STATE OF NORTH CAROLINA
v. Buncombe County
No. 02 CRS 4286
MICHAEL EDWARD WILSON
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was revoked.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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