Converted WP file 061418-1

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- appellants.

    GEER, Judge.

    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.

Facts

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. Golphin, 352 N.C. 364, 433, 533 S.E.2d 168, 215 (2000), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305, 121 S. Ct. 1379, 1380 (2001).
    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 occurrence.'" Id. (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 context.").
    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, 531 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 into evidence.

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 v. Weldon, 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 timelyobjection _ 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.

III

    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. Evid. 403.
    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 prohibitions.
    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 lawsuit.   (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 Woodie's behavior.

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

Footnote: 1