An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1172


Filed: 2 August 2005


v .                                  Yadkin County
                                    Nos. 03CRS001543-48

    Appeal by defendant from judgments entered 2 April 2004 by Judge Melzer A. Morgan, Jr. in Yadkin County Superior Court. Heard in the Court of Appeals 13 April 2005.

    Attorney General Roy A. Cooper, III, by Assistant Attorney General Kelly L. Sandling, for the State.

    Michelle D. Reingold; White & Crumpler, P.A., by Fred Crumpler, for defendant-appellant.

    HUNTER, Judge.

    Jackie Ray Cearley (“defendant”) appeals from judgments entered 2 April 2004 consistent with jury verdicts finding him guilty of four counts of assault with a deadly weapon inflicting serious injury, one count of involuntary manslaughter, and one count of felony hit and run. We find no error.
    The evidence tends to show that on 1 January 2003, defendant struck a vehicle driven by Bobby Taylor (“Taylor”) at the intersection of U.S. 21 and Rocky Branch Road. Taylor's vehicle contained five additional occupants, Jimmy Yarborough (“Jimmy”), Mary Yarborough (“Mary”), Kimberly Yarborough (“Kimberly”), Luke Collins (“Luke”), and Kathy Taylor (“Kathy”). Kimberly, Luke, andKathy were thrown from the vehicle and injured due to the collision. Jimmy also sustained injuries. Mary was fatally injured in the collision and died shortly thereafter.
    At trial, Bradley Oliver (“Bradley”) testified that he and his wife, Angela Oliver (“Angela”), were traveling approximately three to four car lengths behind Taylor's vehicle and witnessed the collision. Bradley testified that defendant was traveling at “the speed limit [fifty-five miles per hour] or pretty fast”, and Angela testified defendant appeared to be traveling approximately sixty miles per hour. Both agreed defendant did not slow in any way when approaching the intersection. Following the collision, Angela testified she observed defendant run past the bodies lying in the road and away from the scene of the accident.
    Defendant went to a home a few miles from the intersection, where he requested a ride from Frank Fleming (“Fleming”), the owner of the home. Defendant explained to Fleming that he had been in an automobile accident. Although Fleming did not know defendant, he agreed to take him to his mother's home. Defendant told Fleming he was not the driver of the automobile. When they approached the collision site, Fleming testified that defendant became nervous. As a result, Fleming pulled over past the collision site and refused to take defendant further. Defendant was then taken back to the accident scene by Fleming at defendant's request.
    Upon returning to the scene, defendant told the investigating trooper that he had been riding in the vehicle which had stuck Taylor's car, but that the driver was Edward Beamer (“Beamer”). Beamer was charged with failure to stop at a stop sign, misdemeanor death by motor vehicle, and felony hit and run. An investigation revealed that Beamer was in another town at the time of the collision. Beamer was not indicted by the grand jury.
    On 5 June 2003, defendant admitted that he, rather than Beamer, was the driver of the truck which hit Taylor's vehicle. Defendant made a written statement to police, stating that: “[W]hen I approached [the] intersection it was not clearly marked. It seemed as though I was traveling on a straight highway. I never seen [sic] the intersection when I approached it. A green [M]ustang came through the intersection and my truck struck the [M]ustang.”
    Defendant was indicted on four counts of felonious assault with a deadly weapon inflicting serious injury, one count of involuntary manslaughter, and one count of felony hit and run.
    Evidence was offered at trial as to the intersection where the collision occurred. Trooper Roger Smock (“Trooper Smock”), a specialist in accident reconstruction, testified that the site was a four-way intersection, with U.S. 21, the dominant road, being the north-south route, and Rocky Branch Road, the servient road, being the east-west route. The configuration of the road was changed in 2001, when U.S. 21 was widened and became the dominant highway. Prior to 2001, Rocky Branch Road had been a dominant highway with no stop signs. Trooper Smock stated that the posted speed limit on Rocky Branch Road was fifty-five miles per hour. A “stop ahead” sign was located on the shoulder of Rocky Branch Road, 962 feetprior to the intersection. Trooper Smock testified that two series of multiple rumble strips, defined as hard durable raised plastic strips placed in the roadway to alert a driver “there may be something ahead to be aware of[,]” were located on Rocky Branch Road approaching the intersection. Trooper Smock further stated that the first set of rumble strips were located 674 feet before the intersection, and the second set of fourteen rumble strips were located 457 feet before the intersection. Finally, a standard sized stop sign and a second stop sign, “substantially larger in size and higher in . . . elevation,” were alongside each other and close to the actual intersection. Trooper Smock testified that all of these devices were in place prior to 1 January 2003. Trooper Smock also stated that caution lights were added to the intersection on 21 January 2003, three weeks following the collision. Defendant offered no evidence at trial.
    A jury returned verdicts of guilty as to all charges. Defendant was sentenced to consecutive sentences of twenty-three to thirty-seven months, twenty-five to thirty-nine months, twenty- three to thirty-seven months, and twenty-seven to forty-two months, respectively, for the four counts of assault with a deadly weapon inflicting serious injury. Defendant was also sentenced to nineteen to twenty-three months for the charge of involuntary manslaughter, and eight to ten months for the charge of felony hit and run. Defendant appeals.

