State v. Highsmith

• Decision Date: 04 October 2005
• Docket Number: No. COA04-1675.,COA04-1675.
• Citation: 619 S.E.2d 586
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Luvie Allen HIGHSMITH, Defendant.

619 S.E.2d 586

STATE of North Carolina v. Luvie Allen HIGHSMITH, Defendant.

No. COA04-1675.

Court of Appeals of North Carolina.

October 4, 2005.

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Appeal 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.

Attorney General Roy Cooper, by Special Deputy Attorney General Isaac T. Avery, III, for the State.

McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III, and Kirby H. Smith, III, New Bern, for defendant-appellant.

HUDSON, Judge.

At 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 ("DWI") and driving left of center. Based on defendant's 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.

The 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's 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's statement, Trooper Fox arrested defendant and took him to the Craven County Sheriff's 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.

Defendant first argues that the court erred in allowing defendant's uncorroborated statements into evidence to prove an element of the charges against him. We disagree.

Defendant 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 "a 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." 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: "Once 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." N.C. Gen.Stat. § 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).

This Court has recently held that "to the extent that N.C. Gen.Stat. § 8C-1, Rule 103(a)(2) is inconsistent with N.C. R.App. P. 10(b)(1), it must fail." State v. Tutt, ___ N.C.App. ___, ___, 615 S.E.2d 688, 691 (2005). N.C. R.App. P. 10(b)(1) states:

In 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.

However, because it

would 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.

Tutt, ___ N.C.App. at ___, 615 S.E.2d at 693 (citing N.C. R.App. P. 2).

Defendant 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 "requires that there be corroborative evidence, independent of the defendant's confession which tends to prove the commission of the crime charged." State v. Parker, 315 N.C. 222, 229, 337 S.E.2d 487, 491 (1985). The Supreme Court went on to state that

independent evidence of the corpus delicti . . . does not equate with independent evidence 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's case if some elements of the crime were proved solely by the defendant's confession.

Id. at 232, 337 S.E.2d at 493. Here, testimony from Mr. Popkin about the effects of Floricet and from Trooper Fox about defendant's behavior corroborate defendant's statement about consuming Floricet. Thus, we overrule this assignment of error.

Defendant next assigns error to the court's failure to bifurcate defendant's 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. § 15A-928(c) (2004). "The 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." 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. § 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, 121 S.Ct. 1379, 532 U.S. 931, 149 L.Ed.2d 305 (2001).

N.C. Gen.Stat. § 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, 123 S.Ct. 142, 154 L.Ed.2d 51 (2002) ("Habitual impaired driving . . . is a substantive offense and a punishment enhancement (or recidivist, or repeat-offender) offense."). Defendant's 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 "one panel of the Court of Appeals may not overrule the decision of another panel"). This assignment of error is overruled.

Defendant also argues that the court erred in denying his motion to dismiss for insufficiency of the evidence. We disagree.

The standard of review on denial of a motion to dismiss for insufficiency of the evidence is well-established:

In 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's guilt may be drawn from the circumstances. Once the court decides that a reasonable inference of defendant's 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.

State 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.

"A 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. . . ." N.C. Gen.Stat. § 20-138.1 (2004). In upholding the DWI statute against a claim of unconstitutional vagueness, the Supreme Court has stated:

Although 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 "to require that one who goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line." Boyce Motor Lines v. United States, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367 (1952).

There 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...