Johnston v Gallimore, 151 NC App 748 (01-1019) 08/06/2002

Appeal by defendants from judgment entered 20 December 2000 and order entered 7 February 2001 by Judge Kimberly S. Taylor in Iredell County Superior Court. Heard in the Court of Appeals 16 May 2002.

Pope McMillan Kutteh Simon & Privette, P.A., by William H. McMillan and Charles A. Schieck, for plaintiff-appellee.

Morris York Williams Surles & Barringer, LLP, by John P. Barringer, for defendant-appellants.

    MARTIN, Judge.

    Plaintiff brought this action seeking money damages for personal injury and property damage allegedly caused by the negligence of defendant Bobby Joe Gallimore in the operation of a motor vehicle owned by defendant Celia Eppley Gallimore. Defendants filed an answer denying their negligence and asserting plaintiff's contributory negligence as a defense. Briefly summarized, the evidence tended to show that on the morning of 16 February 1997, plaintiff was driving her vehicle in a westerly direction on Garner Bagnal Boulevard in Statesville and defendantBobby Joe Gallimore was driving his vehicle in an easterly direction on Garner Bagnal Boulevard. A collision occurred between the vehicles when Mr.Gallimore turned left onto Salisbury Road and his vehicle was struck by plaintiff's vehicle.
    A jury returned a verdict in favor of plaintiff in the amount of $45,000. Judgment was entered upon the verdict. Defendants' motion for judgment notwithstanding the verdict or, in the alternative, a new trial was denied. Defendants appeal.

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    Defendants first contend the trial court erred in allowing Douglas Delk, a witness for plaintiff, to testify regarding defendant Bobby Joe Gallimore's conduct prior to the collision. Mr. Delk testified that he encountered Mr. Gallimore at a Texaco station at approximately 10:30 or 11:00 a.m. on 16 February 1997. Mr. Delk testified Mr. Gallimore had become upset when he tried to purchase beer and was not permitted to do so; Mr. Delk testified that Mr. Gallimore was “at the counter raising cane, cursing, and carrying on.” According to Mr. Delk, when Mr. Gallimore left the convenience store, he was spinning tires and cutting around the parking lot.
    Defendants failed to object to all of Mr. Delk's testimony which they now assign as error. Defendants objected only to Mr. Delk's testimony that Mr. Gallimore was “at the counter raising cane, cursing, and carrying on.” Thus, defendants have failed to properly preserve for appellate review Mr. Delk's additionaltestimony. See N.C.R. App. P. 10(b)(1). In our discretion, we will review defendants' arguments with respect to all of Mr. Delk's testimony to which defendants have assigned error. See N.C.R. App. P. 2.
    Defendants assert that testimony regarding Mr. Gallimore's actions prior to the accident is irrelevant to the issue of whether he was negligent at the time of the collision. In addition, they contend that even if the testimony was relevant, the probative value of such evidence was substantially outweighed by the danger of unfair prejudice.
    For evidence to be admissible, it must be relevant, i.e., it must have a “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.C. Gen. Stat. § 8C-1, Rule 401 (2001). However, relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . .” N.C. Gen. Stat. § 8C-1, Rule 403 (2001). Whether to exclude evidence under Rule 403 is a determination within the sound discretion of the trial court. Matthews v. James, 88 N.C. App. 32, 362 S.E.2d 594 (1987), disc. review denied, 322 N.C. 112, 367 S.E.2d 913 (1988).
    We conclude that Mr. Gallimore's behavior at the Texaco station immediately before the collision was relevant upon the issue of whether he acted negligently at the time of the collision. Mr. Delk testified that defendant attempted to purchase alcohol,became upset at being refused such a purchase, and verbalized his displeasure. Mr. Delk also stated that defendant left the convenience store spinning tires and cutting around the parking lot. This evidence was relevant to Mr. Gallimore's state of mind, his attitude, and his physical ability to safely operate a vehicle. Moreover, we discern no abuse of discretion in the trial court's determination that the probative value of this evidence was more probative than prejudicial. This assignment of error is overruled.