    Defendant contends in related assignments of error that the trial court erred in failing to dismiss both the charge of involuntary manslaughter and the four charges of assault with a deadly weapon inflicting serious injury, as there was no evidence of culpable negligence. We disagree.
    “When ruling on a motion to dismiss, the trial court must consider the evidence in the light most favorable to the State; and the State is entitled to every reasonable inference to be drawn therefrom. The State must present substantial evidence of each element of the offense charged.” State v. Fleming, 350 N.C. 109, 142, 512 S.E.2d 720, 742 (1999) (citation omitted). “A motion to dismiss should be denied if substantial evidence exists of each essential element of the offense charged and of defendant being the perpetrator of the offense. 'Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” State v. Bell, 159 N.C. App. 151, 157, 584 S.E.2d 298, 302 (2003) (citations omitted).
    Defendant was charged with the crime of involuntary manslaughter. “The elements of involuntary manslaughter are: (1) an unintentional killing; (2) proximately caused by . . . culpable negligence.” State v. Hudson, 345 N.C. 729, 733, 483 S.E.2d 436, 439 (1997).
    Defendant was also charged with four counts of assault with a deadly weapon inflicting serious injury.
        [A] driver who operates a motor vehicle in a manner such that it constitutes a deadly weapon, thereby proximately causing serious injury to another, may be convicted of[assault with a deadly weapon inflicting serious injury] provided there is either an actual intent to inflict injury or culpable or criminal negligence from which such intent may be implied.

State v. Jones, 353 N.C. 159, 164-65, 538 S.E.2d 917, 922-23 (2000).
    Defendant conceded at trial that he violated N.C. Gen. Stat. § 20-158 (2003), the safety statute governing control signals and signs. Further, defendant does not contest that death and serious injury resulted from the violation. Rather, defendant's sole contention for our review is whether sufficient evidence of culpable negligence was presented in both crimes.
        When a safety statute is unintentionally violated, culpable negligence exists where the violation is “'accompanied by recklessness of probable consequences of a dangerous nature, when tested by the rule of reasonable [foreseeability], amounting altogether to a thoughtless disregard of consequences or of a heedless indifference to the safety of others.'”

Jones, 353 N.C. at 165, 538 S.E.2d at 923 (citations omitted). “[A] violation [of § 20-158] is not negligence per se in any action at law for injury to person or property[.]” State v. Sealy, 253 N.C. 802, 803-04, 117 S.E.2d 793, 795 (1961). However, “the failure to stop at a stop sign before entering an intersection with a dominant highway may be considered with other facts in the case in determining whether or not under all the facts and circumstances involved, such driver was guilty of [culpable] negligence.” Id. at 804, 117 S.E.2d at 795. Our courts have considered factors in combination such as speed, reckless driving, and failure to heed asafety statute in determining whether evidence of culpable negligence existed. See State v. Gainey, 292 N.C. 627, 234 S.E.2d 610 (1977) (holding violation of § 20-158 and failure to operate vehicle at reasonable and prudent speed sufficient to support submission of involuntary manslaughter to jury), State v. Weston, 273 N.C. 275, 159 S.E.2d 883 (1968) (holding violation of law forbidding passing of school bus while stopped and reckless driving sufficient evidence to support submission of involuntary manslaughter to jury), State v. Wade, 161 N.C. App. 686, 589 S.E.2d 379 (2003) (holding violation of safety statute as to passing on double lines and attempt to pass without clear visibility sufficient evidence to support submission of assault with a deadly weapon inflicting serious injury to jury).
    We, therefore, review the record to determine whether there was sufficient evidence of “'recklessness or carelessness . . . as imports a thoughtless disregard of consequences or a heedless indifference to the safety and rights of others[,]'” under all the facts and circumstances involved to survive a motion to dismiss. Weston, 273 N.C. at 280, 159 S.E.2d at 886 (citations omitted).
    Here, the evidence, when taken in the light most favorable to the State, shows that defendant conceded in his statement to police that he violated a safety statute in failing to heed the stop sign at the Rocky Branch Road/U.S. 21 intersection. Defendant, in his statement to police, further indicated that the intersection was not clearly marked, that he thought he was traveling on a straight highway, and that he did not see the intersection when heapproached it as an explanation for his failure to heed the stop sign.
    Extensive evidence was presented at trial, however, to show that multiple signs and devices had been erected to alert motorists to the approaching intersection along Rocky Branch Road. Prior to reaching the intersection, three visual cues had been erected to warn drivers of the approaching intersection. A “stop ahead” sign was erected 900 feet from the intersection. Two stop signs were erected immediately prior to the intersection, one standard regulation size, and the second significantly larger. In addition to the visual markers, two sets of hard, raised plastic rumble strips had been placed in the roadway to alert motorists to the impending intersection by creating noise and vibration. The first set of rumble strips was located 674 feet prior to the intersection. A second set of fourteen raised strips was located 457 feet before the intersection.
    In addition to the numerous warning devices indicating an intersection was imminent, the State also offered evidence as to the clear visibility of the intersection. Trooper Smock testified there were no obstructions which would prevent a motorist from seeing approaching vehicles on the intersecting road, and both of the Olivers testified defendant's truck was clearly visible as it approached the intersection. Evidence was also offered that defendant was traveling at sixty miles per hour, five miles above the posted speed limit, at the time of the collision.    Finally, the State presented evidence that defendant fled the scene immediately following the collision, and that his oral and written statements were contradicted both by testimony of witnesses at the collision site and by his own later statement. Defendant in his original statement to police, stated that the “driver got out and ran. I ran to see[] if everyone was ok and get someone to call 911 . . . . I looked everywhere[,] then I came back to [the] scene.” However, testimony at trial by Angela and Fleming indicated defendant exited the truck, and after running more than a mile, attempted to persuade Fleming to help him flee the scene entirely. Defendant only returned to the scene of the accident after Fleming refused to take him further, and then provided false information as to the identity of the driver at the site of the collision. Defendant again provided false information when he was interviewed by police several months later on 4 June 2003. Defendant did not confess to being the driver of the vehicle until 5 June 2003, after being presented with evidence of inconsistencies in his statement.
    When all the facts and circumstances are viewed in the light most favorable to the State, defendant's actions demonstrate evidence of recklessness, which when tested by the rule of reasonable prevision, amounts altogether to a thoughtless disregard of consequences sufficient to support a finding of culpable negligence. Weston, 273 N.C. at 281, 159 S.E.2d at 886. In addition to defendant's acknowledged violation of the stop sign, defendant's failure to heed any of the multiple warning mechanismspreceding the intersection, including the multiple sets of rumble strips, failure to keep a proper lookout for other vehicles, and violation of the posted speed limit, when taken together, provide evidence of culpable negligence. Further, defendant's post- accident behavior in deliberately providing false information to the investigating officer at the scene, thereby delaying investigation into his own culpability for several months, provides additional evidence of recklessness that imports a heedless indifference to the safety and rights of others.
    As noted supra, defendant does not challenge the sufficiency of evidence as to the other elements of the offenses. Therefore, the trial court did not err in denying defendant's motion to dismiss the charges of involuntary manslaughter and assault with a deadly weapon inflicting serious injury for insufficient evidence.

