IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-1068
Filed: 2 May 2017
Mecklenburg County, No. 11 CRS 252710-13
STATE OF NORTH CAROLINA
v.
ERIC JONATHAN COX
Appeal by defendant from judgment entered 7 July 2016 by Judge Yvonne
Mims Evans in Mecklenburg County Superior Court. Heard in the Court of Appeals
6 April 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Kathryne E.
Hathcock, for the State.
Devereux & Banzhoff, PLLC, by Andrew B. Banzhoff, for defendant-appellant.
TYSON, Judge.
Eric 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.
I. Background
A. Evidence Presented at Trial
Hluon 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
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Opinion of the Court
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.
Ms. Siu 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.
Carmen 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.”
Pamela 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
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to Ms. Siu’s overturned vehicle to render assistance. She testified Defendant stood
beside his vehicle and walked around with his hands in his pockets.
Charlotte-Mecklenburg 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.
Defendant 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.
Officer 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
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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.
Officer 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.
Defendant 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.
At the 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
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Opinion of the Court
the time Defendant struck her vehicle. There was no evidence of any “pre-impact
braking” from tire marks on the road.
Detectives 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 at trial.
B. Appellate History
On 16 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.
On 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”).
In an 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
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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 2016.
Because 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 appeal.
II. Jurisdiction
Jurisdiction 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).
III. Issues
Defendant 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.
IV. Denial of Defendant’s Motion to Dismiss
Defendant argues the trial court prejudicially erred by denying his motion to
dismiss, because the delay in bringing him before a judicial officer and the
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magistrate’s error in holding him without bond violated his constitutional rights. We
disagree.
A. Standard of Review
“Dismissal 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).
The 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 unchallenged] facts support the trial
court’s conclusions.” State v. Eliason, 100 N.C. App. 313, 315, 395 S.E.2d 702, 703
(1990) (citations omitted).
B. Statutory Requirements upon Arrest
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Opinion of the Court
N.C. Gen. Stat. § 15A-511(a)(1) (2015) provides: “A law-enforcement officer
making an arrest . . . must take the arrested person without unnecessary delay before
a magistrate as provided in G.S. 15A-501.” N.C. Gen. Stat. § 15A-501 provides:
Upon the arrest of a person, with or without a warrant, . .
. a law enforcement officer:
(2) Must, with respect to any person arrested without a
warrant and, for purpose of setting bail, with respect to any
person arrested upon a warrant or order for arrest, take
the person arrested before a judicial official without
unnecessary delay.
. . . .
(5) Must without unnecessary delay advise the person
arrested of his right to communicate with counsel and
friends and must allow him reasonable time and
reasonable opportunity to do so.
N.C. Gen. Stat. § 15A-501(2), (5) (2015).
Our Supreme Court has held that “[u]nquestionably, the failure of law
enforcement personnel in complying with the provisions of [N.C. Gen. Stat. § 15A-511
and N.C. Gen. Stat. § 15A-501] can result in the violation of a person’s constitutional
rights.” State v. Reynolds, 298 N.C. 380, 398, 259 S.E.2d 843, 854 (1979), cert. denied,
446 U.S. 941, 64 L. Ed. 2d 795 (1980); see also N.C. Gen. Stat. § 15A-954(a)(4) (2015)
(“The court on motion of the defendant must dismiss the charges stated in a criminal
pleading if it determines that . . . [t]he defendant’s constitutional rights have been
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Opinion of the Court
flagrantly violated and there is such irreparable prejudice to the defendant’s
preparation of his case that there is no remedy but to dismiss the prosecution.”)
Defendant contends he was not taken before a magistrate, as required by N.C.
Gen. Stat. § 15A-501(2), or advised of his right to communicate with friends as
required by N.C. Gen. Stat. § 15A-501(5), without unnecessary delay.
The crash occurred at 2:37 a.m. Officer Cerdan arrived at the scene between
3:15 and 3:20 a.m. and conducted field sobriety testing on Defendant. Defendant was
arrested without a warrant for driving while impaired and violation of his .04 BAC
driver’s license restriction.
