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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 18 December 2007
STATE OF NORTH CAROLINA
No. 04 CRS 15348
DUSTIN O'NEAL HOUSTON
Appeal by Defendant from judgments entered 4 August 2006 by
Judge Robert C. Ervin in Catawba County Superior Court. Heard in
the Court of Appeals 19 September 2007.
Attorney General Roy Cooper, by Special Deputy Attorney
General James A. Wellons, for the State.
Allen W. Boyer for Defendant.
Defendant Dustin O'Neal Houston was indicted on 1 November
2004 on charges of (1) assault with a deadly weapon inflicting
serious injury and (2) assault inflicting serious injury on a law
enforcement officer. A superceding indictment dated 7 February
2005 was issued by the Catawba County Grand Jury charging him with
those two offenses as well as (3) reckless driving, (4) speeding,
and (5) willful failure to obey a law enforcement officer. Defense
counsel filed a Motion for Change of Venue in Catawba County
Superior Court on 4 April 2005.
The case was called for trial during the 31 July 2006 Criminal
Session of Catawba County Superior Court before the HonorableRobert C. Ervin. At that time, defense counsel withdrew his motion
for a change of venue and announced he was ready to proceed with
After the State rested, Defendant moved to dismiss all the
charges. The trial court ruled that the felony charge of assault
inflicting serious injury on a law enforcement officer could not be
submitted to the jury because the indictment failed to allege that
Defendant had inflicted serious bodily injury on a law enforcement
officer. The trial court concluded, however, that the lesser
included misdemeanor offense of assault on a law enforcement
officer could be submitted to the jury. The trial court denied
Defendant's motion to dismiss the other charges.
After Defendant rested, he renewed his motion to dismiss. The
trial court again denied the motion. On 3 August 2006, the jury
returned verdicts finding Defendant guilty of (1) assault with a
deadly weapon inflicting serious injury, a Class E felony assault;
(2) assault on a law enforcement officer, a Class A-1 misdemeanor;
and (3) reckless driving, (4) speeding, and (5) failure to obey an
order of a law enforcement officer, all misdemeanors.
Upon these verdicts, Judge Ervin entered sentences as follows:
on the Class E felony assault, Defendant was sentenced to an active
prison term of 24 to 38 months ; on the Class A-1 misdemeanor
assault, Defendant received a suspended sentence of 150 days, and
was placed on 24 months supervised probation ; on the speeding,
reckless driving, and failure to obey an order of a law enforcement
officer misdemeanors, Defendant received one consolidated suspendedsentence of 60 days, and was placed on 24 months probation . The
trial court ordered that the sentences run consecutively.
Defendant gave notice of appeal in open court immediately following
After apprehending a suspect in a case unrelated to this case,
three officers with the Town of Maiden Police Department, Officer
Michael Wooten, Sergeant Michael Eaker, and Officer Cory Reid, were
on East Maiden Road at around 10:30 p.m. on 4 October 2004. They
were standing in a driveway when they heard motorcycles
approaching. The officers walked over to the roadway to see what
was happening. Sergeant Eaker and Officer Wooten stayed on the
side of the road while Officer Reid walked into the middle of the
eastbound lane. All three looked in the direction of the
motorcycles and waved their flashlights. Two of the officers'
police cruisers, parked off the road, had their blue lights
flashing; one of the cruisers had its headlights on, and the other
had its four-way flashers on. None of the officers wore any
Two motorcycles came over the crest of the hill, about 500 to
600 feet to the west from where the officers were standing. The
first motorcycle was in the eastbound lane near the center line.
The second motorcycle, driven by Defendant, was in the same lane
but closer to the center line. After the motorcycles crested the
hill, they slowed down but then sped back up. The posted speed
limit was 35 miles per hour. It was estimated that the motorcycleswere going between 80 and 100 miles per hour when they crested the
hill, slowing down to approximately 55 to 65 miles per hour. The
first motorcycle swerved over the center line, passed Officer Reid
on the left, and kept going down the road. The second motorcycle
ran into Officer Reid. About five seconds elapsed between the time
the officers first saw the motorcycles and the time Defendant
collided with Officer Reid.
The impact pinned Officer Reid to the front of the motorcycle
as it continued down the road. Officer Reid then fell face-first
onto the roadway as the motorcycle went off the road to the right.
He slid down the roadway face-first for about 15 to 20 feet.
