in the Court of Appeals 6 April 2017.
by defendant from judgment entered 7 July 2016 by Judge
Yvonne Mims Evans in Mecklenburg County Superior Court No. 11
Attorney General Joshua H. Stein, by Assistant Attorney
General Kathryne E. Hathcock, for the State.
Devereux & Banzhoff, PLLC, by Andrew B. Banzhoff, for
Jonathan Cox ("Defendant") appeals from his
convictions of second-degree murder, felonious serious injury
by vehicle, driving while impaired, and failure to comply
with a driver's license restriction. We find no error.
Evidence Presented at Trial
Siu finished working her second shift at Metrolina Greenhouse
in Charlotte at approximately 1:00 a.m. on Monday, 28
November 2011. She picked up her four-year-old son, Khai,
from his father's home at approximately 2:00 a.m. Ms. Siu
was driving a white 2004 Nissan Altima sedan. Khai was seated
in a booster seat in the rear passenger seat.
was driving outbound on The Plaza, which has two lanes of
outbound traffic, two lanes of inbound traffic, and a left
turn lane. At 2:37 a.m., Ms. Siu was driving through a green
light at the intersection of East Sugar Creek Road, when her
vehicle was struck on the driver's side by a 2000 gray
Chevrolet Tahoe driven by Defendant. The evidence tended to
show Defendant, who was traveling on Sugar Creek Road, failed
to stop at a red light prior to entering the intersection.
Ms. Siu was killed almost immediately by the impact.
Hayes witnessed the crash and testified Defendant's
vehicle "flew across" the intersection. Hayes
opined Defendant's vehicle was traveling between fifty
and sixty miles per hour, even though the posted speed limit
at the intersection was thirty-five miles per hour. Hayes was
clearly able to see the traffic signals at the intersection,
and testified the light was green in Ms. Siu's lane of
travel. Hayes testified Defendant got out of his vehicle,
appeared to be uninjured, and "he just kind of stood
there" and did "absolutely nothing." She
stated, "He never once asked is she okay, he was not
apologetic, he stood there. . . . No remorse."
Pittman and her daughter also witnessed the crash, and they
both testified the light in Ms. Siu's lane of travel was
green. Pittman immediately went to Ms. Siu's overturned
vehicle to render assistance. She testified Defendant stood
beside his vehicle and walked around with his hands in his
Police Sergeant David Sloan was assigned to the
Department's Major Crash Unit. At approximately 2:45
a.m., Sergeant Sloan contacted Sergeant Jesse Wood, Officer
Jonathan Cerdan, and Detective Matthew Sammis to assist in
investigation of the crash. The three officers arrived at the
scene, where several other officers were already present.
was seated in the backseat of a patrol vehicle. Officer
Cerdan was assigned to evaluate Defendant for impairment.
Officer Cerdan had arrested Defendant for driving while
impaired in 2009 and recognized his personalized license
plate. Officer Cerdan observed Defendant's eyes to be
red, watery and bloodshot. A strong odor of alcohol emanated
from Defendant's breath. Defendant initially denied
drinking alcohol, but later stated to Officer Cerdan he drank
a glass of wine at 9:00 p.m. and had taken "DayQuil and
NyQuil" earlier that day.
Cerdan performed field sobriety testing on Defendant. On the
horizontal gaze nystagmus test, Defendant manifested all six
clues of impairment. On the walk-and-turn test, Defendant
stopped for re-instruction after the first nine steps, took
an improper turn, and displayed difficulty maintaining
balance. On the one leg stand test, Defendant swayed and used
his arms for balance. After completing the field sobriety
tests, Officer Cerdan formed the opinion that Defendant's
mental and physical faculties were appreciably impaired by
alcohol. Defendant was arrested for driving while impaired
and for failure to comply with his .04 blood alcohol
concentration restriction on his driver's license.
