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State v. Clapp9/21/1999
ct at the end of the State's evidence; (2) the failure of the trial court to intervene ex meru motu to prohibit the introduction of inadmissible evidence of defendant's previous criminal record; (3) the denial of the trial court of defendant's motion to dismiss the offense of Driving While Impaired at the end of all the evidence; and (4) the entering of judgment by the trial court against defendant for a conviction of Habitual Driving While Impaired when the jury failed to find defendant guilty of that offense and the trial court failed to conduct a hearing before the trial outside the presence of the jury that the defendant could admit, deny, or remain silent as to the previous convictions that enhanced his conviction of Driving While Impaired to a felony. N.C.R. App. P. 28(b)(5).
For the reasons stated herein, the record shows that defendant received a trial free from prejudicial error.
NO ERROR.
Judge HORTON concurs.
Judge GREENE concurs in the result.
GREENE, Judge, Concurring in the result.
I believe the trial court committed error in allowing the State's motion in limine. I, nonetheless, join with the majority because the error was harmless.
The offenses with which Defendant was charged, driving while impaired and driving while license revoked, required the State to prove that Defendant was driving a vehicle upon a highway, street, public vehicular area and a motor vehicle upon the highways, respectively. N.C.G.S. § 20-138.1(a) (1993) (impaired driving); N.C.G.S. § 20-28(a) (Supp. 1998) (driving while license revoked). This required the State to show that the 1989 Dodge Colt in which Defendant was found was "self-propelled" or capable of transporting a person or property upon a highway. N.C.G.S. § 20-4.01(49) (Supp. 1998); N.C.G.S. § 20-4.01(23) (Supp. 1998). Defendant was therefore entitled to present evidence on this issue, see State v. Marshall, 105 N.C. App. 518, 525, 414 S.E.2d 95, 99, disc. review denied, 332 N.C. 150, 419 S.E.2d 576 (1992) (accused in criminal case has right to defend against State's accusations), and have the matter determined by the jury. The allowance of the motion in limine denied Defendant of this right.
The issue presented in this case is quite different from that presented in State v. Fields, 77 N.C. App. 404, 335 S.E.2d 69 (1985). In that case, this Court held that one seated in the driver's seat of a motor vehicle, with the engine running, is the driver of that vehicle for purposes of section 20-138.1(a). In Fields, there also was no dispute that the vehicle in which the defendant was seated was in fact a "vehicle" within the meaning of section 20-138.1(a). In this case, Defendant disputes that the Dodge Colt was a "vehicle" or "motor vehicle" within the meaning of the pertinent statutes.
I, however, do not believe Defendant is entitled to a new trial. The evidence suppressed would have tended to show only that the Dodge Colt would not move "if the head lights were on." All the evidence showed that the Dodge Colt was capable of moving "if the head lights were off" and did move forward once it was put in gear by Defendant in the presence of the arresting officer. The question for the jury was whether the Dodge Colt was capable of moving, with or without the head lights switched on. The exclusion of Defendant's evidence therefore was harmless. See N.C.G.S. § 15A-1443(b) (1997).
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