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State v. Shelton

Court of Appeals of North Carolina

February 5, 2019

STATE OF NORTH CAROLINA
v.
JOSEPH BRIAN SHELTON

          Heard in the Court of Appeals 16 October 2018.

          Appeal by defendant from judgment entered 9 May 2017 by Judge Charles H. Henry in Onslow County, Nos. 15 CRS 2306; 2269; 54250-51 & 54253 Superior Court.

          Attorney General Joshua H. Stein, by Assistant Attorney General John W. Congleton, for the State.

          Ward, Smith & Norris, P.A., by Kirby H. Smith, III, for defendant-appellant.

          DAVIS, JUDGE

         In this case, we address the quantum of evidence the State must present in order to survive a defendant's motion to dismiss a charge of felony death by vehicle arising out of the presence of narcotics in an unknown quantity in the defendant's blood. Because we are satisfied that the State's evidence was sufficient to raise a jury issue as to whether the defendant was, in fact, appreciably impaired, we conclude that the trial court correctly denied his motion to dismiss.

         Factual and Procedural Background

          The State's evidence at trial tended to show the following: On 22 July 2015, Joseph Brian Shelton ("Defendant") woke up at 6:30 a.m. and ingested Oxycodone, a drug that had been prescribed by his doctor for pain stemming from injuries he had received in a car accident in 2009. The pharmacist's label on the pill bottle warned that the drug could cause drowsiness or dizziness and thus to "use caution when operating a vehicle, vessel or machine." Despite the fact that his driver's license had been revoked for over a year, Defendant got into his green Dodge pickup truck and drove from his home in Sneads Ferry to his place of employment in Surf City. At 11:00 a.m., Defendant ingested another drug, Tramadol, for which he also possessed a prescription. The Tramadol bottle likewise contained warnings about the drug's potential to cause drowsiness and dizziness.

         Defendant left work to drive home at 5:00 p.m. that day. At approximately 5:10, Defendant was driving eastbound on Old Folkstone Road, a two-lane road in Onslow County, behind a silver Ford Range Rover being operated by Robin Jones. At the same time, Rebecca Lovely was driving her vehicle behind Defendant's truck. As these three vehicles traveled along Old Folkstone Road at approximately 45-50 miles per hour, both Jones and Lovely saw 53-year-old Rhonda Anderson standing to the right in a grassy area near a group of "two or three" mailboxes located about three feet away from the side of the road. Approximately 150 yards away, Lee Hill, who was sitting in a pick-up truck facing Old Folkstone Road, also saw Anderson standing by the mailboxes. Although the road was straight, weather conditions were clear, and it was fully light outside, Defendant did not notice Anderson.

         As Jones approached the intersection of Old Folkstone Road and Winery Road, he slowed down to turn left on Winery Road. Defendant attempted to slow down as well, but his brakes failed and "went straight to the floor." Although there was no oncoming traffic in the westbound lane to Defendant's immediate left, he swerved to the right through the grassy area and into a ditch. As he did so, Defendant's truck struck Anderson, causing her body to fly 59 feet through the air before hitting the ground. Defendant's truck also hit the rear of Jones' vehicle, causing the truck's driver's side mirror to become detached. Unaware that his truck had collided with Anderson and despite the failure of his brakes moments earlier, Defendant chose to accelerate out of the ditch and drive to his home where he was forced to use his emergency brakes to bring his truck to a stop in his driveway.

         At the scene of the collision, Lovely called 911 and went over to the area where Anderson's body had landed. She observed that Anderson was "laying on her back, with both of her legs up on [the] other side of her body . . . [Anderson's] head was bleeding through her hair . . . . She wasn't breathing . . . . and there were no signs of life." Paramedics arrived and declared Anderson dead on the scene.

         Dr. William Kelly, a forensic pathologist who examined Anderson's body, found that the cause of death was "multiple blunt trauma." He testified that Anderson's skull was fractured and that she also had a large open fracture of her right hip. In addition, Anderson's left femur was broken, and she had a five-inch-long bruise along the lower part of her left leg.