As a result of the accident, most of Officer Reid's teeth were
either broken or knocked out, and the right side of his face was
crushed. He had a compound fracture in his left leg and a broken
tibia in his right leg. Surgeons inserted a plate in the right
side of his face to reconnect his jaw to his head, and inserted
rods and screws in both legs. His jaw was wired shut for two to
three weeks following his surgery. At the time of Defendant's
trial, Officer Reid's left knee still could not bear any weight and
the rods in his legs continued to cause him great pain. Officer
Reid was experiencing partial complex seizures and post-concussive
On appeal, Defendant argues eight assignments of error. We
find no merit to any of Defendant's contentions.
1. Insulating Negligence
By his first assignment of error, Defendant argues that, in
light of evidence that Officer Reid walked into the middle of East
Maiden Road at night without wearing any reflective clothing over
his dark uniform, the trial court erred in denying Defendant's
request for an instruction on insulating negligence. We disagree.
In order for negligence of another to insulate defendant from
criminal liability, that negligence must be such as to break the
causal chain of defendant's negligence; otherwise, defendant's
culpable negligence remains a proximate cause, sufficient to find
him criminally liable. State v. Hollingsworth, 77 N.C. App. 36,
39, 334 S.E.2d 463, 465 (1985). In Hollingsworth, the defendant
was drunk when he gave two passengers a ride in his car. During
the ride, another car collided with the defendant's car, killing
the two passengers. At trial, the defendant, charged with
manslaughter, contended that the victims' own negligence in
voluntarily entering into his car when he was visibly intoxicated
insulated him from criminal negligence. This Court held that the
victims' negligence would be, at most, a concurring proximate
cause of the deaths of [the victims], and would not insulate [the]
defendant from criminal liability. Id. at 39, 334 S.E.2d at 466.
Accordingly, this Court held the trial court did not err in not
instructing the jury on insulating negligence. Hollingsworth, 77
N.C. App. 36, 334 S.E.2d 463.
Here, Defendant asserts that Officer Reid was negligent in
walking into the dark roadway at night, dressed in a dark uniform
without reflective clothing, and that such negligence broke thecausal chain between Defendant's negligence and Officer Reid's
injuries. However, it was estimated that it took Defendant
approximately five seconds to travel the 500 to 600 feet between
the crest of the hill and Officer Reid. Had Defendant been driving
at the posted speed limit of 35 miles per hour, it would have taken
him more than double that time to travel that distance, giving
Defendant the opportunity to take note of the flashlights the
officers were waving and the flashing blue police cruiser lights,
and more time to avoid the accident. Therefore, even assuming
arguendo that Officer Reid's conduct was negligent, it was at most
a concurring proximate cause of his injuries, and Defendant's
driving remained a proximate cause of Officer Reid's serious bodily
injury. Thus, the trial court did not err in denying Defendant's
request for an instruction on insulating negligence. This
assignment of error is overruled.
2. Evidence of Prior Violations
In his second assignment of error, Defendant alleges the trial
court erred in allowing two officers to testify about two prior
traffic violations committed by Defendant because the evidence was
offered only to show Defendant had a propensity to engage in the
behavior with which he was charged. We disagree.
A trial court's ruling on an evidentiary point will be
presumed to be correct unless the complaining party can demonstrate
that the particular ruling was in fact incorrect. State v.
Herring, 322 N.C. 733, 749, 370 S.E.2d 363, 373 (1988).
Furthermore, even if the complaining party can show that the trialcourt erred in its ruling, relief ordinarily will not be granted
absent a showing of prejudice. N.C. Gen. Stat. § 15A-1443(a)
Evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show that he acted
in conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity . . . N.C. Gen. Stat. §
8C-1, Rule 404(b) (2005). Rule 404(b) is a rule of inclusion of
relevant evidence of other crimes, wrongs or acts by a defendant,
subject to but one exception requiring its exclusion if its only
probative value is to show that the defendant has the propensity or
disposition to commit an offense of the nature of the crime
charged. State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54
(1990). The rule stated in Coffey, however, is constrained by the
requirements of similarity and temporal proximity. State v.
Al-Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120, 123 (2002). When
the features of the earlier act are dissimilar from those of the
offense with which the defendant is currently charged, such
evidence lacks probative value. State v. Artis, 325 N.C. 278,
299, 384 S.E.2d 470, 481 (1989), vacated and remanded on other
grounds, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990). Additionally,
[w]hen otherwise similar offenses are distanced by significant
stretches of time, commonalities become less striking, and the
probative value of the analogy attaches less to the acts than to
the character of the actor. Id. In this case, North Carolina State Highway Patrol Trooper
Brian Perkins testified that on 10 June 2003, he was on duty at
9:40 a.m. on Highway I-40 in Catawba County when he clocked
Defendant on his 2001 Suzuki motorcycle at 90 miles per hour in a
65-mile-per-hour zone. When Trooper Perkins asked Defendant
whether there was any reason for him to be traveling 90 miles per
hour in a 65-mile-per-hour zone, Defendant responded that he was
sorry, that he thought he was running 85 miles per hour or so.
