STATE OF NORTH CAROLINA
v. Mecklenburg County
No. 99 CRS 144164
JOEL VON GOAD
Attorney General Roy Cooper, by Associate Attorney General
Kimberly P. Hunt, for the State.
Public Defender Isabel Scott Day, by Assistant Public Defender
Julie Ramseur Lewis, for defendant-appellant.
MARTIN, Judge.
On appeal to superior court from a conviction in district
court, defendant was found guilty of failure to give required
information after an accident involving property damage in
violation of G.S. § 20-166(c1), a Class I misdemeanor. He was
sentenced to forty-five days in jail, which was suspended and
defendant was placed on supervised probation for twenty-four
months. Defendant appeals.
The State presented evidence tending to show that on 13
October 1999, the prosecuting witness was proceeding in an
automobile through an intersection in Charlotte when she
experienced an impact to the right side of her vehicle. She
removed her vehicle from the lane of travel and inspected the rightside of her vehicle, which had been damaged by the impact. She
looked back in the vicinity of the intersection and saw defendant
operating a forklift. Suspecting defendant's forklift had
inflicted the damage to her vehicle, she approached defendant and
inquired about the accident. She told defendant that she had
reported the accident to the police. Defendant left the scene
before the police arrived. The investigating officer determined
that defendant had been operating the forklift. The foreman of the
construction site where defendant was working called defendant, and
defendant returned to the scene approximately forty five minutes
later. Defendant admitted to the officer that the forks of the
forklift had collided with the vehicle of the prosecuting witness.
Defendant testified that the prosecuting witness' vehicle
struck a sign, not his forklift, and that he offered to call for
help. After the prosecuting witness declined his offer, he resumed
working.
At the beginning of the State's re-cross examination of
defendant, the following transpired:
Q. Sir, it was your testimony on direct that
you were operating your vehicle very safely,
isn't that correct.
A. Yes, ma'am. And I've got the record to
prove it.
Q. You have the driving record to prove it?
A. Yes, ma'am. I sure do.
Q. So, you are saying that you have a safe
driving record?
A. Yes, ma'am. . . ..
The prosecutor subsequently inquired about a conviction on 4
January 2001 of failing to stop for a siren or red light and about
offenses in the 1980's resulting in the suspension of defendant'soperator's license in 1986, including convictions of unsafe
movement violation and improper turn, in addition to speeding.
Defendant's sole contention is that the court committed plain
error and abused its discretion in permitting the prosecutor to re-
cross examine defendant regarding his past driving record because
the evidence was inadmissible (1) under G.S. § 8C-1, Rules 608 and
609; and (2) under G.S. § 8C-1, Rules 401, 402, 403 and 404(b). He
also contends the evidence should have been excluded because it
went beyond the scope of redirect examination.
Plain error may be found only in the rare and exceptional case
in which “it can be said the claimed error is a 'fundamental error,
something so basic, so prejudicial, so lacking in its elements that
justice cannot have been done' . . . .” State v. Odom, 307 N.C.
655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v.
McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459
U.S. 1018, 74 L. Ed. 2d 513 (1982)). The present case does not
qualify for a finding of plain error. It is a settled principle of
evidence that when a party introduces evidence as to a particular
fact or transaction, the other party is entitled to introduce
evidence in rebuttal even though the rebuttal evidence would have
been incompetent if it had been offered by the rebutting party
initially. State v. Albert, 303 N.C. 173, 277 S.E.2d 439 (1981).
Further, Rule 404 of the Rules of Evidence provides that the
prosecution may introduce evidence to rebut evidence of a pertinent
trait of character offered by the defendant. N.C. Gen. Stat. § 8C-
1, Rule 404(a) (1999). When an accused testifies and places hiscredibility at issue, the prosecutor may cross-examine the accused
regarding his prior criminal record. N.C. Gen. Stat. § 8C-1, Rule
609 (1999). Finally, the scope of cross and re-cross examination
is within the discretion of the trial judge, whose rulings will not
be disturbed absent a clear showing of abuse of discretion. State
v. Atkins, 304 N.C. 582, 284 S.E.2d 296 (1981).
Here, defendant subjected himself to examination by the
prosecutor regarding defendant's driving record when defendant
asserted that he had a safe driving record. We find no abuse of
discretion.
No error.
Judges HUNTER and BRYANT concur.
Report per Rule 30(e).
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