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.
I.
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.
II.
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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