State v. Houston, No. COA07-126 (N.C. App. 12/18/2007)
| Decision Date | 18 December 2007 |
| Docket Number | No. COA07-126,COA07-126 |
| Court | North Carolina Court of Appeals |
| Parties | STATE OF NORTH CAROLINA v. DUSTIN O'NEAL HOUSTON. |
Allen W. Boyer for Defendant.
Defendant Dustin O'Neal Houston was indicted on 1 November 2004 on charges of (1) assault with a deadly weapon inflicting serious injury and (2) assault inflicting serious injury on a law enforcement officer. A superceding indictment dated 7 February 2005 was issued by the Catawba County Grand Jury charging him with those two offenses as well as (3) reckless driving, (4) speeding, and (5) willful failure to obey a law enforcement officer. Defense counsel filed a Motion for Change of Venue in Catawba County Superior Court on 4 April 2005.
The case was called for trial during the 31 July 2006 Criminal Session of Catawba County Superior Court before the Honorable Robert C. Ervin. At that time, defense counsel withdrew his motion for a change of venue and announced he was ready to proceed with the trial.
After the State rested, Defendant moved to dismiss all the charges. The trial court ruled that the felony charge of assault inflicting serious injury on a law enforcement officer could not be submitted to the jury because the indictment failed to allege that Defendant had inflicted serious bodily injury on a law enforcement officer. The trial court concluded, however, that the lesser included misdemeanor offense of assault on a law enforcement officer could be submitted to the jury. The trial court denied Defendant's motion to dismiss the other charges.
After Defendant rested, he renewed his motion to dismiss. The trial court again denied the motion. On 3 August 2006, the jury returned verdicts finding Defendant guilty of (1) assault with a deadly weapon inflicting serious injury, a Class E felony assault; (2) assault on a law enforcement officer, a Class A-1 misdemeanor; and (3) reckless driving, (4) speeding, and (5) failure to obey an order of a law enforcement officer, all misdemeanors.
Upon these verdicts, Judge Ervin entered sentences as follows: on the Class E felony assault, Defendant was sentenced to an active prison term of 24 to 38 months; on the Class A-1 misdemeanor assault, Defendant received a suspended sentence of 150 days, and was placed on 24 months supervised probation; on the speeding, reckless driving, and failure to obey an order of a law enforcement officer misdemeanors, Defendant received one consolidated suspended sentence of 60 days, and was placed on 24 months probation. The trial court ordered that the sentences run consecutively. Defendant gave notice of appeal in open court immediately following sentencing.
After apprehending a suspect in a case unrelated to this case, three officers with the Town of Maiden Police Department, Officer Michael Wooten, Sergeant Michael Eaker, and Officer Cory Reid, were on East Maiden Road at around 10:30 p.m. on 4 October 2004. They were standing in a driveway when they heard motorcycles approaching. The officers walked over to the roadway to see what was happening. Sergeant Eaker and Officer Wooten stayed on the side of the road while Officer Reid walked into the middle of the eastbound lane. All three looked in the direction of the motorcycles and waved their flashlights. Two of the officers' police cruisers, parked off the road, had their blue lights flashing; one of the cruisers had its headlights on, and the other had its four-way flashers on. None of the officers wore any reflective clothing.
Two motorcycles came over the crest of the hill, about 500 to 600 feet to the west from where the officers were standing. The first motorcycle was in the eastbound lane near the center line. The second motorcycle, driven by Defendant, was in the same lane but closer to the center line. After the motorcycles crested the hill, they slowed down but then sped back up. The posted speed limit was 35 miles per hour. It was estimated that the motorcycles were going between 80 and 100 miles per hour when they crested the hill, slowing down to approximately 55 to 65 miles per hour. The first motorcycle swerved over the center line, passed Officer Reid on the left, and kept going down the road. The second motorcycle ran into Officer Reid. About five seconds elapsed between the time the officers first saw the motorcycles and the time Defendant collided with Officer Reid.
