Appeal by defendants from judgment and permanent injunction
entered 19 May 2006 by Judge Catherine C. Eagles in Alleghany
County Superior Court. Heard in the Court of Appeals 23 May 2007.
Robinson & Lawing, L.L.P., by Norwood Robinson and Rebecca H.
Miller, for plaintiffs-appellees.
Randolph and Fischer, by J. Clark Fischer, for defendants-
This litigation arose out of defendants' operation of a
lawnmower racetrack on rural residential property neighboringplaintiffs' land. A jury concluded that defendants had
substantially and unreasonably interfered with the use and
enjoyment of plaintiffs' real property and awarded plaintiffs
$100.00 in damages. After entering a judgment in accordance with
the jury's verdict, the trial court also entered a permanent
injunction prohibiting defendants from engaging in further
lawnmower racing or similar activities on the property at issue and
from contacting, threatening, harassing, or intimidating people who
opposed the racetrack.
On appeal, defendants argue that the trial court erred by (1)
allowing plaintiffs to present demonstrative evidence of the sound
of a racing lawnmower; (2) admitting testimony of one witness
explaining the nature of decibels, as well as reciting decibel
readings obtained by that witness for the raceway; and (3)
admitting evidence of retaliatory acts by defendant Ronnie Woodie.
We find these arguments unpersuasive and, therefore, hold that
defendants received a trial free of prejudicial error.
On 18 July 2005, plaintiffs filed a complaint against
defendants in Alleghany County Superior Court, seeking to prohibit
defendants from running a racetrack for modified lawnmowers on
residential property owned by defendant Ronnie Woodie's mother-in-
law. Plaintiffs alleged that the racetrack constituted a nuisance
because the races and practice sessions generated substantial noise
and attracted large crowds, resulting in congestion of the local
roads and considerable human waste and litter. After the trial court granted a preliminary injunction on 14
September 2005, enjoining defendants from using the racetrack to
conduct races or practice sessions, the case was tried before a
jury during the 24 April 2006 civil session of Alleghany County
Superior Court. In addition to their own testimony, plaintiffs
presented the testimony of (1) a licensed realtor as to the effect
the raceway had on the value of surrounding properties, (2) a
member of the Alleghany Mower Racing Association, and (3) defendant
Ronnie Woodie. Plaintiffs also conducted a demonstration of an
operating racing lawnmower on the courthouse grounds. Defendants
presented the testimony of (1) several neighbors who did not find
the noise of the raceway offensive; (2) multiple persons who worked
at the raceway; (3) several racers; (4) a lawnmower repairman; and
(5) the principal of Glade Creek Elementary School, who had helped
defendant Ronnie Woodie run several races as fundraising events for
the elementary school.
The jury returned a verdict finding that defendants had
substantially and unreasonably interfered with the use and
enjoyment of plaintiffs' property and awarded plaintiffs $100.00.
The trial court entered a judgment in accord with the jury's
verdict the following day and granted plaintiffs a permanent
injunction prohibiting defendants from operating the raceway.
Defendants timely appealed to this Court.
Defendants first argue that the trial court erred by
permitting plaintiffs, over defendants' objection, to operate aracing lawnmower on the courthouse grounds in front of the jury.
According to defendants, the admission of the sound of the
lawnmower's operation was "utterly without proper foundation" and
impermissibly misleading under N.C.R. Evid. 403.
With respect to the lack of foundation, defendants rely upon
the standard for experiments rather than for demonstrations and
argue that the demonstration did not meet the "substantial
similarity" requirement. Our Supreme Court "has recognized a
distinction between demonstrations and experiments." State v.
, 352 N.C. 364, 433, 533 S.E.2d 168, 215 (2000), cert.
, 532 U.S. 931, 149 L. Ed. 2d 305, 121 S. Ct. 1379, 1380
As explained in Golphin
, "[a]n experiment is a test made to
demonstrate a known truth, to examine the validity of a hypothesis,
or to determine the efficacy of something previously untried." Id.