Sergeant Steve Boyd of the City of Newton Police Department
testified that on 16 July 2003 at 9:45 a.m., he was on duty on
Highway 75 in the city of Newton, at the corner of Fairgrove Church
Road waiting for a westbound traffic light to change. He observed
a 2001 Suzuki motorcycle approach the intersection at a high rate
of speed, lift its front wheel, and continue through the
intersection at a high rate of speed. He made a visual estimate
that the motorcycle went through the intersection at 70 miles per
hour. The speed limit at the intersection was 50 miles per hour.
He apprehended the driver, who was Defendant. When Sergeant Boyd
asked Defendant why he had driven his motorcycle in that manner,
Defendant responded that his girlfriend was following behind him
and he was showing off for her.
Defense counsel objected to the evidence. The trial court
overruled the objection, admitting the evidence for the purpose of
showing that [Defendant] had the intent that is a necessary element
of . . . two of the crimes charged in this case. Specifically,
the evidence was introduced to establish the element of intent forthe purpose of proving assault with a deadly weapon inflicting
serious injury and assault on a law enforcement officer. Thus, the
evidence was relevant to establish Defendant's thoughtless
disregard of consequences and heedless indifference to the safety
and rights of others. See State v. Rich, 351 N.C. 386, 400, 527
S.E.2d 299, 307 (2000) (stating that evidence of the defendant's
prior traffic violations was relevant to establish defendant's
totally depraved mind for purposes of his second-degree murder
Furthermore, the admission of the evidence of Defendant's two
prior traffic violations satisfied both the similarity and temporal
proximity requirements of Rule 404(b). With respect to the
similarity requirement, the accident at issue and the two prior
incidents involved Defendant's traveling at an excessive rate of
speed, on urban roads, in Catawba County, on his Suzuki motorcycle.
Thus, the prior incidents are sufficiently similar for purposes of
Rule 404(b). The temporal proximity requirement was satisfied as
well, as the previous speeding violations occurred only 15 and 16
months before the incident at issue. Accordingly, the trial court
did not err in admitting the testimony of the police officers
regarding Defendant's prior traffic violations.
Defendant further argues, however, that even if the evidence
was admissible under Rule 404(b), the trial court should have
excluded it under N.C. Gen. Stat. § 8C-1, Rule 403. Under Rule
403, 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[.] N.C. Gen.
Stat. § 8C-1, Rule 403 (2005). The exclusion of evidence under
Rule 403 is a matter generally left to the sound discretion of the
trial court, State v. Mason, 315 N.C. 724, 340 S.E.2d 430 (1986),
which is left undisturbed unless the trial court's ruling is
manifestly unsupported by reason or is so arbitrary it could not
have been the result of a reasoned decision. State v. Syriani,
333 N.C. 350, 379, 428 S.E.2d 118, 133, cert. denied, 510 U.S. 948,
126 L. Ed. 2d 341 (1993).
Here, on each occasion in which evidence of the prior
violations was offered, the trial court guarded against the
possibility of unfair prejudice by instructing the jury to consider
such evidence for the limited purposes allowed by Rule 404(b).
See, e.g., State v. Hyatt, 355 N.C. 642, 566 S.E.2d 61 (2002)
(holding admission of prior bad acts not unfairly prejudicial under
Rule 403 when the trial court gave extensive limiting instruction
regarding permissible uses of the 404(b) evidence). These limiting
instructions also specifically admonished the jury not to consider
the challenged evidence in determining the speed at which Defendant
operated the motorcycle at the time of the incident at issue.
Therefore, the trial court did not abuse its discretion by allowing
the admission of this evidence. Defendant's argument is overruled.
3. Motion to Dismiss
Defendant's next five assignments of error are based on his
contention that the trial court erred in denying his motion todismiss all five charges for insufficiency of the evidence. For
the following reasons, we overrule these assignments of error.
Our standard of review of a trial court's ruling on a motion
to dismiss for insufficient evidence is whether there is
substantial evidence (1) of each essential element of the offense
charged . . . and (2) of defendant's being the perpetrator of such
offense. State v. Prush, __ N.C. App. __, __, 648 S.E.2d 556, 558
(2007) (quotation marks and citations omitted). Substantial
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. State v. Blake, 319
N.C. 599, 356 S.E.2d 352 (1987). The trial court must review the
evidence in the light most favorable to the State, and the State is
entitled to every reasonable inference to be drawn therefrom.
