Opinion
No. COA12–365.
2013-02-5
STATE of North Carolina v. Acie Terry MOORE, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Kathryne E. Hathcock, for the State. David L. Neal for defendant-appellant.
Appeal by defendant from judgment entered 19 April 2011 by Judge G. Wayne Abernathy in Alamance County Superior Court. Heard in the Court of Appeals 11 October 2012. Attorney General Roy Cooper, by Assistant Attorney General Kathryne E. Hathcock, for the State. David L. Neal for defendant-appellant.
GEER, Judge.
Defendant Acie Terry Moore appeals from his conviction of second degree murder. Defendant primarily argues on appeal that the trial court erred by not instructing the jury on the defense of unconsciousness. Although under State v. Snyder, 70 N.C.App. 335, 319 S.E.2d 668 (1984), the trial court's failure to instruct the jury on unconsciousness was error, that error did not rise to the level of plain error. Because we find defendant's remaining arguments unpersuasive, we conclude that defendant received a trial free from prejudicial error.
Facts
The State's evidence tended to show the following facts. During the afternoon of 14 August 2010, defendant went to the Crossroads Tavern bar in Alamance County, North Carolina. Teresa Stewart, the owner of the bar, served defendant three to four bottled beers from approximately 1:30 to 2:00 p.m. until defendant left around 4:00 or 5:00 p.m.
A bar patron, Shiree Hamby, saw defendant at the bar at about 3:00 p.m. and observed defendant stay there for about 15 or 20 minutes. According to Shiree, defendant returned to the bar around 6:00 or 6:30 p.m., at which point he was staggering like “somebody really intoxicated trying to walk.” Both Shiree and another bar patron, Edna Hamby, watched defendant try to walk through the door of the bar but, instead, run into the wall beside the door. The two women each thought defendant appeared very drunk.
Shiree followed defendant into the bar. While at the bar, defendant ordered a beer from Ms. Stewart and attempted to sit on a bar stool but fell, dropping and breaking his beer bottle. At that point, Ms. Stewart told defendant to leave, and defendant drove away after about 15 minutes. Shiree told Ms. Stewart that defendant was too drunk to be driving.
After leaving the bar, defendant drove to the Victory Lane Go Cart Track and met his sister and brother-in-law. While at the track, defendant spoke with his friend Bobby McGuire who noted defendant appeared “figified ... moving around a whole lot.” Defendant drove away from the track at about 8:30 p.m.
At about 9:00 p.m., defendant was driving south on a two-lane paved road in Alamance County with a 50–mile–per–hour speed limit. At the same time, Mark McKinney was driving his truck north on the same road. Anthony Satterfield was riding a motorcycle directly behind Mr. McKinney's truck. Mr. Satterfield was followed by two more vehicles, one driven by Michael Rea and the second by Phillip Hagerman.
As defendant's truck approached Mr. McKinney's truck, defendant's truck crossed the double yellow center line into the wrong lane of travel. Mr. McKinney jerked the wheel of his truck to avoid colliding with defendant's truck. Defendant's truck, still in the wrong lane of travel, then struck Mr. Satterfield's motorcycle without braking. During the collision, the tire of defendant's truck severed Mr. Satterfield's leg, the driver's side mirror on defendant's truck collided with Mr. Satterfield's helmet causing a large laceration on his forehead, and defendant's truck smashed the crank case on the motorcycle. Mr. Satterfield's body travelled approximately 100 feet before coming to rest.
After striking the motorcycle, defendant still did not brake, and his truck remained in the wrong lane of travel. Mr. Rea swerved his truck to the right to avoid colliding with defendant's truck. Defendant's truck travelled another 151 feet and then, again without braking, slammed into Mr. Hagerman's truck, snapping the rear axle of that truck and spinning the truck into a ditch. The left front tire of defendant's truck then deflated, and defendant's truck continued travelling for 168 feet off the highway into a field.
Mr. McKinney and Mr. Rea ran to assist Mr. Satterfield. Defendant got out of his truck and walked towards Mr. Satterfield's body. Mr. Rea could smell alcohol on defendant and concluded defendant had been drinking. Mr. McKinney could smell alcohol “[p]retty much all over” defendant and noted defendant's speech was “kind of slurred.” According to another man who came to assist Mr. Satterfield, John Reece, defendant appeared intoxicated and was “[k]ind of staggering.” Debra Reece, another person who provided aid following the accident, noted that defendant appeared intoxicated because he was “staggering around” and his speech was “a little slurry.”