(internal quotation marks omitted). Experimental evidence is
admissible "'if the experiment is carried out under substantially
similar circumstances to those which surrounded the original
(quoting State v. Locklear
, 349 N.C. 118, 147,
505 S.E.2d 277, 294 (1998), cert. denied
, 526 U.S. 1075, 143 L. Ed.
2d 559, 119 S. Ct. 1475 (1999)).
"A demonstration on the other hand is an illustration or
explanation, as of a theory or product, by exemplification or
practical application." Id.
at 434, 533 S.E.2d at 215 (internal
quotation marks omitted). In deciding whether a demonstration is
admissible evidence, a court must determine "whether, if relevant,the probative value of the evidence is substantially outweighed by
the danger of unfair prejudice, confusion of the issues or
misleading the jury." Id.
(internal quotation marks omitted). See
N.C.R. Evid. 403 ("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
. . . ."). The decision whether relevant evidence should be
excluded pursuant to Rule 403 "'is a matter left to the sound
discretion of the trial court, and the trial court can be reversed
only upon a showing of abuse of discretion.'" Golphin
, 352 N.C. at
434, 533 S.E.2d at 215 (quoting State v. Wallace
, 351 N.C. 481,
523, 528 S.E.2d 326, 352-53, cert. denied
, 531 U.S. 1018, 148 L.
Ed. 2d 498, 121 S. Ct. 581 (2000)).
Here, there can be little question that the operation of the
lawnmower constituted a demonstration rather than an experiment.
Plaintiffs were seeking to illustrate, through use of an example,
the amount of noise produced by racing lawnmowers. Indeed,
defendants do not argue otherwise; they simply apply the test for
the admissibility of experiments rather than demonstrations.
In arguing that permitting the jury to hear the demonstration
racing mower on courthouse grounds was unfairly prejudicial under
N.C.R. Evid. 403, defendants assert:
A proper demonstration in the case at bar
would have required a "jury view" of sorts in
which the jury would have had the opportunity
to actually listen to the noise of a racing
mower from the homes of one of the Plaintiffs.
While this might well have involved some minor
degree of administrative inconvenience, thatwould have been a small price to pay in the
interest of Defendants receiving a fair trial.
At trial, however, defendants made only a general objection to the
demonstration and never requested that the demonstration take place
elsewhere. This contention was not, therefore, preserved for
appellate review. See
N.C.R. App. P. 10(b)(1) ("In order to
preserve a question for appellate review, a party must have
presented to the trial court a timely request, objection or motion,
stating the specific grounds for the ruling the party desired the
court to make if the specific grounds were not apparent from the
Given the testimony of the member of the Alleghany Mower
Racing Association, who performed the demonstration, that the
lawnmower was typical of a racing lawnmower and the opportunity for
defendants to make their points on cross-examination regarding the
differences in hearing the mower while standing nearby as opposed
to hearing it at a distance from the raceway in the countryside, we
cannot conclude that the trial court's decision in admitting this
evidence was manifestly unreasonable. As a result, defendants have
failed to demonstrate that the trial court abused its discretion.
See State v. Thibodeaux
, 352 N.C. 570, 579, 532 S.E.2d 797, 804
(2000) ("Abuse of the trial court's discretion will be found only
where the ruling is manifestly unsupported by reason or is so
arbitrary it could not have been the result of a reasoned
decision." (internal quotation marks omitted)), cert. denied
U.S. 1155, 148 L. Ed. 2d 976, 121 S. Ct. 1106 (2001).
Defendants next argue that the trial court erred by permitting
one of the plaintiffs, middle school teacher Pamela Braley, to
testify as to (1) the nature of decibels and (2) the "decibel
readings" she obtained from a "certified sound meter" of the noise
produced by the raceway. Plaintiffs contend that defendants either
waived their objections or failed to preserve the issues for
appellate review under N.C.R. App. P. 10(b)(1).