    In his final assignment of error, defendant contends the trial court erred in disallowing testimony regarding the crossing at which the accident occurred as irrelevant, and if relevant, as more prejudicial than probative. Defendant contends such evidence could have assisted in the determination of culpable negligence.
    Rule 403 of the North Carolina Rules of Evidence states: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” N.C. Gen. Stat. § 8C-1, Rule403 (2003). “'In general, the exclusion of evidence under the balancing test of Rule 403 of the North Carolina Rules of Evidence is within the trial court's sound discretion.'” State v. Julian, 345 N.C. 608, 613, 481 S.E.2d 280, 283 (1997) (citation omitted).
    At trial, the State called Fleming to testify as to defendant's whereabouts following the accident. On direct examination, Fleming made a non-responsive statement that the intersection where the accident occurred had “been giving a lot of people problems.” On cross-examination, Fleming was questioned as to what he meant by his remark regarding the intersection. The trial court sustained the State's objection to the question, but permitted a voir dire outside the presence of the jury. During voir dire, Fleming stated he believed there had been several close calls and accidents at the intersection since the highway had been reconfigured in 2001, and although he could not testify to the accidents, he had personally had several close calls there. After detailing one such incident, Fleming stated that for someone unfamiliar with the area, the stop signs and rumble strips were “probably more than enough mechanics involved to get someone's attention and have them stop at the intersection, but we are fighting habit here and not just a strange intersection.” The trial court ruled that the probative value of such testimony, if relevant, was substantially outweighed by the danger of confusion of the issues.
    “Abuse of the trial court's discretion will be found only where the ruling is 'manifestly unsupported by reason or is soarbitrary it could not have been the result of a reasoned decision.'” State v. Thibodeaux, 352 N.C. 570, 579, 532 S.E.2d 797, 804 (2000) (citation omitted). Fleming's comments as to familiarity with the road in connection with his own unrelated near-collision could reasonably have been found to confuse the issues as to defendant's actions, particularly in light of defendant's statement to police that he was unfamiliar with the area and with the fact that the intersection had been redesigned. We further note that although defendant contends such evidence would have assisted in a determination of defendant's culpable negligence, defendant elected to present no evidence as to the dangerous nature of the intersection, and we, therefore, do not address the issue of whether exclusion of such evidence would have been an abuse of discretion. Defendant fails to show that the trial court had abused its discretion in excluding Fleming's cross- examination statements. Thus, defendant's assignment of error is without merit.
    No error.
    Judges McCULLOUCH and LEVINSON concur.
    Report per Rule 30(e).

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