An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA04_374


Filed: 6 September 2005


v .                         Buncombe County
                            No. 02 CRS 15846

    Appeal by defendant from judgment entered 30 June 2003 by Judge Philip Ginn in Buncombe County Superior Court. Heard in the Court of Appeals 6 December 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Mary S. Mercer, for the State.

    Hall & Hall Attorneys at Law, P.C., by Douglas L. Hall, for defendant-appellant.

    GEER, Judge.

    A jury convicted defendant, Ronald J. Smith, Jr., of speeding in excess of 80 miles per hour. We hold that defendant received a trial free of prejudicial error.

    The State's evidence tended to show the following. On 18 October 2002, State Trooper Bobby Watts was sitting in his police car at an exit off Interstate 40 in Buncombe County, operating a radar detection device. He clocked a motorcycle as it passed him traveling westbound at 107 miles per hour. The speed limit for this stretch of highway is 65 miles per hour. Trooper Watts noted that the motorcycle driver was wearing a dark green, long sleeveshirt, jeans, and a black helmet. Trooper Watts also observed that the motorcycle was black and had a distinctive, loud sound.
    Trooper Watts radioed W.R. Blanton, another state trooper who was at the next exit, to be on the lookout for the motorcycle and described both the driver's clothing and the motorcycle itself. Trooper Blanton soon observed the motorcycle and pursued it. After losing sight of it, the trooper reasoned that the motorcycle must have exited the Interstate. The trooper took the nearest exit, which was the exit for Route 9, and spotted a motorcycle matching the one he had been pursuing turning off Route 9 into a gas station.
    Trooper Blanton and Trooper Watts, who arrived shortly, confronted the driver of the motorcycle in the gas station parking lot. The driver, defendant Smith, claimed that he had not been on Interstate 40 that afternoon, but rather had been working on his motorcycle at the home of his friend Jody Banks, who lived off Route 9 about a half mile from the gas station. Defendant claimed he had driven straight from Banks' house to the gas station.
    Jody Banks testified at trial that defendant's motorcycle had broken down at Banks' house and that they had agreed to spend that day fixing the bike. When they finished the repair, defendant said that he was going to get some gas and pump up his tire, but would be right back so that they could go riding together. Banks further testified that when the trooper called him, the trooper asked if defendant was there. Banks said he told the trooper that defendant had been there, but had just left to get air for his tire and gas. Banks testified that he did not believe defendant had the time to travel two and a half miles, turn around, and return to the gas station.
    The jury convicted defendant of speeding in excess of 80 miles per hour. The trial court sentenced defendant to a term of 45 days, suspended the sentence, placed defendant on supervised probation for 36 months, and ordered defendant to pay a fine of $1,070.00. Defendant timely appealed.
    Defendant first argues that his conviction should be overturned because of the trial court's failure to grant his request to give the jury an alibi instruction. If a defendant requests an alibi instruction and "evidence has been introduced tending to show that the accused was at some other specified place at the time the crime was committed, the trial court must instruct the jury on alibi." State v. Hood, 332 N.C. 611, 617, 422 S.E.2d 679, 682 (1992).
    Nevertheless, the Court in Hood also held that when "the trial court's charge afforded the defendant the same benefits a formal charge on alibi would have afforded," then the defendant is not prejudiced by any error in failing to give an alibi instruction. Id. at 618, 422 S.E.2d at 682. The Court noted:
    In the present case, the trial court instructed the jury that the defendant is presumed innocent, that he is not required to prove his innocence, and that the State bears the burden of proving guilt beyond a reasonable doubt. The trial court instructed the jury on the essential elements of the crimes charged, telling the jury that it couldnot return guilty verdicts unless it found that every element had been established beyond a reasonable doubt. In its final instruction to the jury, the trial court reiterated the essential elements of the crimes and restated the State's burden of proving every element of the crimes charged beyond a reasonable doubt. The trial court made it clear that the burden was on the State to prove every element of the crimes charged beyond a reasonable doubt, and the jury was not led to believe that the defendant had to prove anything in order to be found not guilty.