Upon remand, the trial court made the following findings of fact in its amended
order denying Defendant’s motion to dismiss:
7. Officer Cerdan informed Sgt. Sloan of his findings and
drove Defendant to CMC-Mercy hospital to have his blood
drawn. Upon arrival at the hospital around 4:33 am,
Officer Cerdan advised the Defendant of his rights.
Defendant signed the rights form and did not ask to have
a witness or an attorney present. A telephone was available
to Defendant in the hospital room. His blood was drawn at
4:55 am. Defendant was examined by a physician and
cleared. Cerdan collected the evidence and completed the
discharge paperwork.
8. Two vials of blood were drawn from Defendant. One vial
was tested by a chemical analyst and the second was
preserved for further testing if needed. Defendant has not
requested that the second vial of blood be tested.
9. He was then taken to the Law Enforcement Center
where they waited for the lead Detective Sammis to arrive
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and interview Defendant. Sammis arrived at about 5:52
a.m.
10. Detective Sammis began the interview with Defendant
at 6:15 am by reading the Miranda rights form. Defendant
initialed each right indicating that he understood, signed
the waiver of rights form and agreed to make a statement
without the presence of a lawyer. The interview concluded
after an hour. Defendant was then charged with second
degree murder and felony serious injury by vehicle.
11. Detective Sammis prepared the arrest affidavit,
checked Defendant’s criminal history and driving history.
Officer Cerdan then transported Defendant to the
Mecklenburg County jail for processing at 9:35 am. He was
brought before a magistrate at approximately 11:11 am.
Prior to seeing the magistrate, Defendant made a phone
call to a friend. He did not ask the friend to come to the jail
until after he knew the conditions of his release.
12. The magistrate set bond on each of the Defendant’s
charges except the second degree murder charge. The
magistrate may have misconstrued the Bond policy of “no
recommendation” on a second degree murder charge, as “no
bond”. The State concedes and the Court finds that the
failure to set bond on the murder charge was a violation of
NCGS Sec. 15A-533(b).
13. The Defendant had a first appearance hearing via video
conference on November 29, 2011. Bond was set at
$350,000 secured on the second degree murder case. He
was represented by counsel at that hearing.
14. Defendant was released on bond several days after his
arrest.
Based upon these findings, the trial court concluded in the amended order:
1. The Defendant was advised of his rights to have family,
friends or an attorney present twice before he appeared
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before the Magistrate. He indicted [sic] at the hospital and
when interviewed by Detective Sammis, that he
understood his rights. He did not ask for a witness or an
attorney. Defendant was not denied his right to consult
with family, friends, or an attorney. There was no violation
of NCGS § 15A-501(5);
2. The time spent in taking Defendant from the scene of the
wreck to the hospital for medical assessment and blood
draw, then the Law Enforcement Center where he was
interviewed by a detective; and from there to the jail before
being presented to the Magistrate did not constitute an
unnecessary delay as to substantially violate Defendant’s
statutory right to be taken before a Magistrate without
delay following his arrest at 4:00 a.m. There was no
violation of NCGS § 15A-501(2), nor has Defendant
demonstrated that he was prejudiced by the passage of
time from his arrest until his appearance before the
Magistrate.
3. While the Magistrate violated the Defendant’s right to
pre-trial release; the Defendant has failed to establish that
he suffered irreparable prejudice as a result of the
Magistrate’s failure[.]
Defendant contends the relevant delay of time is nine hours, the period of time
between the crash and his appearance before the magistrate. However, the pertinent
time span is calculated between Defendant’s arrest at approximately 4:00 a.m. and
his appearance before a magistrate, which his approximately seven hours. See N.C.
Gen. Stat. § 15A-501.
C. Hill and Knoll
Defendant argues this case is controlled by State v. Hill, 277 N.C. 547, 178
S.E.2d 462 (1971). In Hill, the defendant was arrested for driving while impaired at
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approximately 11:00 p.m. and “was not permitted to telephone his attorney until after
the breathalyzer testing and photographic procedures were completed and the
warrant was served.” Id. at 553, 178 S.E.2d at 466. The defendant called an attorney,
who was also a relative. The attorney’s request to see the defendant “was
peremptorily and categatorically [sic] denied.” Id. From the time of the defendant’s
arrest until he was released about 7:00 a.m. the following morning “only law
enforcement officers had seen or had access to him.” Id.
