Opinion
No. COA09-493.
Filed March 16, 2010.
Onslow County, No. 06 CRS 57360-61.
Appeal by defendant from judgments entered 8 October 2008 by Judge Charles H. Henry in Onslow County Superior Court. Heard in the Court of Appeals 14 October 2009.
Attorney General Roy Cooper, by Assistant Attorney General Jess D. Mekeel, for the State.
Glenn Gerding, for defendant-appellant.
Stephanie Michelle Williams ("defendant") appeals from judgments entered upon jury verdicts finding her guilty of driving while impaired ("DWI") and involuntary manslaughter. We find no error.
I. BACKGROUND
At 10:30 p.m. on 18 August 2006, defendant drove a white Chevrolet sport utility vehicle ("SUV") to a restaurant in Jacksonville, North Carolina. Defendant was accompanied by her boyfriend, Jason Richard Bartram ("boyfriend") (collectively "the couple"). At around 11:30 p.m., the couple arrived at a bar on Highway 17. When they left the bar around 1:40 a.m., they decided
defendant would drive because she had the keys and because she had less alcohol to drink than her boyfriend.
Defendant stopped at a red light when she reached the intersection of Highway 17 and Bell Fork-Gum Branch Road. When the light turned green, defendant drove through the intersection and observed a white male, Seth Cartwright ("Cartwright"), running in front of her vehicle from the right side of the road. Cartwright was approximately five to ten feet from the vehicle when defendant saw him and he was not crossing in an area designated as a crosswalk or an intersection. The speed limit on this part of Highway 17 was forty-five miles per hour. At the time, defendant estimated her speed was forty-five miles per hour "or maybe more."
After watching Cartwright cross the highway, defendant looked forward again and observed another pedestrian, John C. Eatmon ("Eatmon"), directly in front of her vehicle. Defendant unsuccessfully attempted to stop her vehicle and struck Eatmon. Cartwright heard defendant's vehicle strike Eatmon, then saw Eatmon fly forward, but did not hear sounds of brakes or screeching tires.
At approximately 1:53 a.m. on 19 August 2006, Officer Roy Dorn ("Officer Dorn") with the Jacksonville Police Department ("the JPD") received a call regarding a collision between a vehicle and a pedestrian on Highway 17 in Jacksonville. When Officer Dorn arrived at the scene, Eatmon was laying face down across the inside lane, approximately 50 feet in front of the vehicle. Defendant's vehicle was stopped on the inside, northbound lane of Highway 17. Eatmon had no pulse and was not breathing. Emergency medical personnel arrived shortly thereafter and confirmed that Eatmon was deceased.
In addition, Officer Dorn spoke with defendant and detected an odor of alcohol on her breath.
At approximately 2:02 a.m., Captain Patricia Driggers ("Captain Driggers") of the JPD arrived, spoke with the couple, and made several observations. Captain Driggers noted that defendant's eyes were red, and that she wore a plastic wristband similar to those required for bar patrons aged 21 years or older. When Captain Driggers asked about the consumption of alcohol, defendant replied that she had consumed two beers.
Eighteen minutes later, Officer Brad Braithwaite ("Officer Braithwaite") of the JPD arrived and spoke with defendant. Officer Braithwaite also detected an odor of alcohol on defendant's breath and asked her if she had been drinking. Defendant repeated that she had consumed two beers. Officer Braithwaite then administered a number of field sobriety tests. Defendant performed poorly on all of the tests. Officer Braithwaite also used an alcohol screening device, which detected the presence of alcohol on defendant. He then placed defendant under arrest for DWI and took her to the JPD for a chemical analysis. At approximately 3:32 a.m. nearly two hours after the accident, defendant's blood alcohol concentration measured 0.16.
Officer Mark Ketchum ("Officer Ketchum") of the JPD arrived at the scene of the accident at approximately 2:30 a.m. He determined the blood trail measured more than sixty feet from defendant's vehicle to Eatmon's body. Officer Ketchum noticed the hood and grille on defendant's vehicle were damaged. The damage indicated Eatmon had been struck on the driver's side of the hood. Officer Ketchum did not observe any tire marks or other evidence of braking on the highway in the area of the accident.
Dr. Charles Garrett ("Dr. Garrett"), the medical examiner for Onslow County, examined Eatmon's body and determined Eatmon's blood alcohol concentration measured 0.18 at the time of death. Dr. Garrett also determined that Eatmon was standing when defendant's vehicle struck him and that he died as a result of a skull fracture and trauma to the head caused by the collision with defendant's vehicle.