State v. Thomas, 296 N.C. 236, 250 S.E.2d 204 (1978). The trial
court is concerned only with the sufficiency of the evidence to
carry the case to the jury, and not with its weight. State v.
McNeil, 280 N.C. 159, 185 S.E.2d 156 (1971).
A. Assault With a Deadly Weapon Inflicting Serious Injury
Defendant first argues the trial court erred in denying his
motion to dismiss the charge of assault with a deadly weapon
inflicting serious injury for insufficiency of the evidence. The
elements of this offense are (1) an assault, (2) with a deadly
weapon, (3) inflicting serious injury, and (4) not resulting in
death. N.C. Gen. Stat. § 14-32(b) (2005); State v. Aytche, 98 N.C.
App. 358, 391 S.E.2d 43 (1990). Specific intent is not an element
of the offense. State v. Curie, 19 N.C. App. 17, 198 S.E.2d 28(1973). Defendant argues there was insufficient evidence of an
intentional assault. However, criminal intent may be implied from
culpable negligence. State v. Eason, 242 N.C. 59, 86 S.E.2d 774
(1955). Culpable negligence is such recklessness or carelessness,
proximately resulting in injury or death, as imports a thoughtless
disregard of consequences or a heedless indifference to the safety
and rights of others. State v. Cope, 204 N.C. 28, 30, 167 S.E.
456, 458 (1933).
Here, the excessive speed at which Defendant was traveling,
around 80 miles per hour when he crested the hill and around 55
miles per hour when he hit the officer, in a 35-mile-per-hour zone,
the apparent disregard for the patrol car lights and flashlights
held by the troopers, and the evidence of two prior speeding
violations under similar circumstances and within the past sixteen
months, was sufficient to support a finding that Defendant acted
with a thoughtless disregard of the consequences and a heedless
indifference to the safety of others. Thus, the trial court
properly denied Defendant's motion to dismiss the charge of assault
with a deadly weapon inflicting serious injury.
B. Assault on a Law Enforcement Officer
Defendant next argues the trial court erred in denying his
motion to dismiss the charge of assault on a law enforcement
officer, also contending that the State presented insufficient
evidence of an intentional assault. For the reasons stated in the
preceding discussion, we disagree and hold that the trial courtproperly denied Defendant's motion to dismiss the charge of assault
on a law enforcement officer.
C. Reckless Driving
Defendant next argues the trial court erred in denying his
motion to dismiss the charge of reckless driving for insufficiency
of the evidence. Any person who drives any vehicle upon a highway
. . . without due caution and circumspection and at a speed or in
a manner so as to endanger or be likely to endanger any person or
property shall be guilty of reckless driving. N.C. Gen. Stat. §
Defendant argues that he slowed down when he crested the hill,
there were no radar readings taken to determine his speed, and
there was no person or car visible in the highway to either biker.
Furthermore, Defendant argues there was no evidence that the first
biker was ever charged with speeding. However, this Court has held
that a motion to dismiss a charge of reckless driving was properly
denied where the State introduced evidence that the defendant drove
well over the 35-mile-per-hour speed limit; swerved at least once
into the opposing lane of traffic; and slid for approximately 20
feet after braking. State v. Davis, 163 N.C. App. 587, 594 S.E.2d
57, disc. review denied, 358 N.C. 547, 599 S.E.2d 564 (2004).
Similarly, in this case, the State introduced substantial
evidence from eyewitness police officers showing that Defendant
drove as fast as 80 to 100 miles per hour in a 35-mile-per-hour
zone ; that Defendant applied his brakes only three feet before he
collided with Officer Reid ; that after he applied his brakes,Defendant left a skid mark that was nine and a half feet long ; and
that after impact, Defendant's motorcycle slid 96 feet down the
road . Furthermore, whether the first biker was charged with
speeding is irrelevant to the sufficiency of the evidence regarding
the charges against Defendant. The evidence was plainly sufficient
to take the charge of reckless driving to the jury, and the trial
court properly denied Defendant's motion to dismiss this charge.
Defendant next argues the trial court erred in denying his
motion to dismiss the charge of speeding in excess of 15 miles per
hour over the speed limit. Defendant argues that no radar was used
to establish his speed, and the estimate of his speed near the
impact area where the eyewitness officers were standing varied from
45 to 55 miles per hour.
First, although Defendant correctly notes that his speed was
not determined by radar, [i]t is a general rule of law, adopted in
this State, that any person of ordinary intelligence, who has had
an opportunity for observation, is competent to testify as to the
rate of speed of a moving object, such as an automobile.