Several members of the Alamance County Sheriff's Department and North Carolina Highway Patrol responded to the accident scene. Trooper Brett Norton with the Highway Patrol was the lead investigator at the scene. Trooper Norton noticed an odor of alcohol on defendant and that defendant slurred his speech and was unsteady on his feet. At about 10:00 p.m., Trooper Norton administered four field sobriety tests. Defendant performed poorly on all four tests. Trooper Norton arrested defendant for driving while impaired and drove defendant to the Alamance County jail.
A chemical analysis of defendant's breath revealed that defendant had .15 grams of alcohol per 210 liters of breath two hours and 18 minutes after the accident, which by retrograde extrapolation showed defendant had .18 grams of alcohol per 210 liters of breath at the time of the accident. Defendant told Trooper Norton that he had only drunk three beers at the go cart track. Trooper Norton then asked defendant, “[O]n a scale of zero to ten, with zero being completely sober and ten being completely drunk, where do you fit[?]” Defendant responded, “[N]ine.”
On 30 August 2010, defendant was indicted for second degree murder and felony death by vehicle. At trial, defendant presented evidence tending to show the following. Defendant's physician, Dr. Meindert Albert Niemeyer, testified as an expert in family medicine. According to Dr. Niemeyer, defendant has diabetes and a history of seizures and it was possible that hypoglycemia would cause a person like defendant to lose consciousness. He further testified that defendant's diabetes and low blood sugar could cause a state of “ketosis” in which defendant's body would produce “ketones” that can smell like alcohol.
Defendant's sister testified that when defendant does not “have good control over his diabetes,” he gets disoriented and confused. She further testified that defendant has a history of seizures that caused him to “black out and stay out for a couple of minutes and then when he would come to he wouldn't know where he was at.” On the night of the accident, defendant's sister was worried that defendant might have high blood glucose because he was acting tired and confused and had not eaten since early morning. Defendant's sister did not smell alcohol on defendant when he met her at the go cart track, and she would not have let defendant drive if she believed he had been drinking.
Defendant testified in his own defense, telling the jury that during the day on 14 August 2010, he mowed several lawns. Defendant ate breakfast early that morning, but did not eat anything for the remainder of the day. Although Trooper Norton testified that defendant told him on the night of the accident that he had taken his diabetes medication at about 5:30 a.m., defendant testified that he forgot to take his diabetes medication that morning. According to defendant, he drank a small amount of water and several sodas during the day. He also drank three 12– or 16–ounce beers at a friend's house that evening before driving to the go cart track.
Defendant claimed that he did not go to Crossroads Tavern bar that day and that, at the time of the accident, he was travelling home from the go cart track. He left the track early because he felt sick. Defendant testified that his vision blacked out just before the accident. He saw nothing and heard only “bang, bang, bang.” Defendant did not remember making statements to Trooper Norton and denied being intoxicated on the night of the accident. Defendant further testified: “Everybody drinks and drives. I was the one that just got caught.”
The jury found defendant guilty of second degree murder and felony death by vehicle. The trial court arrested judgment on the felony death by vehicle conviction. The trial court sentenced defendant to a presumptive-range term of 146 to 185 months imprisonment. Defendant timely appealed to this Court.
I
Defendant first argues that the trial court erred in admitting evidence, under Rules 404(b) and 403 of the North Carolina Rules of Evidence, of two of defendant's prior convictions for driving while impaired (“DWI”) to show the element of malice required for second degree murder. Defendant contends that the convictions were too temporally remote to be admissible because they occurred 13 and 16 years before the charged offense and because defendant had a clean driving record in the 13 years between his 1997 conviction for DWI and the accident in this case.
“Our Courts have held that evidence of prior convictions is admissible under Rule 404(b) to show the malice necessary to support a second-degree murder conviction. However, [t]he admissibility of evidence under this rule is guided by two further constraints-similarity and temporal proximity.” State v. Davis, 208 N.C.App. 26, 43, 702 S.E.2d 507, 518 (2010) (internal citation and quotation marks omitted). “We review de novo the legal conclusion that the evidence is, or is not, within the coverage of Rule 404(b).” State v. Beckelheimer, ––– N.C. ––––, ––––, 726 S.E.2d 156, 159 (2012).