Our Supreme Court explained that, because “[i]ntoxication does not last,” if a
person accused of driving while impaired “is to have witnesses for his defense, he
must have access to his counsel, friends, relatives, or some disinterested person
within a relatively short time after his arrest.” Id. The Court concluded, “when an
officer’s blunder deprives a defendant of his only opportunity to obtain evidence which
might prove his innocence, the State will not be heard to say that such evidence did
not exist.” Id. at 555, 178 S.E.2d at 467.
The Court held the defendant
was denied his constitutional and statutory right to
communicate with both counsel and friends at a time when
the denial deprived him of any opportunity to confront the
State’s witnesses with other testimony. Under these
circumstances, to say that the denial was not prejudicial is
to assume that which is incapable of proof.
Id. at 554, 178 S.E.2d at 466.
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The General Assembly amended North Carolina’s driving while impaired
statutes after the Supreme Court’s opinion in Hill. Under the current version of N.C.
Gen. Stat. § 20-138.1(a)(2), a defendant may be convicted of DWI if his alcohol
concentration, “at any relevant time after the driving,” is .08 or more. N.C. Gen. Stat.
§ 20-138.1(a)(2) (2015). When Hill was decided, the statute provided that a 0.10
alcohol concentration merely created an inference of intoxication
The amendment was addressed in State v. Knoll, 322 N.C. 535, 369 S.E.2d 558
(1988). The Knoll Court held, under the current statute, “denial of access is no longer
inherently prejudicial to a defendant’s ability to gather evidence in support of his
innocence in every driving while impaired case” since an alcohol concentration of .08
is sufficient to show impairment, on its face, to convict the defendant. Id. at 545, 369
S.E.2d at 564 (citation omitted). The Court held “in those cases arising under NCGS
§ 20-138.1(a)(2), prejudice will not be assumed to accompany a violation of
defendant’s statutory rights, but rather, defendant must make a showing that he was
prejudiced in order to gain relief.” Id.
D. Prejudice
The evidence showed and the trial court found that Defendant was arrested at
the scene and transported to the hospital. At 4:33 a.m., he was advised of his rights
and did not request the presence of a witness or attorney. A telephone was available
to him. Two vials of blood were drawn with Defendant’s consent. One was preserved
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Opinion of the Court
for further testing, if needed. Defendant did not request further testing of the blood
sample. He was transported from the hospital, and arrived at the Law Enforcement
Center at 5:21 a.m. to be interviewed. Defendant waived his Miranda rights, and
agreed to make a statement without the presence of an attorney. Prior to his
appearance before the magistrate, Defendant telephoned a friend, but did not ask the
friend to come to the jail.
Unlike in Hill, the evidence and findings indicate Defendant was afforded
multiple opportunities to have witnesses or an attorney present pursuant to N.C.
Gen. Stat. § 15A-501(5), which he elected not to exercise. Defendant cannot now
assert he was prejudiced to gain relief, either by the absence of a witness or attorney
or by the time period between his arrest and appearance before a magistrate. See
Knoll, 322 N.C. at 545, 369 S.E.2d at 564. Defendant’s arguments are overruled.
IV. Limitation on Defendant’s Cross-Examination of Cooke
Defendant argues the trial court erred by preventing him from cross-
examining Christopher Cooke (“Cooke”) regarding the contents of a verified
complaint Cooke filed against Defendant and the estate of Ms. Siu on behalf of himself
and Khai. We disagree.
A. Standard of Review
“The long-standing rule in this jurisdiction is that the scope of cross-
examination is largely within the discretion of the trial judge, and his rulings thereon
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will not be held in error in the absence of a showing that the verdict was improperly
influenced by the limited scope of the cross-examination.” State v. Woods, 307 N.C.
213, 220-21, 297 S.E.2d 574, 579 (1982).
