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State v. Highsmith10/4/2005
At the 19 July 2004 Criminal Session of the superior court in Craven County, a jury found defendant Luvie Allen Highsmith guilty of driving while impaired ("DWI") and driving left of center. Based on defendant's stipulation, the court found defendant guilty of habitual driving while impaired and found him a prior record level II for purposes of sentencing. The court then consolidated the charges and sentenced defendant to 19 to 23 months in prison. Defendant appeals. For the reasons discussed below, we find no error.
The evidence tended to show that, on the afternoon of 7 November 2003, Trooper Gary Fox saw defendant driving a pickuptruck on Brices Creek Road. As Trooper Fox followed, defendant's truck crossed the center line several times, once running off the left side of the road. Trooper Fox pulled defendant over, and found his movements sluggish and his speech slurred, but did not smell alcohol on defendant. When Trooper Fox asked defendant what was wrong, defendant replied that he was on his way home from the dentist and was on a pain medication called Floricet. Based on his observations and defendant's statement, Trooper Fox arrested defendant and took him to the Craven County Sheriff's Department. Trooper Fox did not administer an Intoxilyzer or blood test to defendant. Kevin Popkin, an expert in pharmaceuticals, testified about the impairing effects of Floricet.
Defendant first argues that the court erred in allowing defendant's uncorroborated statements into evidence to prove an element of the charges against him. We disagree.
Defendant contends that the court erred in denying his motion in limine to exclude the statements he made to Trooper Fox about taking Floricet because they were contradictory and uncorroborated. Defendant did not object to this evidence at trial. Our Courts have long held that "a motion in limine is not sufficient to preserve for appeal the question of admissibility of evidence if the defendant does not object to that evidence at the time it is offered at trial." State v. Roache, 358 N.C. 243, 292, 595 S.E.2d 381, 413 (2004). The General Assembly attempted to change this law by amending Rule 103(a) of the North Carolina Rules of Evidence to provide: "Once the court makes a definitive ruling on the recordadmitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal." N.C. Gen. Stat. § 8C-1, Rule 103(a)(2) (2004). This amendment applies to the case before us. 2003 N.C. Sess. Laws ch. 101 (stating that the amendment applies to rulings made on or after 1 October 2003).
This Court has recently held that "to the extent that N.C. Gen. Stat. § 8C-1, Rule 103(a)(2) is inconsistent with N.C. R. App. P. 10(b)(1), it must fail." State v. Tutt, __ N.C. App. __, __, 615 S.E.2d 688, __ (2005). N.C. R. App. P. 10(b)(1) states:
In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.
However, because it would be a manifest injustice to Defendant to not review his appeal on the merits after he relied on a procedural statute that was presumed constitutional at the time of trial, we [will review] the evidence at our discretion pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure.
Tutt, __ N.C. App. at __, 615 S.E.2d at __ (citing N.C. R. App. P. 2).
Defendant asserts that the admission of his statements to Trooper Fox that he had been given pain medication at his
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