A series of decisions by this Court and our Supreme Court have clarified when a prior DWI conviction is too temporally remote to be admissible to show the defendant's malice for purposes of a second degree murder charge. First, in State v. Miller, 142 N.C.App. 435, 440, 543 S.E.2d 201, 205 (2001), our Court rejected the defendant's argument that evidence of his three prior DWI convictions, dating back 16 years prior to the charged offense, were too temporally remote to be relevant.
In State v. Goodman, 149 N.C.App. 57, 560 S.E.2d 196 (2002), rev'd in part per curiam for reasons stated in dissent,357 N.C. 43, 577 S.E.2d 619 (2003), our Court reviewed the admission of the defendant's entire driving record, including six DWI convictions dating back 37 years prior to the charged offense. Id. at 66, 560 S.E.2d at 202;id. at 73, 560 S.E.2d at 206 (Greene, J., dissenting). The majority in Goodman held:
Although we agree that the entire driving record should not have been admitted due to concerns of temporal proximity, to the extent three convictions for driving while intoxicated occurred only one and two years outside of the permissible time-frame set forth in Miller, the jury must assess the weight and credibility to afford that evidence.
Id. at 70, 560 S.E.2d at 204.
In the dissenting opinion adopted by the Supreme Court, Judge Greene noted that he was “bound by this Court's holding in [ Miller ] that driving convictions dating back sixteen years are admissible to prove malice.” Id. at 73 n. 1,560 S.E.2d at 206 n. 1 (Greene, J., dissenting). However, Judge Greene concluded that the admission of the defendant's entire driving record nonetheless violated the temporal proximity requirement of Rule 404(b) because “only one of [the defendant's six prior DWI convictions] occurred in the sixteen years prior to the crime at issue and none within the eight years prior to the crime at issue.” Id. at 73, 560 S.E.2d at 206 (Greene, J., dissenting).
In State v. Maready, 362 N.C. 614, 622, 623, 669 S.E.2d 564, 569, 570 (2008), although evidence of all of the defendant's six prior DWI convictions was admitted to show malice at trial, the Supreme Court reviewed only the admission of the defendant's two DWI convictions that occurred more than 16 years prior to the charged offense. The Court stressed that convictions older than 16 years were not automatically inadmissible. Id. at 625, 669 S.E.2d at 571. Instead, “[t]he probative value (and thus the admissibility) of 404(b) evidence must be determined on a case-by-case basis rather than through application of a fixed temporal maximum.” Id.
The Court concluded that when viewed alongside the defendant's four DWI convictions occurring within the 16 years predating the charged offense, the defendant's convictions dating back beyond 16 years were admissible because they “constitute[d] part of a clear and consistent pattern of criminality that is highly probative of his mental state at the time of his actions at issue here.” Id. at 624, 669 S.E.2d at 570. The Maready Court left standing the holdings in Miller and Goodman that DWI convictions within 16 years prior to the charged offense are admissible under Rule 404(b) to show malice.
Finally, in Davis, our Court reviewed the admission of the defendant's four prior convictions for DWI, three of which occurred 18 and 19 years prior to the charged offense and one of which occurred two years prior to the charged offense. 208 N.C.App. at 45–46, 702 S.E.2d at 519–20. The Court concluded: “In light of the sixteen-year gap between her older convictions and her more recent conviction, we find that Defendant's eighteen and nineteen-year-old convictions, combined with her sole conviction for DWI occurring in 2006, do not ‘constitute part of a clear and consistent pattern of criminality.’ “ Id. at 45, 702 S.E.2d at 520 (quoting Maready, 362 N.C. at 624, 669 S.E.2d at 570). The Court, therefore, held that the three oldest convictions were erroneously admitted. Id. at 45–46, 702 S.E.2d at 520. However, the Court additionally held that the admission of the defendant's two-year-old DWI conviction “was not error because it was within the general time frame set forth in Miller, and affirmed by Goodman and Maready.” Id. at 46,702 S.E.2d at 520.