Defendants made a single objection to Ms. Braley's testimony
pertaining to decibels. After Ms. Braley testified regarding her
decibel readings and before her testimony explaining the nature of
decibels, defendants objected as follows:
MR. WOODIE [Acting pro se as defense
counsel]: Your Honor, I object. I don't think
these decibel readings, without a certified
person giving these, should even be submitted
Defendants did not make any further objection. This objection
cannot reasonably be viewed as an objection to Ms. Braley's
testifying regarding the nature of decibels. Defendants,
therefore, failed to preserve for appellate review any challenge to
Ms. Braley's explaining to the jury what "decibels" are. See Wood
, 160 N.C. App. 697, 699, 586 S.E.2d 801, 803 (2003) ("[A]
contention not raised and argued in the trial court may not be
raised and argued for the first time in the appellate court."),
disc. review denied
, 358 N.C. 550, 600 S.E.2d 469 (2004).
With respect to Ms. Braley's actual decibel readings of the
noise produced by the raceway, defendants failed to make a timely
objection _ they objected only after she testified and did not make
any motion to strike the testimony. See Main St. Shops, Inc. v.
Esquire Collections, Ltd.
, 115 N.C. App. 510, 515, 445 S.E.2d 420,
422 (1994) ("'An objection to testimony not taken in apt time is
waived.'" (quoting State v. Hunt
, 223 N.C. 173, 176, 25 S.E.2d 598,
600 (1943))). In any event, three other witnesses testified,
without objection, to the decibel readings they each observed on
various sound meters. Defendants have provided no argument as to
why, despite the unchallenged testimony of three other witnesses,
a different result would likely have resulted if Ms. Braley's
testimony had been excluded.
"Verdicts and judgments are not to be set aside for mere error
and no more. To accomplish this result it must be made to appear
not only that the ruling complained of is erroneous, but also that
it is material and prejudicial, and that a different result likely
would have ensued, with the burden being on the appellant to show
this." Perkins v. Langdon
, 237 N.C. 159, 178, 74 S.E.2d 634, 649
(1953). Because defendants have made no attempt to demonstrate how
they were prejudiced by Ms. Braley's testimony when three other
witnesses provided substantially similar testimony, we overrule
this assignment of error.
Finally, defendants argue that the trial court erred by
admitting evidence that Ronnie Woodie shook his fist at and
"verbally abus[ed]" plaintiffs, honked car horns at them, followed
and photographed some plaintiffs, called plaintiff Elmer Braley a"SOB," and took out false criminal charges against Elmer Braley.
According to defendants, this evidence was "legally irrelevant" to
any issue in the case and was unfairly prejudicial under N.C.R.
In plaintiffs' complaint, they sought a permanent injunction
not only enjoining the nuisance, but also "enjoining Defendant
[sic] from making threats to people opposed to the operation of a
nuisance on [Woodie's mother-in-law's] Property[.]" The
preliminary injunction entered prior to trial specifically forbid
defendants from (1) "[c]ontacting, threatening, harassing, or
intimidating persons who oppose the afore-mentioned [sic] activity,
including but not limited to discharging firearms or photographing
or filming Plaintiffs without their permission" and (2) "[p]osting
signs on the aforementioned property with the intent of or having
the effect of threatening, intimidating, offending, defaming, or
insulting plaintiffs[.]" Following the jury verdict, the trial
court entered a permanent injunction repeating those two
Defendants have not, on appeal, challenged those provisions of
the injunction. There has been no argument that the provisions
constituted impermissible relief or were outside the scope of the
(See footnote 1)
The evidence of Woodie's retaliatory conduct directed
towards plaintiffs was directly relevant to these two provisions
prohibiting further harassment. See Shaw v. Coleman
, 373 S.C. 485,498, 645 S.E.2d 252, 259 (S.C. Ct. App. 2007) (holding that
defendant's "confrontational and threatening behavior" was relevant
to issue whether injunction should be entered in private nuisance
action). Indeed, in the absence of such evidence, there would be
no factual basis for those provisions of the injunction. With
respect to Rule 403, in light of the request for the injunctive
relief and the lack of any objection to its being awarded, we
cannot see any abuse of discretion by the trial court in
determining that the probative value of this evidence to the
request for injunctive relief was not outweighed by any prejudice.
Defendants could have requested a limiting instruction for the
jury, but failed to do so. Accordingly, defendants have failed to
demonstrate that the trial court erred in admitting the evidence of
Judges HUNTER and ELMORE concur.
Report per Rule 30(e).