Lookabill v. Regan, 247 N.C. 199, 201, 100 S.E.2d 521, 522 (1957).
The question as to the opportunity of the witness to judge, under
the particular circumstances, the speed of an automobile, has been
held, as a general rule, to go to the weight of his testimony
rather than to its admissibility. State v. Becker, 241 N.C. 321,
327, 85 S.E.2d 327, 331 (1955) (citation omitted). Furthermore, ona motion to dismiss, the evidence must be taken in the light most
favorable to the State. Thomas, 296 N.C. 236, 250 S.E.2d 204.
Here, the officers standing on the side of the road on which
Defendant was driving testified that Defendant was going between 80
and 100 miles per hour when he crested the hill, and then slowed to
55, 60, or 65 miles per hour. Given their reasonable opportunity
for observation of Defendant's speed, their testimony was
admissible, and the weight of their testimony was then a matter for
the jury. Additionally, while arguing his motion to dismiss to the
trial court, Defendant conceded that the State had presented
sufficient evidence to take the speeding charge to the jury.
Therefore, the trial court properly denied Defendant's motion to
dismiss the charge of speeding in excess of 15 miles per hour over
the speed limit.
E. Failure to Obey a Law Enforcement Officer
Defendant next argues the trial court erred in denying his
motion to dismiss the charge of failure to obey a law enforcement
officer for insufficiency of the evidence. No person shall
willfully fail or refuse to comply with any lawful order or
direction of any law-enforcement officer or traffic-control officer
invested by law with authority to direct, control or regulate
traffic, which order or direction related to the control of
traffic. N.C. Gen. Stat. § 20-114.1 (2005). Defendant argues
that he did not see the flashlights that the officers were waving
and that there was no order given by any of the police officers. The State offered testimony from Sergeant Eaker that the three
officers were in an attempt to get the violators to stop what they
were doing. We had our blue lights activated. We had our
flashlights. We were trying to give signals and command to these
subjects to stop, and it was apparent they were not going to.
Even though Defendant claimed he did not see the flashlights, on a
motion to dismiss [c]ontradictions and discrepancies in the
testimony or evidence are for the jury to resolve and will not
warrant dismissal. Moreover, determinations of the credibility of
witnesses are issues for the jury to resolve[.] State v. Brown,
__ N.C. App. __, __, 641 S.E.2d 850, 852-53 (2007) (citation
omitted). Therefore, the trial court properly denied Defendant's
motion to dismiss the charge of failure to obey a law enforcement
4. Ineffective Assistance of Counsel
By his eighth and final assignment of error, Defendant alleges
he did not receive effective assistance of counsel because, when
his case was called for trial, defense counsel withdrew Defendant's
15-month-old motion for change of venue and announced that
Defendant was ready for trial.
In his motion for change of venue, Defendant asked the trial
court to move the action from Catawba County to Iredell County. In
support of his motion, Defendant alleged that since Officer Reid
and his family had strong ties to and were well-known throughout
Catawba County, in that Officer Reid and many of his family members
had been involved in law enforcement in Catawba County for asignificant number of years, and given the significant pretrial
publicity in Catawba County regarding Defendant's charges,
Defendant believed he would not receive a fair trial in Catawba
To obtain relief for ineffective assistance of counsel, a
defendant must demonstrate that his counsel's conduct fell below
the objective standard of reasonableness. State v. Braswell
N.C. 553, 324 S.E.2d 241 (1985). This requires a showing that (1)
counsel's performance was deficient and (2) that the deficient
performance prejudiced his defense. Id.
However, when this Court
is able to determine that defendant has not been prejudiced by any
alleged ineffectiveness of counsel, we need not consider whether
counsel's performance was deficient. State v. Augustine
, 359 N.C.
709, 719, 616 S.E.2d 515, 524 (2005), cert. denied
, __ U.S. __, 165
L. Ed. 2d 988 (2006).
Defendant makes the bald assertion that [t]he outcome of his
trial probably would have been different if it had a different
This assertion first assumes, with no argument
advanced, much less a persuasive one, that the motion for change of
venue would have been granted. Furthermore, Defendant makes no
argument as to why or how the outcome of his trial would have been
different had the motion been granted. Regardless, upon a thorough
review of the record and in light of the compelling evidence of
Defendant's guilt discussed above, we perceive no reasonable
probability that defense counsel's withdrawal of Defendant's motionfor change of venue deprived Defendant of a fair trial whose result
is reliable. Accordingly, this assignment of error is overruled.
For the above stated reasons, we hold Defendant received a
fair trial, free of error.
Judges McCULLOUGH and CALABRIA concur.
Report per Rule 30(e).
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