Defendant was charged and indicted for DWI and involuntary manslaughter. At trial, in Onslow County Superior Court, defendant moved to dismiss the charges due to insufficiency of the evidence at the close of the State's evidence and again at the close of all the evidence. The trial court denied both motions.
In October 2008, the jury subsequently returned verdicts finding defendant guilty of both charges. For the DWI conviction, the trial court sentenced defendant to a term of five months in the custody of the North Carolina Department of Correction. For the involuntary manslaughter conviction, the trial court sentenced defendant to a minimum term of 16 months to a maximum term of 20 months, suspended the sentence, and placed defendant on supervised probation for 36 months to begin at the expiration of her impaired driving sentence. Defendant appeals.
II. MOTION TO DISMISS
Defendant argues the trial court erred in denying her motion to dismiss the charge of involuntary manslaughter because the State failed to present substantial evidence that her actions were the proximate cause of Eatmon's death. We disagree.
"Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense." State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). "Substantial evidence is evidence that a reasonable mind might find adequate to support a conclusion." State v. Hargrave, ___ N.C. App. ___, ___, 680 S.E.2d 254, 261 (2009) (citation omitted). "The evidence is to be considered in the light most favorable to the State; the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom. . . ." Powell, 299 N.C. at 99, 261 S.E.2d at 117.
"'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. Davis, ___ N.C. App. ___, ___, 680 S.E.2d 239, 242 (2009) (quoting State v. Hudson, 345 N.C. 729, 733, 483 S.E.2d 436, 439 (1997)).
[W]hen a death is caused by one who was driving under the influence of alcohol, only two elements must exist for the successful prosecution of manslaughter: a willful violation of N.C.G.S. 20-138 and the causal link between that violation and the death. If these elements are present, the state need not demonstrate that defendant violated any other rule of the road nor that his conduct was in any other way wrongful.
N.C. Gen. Stat. § 20-138 is the predecessor to the current statute for impaired driving, N.C. Gen. Stat. § 20-138.1 (2007). See In re Martin, 333 N.C. 242, 244, 424 S.E.2d 118, 119 (1993).
State v. McGill, 314 N.C. 633, 637-38, 336 S.E.2d 90, 93 (1985) (internal citation and footnote omitted).
"The essential elements of [N.C. Gen. Stat. § 20-138.1] are: (1) Defendant was driving a vehicle; (2) upon any highway, any street, or any public vehicular area within this State; (3) while under the influence of an impairing substance." State v. Mark, 154 N.C. App. 341, 345, 571 S.E.2d 867, 870 (2002) (citation omitted). Under N.C. Gen. Stat. § 20-138.1 (2007), a person is also guilty of impaired driving if she drives any vehicle on any highway in North Carolina:
After having consumed sufficient alcohol that [s]he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more. The results of a chemical analysis shall be deemed sufficient evidence to prove a person's alcohol concentration[.]
N.C. Gen. Stat. § 20-138.1(a)(2) (2007).
In the instant case, the State presented evidence that from 10:30 p.m. on 18 August 2006 until 1:40 a.m. on 19 August 2006, defendant consumed five beers and three shots of liquor. Shortly thereafter, defendant drove an SUV in the northbound lane of Highway 17 in Jacksonville, North Carolina, and struck and killed Eatmon, a pedestrian who was attempting to cross the highway. When officers of the JPD arrived on the scene, they noted that defendant's eyes were red and detected an odor of alcohol on her breath. Defendant then performed poorly on a number of field sobriety tests. Nearly two hours after the accident, her blood alcohol concentration still measured 0.16, which is twice the legal limit. We conclude that the State presented substantial evidence that defendant willfully violated N.C. Gen. Stat. § 20-138.1.
Violation of N.C. Gen. Stat. § 20-138.1 constitutes culpable negligence as a matter of law. Davis, ___ N.C. App. at ___, 680 S.E.2d at 243 (internal quotations and citation omitted). Once culpable negligence has been established, "[t]he jury is responsible for determining if a defendant's culpable conduct is a proximate cause of the victim's injury and must decide guilt or innocence on that basis." State v. Taylor, 154 N.C. App. 366, 370, 572 S.E.2d 237, 241 (2002) (citation omitted) (emphasis added). Therefore, the trial court properly denied defendant's motion to dismiss and appropriately allowed the jury to determine if defendant's violation of N.C. Gen. Stat. § 20-138.1 was a proximate cause of Eatmon's death.
