Opinion
No. 07-457.
Filed March 4, 2008.
Onslow County Nos. 06CRS1267, 51259.
Appeal by defendant from judgment entered 7 December 2006 by Judge W. Allen Cobb, Jr., in Onslow County Superior Court. Heard in the Court of Appeals 15 October 2007.
Attorney General Roy Cooper, by Special Counsel Isaac T. Avery, III, for the State. Glenn, Mills Fisher, P.A., by Carlos E. Mahoney, for defendant.
On 3 February 2006, Kevan Matthew Tante (defendant) was driving his car on a rural two-lane road. It was before sunrise and foggy, and there was a curve in the road. Defendant crossed the center line and hit an oncoming car, injuring the driver and killing a passenger, a five year old girl. On 14 March 2006, a grand jury indicted defendant on the charges of second-degree murder, driving while license revoked, careless and reckless driving, and driving left of center. On 7 December 2006, following a full trial, a jury convicted defendant of involuntary manslaughter, careless and reckless driving, driving while license revoked, and driving left of center. The trial court entered judgment against defendant that same day, sentenced defendant to sixteen to twenty months' imprisonment, and ordered defendant to pay $4,693.13 in restitution. Defendant now appeals. For the reasons outlined below, we find no error.
Defendant first argues that the trial court erred in denying his motions to dismiss for insufficient evidence the charges of involuntary manslaughter and reckless driving.
In ruling on a defendant's motion to dismiss, the trial court should consider if the state has presented substantial evidence on each element of the crime and substantial evidence that the defendant is the perpetrator. The elements of involuntary manslaughter are: (1) an unintentional killing; (2) proximately caused by either (a) an unlawful act not amounting to a felony and not ordinarily dangerous to human life, or (b) culpable negligence.
State v. Replogle, ___ N.C. App. ___, ___, 640 S.E.2d 757, 759 (2007) (quotations and citations omitted). "Any person who drives any vehicle upon a highway or any public vehicular area carelessly and heedlessly in willful or wanton disregard of the rights or safety of others shall be guilty of reckless driving." N.C. Gen. Stat. § 20-140(a) (2005). "The language of this statute constitutes culpable negligence." State v. Roberson, 240 N.C. 745, 749, 83 S.E.2d 798, 801 (1954). "The evidence should be viewed in the light most favorable to the state, with all conflicts resolved in the state's favor. . . . If substantial evidence exists supporting defendant's guilt, the jury should be allowed to decide if the defendant is guilty beyond a reasonable doubt." Replogle, ___ N.C. App. at ___, 640 S.E.2d at 759 (quotations and citations omitted) (alteration in original).
In this case, the State presented evidence showing that defendant was, at the time of the accident, driving while his license was suspended. Defendant argues that, "[i]n the absence of actual knowledge," the suspension of his license "was irrelevant to the accident and did not raise his conduct to the level of culpable negligence." We disagree.
"This Court has previously held that the State satisfies its burden of proof of a G.S. 20-28 violation when, nothing else appearing, it has offered evidence of compliance with the notice requirements of G.S. 20-48 because of the presumption that he received notice and had such knowledge." State v. Coltrane, ___, N.C. App. ___, ___, 645 S.E.2d 793, 795 (2007) (quotations and citations omitted).
Our statutes provide that [N]otice shall be given . . . by deposit in the United States mail of such notice in an envelope with postage prepaid, addressed to such person at his address as shown by the records of the Division. The giving of notice by mail is complete upon the expiration of four days after such deposit of such notice. Proof of the giving of notice in . . . such manner may be made by the certificate of any officer or employee of the Division or affidavit of any person over 18 years of age, naming the person to whom such notice was given and specifying the time, place, and manner of the giving thereof.
N.C. Gen. Stat. § 20-48(a) (2005).
We note that N.C. Gen. Stat. § 20-48 has since been amended. However, as the quoted material was the version of the statute in effect at the time of the offense and trial, we apply it to the case at hand.
In this case, the State produced the signed certificate of Tina Raynor (Raynor), an employee of the Division of Motor Vehicles. The certification states that Raynor deposited notice of suspension in the United States mail in a postage paid envelope, addressed to the "address . . . shown by the records of the Division" as defendant's address. This certification constitutes "[p]roof of the giving of notice," under the statute. N.C. Gen. Stat. § 20-48(a) (2005). Therefore, the State raised prima facie presumption of receipt, and defendant was obligated to rebut the presumption. Defendant chose not to present any evidence at trial; the presumption was clearly not rebutted. Accordingly, the State met its burden of producing "substantial evidence on each element of the crime[.]"
Coltrane, ___ N.C. App. at ___, 645 S.E.2d at 795.