In sum, Miller, Goodman, Maready, and Davis establish that a DWI conviction occurring up to 16 years before the charged offense is not too temporally remote to be admissible to show malice in a second degree murder prosecution. Consequently, because defendant's DWI convictions were 13 and 16 years prior to the charged offense, they fell within the permissible time frame. Although defendant urges that under Goodman and Maready, the temporal remoteness of his 13– and 16–year–old convictions combined with his subsequently clean driving record leading up to the charged offense rendered the convictions inadmissible, that argument ignores this Court's holding in Miller, undisturbed by Goodman and Maready and expressly adhered to in Davis, that convictions up to 16 years before the charged offense are admissible to show malice. Miller, 142 N.C.App. at 440, 543 S.E.2d at 205.
The question remains whether, under Rule 403, the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. See State v. Summers, 177 N.C.App. 691, 697, 629 S.E .2d 902, 907 (2006). We review the trial court's Rule 403 ruling to determine whether it was “ ‘manifestly unsupported by reason.’ “ Id. (quoting State v. Riddick, 315 N.C. 749, 756, 340 S.E.2d 55, 59 (1986)).
Here, in a written order admitting the 13– and 16–year–old convictions, the trial court stated:
The Court considered the possible prejudice to the Defendant, the necessity of a limiting instruction, the probative value of the convictions in establishing malice or knowledge and concludes that the probative value outweighs any unfair prejudice, confusion or misleading of the jury (Rule 403) particularly when accompanied by an appropriate limiting instruction. Further more [sic], the Defendant is not charged with DWI in this case which lessens the chance for confusion or prejudice.
As anticipated by the order, the trial court gave the jury an appropriate limiting instruction prior to admitting the evidence. Moreover, the court ruled that defendant's two older DWI convictions, dating back 24 and 25 years prior to the charged offense, were inadmissible because those convictions were too remote in time.
In light of the probative value of the convictions to show malice, the trial court's careful weighing of any undue prejudice, the fact that defendant was not charged with DWI in the present case (lessening the chance of confusion regarding the convictions), the limiting instruction, and the ruling excluding two older DWI convictions, we cannot conclude that the trial court's decision to admit the evidence under Rule 403 was manifestly unreasonable. See Beckelheimer, ––– N.C. at ––––, 726 S.E.2d at 160–61 (finding no abuse of discretion given relevance of evidence to proper purpose and given trial court's careful handling of issue, including hearing testimony of Rule 404(b) witness outside presence of jury, hearing arguments of counsel, considering Rule 403, and giving a limiting instruction).
Alternatively, defendant contends that the trial court erred in admitting evidence of the facts underlying his 1997 DWI conviction because the facts of that conviction were not sufficiently similar to the charged offense to warrant admission under Rule 404(b). Defendant argues that the similarities relied on by the trial court “overlap with almost any traffic accident.”
In addition to admission of a DWI conviction, the State may also, under Rule 404(b), prove malice by admitting evidence of the facts and circumstances surrounding a prior DWI conviction if those facts are sufficiently similar to the events underlying the charged offense. See State v. Locklear, 159 N.C.App. 588, 594, 583 S.E .2d 726, 731 (2003) (“[T]he events and circumstances of a prior driving while impaired arrest may also be admitted if the events are sufficiently similar to the circumstances at issue.”), aff'd per curiam,359 N.C. 63, 602 S.E.2d 359 (2004). In Locklear, this Court found sufficient similarity when both offenses involved the defendant driving with a blood alcohol level over the legal limit and the defendant causing a traffic accident by making an improper turn. Id. at 595, 583 S.E.2d at 731.
Here, the trial court found many more similarities than those present in Locklear. In both incidents, defendant, while impaired by alcohol, crossed left of center after exiting a curve, but while on a straight road. Each time, there was no indication that defendant had applied his brakes after the initial impact. And, in each instance, defendant travelled a substantial distance after impact—319 feet and 265 feet—and ended up in a grassy field. The facts underlying the 1997 DWI are sufficiently similar for purposes of Rule 404(b).
Defendant's remaining arguments regarding his prior DWI convictions were not made to the trial court. “ ‘[W]here a theory argued on appeal was not raised before the trial court, the law does not permit parties to swap horses between courts in order to get a better mount in the appellate courts.’ “ State v. Muhammad, 186 N.C.App. 355, 358, 651 S.E.2d 569, 572 (2007) (quoting State v. Holliman, 155 N.C.App. 120, 123, 573 S.E.2d 682, 685 (2002)). We, therefore, do not address those arguments.
