State v Bell, (03-708) 05/04/2004

Appeal by defendant from judgments entered 31 January 2003 by Judge David S. Cayer in Gaston County Superior Court. Heard in the Court of Appeals 19 April 2004.

Attorney General Roy A. Cooper, III, by Assistant Attorney General Jay L. Osborne and Associate Attorney General Nancy Reed Dunn, for the State.

Thorsen Law Office, by Haakon Thorsen, for defendant- appellant.

HUNTER, Judge.

    Chuck Brian Bell (“defendant”) was charged by indictments with driving while impaired, seat belt violation, two counts of stop sign violation, simple possession of marijuana, driving while license revoked, possession of an open container of an alcoholic beverage in the passenger area of a vehicle, reckless driving, felony fleeing to elude arrest, and four counts of resisting a public officer. He was found guilty of four counts of resisting a public officer, felony fleeing to elude arrest, driving while license revoked, two counts of stop sign violation, reckless driving, possession of an open container of an alcoholic beverage in the passenger area of a motor vehicle, and failure to wear aseat belt. He was sentenced to an active term of sixty days for the convictions of resisting arrest. The remaining convictions were consolidated for judgment and defendant was sentenced to an active term of nine to eleven months.
    The State presented evidence tending to show that shortly after midnight on 3 June 2002, the operator of a pickup truck led Officer B. Roberts (“Officer Roberts”) of the Gaston County Police Department on a chase during which the pickup truck failed to stop for two stop signs. The pickup truck was occupied by only one person, who was not wearing a seat belt. The chase ended when the driver of the pickup stopped the vehicle, exited the truck, and jumped over a fence to a residence located at 1041 Crowder's Creek Road in the county. Officer Roberts and two other police officers traced the license tag of the pickup truck to the same address, 1041 Crowder's Creek Road. The officers went to the residence at this address. Ms. Kathy Marlow answered the door and gave the officers permission to search the residence. While conducting the search the officers heard a noise in the attic above the carport. The officers entered the attic and found defendant standing behind the chimney. Defendant refused to come out, forcing the officers to subdue him with a taser gun. Officer Roberts identified defendant as the person who was driving the pickup truck. Officer Roberts also found an open container of cold beer in the pickup truck abandoned by defendant. The officers arrested defendant. As defendant was being transported to the police station, defendant repeatedly banged his head against the window of Officer Roberts'police vehicle and uttered racial slurs to Officer Roberts. He also uttered racial slurs after arriving at the police station.
    Defendant stipulated that his license had been revoked. Defendant otherwise did not present any evidence.
    Defendant first contends that the court committed plain error by entering judgment for both reckless driving and driving while impaired because those offenses were lesser included crimes of the offense of felony speeding to elude arrest as charged in the indictment. He argues that convictions of all three violate the constitutional guarantee against double jeopardy. By assigning plain error, defendant concedes that he did not bring this issue to the attention of the trial tribunal. The cases consistently hold that the failure of the defendant to raise the issue of double jeopardy in the trial court works a waiver of the right to raise the issue in the appellate division. State v. Elliott, 344 N.C. 242, 277, 475 S.E.2d 202, 218 (1996); State v. Madric, 328 N.C. 223, 231, 400 S.E.2d 31, 36 (1991). Plain error review is “limited to errors in jury instructions and the admission of evidence.” State v. Wolfe, 157 N.C. App. 22, 33, 577 S.E.2d 655, 663, appeal dismissed and disc. review denied, 357 N.C. 255, 583 S.E.2d 289 (2003). This assignment of error is dismissed.
    Defendant's remaining contention is that the court erred by admitting evidence of the racial slurs uttered by defendant. He argues the evidence should have been excluded by Rule of Evidence 403 because its probative value was outweighed by the danger of unfair prejudice.    “It is well established that the admission of evidence without objection waives prior or subsequent objection to the admission of evidence of a similar character.” State v. Campbell, 296 N.C. 394, 399, 250 S.E.2d 228, 231 (1979). Prior to any objection being entered by defendant, Officer Roberts testified regarding a minimum of four separate racist statements or slurs uttered by defendant as he was being transported to the jail. Subsequent to an objection being entered by defendant, Officer Roberts testified without objection regarding other racial slurs uttered by defendant after he arrived at the jail.
    Moreover, even if defendant had not waived his objection, the decision whether or not to admit evidence under Rule 403 is addressed to the sound discretion of the trial judge. State v. Handy, 331 N.C. 515, 532, 419 S.E.2d 545, 554 (1992). An abuse of discretion in the admission of evidence pursuant to Rule 403 will be found only when “the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988). Evidence is relevant and admissible if it has the tendency to prove a fact in issue. State v. Hannah, 312 N.C. 286, 294, 322 S.E.2d 148, 154 (1984). In this case, the evidence of defendant's uttering of racial slurs shows belligerent behavior, which tends to prove impairment by alcohol or drugs, an issue raised by the charge of driving while impaired. We find no abuse of discretion.    Accordingly, defendant received a fair trial, free from prejudicial error.
    No error.
    Judges WYNN and McCULLOUGH concur.
    Report per Rule 30(e).

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