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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-1187


Filed: 18 September 2007


    v.                        Wake County                                         No. 03 CVS 7912

    Appeal by plaintiffs from judgment entered 2 February 2006 by Judge A. Leon Stanback, Jr. in Wake County Superior Court. Heard in the Court of Appeals 27 March 2007.

    Law Offices of Stephanie Brown, by Stephanie J. Brown, for plaintiffs-appellants.

    Cranfill, Sumner & Hartzog, L.L.P., by George L. Simpson, IV, for defendant-appellee James Kummerer.

    GEER, Judge.

    Plaintiffs Christina Wright and her parents, Roger B. and Patricia Wright, appeal from a judgment awarding Christina $500.00 and her parents $4,000.00 for personal injuries sustained by Christina in an automobile accident. On appeal, plaintiffs contend that the limited damages were the result of (1) the trial court's ruling allowing defense counsel to elicit testimony from Christina Wright that she tested positive for marijuana after the accident and (2) the trial court's refusal to take judicial notice of the fact that marijuana use will yield positive urinalysis results forup to 30 days. Since plaintiffs moved the admission of all of Christina Wright's medical records _ which included a copy of the positive marijuana test results _ we hold that plaintiffs waived their objection regarding those test results. Further, plaintiffs' assertion that marijuana is detectable for 30 days is not information that is subject to judicial notice. We, therefore, hold that plaintiffs have failed to establish a basis for disturbing the judgment below.


    On 10 June 2000, Christina Wright, who was 16 years old, traveled with three teenage male friends to Roanoke, Virginia for an all-night "rave" party. Defendant James Kummerer ("Jim"), one of Christina's classmates, drove. Neither Christina nor Jim told their parents that they were going out of state to a rave.
    The teenagers left Raleigh in the late afternoon and arrived in Roanoke late that evening. The rave ended at about 7:00 a.m. the next morning, as the sun rose. Rather than returning directly to Raleigh, the teenagers visited the home of one of the hosts of the rave, toured a park in Roanoke, and finally went to see a "really cool" parking deck. They left Roanoke in the early afternoon to return to Raleigh. At trial, Christina denied consuming any drugs or alcohol during the rave or at any other point during the trip.
    Although Jim had not slept, he drove on the way home. At the outset of the trip, Christina rode in the front passenger seat, but when she became tired, she moved to the back and fell asleep, asdid the male friend also in the back. At around 4:10 p.m., Jim fell asleep behind the wheel. The car drifted across the median of Highway 220 in Rockingham County, North Carolina, then returned back over the median and the southbound lanes and crashed into a small ditch and an embankment. Christina was transported to a hospital emergency room for treatment of her injuries, including a broken nose, a cut on her face requiring stitches, and back, neck, and knee pain.
    Christina Wright and her parents brought suit against Jim and his father. Following trial, the jury returned a verdict finding that Christina was contributorily negligent, but also finding that Jim had the "last clear chance" to avoid the injuries. Initially, the jury awarded Christina zero damages and her parents $4,000.00 in damages. After the trial judge directed the jury to award Christina at least nominal damages, the jury returned with a verdict awarding Christina $500.00 for her injuries and her parents $4,000.00. The jury also found that Jim was not driving the car for a family purpose at the time of the collision. The trial court, therefore, entered judgment against Jim Kummerer, but not against his father, Paul Kummerer, in the amounts awarded by the jury plus interest. Plaintiffs timely appealed to this Court.