II
Defendant next argues that the trial court erred by not instructing the jury on the defense of unconsciousness. Because defendant did not request the instruction or object to the trial court's failure to give the instruction, we review this issue only for plain error.
For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affect[s] the fairness, integrity or public reputation of judicial proceedings[.]
State v. Lawrence, ––– N.C. ––––, ––––, 723 S.E.2d 326, 334 (2012) (internal citations and quotation marks omitted).
Our Supreme Court has explained: “ ‘The absence of consciousness not only precludes the existence of any specific mental state, but also excludes the possibility of a voluntary act without which there can be no criminal liability.’ “ State v. Fields, 324 N.C. 204, 208, 376 S.E.2d 740, 742 (1989) (quoting State v. Mercer, 275 N.C. 108, 116, 165 S.E.2d 328, 334 (1969), overruled on other grounds by State v. Caddell, 287 N.C. 266, 215 S.E.2d 348 (1975)). In discussing this complete, affirmative defense, our Supreme Court has noted that other courts have recognized “diabetic shock” and “epileptic black-outs” as sources of unconsciousness giving rise to the defense. Caddell, 287 N.C. at 285, 290, 215 S.E.2d at 360, 363.
“In determining whether the evidence supports an instruction on any affirmative defense, the evidence should be viewed in the light most favorable to the defendant.” State v. Bush, 164 N.C.App. 254, 265, 595 S.E.2d 715, 722 (2004). “[W]here competent evidence in support of an unconsciousness defense is introduced at trial, the Court must instruct the jury as to that defense.” Snyder, 70 N.C.App. at 337, 319 S.E.2d at 670 (emphasis added).
Our Supreme Court has held that evidence showing that the defendant was unconscious during commission of the crime only as a result of voluntary ingestion of alcohol or drugs will not warrant an instruction on the defense of unconsciousness. See State v. Fisher, 336 N.C. 684, 705, 445 S.E.2d 866, 877 (1994). However, evidence of a defendant's voluntary consumption of alcohol does not render the defense of unconsciousness unavailable where there is additional evidence from which the jury could find the defendant's unconsciousness was caused solely by something other than the voluntary consumption of alcohol. See Snyder, 70 N.C.App. at 337, 319 S.E.2d at 669–70.
In Snyder, the evidence tended to show that the defendant “had several mixed drinks during the course of the afternoon,” was then refused service by the owner of a bar, was asked to leave the bar, got in a fight, fell and hit his head on a door, drove away, and struck another vehicle, killing three passengers. Id. at 335, 319 S.E.2d at 668. The defendant had a blood alcohol level of .32. Id., 319 S.E.2d at 669. The trial court excluded the testimony of one of the defendant's expert witnesses, Dr. Rose, who, on voir dire, testified that the defendant could have been unconscious at the time of the motor vehicle accident solely because of the blow to the defendant's head resulting from the fall during the fight. Id. at 336, 319 S.E.2d at 669.
Our Court in Snyder held that the exclusion of Dr. Rose's testimony was error, pointing out that there is no “specific rule of law which would bar testimony that defendant may have sustained a concussion which would have rendered him unconscious even in spite of his intoxication.” Id. at 337, 319 S.E.2d at 669–70 (emphasis added). The Court then concluded that the trial court “erred in refusing to permit defense counsel to argue the unconsciousness defense to the jury and in refusing to give the jury relevant instructions on unconsciousness.” Id., 319 S.E.2d at 670.
Here, Dr. Niemeyer, defendant's physician, testified that defendant is diabetic and has a history of seizures and that it is possible that defendant could pass out from hypoglycemia resulting from not taking diabetes medication, not eating during the day, not hydrating enough, and working outside during August temperatures. He further testified that defendant's diabetes and low blood sugar could cause defendant's body to produce “ketones” which can smell like alcohol. Defendant's sister testified that when defendant had a seizure, defendant would “black out” for a couple of minutes and be disoriented and forgetful. Defendant's sister explained in addition that when defendant “didn't have good control over his diabetes,” defendant also became disoriented and forgetful.
Defendant testified that he forgot to take his diabetes medication on the day of the accident and ate breakfast early that morning but ate nothing else that day. The evidence showed that the accident occurred about 9:00 p.m. Defendant further testified that he mowed several yards that day, drank only a small amount of water and “a couple” sodas, and experienced nausea and a “burning sensation” in his eyes before the accident.
