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State v. Crane

Court of Appeals of North Carolina

January 7, 2020

STATE OF NORTH CAROLINA,
v.
THOMAS EUGENE CRANE, Defendant.

          Heard in the Court of Appeals 17 October 2019.

          Appeal by Defendant from judgment entered 23 October 2018 by Judge William H. Coward in Macon County, No. 15 CRS 416Superior Court.

          Attorney General Joshua H. Stein, by Assistant Attorney General Jonathan J. Evans, for the State-Appellee.

          Appellate Defender Glenn Gerding, by Assistant Appellate Defender Heidi Reiner, for Defendant-Appellant.

          COLLINS, JUDGE.

         Defendant Thomas Eugene Crane raises one evidentiary issue on appeal from judgment entered upon a jury verdict of guilty of driving while impaired. Because Defendant has waived appellate review of this issue due to invited error, we dismiss the appeal.

         I. Procedural History

         Defendant was issued a citation for driving while impaired on 28 November 2015. He pled no contest to the offense in Macon County District Court on 17 January 2017 and was sentenced to 12 months' imprisonment, suspended for 36 months' probation. Defendant appealed to Macon County Superior Court. After a jury trial, the jury found Defendant guilty of driving while impaired. The trial court sentenced Defendant to 10 months' imprisonment. Defendant gave notice of appeal in open court.

         II. Factual Background

         The State's evidence tended to show that Defendant was driving a moped on U.S. Highway 23 on 28 November 2015 at around 8:30 p.m., when he was struck by a car. When North Carolina State Highway Patrol Trooper Jonathan Gibbs arrived at the scene of the accident, emergency personnel were talking with Defendant and preparing to place him in an ambulance. The moped was in the grass to the right side of the road and was inoperable. Gibbs spoke with Defendant after he had been placed in the ambulance and noted that Defendant's eyes were red and glassy and that he had a strong odor of alcohol on his breath. When Gibbs asked Defendant if he had been drinking, Gibbs admitted to having "some drinks throughout the day." Defendant refused to take a portable breath test.

         Gibbs also interviewed the driver of the car, who explained that he was driving about 40 miles per hour in the right lane of the highway when he came upon "a dim red light" that he believed was a tail light "all of the sudden in the right-hand lane." Although the driver of the car braked and swerved to the left, his car struck the moped.

         Gibbs investigated the crash, making observations of the road and the vehicles and taking measurements that he later used to create a diagram and a crash report. Gibbs visited Defendant at the hospital, again detecting an odor of alcohol on his breath. When Gibbs asked Defendant for the second time if he had been drinking, Defendant admitted to having "some mixed drinks" and that he "did not stop drinking until after dark that night." Gibbs issued Defendant a citation for driving while impaired. Based upon results of a blood test performed at the hospital, it was later determined that Defendant's blood alcohol concentration was 0.16 grams of alcohol per 100 milliliters of whole blood.

         III. Discussion

         Defendant argues that the trial court plainly erred by admitting into evidence Gibbs' testimony about how and where the accident occurred. Defendant contends that this was improper lay opinion testimony because Gibbs did not witness the accident, and it was not admissible as expert testimony because Gibbs was not qualified as an expert in accident reconstruction.

         The State argues that Defendant has waived his right to appellate review of this issue due to invited error. We agree.

         "A defendant is not prejudiced by . . . error resulting from his own conduct." N.C. Gen. Stat. § 15A-1443 (2018). "Thus, a defendant who invites error has waived his right to all appellate review concerning the invited error, including plain error review." State v. Barber, 147 N.C.App. 69, 74, 554 S.E.2d 413, 416 (2001). "Statements elicited by a defendant on cross-examination are, even if error, invited error, by which a defendant cannot be prejudiced as a matter of law." State v. Gobal, 186 N.C.App. 308, 319, 651 S.E.2d 279, 287 (2007) (citation omitted). Moreover, where a defendant himself offered testimony that is similar to the testimony from the witness that defendant challenges on appeal, the defendant has waived his right ...


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