Defendants also argue that the trial court erred in allowing defendant Bobby Joe Gallimore to be examined regarding his alleged consumption of alcohol several hours prior to the accident. On direct examination, Mr. Gallimore was asked whether he had been drinking beer or any other kind of alcohol the night before or the morning of the accident. He responded that he did not recall. He was then asked if he had an explanation for the presence of alcohol in his blood at 12:00 p.m. on the date of the accident; he responded that he had no explanation. Defendants argue that whether Mr. Gallimore had consumed alcohol is not relevant to whether he was negligent in operating his vehicle at the time of the collision. They imply that plaintiff's failure to allege impaired driving at the time of the collision negates the relevance of his consumption of alcohol. We disagree.
Plaintiff alleged that Mr. Gallimore operated his motor vehicle negligently in that he “failed to keep his vehicle under proper control;” “turned his vehicle from a direct line of travelbefore seeing that such movement could be made in safety;” “failed to yield the right of way and made an improper turn;” and “drove his vehicle in a careless, heedless and a reckless manner[.]” We believe the question of whether Mr. Gallimore had been drinking prior to the accident is extremely relevant to all of plaintiff's allegations of negligence on his part, as such evidence would have a direct bearing on his ability to operate a motor vehicle safely. Thus, we hold the trial court did not abuse its discretion in permitting plaintiff to cross-examine Mr. Gallimore concerning whether he had consumed alcohol under G.S. § 8C-1, Rules 401 and 403. Moreover, defendants have failed to show that they were prejudiced by plaintiff's cross-examination of Mr. Gallimore concerning his alleged consumption of alcohol, as his responses to the questions were not incriminating since he denied any recollection of consuming alcohol on the night before or morning of the accident.

    In a related assignment of error, defendants next contend the trial court erred in permitting plaintiff to cross-examine Mr. Gallimore with respect to the contents of hospital records indicating the presence of alcohol in his blood after the collision because there was no foundation established for the hospital records to be admitted into evidence. Thus, defendants argue, the records were “incompetent hearsay.” Their contention arises upon the following exchange:
        Q: Well, were you drinking any beer?
        A: I do not recall. I do not drink beer, sir.

        Q: Well, you drink some kind of alcohol, don't you?

        A: Yes. When I do. But it's not beer.

        Q: Well, did you have any explanation if the Davis Hospital records show a blood plasma _

            MR. ELLIOTT: Objection, your Honor.
            THE COURT: Overruled.

Q: Would you have any explanation for why alcohol was in your blood stream at 12 o'clock on Sunday morning?

A: No, sir.

            MR. ELLIOTT: Your Honor, may we approach?
            THE COURT: You may.
        (Off the record discussion between the attorneys and the Judge at the bench.)

        Q: So what you're saying is you don't know how that alcohol got in your blood?

        A: No, sir, I said I do not recall.

The question to which defendants objected was never completed, Mr. Gallimore never answered it, and the hospital records were never admitted into evidence. Thus, no “incompetent hearsay” evidence was admitted, and defendants' assignment of error is overruled.

IV.

Defendants next contend the trial court erred in allowing Mr. Gallimore to be examined regarding a citation for trespassing that he received several hours prior to the accident. The charge was subsequently dismissed. Defendants rely on State v. Williams, 279 N.C. 663, 185 S.E.2d 174 (1971) to support their argument. However, this reliance is misplaced. In Williams, our Supreme Court held that “for purposes of impeachment, a witness. . . may not be cross-examined as to whether he has been accused. . . of a criminal offense unrelated to the case on trial . . . .” Id. at 672, 185 S.E.2d at 180. The Williams case does not apply to the present case since plaintiff did not seek to impeach Mr. Gallimore by examining him about a trespassing citation which he received prior to the incident giving rise to this action. Rather, plaintiff was attempting to create a time-line of the events preceding the collision in light of Mr. Gallimore's testimony that, due to his injuries, he could not recall the events surrounding the collision, but knew only what he had been told by others. In addition, the examination did not violate G.S. § 1A-1, Rule 404(b) because plaintiff sought to use the evidence for purposes other than showing defendant's propensity or disposition to certain conduct. See Pinckney v. Van Damme, 116 N.C. App. 139, 447 S.E.2d 825 (1994). This assignment of error is overruled.

    Next, defendants assign error to the trial court's ruling permitting plaintiff to examine Mr. Gallimore regarding certain criminal convictions. Defendants assert the convictions fall outside the scope of G.S. § 8C-1, Rule 609. Rule 609(a) provides:
        [f]or the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a felony, or of a Class A1, Class 1, or Class 2 misdemeanor, shall be admitted if elicited from the witness or established by public record during cross- examination or thereafter.
N.C. Gen. Stat. § 8C-1, Rule 609(a) (2001). Defendants specifically argue that it was improper for the trial court to permit plaintiff to question Mr. Gallimore about a conviction of shoplifting, a conviction of Possession of a Schedule VI controlled substance, i.e. marijuana, and a violation of his felony probation.     Defendants failed to object at trial to plaintiff's questions regarding Mr. Gallimore's convictions of shoplifting and possession of marijuana, and have not asserted plain error. Thus, they have not preserved the asserted error for appellate review. See N.C.R. App. P. 10(b)(1).
    With respect to plaintiff's examination of Mr. Gallimore regarding his felony probation violation, defendants argue that since an alleged probation violation does not have to be proven beyond a reasonable doubt and violating either misdemeanor or felony probation is not itself a crime, the trial court violated G.S. § 8C-1, Rule 609. See State v. White, 129 N.C. App. 52, 496 S.E.2d 842 (1998). Assuming arguendo that it was error to permit plaintiff's cross-examination of Mr. Gallimore concerning his felony probation violation, we conclude that the error was not prejudicial. “The appellant must show not only that there was error but he must also show that if the error had not occurred there is a reasonable probability that the result of the trial would have been different.” Alexander v. Robertson, 81 N.C. App. 502, 505, 344 S.E.2d 352, 354 (1986). We conclude there is no reasonable probability that the result of the trial would have been different had the jury not known of Mr. Gallimore's felonyprobation violation. Therefore, this assignment of error is overruled.