Regarding the accident, defendant testified that he “blacked out” and explained:
I remember going into the curve and it just like—something just blanket over my head and I couldn't see nothing.... [A]ll I heard was something go bang, bang, bang. That's all I could hear but I couldn't see nothing.
Defendant also repeatedly testified that he was not drunk at the time of the accident.
Thus, taken in the light most favorable to defendant, the evidence permitted the jury to find that defendant was unconscious during the accident solely because of a hypoglycemic state, seizure disorder, or some combination of the two, and not as a result of his voluntary consumption of alcohol. The trial court, therefore, erred in failing to give an instruction on unconsciousness.
The State nonetheless argues that the defense of unconsciousness is inapplicable here because “Defendant never presented any evidence that he was, in fact, unconscious during the crashes,” and defendant's mental state resulted from voluntary intoxication. However, defendant's testimony that he “blacked out” and “couldn't see nothing” was evidence of his unconsciousness. Moreover, the State's argument that defendant's mental state resulted from voluntary intoxication fails to recognize that, in the light most favorable to defendant, defendant's evidence showed that his unconsciousness was caused solely by something other than voluntary intoxication—his hypoglycemic state, his seizure disorder, or some combination of the two.
The State nonetheless relies on State v. Boone, 307 N.C. 198, 297 S.E.2d 585 (1982), disapproved of on other grounds by State v. Richmond, 347 N.C. 412, 495 S.E.2d 677 (1998), and State v. Williams, 296 N.C. 693, 252 S.E.2d 739 (1979), in support of its argument. However, in those cases the only evidence regarding the respective defendants' mental states was that their unconsciousness was caused by voluntary consumption of drugs or alcohol. See Boone, 307 N.C. at 209, 297 S.E.2d at 592 (holding trial court correctly refused to instruct on unconsciousness because “all the evidence tend[ed] to show that defendant's mental state was caused by the voluntary smoking of the drug characterized as ‘angel dust’ ”); Williams, 296 N.C. at 700–01, 252 S.E.2d at 744 (holding trial court correctly refused to instruct on unconsciousness in light of “overwhelming” evidence, including defendant's testimony, that defendant's mental state was caused by excessive voluntary consumption of alcohol).
Having concluded that the trial court erred, we must additionally determine whether the trial court's failure to instruct the jury on unconsciousness had a probable impact on the jury's verdict. The State presented substantial evidence that defendant's voluntary intoxication caused defendant's mental state at the time of the accident. The State's evidence indicated that defendant had three to four beers in the middle of the afternoon at a bar. When he returned to the bar in the early evening, approximately two and a half hours prior to the collision, two witnesses saw defendant so intoxicated that he walked into a wall. When he got inside the bar, he fell off a bar stool.
At the Alamance County Detention Center, on the night of the accident, defendant told the investigating officer that he was a “nine” on an intoxication scale of one to 10, with 10 being “completely drunk.” Further, defendant performed poorly on four field sobriety tests and, in the investigating officer's opinion, defendant's physical and mental faculties were appreciably impaired by alcohol. Three other law enforcement officers and four civilian witnesses at the scene also observed defendant display signs of intoxication and many smelled an odor of alcohol on defendant. Defendant himself admitted drinking three 12– to 16–ounce beers that night.
Finally, chemical analysis showed that defendant had .18 grams of alcohol per 210 liters of breath at the time of the accident—a fact not explained by defendant's evidence. And, at trial, defendant testified: “Everybody drinks and drives. I was the one that just got caught.”
Given this evidence, we cannot conclude that the jury would probably have reached a different verdict if properly instructed regarding the defense of unconsciousness. Defendant also argues that he received ineffective assistance of counsel because his trial counsel failed to request an instruction on the defense of unconsciousness. Since, however, defendant has failed to show sufficient prejudice to establish plain error, he likewise cannot show the prejudice necessary for an ineffective assistance of counsel claim. See State v. Pratt, 161 N.C.App. 161, 165, 587 S.E.2d 437, 440 (2003) (“A successful ineffective assistance of counsel claim based on a failure to request a jury instruction requires the defendant to prove that without the requested jury instruction there was plain error in the charge.”).
No error. Judges STEPHENS and McCULLOUGH concur.
Report per Rule 30(e).