Defendant continues his argument, averring that even if he had notice of his licensure suspension, the State nevertheless was unable to establish that his conduct was the proximate cause of the victim's death. He argues that "there was no evidence that the status of [his] driver's license was a cause of the accident," and that the State failed to show "that the accident was reasonably foreseeable simply because [he] was operating a vehicle while his license was in a state of suspension." Again, we disagree.
Defendant had notice of his suspended status, and nevertheless drove. His license was suspended, in part, due to his history of driving recklessly. In ignoring his suspension and driving without proper licensure, defendant exhibited a disregard for the law and public safety; it is certainly foreseeable that driving, even after the State has suspended that privilege, is likely to result in exactly the kind of unfortunate accident that occurred in this case. Moreover, driving with a suspended license certainly qualifies as doing so "carelessly and heedlessly in willful or wanton disregard of the rights or safety of others." N.C. Gen. Stat. § 20-140(a) (2005). See also State v. Lloyd, ___ N.C. App. ___, ___, 652 S.E.2d 299, 301 (2007) ("Whether defendant knew that he was driving with a suspended license tends to show that he was acting recklessly. . . ."). This is particularly true given that the uncontradicted evidence in this case shows that defendant crossed the center line and was in the oncoming traffic lane at the time of the accident. Finally, we note that "[t]he State receives the benefit of all reasonable inferences, and any contradictions or discrepancies are for the jury to resolve." State v. Jordan, 333 N.C. 431, 438-439, 426 S.E.2d 692, 697 (1993) (citation omitted). Accordingly, this evidence supports the trial court's decision to send the charge of reckless driving to the jury, which in turn supports its decision to send the involuntary manslaughter charge to the jury.
Defendant next argues that the trial court abused its discretion when it admitted evidence of his prior convictions. "A trial court's decision with regards to the admission of evidence will only be reversed upon a showing of abuse of discretion. Defendant must show that the ruling was manifestly unsupported by reason and could not have been the result of a reasoned decision." State v. Gutierrez, ___ N.C. App. ___, ___, 648 S.E.2d 239, 241 (2007) (quotations and citations omitted).
Defendant acknowledges that the evidence of his prior convictions was properly admitted for the purpose of showing malice on the second-degree murder charge. However, he contends that once that charge was dropped, the evidence was inadmissible for any purpose. Although this may be correct, we need not address it on appeal. At the time that the trial court admitted the evidence, its admission was proper: the evidence went to malice. At this point, the horse was out of the barn. Though the trial court's subsequent charge to the jury, allowing the jury to consider the evidence for the purpose of establishing intent, was arguably in error, defendant neither objected to the jury instructions nor assigned error to them. "A party may not assign as error any portion of the jury charge . . . unless he objects thereto. . . ." N.C.R. App. P. 10(b)(2) (2007).
Defendant also claims that the trial court admitted the evidence for the purpose of showing intent on the involuntary manslaughter charge. However, a thorough search of the cited pages of the transcript reveals that the trial court never made such a determination. We acknowledge that the trial court did instruct the jury, even after dismissing the second-degree murder charge, that it could consider the evidence for purposes of intent. However, defendant did not object to the jury instructions, nor did he assign error to them on appeal. Accordingly, we will not address them.
In criminal cases, a question which was not preserved by objection noted at trial and which is not deemed preserved by rule or law without any such action, nevertheless may be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error.
N.C.R. App. P. 10(c)(4) (2007). "Defendant neither objected to the jury instructions at trial, nor does defendant contend in his brief that the jury instruction amounted to plain error. Therefore, defendant has waived this assignment of error." State v. Cook, 164 N.C. App. 139, 143, 594 S.E.2d 819, 822 (2004).
Finally, defendant claims that the trial court erred in denying his motion for a new trial on the charges of involuntary manslaughter and reckless driving. "[T]he disposition of post-trial motions for appropriate relief under N.C.G.S. § 15A-1414 are within the discretion of the trial court. The refusal to grant them is not error absent a showing of an abuse of that discretion." State v. Higginbottom, 312 N.C. 760, 767, 324 S.E.2d 834, 839 (1985). We note that although defendant argues in his brief that the motion should have been granted based on "the unusual way that Defendant's prior convictions were presented," at trial defendant merely stated that the issue of careless and reckless driving should not have gone to the jury. Given that there was substantial evidence presented to support both that charge and the charge of involuntary manslaughter, the trial court did not abuse its discretion in denying defendant's motion.
Having conducted a thorough review of the record and briefs, we find no error.
No error.
Chief Judge MARTIN and Judge MCCULLOUGH concur.
Report per Rule 30(e).