State v. McLawhorn , 43 N.C. App. 695 ( 1979 )

260 S.E.2d 138 (1979) 43 N.C. App. 695

STATE of North Carolina
v.
Claude O. McLAWHORN.

No. 793SC481.

Court of Appeals of North Carolina.

November 20, 1979. Discretionary Review Denied January 8, 1980.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. David Roy Blackwell, Raleigh, for the State.

Dixon & Horne by Phillip R. Dixon, Greenville, for defendant-appellant.

Discretionary Review Denied by Supreme Court January 8, 1980.

VAUGHN, Judge.

Defendant first assigns as error the trial court's denial of his motion for dismissal under the Speedy Trial Act. G.S. 15A-701 to -704. He was arrested 19 August 1978 and tried in district court on 5 September 1978, at which time notice of appeal to superior court was given. In enacting the Speedy Trial Act, the Legislature expressly provided "This act shall apply to any person who is arrested . . . on or after October 1, 1978." 1977 N.C.Sess.Laws c. 787, s. 2. Defendant was arrested before this effective date. The Act's provisions, therefore, do not apply.

Defendant's second and third assignments of error deal with the admission of the results of defendant's breathalyzer test. Defendant contends it was error to admit the evidence because the State failed to prove compliance with the statutory requirements for admission of evidence of a chemical analysis and failed to show defendant was advised of his breathalyzer rights set out in G.S. 20-16.2(a). Defendant, however, waived any error by failure to object at trial to the breathalyzer evidence or the lack of proper foundation for such evidence.

The fourth assignment of error involves the trial judge's recapitulation of the evidence. Defendant contends the trial judge misstated some evidence and in one instance stated as a fact something which was not in evidence. The trial judge at one point said the lady with defendant "was seated on the left side of the seat, in the passenger side" and at several points referred to defendant by using the last name of the arresting officer which was not defendant's last name. He also misplaced the time of arrest as being when the officer went around to the passenger side of the truck when the officer's testimony was to the effect that he arrested defendant later when they were both seated in the patrol car. These misstatements were not brought to the trial judge's attention. Errors in the restatement of the evidence must be brought to the trial judge's attention in time for correction or appellate review is waived. State v. Thomas, 292 N.C. 527, 234 S.E.2d 615 (1977). These were not substantial errors. When considered in context, a reasonable person could not have been confused.

Defendant also contends no evidence was presented that Ms. Warren was seated on the right side of the seat in the passenger side. The arresting officer testified:

"I took my light and shined it in this area that would shine into the cab and I observed a white female blonde headed, curly headed (woman) sitting on the right-hand side looking back at me over her shoulder. . . . As I got there, the lady who had been on the right side was then under the steering wheel and the white male . . . was over on the passenger side of the vehicle. . ."

The trial judge's summary to the effect that Ms. Warren "was seated on the left side of the seat, in the passenger side" was in substantial compliance with the trial testimony except for the confusion of left and right. "The law has never required verbatim recitation of the evidence by the court." State v. Goss, 293 N.C. 147, 157, 235 S.E.2d 844, 851 (1977). In any event, the trial judge cautioned the jury to be governed by their own recollection and disregard his summary if there was a conflict.

In his fifth and sixth assignments of error, defendant argues error in the trial judge's instruction on the law as it applies to the facts of the case. Defendant had stipulated to previous convictions of driving under the influence and driving while license was revoked. This was done by defendant pursuant to G.S. 15A-928 because the offenses he stood charged with— driving under the influence, second offense, and driving while license revoked, fourth offense—were more severe because of the past convictions. The prior convictions were essential elements of the charged crimes. The statute provides:

"If the defendant admits the previous conviction, that element of the offense charged in the indictment or information is established, no evidence in support thereof may be adduced by the State, and the judge must submit the case to the jury without reference thereto and as if the fact of such previous conviction were not an element of the offense."

G.S. 15A-928(c)(1); see State v. Smith, 291 N.C. 438, 230 S.E.2d 644 (1976). The trial judge, however, instructed the jury that defendant was charged with drunk driving, second offense, and driving while license was revoked, fourth offense. He instructed the jury that the prior convictions were essential elements of the crime of which defendant was to be found either guilty or not guilty and that it was the State's burden to prove beyond a reasonable doubt these prior convictions. Although it was error to so instruct, an error must be prejudicial to warrant a new trial. State v. Paige, 272 N.C. 417, 158 S.E.2d 522 (1968). On the facts and circumstances of this case, defendant was not harmed by the trial judge's error in the instruction.

