An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-533


Filed: 17 January 2006


         v.                             Columbus County
                                     No. 03-CrS-53352

    Appeal by defendant from judgments entered 15 December 2004 by Judge Jack A. Thompson in Columbus County Superior Court. Heard in the Court of Appeals 9 January 2006.

    Attorney General Roy Cooper, by Assistant Attorney General Marc X. Sneed, for the State.

    Russell J. Hollers III for defendant appellant.

    McCULLOUGH, Judge.

     Defendant was found guilty of felonious breaking or entering and felonious larceny. He was sentenced to consecutive terms of ten to twelve months.
    The State presented evidence tending to show that at about 9:45 a.m. on 1 August 2003, Wayne Murray drove to his home in rural Columbus County and encountered a strange automobile parked in his driveway. The trunk of the vehicle was open. A man, whom Murray identified as defendant, walked out of Murray's house holding a black box. Murray told defendant to put the item down and to leave. Defendant reached into his back pocket and displayed a small revolver. After seeing the gun, Murray backed out of his driveway as fast as he could. Murray looked back and saw defendantleave in the opposite direction. Murray returned to his residence and observed that the door had been kicked in. He discovered that the large compact disc player located in the utility room he used as an office was missing.
    Defendant did not present any evidence.
    By his sole assignment of error, defendant contends the court committed plain error by admitting into evidence a motor vehicle accident report which showed that on 29 May 2004 a passenger van entered an intersection into the path of a vehicle operated by defendant. The van collided with defendant's vehicle and five occupants of the van died in the collision. The report stated that defendant was charged with driving while impaired and driving without an operator's license. The report also stated that the operator of the van was charged with the same offenses and, additionally, with five counts of death by vehicle. Defendant argues the report should not have been admitted because it was not properly identified or authenticated, because it was irrelevant and highly prejudicial, and because it was admitted despite defendant's stipulation that he was injured in an automobile accident.
    By assigning plain error, defendant acknowledges that he did not object to admission of the report in the court below. See State v. Oliver, 309 N.C. 326, 335, 307 S.E.2d 304, 312 (1983). Defendant's failure to object limits our review to a determination of whether this is
    the exceptional case where, after reviewing the entire record, it can be said the claimed error is “fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,” or“where [the error] is grave error which amounts to a denial of a fundamental right of the accused,” or the error has “'resulted in a miscarriage of justice or in the denial to appellant of a fair trial'” or where the error is such as to “seriously affect the fairness, integrity or public reputation of judicial proceedings” or where it can be fairly said “the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.”

State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. N.C. 1982)) (footnotes omitted).
    After carefully reviewing the record, we are unable to say that this case is such an exceptional case. The report was admitted into evidence to show that defendant had sustained the injuries visible in court after the date Murray testified he saw defendant breaking into his residence. Murray had ample opportunity for observation sufficient to make an identification as he viewed the perpetrator's undisguised face for thirty to forty-five seconds from a distance of fifteen to eighteen feet in broad daylight. Murray took only three to four seconds to identify defendant as the perpetrator when he was shown a photograph lineup. Murray also positively identified defendant in court as the perpetrator. Given the overwhelming evidence presented by the State regarding Murray's positive identification of defendant and the fact defendant did not offer any evidence to refute the positive identification, we hold that the admission of the accident report into evidence did not constitute plain error.

    No error.
    Judges TYSON and ELMORE concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***