in the Court of Appeals 17 October 2019.
by Defendant from judgment entered 23 October 2018 by Judge
William H. Coward in Macon County, No. 15 CRS 416Superior
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.
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.
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.
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.
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.
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.
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
State argues that Defendant has waived his right to appellate
review of this issue due to invited error. We agree.
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 ...