    In their first assignment of error, plaintiffs argue that the trial judge impermissibly allowed defense counsel to question Christina about the results of a drug test administered at Moses Cone Hospital following the car accident. Prior to trial,plaintiffs filed a motion in limine to exclude evidence of Christina's urine test, which was positive for the presence of marijuana. The trial court denied plaintiffs' motion based on defendants' representation that they would present eyewitness testimony that Christina had used marijuana during the trip to Roanoke. The trial court further ruled that defense counsel could ask Christina about the drug test during his cross-examination of Christina.
    Over objection by plaintiffs' counsel, Christina admitted on cross-examination that she tested positive for marijuana following the accident, although she denied using marijuana during the Roanoke trip. Defendants, however, never presented the promised testimony that Christina had smoked marijuana on the trip. The trial court, therefore, instructed the jurors that the drug test was "irrelevant to [the] consideration of the facts in this case" and directed them to "disregard that evidence." We note that the law presumes jurors will follow a judge's instruction to disregard evidence. Shields v. Nationwide Mut. Fire Ins. Co., 61 N.C. App. 365, 378, 301 S.E.2d 439, 447, disc. review denied, 308 N.C. 678, 304 S.E.2d 759 (1983).
    Plaintiffs, however, argue that evidence of the drug test was both irrelevant and unfairly prejudicial under North Carolina Rules of Evidence 402 and 403. Plaintiffs contend that this evidence "made [Christina] an object of scorn to the jury," as reflected by the jury's decision to award minimal damages.    Even assuming, without deciding, that the trial court erred in allowing defense counsel to question Christina about her positive drug test and that the error was not cured by the instruction, plaintiffs waived their objection when they later introduced evidence of that test. As our Supreme Court has stated, "[w]here evidence is admitted over objection, and the same evidence has been previously admitted or is later admitted without objection, the benefit of the objection is lost." State v. Whitley, 311 N.C. 656, 661, 319 S.E.2d 584, 588 (1984). See also Brooks v. Wal-Mart Stores, Inc., 139 N.C. App. 637, 656, 535 S.E.2d 55, 67 (2000) ("by eliciting on its cross-examination essentially the same testimony to which it had previously objected, [defendant] thereby waived the benefit of the earlier objection"), disc. review denied, 353 N.C. 370, 547 S.E.2d 2 (2001).
    Here, plaintiffs offered into evidence an exhibit that was a compilation of Christina's medical records, including her 11 June 2000 records from Moses Cone Hospital. That exhibit contained an unredacted copy of the hospital's urinalysis stating, in capital letters, that Christina had tested "POSITIVE." After the trial judge admitted the records into evidence, plaintiffs requested that they _ including the drug screen _ be published to the jury. Since plaintiffs themselves provided the jury with Christina's positive drug screen, they have waived any objection to the questions on cross-examination regarding that drug screen.
    Plaintiffs next argue that the court erred when it failed to take judicial notice that marijuana remains detectable in the humansystem for 30 days after the time of usage. When plaintiffs made their request for judicial notice of this purported fact, the trial judge declined, stating, "I have no reference point to draw from."
    Under the Rules of Evidence, "[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." N.C.R. Evid. 201(b). This rule further provides that "[a] court shall take judicial notice if requested by a party and supplied with the necessary information." N.C.R. Evid. 201(d).
    Contrary to plaintiffs, we do not believe that the length of time marijuana remains detectable in the human system is a "generally known" fact. See State v. Canady, 110 N.C. App. 763, 766, 431 S.E.2d 500, 501 (1993) ("The exact time of sunset and the current phase of the moon on a particular date are not facts 'generally known.'"); see also United States v. Simon, 842 F.2d 552, 555 (1st Cir. 1988) (trial court did not err in refusing to take judicial notice "that Rastafarians use marijuana as part of their religion").
    Nor have plaintiffs met the requirements of N.C.R. Evid. 201(b)(2). They did not refer the trial judge to any sources regarding the marijuana detection window. Even on appeal, plaintiffs, as support for their assertion, cite only the text of an amicus brief submitted to the United States Supreme Court in the 1980s. It was not the responsibility of the trial judge "'to makean independent search for data of which he may take judicial notice.'" Canady, 110 N.C. App. at 766, 431 S.E.2d at 501 (quoting State v. Dancy, 297 N.C. 40, 42, 252 S.E.2d 514, 515 (1979)). Since plaintiffs point to nothing in the record to show that they presented any information to the trial court regarding the particular scientific assertion that they sought to have judicially noticed, the trial court did not err in refusing plaintiffs' request.

    No error.
    Chief Judge MARTIN concurs.
    Judge WYNN concurs in the result only.
    Report per Rule 30(e).

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