The harm was in the fact that evidence of these prior convictions was before the jury and not in the instructions concerning them. The arresting officer testified that defendant, when asked for his license, produced a Texas license. The officer testified he then ran a Police Information Network check and learned defendant's license was revoked in North Carolina. Defendant made no objection to this evidence at trial nor is any exception set out on appeal. Any error is thereby waived. When defendant testified in his own behalf, the prosecutor questioned him concerning prior convictions. He admitted his license was currently in a state of revocation, that he had three previous convictions of driving while his license was revoked and that he had been in court right many times before for drinking and driving. It was not error to cross-examine defendant on these prior convictions for impeachment purposes in spite of the stipulation pursuant to G.S. 15A-928. State v. Guinn, 32 N.C.App. 595, 233 S.E.2d 73 (1977); see also G.S. 15A-928(c)(2). The judge charged, "However, if you find that he was previously convicted, and he has so stipulated, you shall not consider such conviction in passing on his guilt or innocence. . . ." This instruction was proper to put the evidence of prior convictions in the proper context of being considered for impeachment purposes only and not as substantive evidence. 1 Stansbury, N.C.Evidence § 112 (Brandis rev. 1973). Because evidence of the prior convictions was before the jury, we see no prejudice to defendant in putting an additional burden on the State to prove beyond a reasonable doubt that defendant was in fact convicted of the same offenses previously.

In his seventh and eighth assignments of error, defendant argues the jury should have been instructed on the offenses of operating a vehicle on a public highway when blood alcohol content is 0.10 percent or more by weight in violation of G.S. 20-138(b) and the offense of reckless driving in violation of G.S. 20-140(c). He maintains instruction on these crimes was proper as lesser included offenses of the charged offense of driving under the influence, second offense. The trial court could have instructed on driving a vehicle upon a highway within the State when the amount of alcohol in the driver's blood is 0.10 percent or more by weight as provided for in G.S. 20-138(b). "An offense under this subsection shall be treated as a lesser included offense of the offense of driving under the influence." Id. (Emphasis added). The wording is not that it shall be a lesser included offense but that it "shall be treated as a lesser included offense." Thus, the Legislature did not mandate that the offense defined in G.S. 20-138(b) be instructed on every time there is an offense charged pursuant to G.S. 20-138(a). See State v. Basinger, 30 N.C.App. 45, 226 S.E.2d 216 (1976). Evidence was introduced which indicated that a breathalyzer test revealed 0.11 percent alcohol by blood weight in defendant. Although the instruction could have been given, the omission of the instruction was to defendant's benefit. While driving with 0.10 percent by weight alcohol in the blood is by statute to "be treated as" a lesser included offense of driving under the influence, it, in reality, is not a lesser offense. The effect of G.S. 20-138(b) is to allow the court to impose the punishment it could impose for a conviction under subsection (a) of the same statute without the State having to prove that the defendant was under the influence of intoxicating liquor. For both offenses, the State must prove (1) defendant was driving a vehicle and (2) defendant was driving upon a public highway or public vehicular area within the State. As a third element of G.S. 20-138(a), the State must prove beyond a reasonable doubt defendant was under the influence of intoxicating liquor. For a conviction under subjection (b) the State need only prove that the amount of alcohol in defendant's blood was 0.10 percent or more by weight. The punishment range for both offenses under G.S. 20-138 is identical. See G.S. 20-179(a). By not instructing on the latter motor vehicle violation, the trial judge benefited defendant and handicapped the State. The State had the verdict options of only driving under the influence or not guilty. The State was thus put to a greater burden than it would have under G.S. 20-138(b). An error which was not harmful or prejudicial to defendant does not warrant a new trial. State v. Paige, supra. There is even less merit to defendant's contention that an instruction pursuant to G.S. 20-140(c) should have been given. That subsection of the reckless driving statute provides:

"Any person who operates a motor vehicle upon a highway or public vehicular area after consuming such quantity of intoxicating liquor as directly and visibly affects his operation of said vehicle shall be guilty of reckless driving and such offense shall be a lesser included offense of driving under the influence of intoxicating liquor as defined in G.S. 20-138 as amended."

The evidence does not show defendant's consumption of intoxicating liquor directly and visibly affected his operation of his vehicle. The instruction was correctly omitted. State v. Davis, 37 N.C.App. 735, 247 S.E.2d 14 (1978); State v. Pate, 29 N.C.App. 35, 222 S.E.2d 741 (1976).

Defendant's final assigned error in the jury instruction involves the failure and then refusal of the trial judge to instruct on the definition of proof beyond a reasonable doubt. Defendant orally requested an instruction on reasonable doubt after the judge completed his charge. The court was not required to define the term absent a timely request. State v. Edwards, 286 N.C. 140, 209 S.E.2d 789 (1974). Defendant's request was neither timely nor in writing, and the judge could decline to give the instruction. G.S. 1-181.

Defendant's tenth and eleventh assignments of error involve the sufficiency of the evidence to take the case to the jury. Defendant argues there is no evidence that he was driving. We have set out some of the evidence on this point in our discussion of defendant's fourth assignment of error. The arresting officer testified that on stopping the truck, he observed a female on the right-hand side in the cab of the truck. As he approached the truck, he heard a shuffling noise and, on reaching the truck, observed the woman on the left side under the steering wheel. Defendant was on the right side where the woman had been. No other persons were in the vehicle. This was sufficient evidence for the jury to consider on whether defendant was driving. State v. Snead, 295 N.C. 615, 247 S.E.2d 893 (1978).

We have considered all of defendant's assignments of error and concluded that no error, so prejudicial as to require a new trial, has been shown.

No error.

ERWIN and HILL, JJ., concur.