The impact pinned Officer Reid to the front of the motorcycle as it continued down the road. Officer Reid then fell face-first onto the roadway as the motorcycle went off the road to the right. He slid down the roadway face-first for about 15 to 20 feet.
As a result of the accident, most of Officer Reid's teeth were either broken or knocked out, and the right side of his face was crushed. He had a compound fracture in his left leg and a broken tibia in his right leg. Surgeons inserted a plate in the right side of his face to reconnect his jaw to his head, and inserted rods and screws in both legs. His jaw was wired shut for two to three weeks following his surgery. At the time of Defendant's trial, Officer Reid's left knee still could not bear any weight and the rods in his legs continued to cause him great pain. Officer Reid was experiencing partial complex seizures and post-concussive syndrome.
On appeal, Defendant argues eight assignments of error. We find no merit to any of Defendant's contentions.
By his first assignment of error, Defendant argues that, in light of evidence that Officer Reid walked into the middle of East Maiden Road at night without wearing any reflective clothing over his dark uniform, the trial court erred in denying Defendant's request for an instruction on insulating negligence. We disagree.
"In order for negligence of another to insulate defendant from criminal liability, that negligence must be such as to break the causal chain of defendant's negligence; otherwise, defendant's culpable negligence remains a proximate cause, sufficient to find him criminally liable." State v. Hollingsworth, 77 N.C. App. 36, 39, 334 S.E.2d 463, 465 (1985). In Hollingsworth, the defendant was drunk when he gave two passengers a ride in his car. During the ride, another car collided with the defendant's car, killing the two passengers. At trial, the defendant, charged with manslaughter, contended that the victims' own negligence in voluntarily entering into his car when he was visibly intoxicated insulated him from criminal negligence. This Court held that the victims' "negligence would be, at most, a concurring proximate cause of the deaths of [the victims], and would not insulate [the] defendant from criminal liability." Id. at 39, 334 S.E.2d at 466. Accordingly, this Court held the trial court did not err in not instructing the jury on insulating negligence. Hollingsworth, 77 N.C. App. 36, 334 S.E.2d 463.
Here, Defendant asserts that Officer Reid was negligent in walking into the dark roadway at night, dressed in a dark uniform without reflective clothing, and that such negligence broke thecausal chain between Defendant's negligence and Officer Reid's injuries. However, it was estimated that it took Defendant approximately five seconds to travel the 500 to 600 feet between the crest of the hill and Officer Reid. Had Defendant been driving at the posted speed limit of 35 miles per hour, it would have taken him more than double that time to travel that distance, giving Defendant the opportunity to take note of the flashlights the officers were waving and the flashing blue police cruiser lights, and more time to avoid the accident. Therefore, even assuming arguendo that Officer Reid's conduct was negligent, it was at most a concurring proximate cause of his injuries, and Defendant's driving remained a proximate cause of Officer Reid's serious bodily injury. Thus, the trial court did not err in denying Defendant's request for an instruction on insulating negligence. This assignment of error is overruled.
In his second assignment of error, Defendant alleges the trial court erred in allowing two officers to testify about two prior traffic violations committed by Defendant because the evidence was offered only to show Defendant had a propensity to engage in the behavior with which he was charged. We disagree.
"A trial court's ruling on an evidentiary point will be presumed to be correct unless the complaining party can demonstrate that the particular ruling was in fact incorrect." State v. Herring, 322 N.C. 733, 749, 370 S.E.2d 363, 373 (1988). Furthermore, even if the complaining party can show that the trial court erred in its ruling, relief ordinarily will not be granted absent a showing of prejudice. N.C. Gen. Stat. § 15A-1443(a) (2005).
N.C. Gen. Stat. § 8C-1, Rule 404(b) (2005). Rule 404(b) is "a rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, subject to butone 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." State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990). The rule stated in Coffey, however, is "constrained by the requirements of similarity and temporal proximity." State v. Al-Bayyinah...
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