An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-959


Filed: 6 April 2004


         v.                        Buncombe County
                                No. 02 CRS 4286

    Appeal by defendant from judgment entered 5 December 2002 by Judge Ronald K. Payne in Buncombe County Superior Court. Heard in the Court of Appeals 22 March 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Patricia A. Duffy, for the State.

    Eric A. Bach, for defendant-appellant.

    MARTIN, Chief Judge.

    Defendant was charged by indictment with habitual impaired driving and driving while license revoked; he was found guilty by a jury of driving while impaired and driving while license revoked. Upon his stipulation to prior convictions of driving while impaired, he was convicted of habitual impaired driving and was sentenced to active imprisonment for a minimum term of 20 months and a maximum term of 24 months. Defendant appeals.
    The State presented evidence tending to show that on the night of 25 March 2002, Dan Grindstaff heard vehicles traveling by his house located at 1358 Bear Creek Road in Leicester and then he heard a popping noise. Believing there had been a wreck, Grindstaff left his house and drove approximately 75 yards downBear Creek Road. He spotted a vehicle in a pasture. He met defendant, who told him that his left tire blew, causing the vehicle to veer into the pasture. Grindstaff testified that in his opinion, defendant was “definitely impaired that night” and that during the course of their conversation, defendant told him that he and his wife “had been partying that afternoon.”
    Trooper John MacMurry of the North Carolina State Highway Patrol, who investigated the accident, testified that defendant was taken for treatment to a hospital emergency room, where a sample of defendant's blood was drawn. The blood was determined to have an alcohol concentration of 0.25 percent.
    After the State rested, defendant stipulated that his license was revoked. He also stipulated to multiple convictions of driving while impaired. He then moved to dismiss the charge on two grounds: (1) insufficient evidence to establish he was driving the vehicle; and (2) insufficient evidence to establish status of Bear Creek Road as a public road, highway or vehicular area. The court allowed the State to reopen the evidence to allow Trooper MacMurry to testify that Bear Creek Road is a public road.
    Defendant's sole contention is that the court erred by allowing the State to reopen the evidence. A judge is permitted by N.C. Gen. Stat. § 15A-1226(b) to allow a party to present additional evidence at any time prior to verdict. N.C. Gen. Stat. § 15A-1226(b) (2003). "The trial court has discretionary power to permit the introduction of additional evidence after a party has rested." State v. Jackson, 306 N.C. 642, 653, 295 S.E. 2d 383, 389(1982). "It is within the discretion of the trial judge to permit, in the interest of justice, the examination of witnesses at any stage of trial." State v. Johnson, 23 N.C. App. 52, 57, 208 S.E. 2d 206, 210, cert. denied, 286 N.C. 339, 210 S.E. 2d 59 (1974). A discretionary decision will not be disturbed unless it is “manifestly unsupported by reason” or stated another way, is “so arbitrary that it could not have been the result of a reasoned decision.” State v. T.D.R., 347 N.C. 489, 503, 495 S.E.2d 700, 708 (1998).
    Defendant argues, however, the court abused its discretion in this instance because the trooper had earlier testified during the State's case-in-chief that a road described by Grindstaff “was not a public road” and that the nearest public road was “2.2 miles” away.
    We do not find an abuse of discretion. A careful reading of the testimony of Grindstaff and Trooper MacMurry discloses that the road to which Grindstaff referred was not Bear Creek Road but a private road or driveway. During the case-in-chief the trooper was never expressly asked whether Bear Creek Road is a public road or highway. When called to the stand after the court allowed the State's motion to reopen the evidence, Trooper MacMurry, whose job in his own words, is to “[p]atrol the state's highways and interstate systems, work motor vehicle collision[s], things of that nature,” clearly stated that Bear Creek Road is a public road or highway. Prior to reopening of the State's evidence, a reasonable inference could have been drawn from the circumstances that BearCreek Road is a public road or street. See State v. Mark, 154 N.C. App. 341, 345-46, 571 S.E.2d 867, 870 (2002), aff'd per curiam, 357 N.C. 242, 580 S.E.2d 693 (2003). We conclude the trial judge acted properly and in the interest of justice when he reopened the State's evidence to permit Trooper MacMurry to clarify the public or private status of Bear Creek Road.
    No error.
    Judges McGEE and BRYANT concur.
    Report per Rule 30(e).

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