An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-544
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Filed: 6 January 2004


         v.                        Union County
                                No. 01 CRS 13211

    Appeal by defendant from judgment entered 31 July 2002 by Judge Steve Balog in Union County Superior Court. Heard in the Court of Appeals 22 December 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Jeffrey R. Edwards and Certified Legal Intern Kathryne E. Hathcock, for the State.

    Haakon Thorsen, for defendant-appellant.

    LEVINSON, Judge.

    Defendant was charged by citation with reckless driving to endanger and with operating a vehicle without being registered. From convictions of the charges in district court, he appealed to superior court, where he was found guilty by a jury of the charges. He was sentenced to a term of imprisonment of 45 days, suspended with unsupervised probation for one year.
    The State presented evidence tending to show the following: At approximately 7:20 a.m. on 3 October 2001, an automobile operated by defendant collided with a pickup truck headed north on Highway 601 in Monroe. Two witnesses who were operating vehicles behind the pickup truck testified that they saw defendant's vehicle proceed at an accelerated rate of speed from a gasoline stationlocated at the intersection of Highway 601 and Highway 218, enter the roadway of Highway 601, and collide with the pickup truck. In the opinion of the investigating officer, defendant's vehicle traveled through the parking lot of the gasoline station at a speed of 55 miles per hour. The investigating officer also determined that the temporary license plate displayed on defendant's vehicle had expired.
    Defendant testified that as he prepared to stop at the intersection headed westbound on Highway 218, the brakes on his vehicle failed. He maneuvered his vehicle into the parking lot of the gasoline station to avoid a collision at the intersection. He brought his vehicle to a stop when it was struck by the pickup truck. He possessed a current license tag, which was inside his vehicle, but he had not attached it to his vehicle.
    The sole question presented is whether the court committed plain error by refusing to allow defendant to argue the doctrine of last clear chance to the jury. The record shows that the court denied defendant's request to make this argument and that defendant did not object to the court's ruling. Defendant did not request an instruction to the jury on the principle of last clear chance and he did not object to the court's failure to give such instruction.
    Our Supreme Court has established that “plain error analysis applies only to jury instructions and evidentiary matters.” State v. Wiley, 355 N.C. 592, 615, 565 S.E.2d 22, 39-40 (2002). Because the question presented does not involve a jury instruction or an evidentiary issue, it is not properly before the Court. Moreover, defendant is not entitled to relief under “plain error” analysis because he can point to no instructional mistake having a probable impact upon the jury's verdict. See State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). Defendant does not cite any law for the proposition that the civil law doctrine of last clear chance is a defense to a charge of reckless driving. Regardless, the court instructed the jury consistent with Pattern Jury Instruction 102.15, without objection by the State, that defendant “would be excused from having chosen a course that resulted in a collision if under like circumstances a reasonable and prudent person would have followed the same course.” Moreover, the evidence of defendant's guilt is compelling. Under these circumstances, we conclude that the outcome probably would have been the same had the instruction been given.
    No error.
    Chief Judge EAGLES and Judge BRYANT concur.
    Report per Rule 30(e).

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