35 N.C. App. 724 | N.C. Ct. App. | 1978
Lead Opinion
Defendant first contends that the admission of his answers to the officer’s questions in the course of completing an accident identification report at the police station were erroneously admitted. The trial court first allowed such testimony, but following the lunch recess, it reversed its ruling and instructed the jury as set forth above. Thus, we need only address the second aspect of defendant’s argument, namely that the instruction was insufficient to cure the error. Unless the evidence is obviously prejudicial, particularly if repeated or allowed to remain before the jury for an unduly long period, erroneously admitted evidence which i"s later excluded and the jury instructed to disregard it will ordinarily be found to be harmless error. 1 Stansbury’s North
Defendant next assigns error to the trial court’s failure to instruct the jury on N.C. G.S. 20-140(c), which states:
“Any person who operates a motor vehicle upon a highway or public vehicular area after consuming such quantity of intoxicating liquor as directly and visibly affects his operation of said vehicle shall be guilty of reckless driving and such offense shall be a lesser included offense of driving under the influence of intoxicating liquor as defined in G.S. 20-138 as amended.”
Our inquiry into this assignment must be: Was there any evidence here which tended to show that defendant’s consumption of intoxicating liquor “directly and visibly” affected his operation of his motor vehicle? Put differently, was there sufficient evidence to sustain a verdict of defendant’s guilt of having violated G.S. 20440(c)? See 4 N.C. Index 3d, Criminal Law § 115; State v. Pate, 29 N.C. App. 35, 222 S.E. 2d 741 (1976). We hold that there was not such evidence, and the trial court properly refused to instruct the jury on reckless driving. Defendant cites State v. Burrus, 30 N.C. App. 250, 226 S.E. 2d 677 (1976), in support of this assignment. In that case, however, the physical facts at the accident scene provided strong evidence of a violation of G.S. 20440(c), defendant having been found by the officer slumped over the
Defendant’s final assignment of error is that the trial court erred in denying his motions for judgment as of nonsuit and to set aside the jury’s verdict as being against the weight of the evidence. It is well settled that on motion for nonsuit, all evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable inference deducible thereform. When there is sufficient evidence, direct or circumstantial, by which the jury could find the defendant had committed the offense charged, then the motion should be denied. See State v. Hunter, 290 N.C. 556, 227 S.E. 2d 535 (1976), cert. denied, 429 U.S. 1093, 51 L.Ed. 2d 539, 97 S.Ct. 1106 (1977); State v. Covington, 290 N.C. 313, 226 S.E. 2d 629 (1976); 4 N.C. Index 3d, Criminal Law § 106.2.
The record does not reveal how long prior to the officer’s arrival the accident had occurred, how long defendant had been at the scene, or when defendant had consumed intoxicating liquor. However, defendant told the officer he had been driving, the officer went to the scene in response to a radio call, and when he arrived, there were several people there. Further, the officer detected the odor of alcohol about defendant, and the breathalyzer test results were .21. There was sufficient evidence from which the jury could logically conclude that defendant was under the influence at the time of the accident. See State v. Cummings, 267 N.C. 300, 148 S.E. 2d 97 (1966); State v. Lindsey, 264 N.C. 588, 142 S.E. 2d 355 (1965).
In defendant’s trial and judgment appealed from, we find
No error.
Dissenting Opinion
dissenting.
Sykes, the arresting officer, testified, in part, as follows:
*729 “In my opinion, the Defendant was under the influence at the scene and at the police department, but I don’t know what his condition was, if any, at the time the accident occurred.”
The officer’s candid statement sums up my view of the evidence in this case. There is absolutely no evidence as to when defendant operated the vehicle. The jury could not infer, therefore, that because he was under the influence when seen by the officer that he was under the influence at some indefinite time in the past when he operated the vehicle. Defendant admitted that he had been driving the vehicle but did not say when. Trooper Sykes testified that he went to the scene in response to a radio call and saw a number of people in addition to the defendant. If the officer’s investigation and especially his interrogation of these potential witnesses had disclosed any evidence tending to show when defendant was last known to have operated the vehicle, surely the State would have offered that evidence at trial. In State v. Cummings, cited by the majority, the engine of defendant’s vehicle was still hot when the officers arrived. The radiator was leaking, and the officers followed a trail of water from the point of impact to defendant’s vehicle. The Court noted that it was reasonable to believe that “on the busy streets of High Point the trail of water would have been eradicated by other cars in a few minutes.” In State v. Lindsey, also cited by the majority, defendant was seen operating the vehicle less than one-half hour before officers arrived at the scene of the wreck. In the case at bar, the State has left a gap in the evidence that this Court should not attempt to close. The motion for nonsuit should have been allowed.