Defendants next assign error to the trial court's modification of the jury instructions after each party had completed their closing arguments to the jury. During the instructions conference, plaintiff cited an incorrect pattern jury instruction number, N.C.P.I. Civ. 209.15, in requesting that the trial court instruct on the law with respect to the duty to yield the right of way when making a left turn. After jury arguments had been completed, plaintiff's counsel acknowledged that the pattern instruction number he had cited earlier had been incorrect, and cited the correct instruction number, N.C.P.I. Civ. 203.07. The trial court agreed to instruct the jury in accordance with the instructions contained in N.C.P.I. Civ. 203.07, which pertains to the duty to yield the right of way when making a left turn at an intersection, rather than N.C.P.I. Civ. 209.15, which pertains to the proper lane to be used when turning left at an intersection. Defendants assert they were prejudiced because they were deprived of the opportunity to address the jury with respect to which vehicle had the right of way. We conclude their argument has no merit.
The trial court has a duty to “instruct the jury upon the law with respect to every substantial feature of the case.” Mosley & Mosley Builders, Inc. v. Landin Ltd., 87 N.C. App. 438, 445, 361 S.E.2d 608, 612 (1987). In the instant case, from the charge conference, defendants were aware of the content of the juryinstruction which the court intended to give, pertaining to the duty to yield when making a left turn, even though plaintiff's counsel cited the incorrect pattern jury instruction number. After closing arguments, when counsel's error was discovered, the trial court properly substituted the correct instruction. We find no error in the trial court's action.

    Finally, defendants contend the trial court erred when it denied defendants' motion for judgment notwithstanding the verdict pursuant to G.S. § 1A-1, Rule 50(b) or in the alternative for a new trial pursuant to G.S. § 1A-1, Rule 59. Defendants argue the evidence showed that Mr. Gallimore's vehicle entered the intersection first since the front of plaintiff's vehicle struck Mr. Gallimore's vehicle, and that he had activated his left turn signal prior to plaintiff's entering the intersection. Defendants argue that since Mr. Gallimore had control of the intersection by the time plaintiff entered it, the only reasonable inference from the evidence was that plaintiff failed to keep a proper lookout and failed to keep her vehicle under proper control, and thus plaintiff was contributorily negligent and should have been barred from recovery.
    The tests for determining the sufficiency of the evidence on motions for judgment notwithstanding the verdict and directed verdict are the same--whether the evidence, when taken in the light most favorable to the plaintiff, is sufficient for submission to the jury. Ayscue v. Weldon, 118 N.C. App. 636, 456 S.E.2d 344(1995). “[D]efendant[s] [are] not entitled to judgment notwithstanding the verdict unless plaintiff has failed as a matter of law to establish the elements of negligence or unless the evidence establishes plaintiff's contributory negligence so clearly that no other reasonable inference could be drawn.” Moon v. Bostian Heights Vol. Fire Dept., 97 N.C. App. 110, 112, 387 S.E.2d 225, 226 (1990) (citations omitted).
    In the present case, the evidence, taken in the light most favorable to plaintiff, does not establish that the only reasonable inference that could be drawn from the evidence is that plaintiff was contributorily negligent by failing to keep a proper lookout or failing to keep her vehicle under control. Evidence that plaintiff's vehicle was damaged on the front does not conclusively establish that plaintiff was contributorily negligent, nor does evidence that Mr. Gallimore had activated his turn signal before entering the intersection. On the other hand, plaintiff offered substantial evidence that Mr. Gallimore was negligent in failing to yield the right-of-way when making a left turn, in violation of G.S. § 20-155(b). The trial court did not err in denying defendants' motion for judgment notwithstanding the verdict.
    No error.
    Judges TIMMONS-GOODSON and CAMPBELL concur.
    Report per Rule 30(e).

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