         The collision was investigated by the North Carolina State Highway Patrol. After a call went out that the hit-and-run driver was operating a green Dodge pickup truck missing its driver's side mirror, Trooper James Kirk responded to the call and patrolled the area surrounding the scene of the accident in an attempt to find a vehicle matching that description. At 6:45 p.m., Trooper Kirk observed Defendant's green Dodge pickup truck parked in his driveway. Trooper Kirk pulled into the driveway, exited his vehicle to look at the truck, and saw that the driver's side mirror was missing. As Trooper Kirk was inspecting the truck, Defendant came outside and stated that he knew that Trooper Kirk was there about "the wreck [Defendant] was in on Old Folkstone Road."

         Trooper Kirk took Defendant to his patrol car and advised him of his Miranda rights, which Defendant waived. In addition to answering Trooper Kirk's questions, Defendant also wrote out a statement, explaining that "when [the] vehicle in front of me had slammed on [his] brakes very unexpected, I tried to stop but my brake pedal failed and went straight to the floor." Defendant also told Trooper Kirk that he "swerved to the right so [he] wouldn't hit another car head-on, but [he] just did clip the truck." Defendant explained that because he knew his license had been revoked, he "panicked" and fled the scene.

         Trooper Kirk was aware that a pedestrian had been involved in the collision but did not yet know the extent of her injuries. For this reason, he did not question Defendant about his truck striking Anderson. Nor did Defendant mention having hit anyone with his truck. Defendant told Trooper Kirk he had not consumed any alcohol that day. At 7:05 p.m., Trooper Kirk gave Defendant a portable breathalyzer test, which confirmed the absence of alcohol in Defendant's body. Trooper Kirk did not ask Defendant if he had ingested any other controlled substances, and Defendant did not volunteer the information that he had taken either Oxycodone or Tramadol.

         Troopers Johnathan Acuna and Matt Bryan responded to the scene of the collision at approximately 6:00 p.m. Trooper Acuna was the lead investigator, and Trooper Bryan collected evidence. Trooper Acuna learned from paramedics that Anderson had died on the scene. He interviewed Lovely, Jones, and other witnesses and took their statements. After the scene was cleared, Troopers Acuna and Bryan went to Defendant's home.

         At Defendant's residence, Trooper Acuna interviewed Defendant in his patrol car. Defendant did not volunteer much information but was polite and cooperative and answered all of Trooper Acuna's questions. Once again, Defendant was not asked whether he had consumed any controlled substances and did not affirmatively disclose to the officers the fact that he had taken either Oxycodone or Tramadol earlier that day.

         During the interview, Trooper Acuna told Defendant that his vehicle had struck Anderson and that she had been killed. Defendant "didn't believe it" and "seemed pretty upset." Trooper Bryan obtained a search warrant for Defendant's truck and arranged to have it towed from his home. While backing Defendant's truck out of the driveway for the tow truck, Trooper Bryan attempted to apply the brakes, but the pedal went all the way to the floor. Trooper Acuna subsequently conducted an inspection of Defendant's truck on 27 July 2015 during which he noted a mechanical brake failure and concluded that the "vehicle has no brakes."

         In accordance with the protocol followed by the Highway Patrol in connection with fatal motor vehicle accidents, Trooper Bryan obtained a search warrant to collect a sample of Defendant's blood on the night of the accident. The blood sample was submitted to the crime laboratory of the North Carolina State Bureau of Investigation ("SBI") where chemical analyst Natasha Testa ultimately determined that both Oxycodone and Tramadol were present in Defendant's blood.

         On the night of the collision, Trooper Acuna charged Defendant with a number of offenses, including misdemeanor death by vehicle, failure to reduce speed to avoid a collision, failure to report an accident resulting in property damage in excess of $1, 000, operating a motor vehicle with improper brakes, and driving with license revoked. Defendant was not charged by Trooper Acuna with driving while impaired.

         On 13 October 2015 - which was after the results of Defendant's blood test revealed the presence of Oxycodone and Tramadol in his blood - Defendant was indicted by an Onslow County grand jury on charges of second-degree murder, felony death by vehicle, driving with no liability insurance, felony hit and run by failing to immediately stop at the scene of an accident, felony hit and run by failing to remain at the scene of an accident, misdemeanor death by vehicle, failure to reduce speed to avoid a collision, failure to report an accident resulting in property damage in excess of $1, 000, operating a motor vehicle with improper brakes, and driving with license revoked. Prior to Defendant's trial, the charges of failure to report an accident, failure to reduce speed to avoid a collision, driving with no liability insurance, and felonious hit and run by failing to remain at the scene of an accident were dismissed.