Id. at 617-18, 422 S.E.2d at 682. The Court held that such instructions in fact afforded the defendants the same benefit as a formal alibi instruction and, therefore, the defendant was not prejudiced by the trial court's error in failing to give an alibi instruction. Id. at 618, 422 S.E.2d at 682.
    The instructions given in this case were virtually identical to those in Hood. In addition, the trial court specifically instructed the jury that "the State has the burden of proof in regard to the identity of the Defendant as the perpetrator of the crime, and this must be beyond a reasonable doubt as well. This means that you, the jury, must be satisfied beyond a reasonable doubt that the Defendant was the perpetrator of the crime . . . with which he is charged before you may return a verdict of guilty." Under Hood, these instructions in their totality provided the same benefit as a formal alibi instruction. Accordingly, even assuming arguendo that the trial court erred in failing to give the requested instruction, defendant has failed to demonstrate any prejudice. This assignment of error is overruled.     Defendant next argues the evidence is insufficient to establish the elements of the offense of speeding and that the trial court, therefore, erred in allowing the speeding charge to proceed to the jury . Defendant made a motion to dismiss at the close of the State's evidence, but failed to renew that motion at the close of all the evidence. Under such circumstances, the North Carolina Supreme Court has held, based on N.C.R. App. P. 10(b)(3), that "the issue of insufficiency was not preserved for appellate review." State v. Richardson, 341 N.C. 658, 676_77, 462 S.E.2d 492, 504 (1995).
    Defendant asks the Court to review the sufficiency of evidence under the plain error doctrine. Plain error, however, only applies to jury instructions and evidentiary matters. State v. Freeman, 164 N.C. App. 673, 677, 596 S.E.2d 319, 322 (2004). The doctrine does not apply when a defendant has failed to make a motion to dismiss at the close of all the evidence. Richardson, 341 N.C. at 676-77, 462 S.E.2d at 504 (refusing to apply plain error doctrine when a defendant failed to renew his motion to dismiss); Freeman, 164 N.C. App. at 677, 596 S.E.2d at 322 (accord). The issue of the sufficiency of the evidence has not, therefore, been preserved for appellate review.
     Finally, defendant argues that the trial court erred in admitting into evidence his 10-year-old conviction for possession of marijuana. During defendant's testimony, the prosecutor cross- examined him about his criminal record:
            Q.    Well, let's talk about you. What have you been convicted of in the last 10years that carries a sentence of 60 days or more?

            A.    I think carrying a weapon, concealed weapon, as far as I know.

            . . . .

            Q.    So that's the only thing you have testified to that you have a conviction on?

            A.    Um _

            Q.    Or is it now you remember more since I do have a printout of your record?

            A.    I'm just trying to think. I don't know what other than that that might have carried jail time. I'm assuming that maybe a traffic offense would not.

            Q.    Well _

            A.    If there is something there _

            Q.    Convicted of possessing marijuana?

            A.    In the last ten years?

            Q.    Well, it's 1993.

                MR. SNEAD [Defense counsel]: Objection. Your Honor.

                THE COURT: Overruled.

            A.    Not that _

                MR. SNEAD: May I be heard?

                THE COURT: No. Go ahead.

            A.    Not _ I don't believe I had a conviction in '93.

            Q.    Well, you were placed on probation, weren't you?

            A.    Not in the last ten years.

            Q.    1994? You don't remember?
            A.    No sir, I don't.

            Q.    Well, you testified that you had a carrying a concealed weapon conviction in Florida _

    A.    Yes, sir.

    Q.    _ back in 1997, correct?

    A.    That might have been the right year.

    Q.    A felony, correct?

    A.    I believe it is down there.

    N.C.R. Evid. 609(b) provides that "[e]vidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date . . . ." The trial in this case took place on 30 June 2003. Since the record does not reveal the precise date of defendant's conviction or, if confined for that conviction, the date of his release, we cannot determine whether the trial court erred in overruling the objection.
    In any event, defendant has failed to argue how he was prejudiced by the State's question. Defendant denied that he had a marijuana conviction and the State never offered evidence otherwise. Further, defendant admitted not only that he had a much more recent felony conviction for carrying a concealed weapon, but also that he had so many driving violations that he would lose his driving privileges if the jury convicted him . Given that evidence, we do not believe that "a different result would have been reached at the trial" in the absence of the State's question about thepossible 1993 marijuana conviction. N.C. Gen. Stat. § 15A-1443 (2003).

     No error.
    Chief Judge MARTIN and Judge CALABRIA concur.
    Report per Rule 30(e).

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