Cerdan transported Defendant to Carolinas Medical
Center-Mercy Hospital for chemical analysis of
Defendant's blood. They arrived at the hospital at 4:33
a.m. Defendant signed the implied consent rights form and did
not exercise his right to contact an attorney or request a
witness to view the testing procedure. The first blood sample
was drawn by a registered nurse from Defendant at 4:55 a.m. A
subsequent chemical analysis of Defendant's blood sample
by the Charlotte-Mecklenburg Police crime lab revealed a .17
blood alcohol concentration.
was transported to the Mecklenburg County Law Enforcement
Center and interviewed by Officer Cerdan and Detective
Sammis. Defendant was read Miranda rights at 6:15 a.m. and
waived his right to have an attorney present during
questioning. At the conclusion of the interview, Detective
Sammis charged Defendant with second-degree murder and
felonious serious injury by vehicle.
conclusion of his investigation of the crash, Detective
Sammis determined that Defendant was traveling on East Sugar
Creek Road and failed to stop for a properly working red
light at its intersection with The Plaza. Defendant hit Ms.
Siu's vehicle while traveling approximately 48.6 miles
per hour. Ms. Siu was driving through a green light on The
Plaza at approximately 36.8 miles per hour at the time
Defendant struck her vehicle. There was no evidence of any
"pre-impact braking" from tire marks on the road.
retrieved an iPhone from the driver's side floorboard of
Defendant's vehicle. One of the text messages stored in
Defendant's phone was sent about fourteen hours prior to
the crash, and stated, "I might drink a little more than
I should tonight." Defendant did not offer any evidence
September 2014, the jury convicted Defendant of all charges.
The trial court sentenced Defendant to an active sentence of
175 to 219 months for the second-degree murder conviction, 5
days for the operation of a vehicle in violation of a license
restriction, and a consecutive sentence of 33 to 49 months
for the conviction of felonious serious injury by vehicle.
Defendant appealed to this Court.
appeal, Defendant argued, inter alia, "that his
statutory and constitutional rights were violated by an
unnecessary seven-hour delay between his arrest and
appearance before a magistrate, requiring the trial court to
dismiss the charges." State v. Cox, No. 15-244,
2016 N.C.App. LEXIS 149, at *1 ( N.C. Ct. App., Feb. 16,
2016) ("Cox I").
unpublished opinion filed 16 February 2016, this Court
determined "the trial court's order denying
Defendant's motion to dismiss failed to resolve all
material issues of fact and law presented in that
motion." We vacated the order and remanded to the trial
court "for further findings and conclusions."
Id. On remand, the trial court entered an amended
order denying Defendant's motion to dismiss on 27 April
this Court vacated the order denying Defendant's motion
to dismiss and remanded, the remaining issues Defendant
raised on appeal in Cox I were not ruled upon.
Defendant appeals from the amended order, entered on remand,
and also raises the same issues he asserted in his previous
lies in this Court from final judgment of the superior court
entered upon the jury's verdict pursuant to N.C. Gen.
Stat. §§ 7A-27(b)(1) and 15A-1444(a) (2015).
argues the trial court erred by: (1) denying his motion to
dismiss due to the delay in bringing him before a magistrate;
(2) preventing him from cross-examining a witness regarding
the contents of a verified complaint; (3) excluding evidence
that the child victim was not properly restrained in a child
seat; (4) instructing the jury on proximate cause; and (4)
instructing the jury on a lesser standard of proof than
required by statute.
Denial of Defendant's Motion to Dismiss
argues the trial court prejudicially erred by denying his
motion to dismiss, because the delay in bringing him before a
judicial officer and the magistrate's error in holding
him without bond violated his constitutional rights. We
Standard of Review
of charges for violations of statutory rights is a drastic
remedy which should be granted sparingly. Before a motion to
dismiss should be granted . . . it must appear that the
statutory violation caused irreparable prejudice to the
preparation of defendant's case." State v.
Labinski, 188 N.C.App. 120, 124, 654 S.E.2d 740, 742-43
(citation, quotation marks, and italics omitted), disc.
review denied, 362 N.C. 367, 661 S.E.2d 889 (2008).
standard of review on appeal of the denial of a motion to
dismiss is "whether there is competent evidence to
support the findings and the conclusions. If there is a
conflict between the state's evidence and defendant's
evidence on material facts, it is the duty of the trial court
to resolve the conflict and such resolution will not be
disturbed on appeal." State v. Lewis, 147
N.C.App. 274, 277, 555 S.E.2d 348, 351 (2001) (internal
citations and quotation marks omitted). Findings of fact
which are not challenged "are presumed to be correct and
are binding on appeal. We [therefore] limit our review to
whether [the ...