         A jury trial was held beginning on 1 May 2017 in Onslow County Superior Court before the Honorable Charles H. Henry. The State called fourteen witnesses, including Lovely, Jones, and Hill; the responding troopers; the medical personnel who examined Anderson; and several expert witnesses, including Testa. Testa testified to the following: (1) she had tested the sample of Defendant's blood for the presence of impairing substances; (2) her tests showed that Oxycodone and Tramadol were present in his blood; (3) the tests revealed the presence of these drugs in amounts equal to or greater than 25 nanograms per milliliter - the "detection limits" used by the SBI for the test; (4) the half-lives of Oxycodone and Tramadol are approximately three to six hours and four to seven hours, respectively; (5) she was unable to determine the precise quantities of the drugs present in Defendant's blood; and (6) she was not able to accurately determine from the test results whether Defendant would have been impaired at the time of the 22 July 2015 accident.

         Defendant testified on his own behalf and elicited testimony from four additional witnesses, including three character witnesses and an expert in the field of pharmacology, Professor Brian McMillen. Professor McMillen offered his opinions that (1) he would "not expect to see impairment" in a person who had 25 nanograms per milliliter of both substances in his bloodstream; and (2) people who frequently take Oxycodone and Tramadol develop "a great deal of tolerance" to the drugs.

         Defendant moved to dismiss all charges at the close of the State's evidence and again at the close of all the evidence. Both of these motions were denied. On 8 May 2017, the jury found Defendant not guilty of second-degree murder but guilty of the lesser-included offense of involuntary manslaughter as well as of the offenses of felony death by motor vehicle, driving with improper brakes, driving with license revoked, misdemeanor death by motor vehicle, and felonious hit and run resulting in serious injury or death.[1]

         On 10 May 2017, Defendant was sentenced to a term of 73 to 100 months imprisonment for the charge of felony death by motor vehicle. All of the remaining convictions were consolidated with the felony hit and run resulting in serious injury or death conviction for which Defendant was sentenced to a consecutive term of 17 to 30 months imprisonment. Defendant gave timely notice of appeal to this Court.

         Analysis

         On appeal, Defendant contends that the trial court erred by: (1) denying his motion to dismiss the charge of felony death by vehicle; (2) refusing to allow testimony from Trooper Acuna that Defendant was never charged with driving while impaired; and (3) failing to intervene ex mero motu during the State's closing argument. We address each argument in turn.

         I. Motion to Dismiss

         "A trial court's denial of a defendant's motion to dismiss is reviewed de novo." State v. Watkins, 247 N.C.App. 391, 394, 785 S.E.2d 175, 177 (citation omitted), disc. review denied, 369 N.C. 40, 792 S.E.2d 508 (2016). On appeal, this Court must determine "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[.]" State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (citation omitted), cert. denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000).

         Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980) (citation omitted). Evidence may be substantial whether it is "direct, circumstantial, or both[.]" State v. Abshire, 363 N.C. 322, 328, 677 S.E.2d 444, 449 (2009).

         When reviewing a motion to dismiss, courts are concerned solely "with the sufficiency of the evidence to carry the case to the jury and not with its weight." State v. Smith, 40 N.C.App. 72, 80, 252 S.E.2d 535, 541 (1978) (citation omitted). The evidence must be viewed in the light most favorable to the State, "giving the State the benefit of every reasonable inference and resolving any contradictions in its favor." State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994) (citation omitted), cert. denied, 515 U.S. 1135, 132 L.Ed.2d 818 (1995). Any discrepancies in the evidence "are for the jury to resolve and do not warrant dismissal." Smith, 300 N.C. at 78, 265 S.E.2d at 169. "The defendant's evidence, unless favorable to the State, is not to be taken into consideration. However, if the defendant's evidence is consistent with the State's evidence, then the defendant's evidence may be used to explain or clarify that offered by the State." State v. Nabors, 365 N.C. 306, 312, 718 S.E.2d 623, 627 (2011) (internal citations and quotation marks omitted).

         Our General Assembly has defined the crime of felony death by vehicle, in pertinent part, as follows:

(a1) Felony Death by Vehicle. - A person commits the offense of felony death by vehicle if:
(1) The person unintentionally causes the death of another person,
(2) The person was engaged in the offense of impaired driving under G.S. ...

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