 has increased considerably the difficulty of our task in evaluating appellant\u2019s arguments. Despite this difficulty, we have given full and fair consideration to those assignments of error not waived by appellant, and we conclude that the defendant had a fair trial free from prejudicial error.\nThe following facts are uncontroverted: On 28 August 1982 at approximately 1:20 a.m. a State Trooper observed defendant\u2019s vehicle parked on an emergency strip of Interstate 40. The engine was running and the car\u2019s flashers were on. On approaching the car, the officer observed defendant slumped over the steering wheel. When tapping on the window failed to elicit a response, the officer opened the car door and physically shook the defendant. The officer testified that he detected a strong odor of alcohol, and that defendant \u201cwas very unsteady on his feet.\u201d The officer arrested the defendant, who stated to the officer that he had been returning home from a club prior to pulling off the road. Subsequent testing indicated a blood alcohol level of .15.\nIn his first three assignments of error defendant challenged the sufficiency of the evidence to support the verdict. Specifically, defendant argues that there was insufficient evidence of two elements of the offense: first, that defendant \u201coperated\u201d the vehicle, and second, that his operation was \u201cupon any highway or any public vehicular area.\u201d See N.C. Gen. Stat. Sec. 20-138(b).\nN.C. Gen. Stat. Sec. 20-4.01(25) defines \u201coperator\u201d as \u201c[a] person in actual physical control of a vehicle which is in motion or which has the engine running.\u201d We believe that in the present case there was ample evidence from which the jury could infer that defendant had \u201coperated\u201d the vehicle while in an intoxicated condition. The officer observed defendant seated behind the steering wheel of the vehicle, with the car engine running. There was no one else in the car. Defendant made a statement admitting his operation of the vehicle. Plainly there was sufficient evidence on this point to support the jury\u2019s verdict.\nTurning to defendant\u2019s remaining contention, that there was insufficient evidence of his operation of the car on a \u201chighway,\u201d we note the statutory definition of the word:\nThe entire width between property or right-of-way lines of every way or place of whatever nature, when any part thereof is open to the use of the public as a matter of right for the purposes of vehicular traffic. . . .\nN.C. Gen. Stat. Sec. 20-4.01(13). We think it clear that the emergency strip adjacent to interstate highways falls within the literal language of this definition. Our conclusion is buttressed by the definition of \u201croadway\u201d contained in N.C. Gen. Stat. Sec. 20-4.01(38): \u201cThat portion of a highway . . . ordinarily used for vehicular travel, exclusive of the shoulder. . . .\u201d See also Smith v. Powell, Comr. of Motor Vehicles, 293 N.C. 342, 346, 238 S.E. 2d 137, 140 (1977): \u201cThe definition of \u2018highway\u2019 in G.S. 20-4.01(13) is ... to be construed so as to give its terms their plain and ordinary meaning.\u201d\nDefendant also assigns error to the trial court\u2019s instructions to the jury on the issues discussed above. Rule 10(c) of the North Carolina Rules of Appellate Procedure states:\nThe exceptions upon which a party intends to rely shall be indicated by setting out at the conclusion of the record on appeal assignments of error based upon such exceptions. . . . Exceptions not thus listed will be deemed abandoned. . . .\nOur examination of the record reveals neither exceptions nor assignments of error relating to the court\u2019s charge to the jury. Furthermore, the record indicates that defendant did not object to instructions concerning the meaning of \u201cpublic highway,\u201d as is required by Rule 10(b)(2). We thus find that defendant has waived his right to raise this issue on appeal.\nNo error.\nJudges Hill and Becton concur.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Rufus L. Edmisten, by Special Deputy Attorney General T. Buie Costen, for the State.",
      "Aimee A. Toth, of Counsel to Harris & Pressly, for defendant, appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. RANDALL RAY KELLEY\nNo. 8322SC229\n(Filed 15 November 1983)\n1. Automobiles and Other Vehicles \u00a7 121\u2014 \u201coperating\u201d vehicle with blood alcohol content of .10% \u2014 sufficiency of evidence\nThe State\u2019s evidence was sufficient to show that defendant \u201coperated\u201d a vehicle so as to support his conviction of driving with a blood alcohol content of .10% or more by weight where it tended to show that an officer observed defendant seated behind the steering wheel of a car with the engine running; there was no one else in the car; and defendant made a statement admitting his operation of the car.\n2. Automobiles and Other Vehicles \u00a7 122\u2014 emergency strip adjacent to interstate highway \u2014 part of highway\nThe operation of a vehicle on the emergency strip adjacent to an interstate highway constituted the operation of the vehicle on a \u201chighway\u201d so as to support the conviction of defendant for driving with a blood alcohol content of .10% or more by weight.\nAppeal by defendant from Walker (RusselV, Judge. Judgment entered 11 January 1983 in Superior Court, Iredell County. Heard in the Court of Appeals 27 October 1983.\nDefendant was charged with driving with a blood alcohol content of .10 percent or more by weight. He was convicted of this offense following a trial de novo in Superior Court and sentenced to six months imprisonment, suspended for two years on specified terms and conditions. From this judgment defendant appealed.\nAttorney General Rufus L. Edmisten, by Special Deputy Attorney General T. Buie Costen, for the State.\nAimee A. Toth, of Counsel to Harris & Pressly, for defendant, appellant."
  },
  "file_name": "0159-01",
  "first_page_order": 191,
  "last_page_order": 193
}