III. JURY INSTRUCTIONS
Defendant argues the trial court committed plain error by failing to instruct the jury on insulating acts of negligence despite substantial evidence of Eatmon's negligence. We disagree.
Initially, we note that defendant did not request an instruction on insulating acts of negligence. Therefore, we review for plain error. State v. Smith, ___ N.C. App. ___, ___, 687 S.E.2d 525, 529 (2010). "Plain error analysis applies to evidentiary matters and jury instructions." State v. Garcell, 363 N.C. 10, 35, 678 S.E.2d 618, 634 (2009) (citation omitted). "[E]ven when the 'plain error' rule is applied, '[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.'" State v. Odom, 307 N.C. 655, 660-61, 300 S.E.2d 375, 378 (1983) (quoting Henderson v. Kibbe, 431 U.S. 145, 154, 52 L.Ed.2d 203, 212, 97 S. Ct. 1730, 1736 (1977)).
A trial court is not required to give an instruction on insulating acts of negligence unless the evidence at trial is sufficient to support such an instruction. State v. Bethea, 167 N.C. App. 215, 222-23, 605 S.E.2d 173, 179 (2004). In the instant case, evidence was presented that Eatmon was intoxicated and that he attempted to cross a highway, at night, in an area that was not a designated crosswalk. Defendant contends that these actions would have led to Eatmon's death, regardless of whether defendant was intoxicated. However, defendant did not request nor did the trial court give the jury an instruction on insulating acts of negligence. The North Carolina Pattern Jury Instruction on "Proximate Cause-Insulating Acts of Negligence," states:
However, a natural and continuous sequence of causation may be interrupted or broken by the negligence of a second person. This occurs when a second person's negligence was not reasonably foreseeable by the first person and causes its own natural and continuous sequence which interrupts, breaks, displaces or supersedes the consequences of the first person's negligence. Under such circumstances, the negligence of the second person not reasonably foreseeable by the first person would be the sole proximate cause of the [injury] [damage].
1 N.C.P.I. — Civ. 102.28 (1999) (emphasis added).
"In order for [the] 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). Essentially, in order for defendant "'[t]o escape responsibility based on an intervening [or superseding] cause, the defendant must show that the intervening [or superseding] act was the sole cause of death.'" Bethea, 167 N.C. App. at 222, 605 S.E.2d at 179 (quoting State v. Welch, 135 N.C. App. 499, 503, 521 S.E.2d 266, 268 (1999) (internal quotations omitted) (emphasis added).
In the instant case, the trial court instructed the jury on proximate cause as follows:
And fourth, that the impaired driving by the defendant proximately caused John Eatmon's death. A proximate cause is a real case [sic], a cause without which John Eatmon's death would not have occurred. The defendant's impaired driving need not have been the only cause or the last or nearest cause. It is sufficient if it occurred with some other cause acting at the time which, in combination with it, proximately caused the death of John Eatmon.
(emphasis added). Although this instruction does not incorporate all parts of the jury instruction on insulating acts of negligence, it would only have allowed the jury to find defendant guilty if Eatmon's negligence was not the sole cause of his own death. Accordingly, the trial court appropriately instructed the jury on proximate cause.
Moreover, the evidence in the instant case was insufficient to support such an instruction on insulating acts of negligence. While Eatmon's actions were undeniably negligent, the record does not contain evidence sufficient to allow a jury to find that Eatmon's negligence was the sole cause of his death. See Bethea, 167 N.C. App. at 222-23,605 S.E.2d at 179. There was no evidence of tire marks or braking on the highway in the area of the accident. Defendant's impairment, which was twice the legal limit two hours after the accident, undoubtedly inhibited her ability to "exercise [] due care [and] to keep a reasonable and proper lookout in the direction of travel[.]" State v. Bailey, 184 N.C. App. 746, 749, 646 S.E.2d 837, 839-40 (2007) (internal quotations and citation omitted). As a result, the evidence presented at trial showed that Eatmon's negligence was not the sole cause of his death, but rather, at most, a concurring proximate cause. See Bailey, 184 N.C. App. at 749, 646 S.E.2d at 839. This assignment of error is overruled.
IV. CONCLUSION
Defendant has failed to bring forth any argument regarding her remaining assignments of error. As such, they are abandoned pursuant to N.C. R. App. P. 28(b)(6) (2009). Defendant received a fair trial free from error.
No error.
Judges HUNTER, Robert C. and GEER concur.
Report per Rule 30(e).