B. Exclusion of Evidence Intended to Show Bias
Cooke is Khai’s father. Khai suffered extensive injuries during the crash,
which included a severe and traumatic brain injury, a small spleen laceration, and
ligament injuries and a bone fracture in his neck. Cooke was called by the State as a
witness “simply to talk about some biographical information concerning [Ms.] Siu,
and also Khai, and also to talk about [Khai’s] injuries.” The State filed a motion in
limine, which sought to prevent Defendant from cross-examining Cooke concerning
the contents of the verified civil complaint. The trial court granted the State’s motion
and prohibited Defendant from cross-examining Cooke regarding the allegations in
the complaint, or about any bias that might result from Cooke’s financial interest in
Defendant’s prosecution.
Cooke’s testimony on direct examination was limited to factual information
regarding his family and Khai’s injuries. The State did not elicit any testimony from
him regarding the cause of the crash. Cooke offered no testimony that would tend to
sway the jury in deciding Defendant’s guilt. “‘The trial judge may and should rule out
immaterial, irrelevant, and incompetent matter.’” State v. Jacobs, 172 N.C. App. 220,
228, 616 S.E.2d 306, 312 (2005) (quoting State v. Stanfield, 292 N.C. 357, 362, 233
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S.E.2d 574, 578 (1977)). Defendant has failed to show the trial court’s decision to
limit the scope of his cross-examination influenced the jury’s verdict. See Woods, 307
N.C. at 220-21, 297 S.E.2d at 579. This argument is without merit and is overruled.
V. Jury Instructions
A. Standard of Review
“Where the defendant preserves his challenge to jury instructions by objecting
at trial, we review ‘the trial court’s decisions regarding jury instructions . . . de
novo[.]’” State v. Hope, 223 N.C. App. 468, 471-72, 737 S.E.2d 108, 111 (2012) (quoting
State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009)).
Where a defendant fails to object to the challenged instruction at trial, any
error is generally reviewed under the plain error rule. State v. Odom, 307 N.C. 655,
300 S.E.2d 375 (1983). “Under the plain error rule, defendant must convince this
Court not only that there was error, but that absent the error, the jury probably would
have reached a different result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692,
697 (1993).
B. Proximate Cause and Intervening Negligence
Defendant argues the trial court’s instruction on proximate cause was
erroneous, confused the jurors, and the trial court committed plain error by failing to
instruct the jury on intervening negligence. We disagree.
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The trial court instructed the jury in accordance with the applicable pattern
jury instruction, as follows: “[T]he death of the victim was proximately caused by the
unlawful act of the defendant done in a malicious manner.” The trial court then gave
the following supplemental instruction: “[T]he State must prove beyond a reasonable
doubt only that the defendant’s negligence was a proximate cause.” (emphasis
supplied). Defendant argues these two phrases are competing, and tend to suggest
different formulations of the proof required of the State. Defendant contends the
language of the supplemental instruction suggests to the jury that they not consider
the impact of any negligence on the part of Ms. Siu. Defendant acknowledges he did
not request a jury instruction on intervening negligence.
In State v. Bailey, 184 N.C. App. 746, 646 S.E.2d 837 (2007), this Court
explained the law of proximate cause and intervening negligence in criminal
prosecutions. In that case, the defendant was convicted of felony death by motor
vehicle. Id. at 747, 646 S.E.2d at 838. The State’s evidence tended to show the
defendant was traveling behind a vehicle driven by the decedent. The decedent had
stopped her vehicle in the roadway. The defendant applied his brakes, was unable to
stop, and his vehicle collided into the back of the decedent’s vehicle. Id. A blood
sample obtained from the defendant showed a blood alcohol content of 0.22. Id.
The defendant requested an instruction on the decedent’s “contributory
negligence.” Id. at 748-49, 646 S.E.2d at 839. This Court explained:
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Intervening negligence in cases such as this is relevant as
to whether defendant’s actions were the proximate cause of
the decedent’s death. State v. Harrington, 260 N.C. 663,
666, 133 S.E.2d 452, 455 (1963). An instruction to that
effect, if denied, would have warranted a new trial. See
State v. Hollingsworth, 77 N.C. App. 36, 40, 334 S.E.2d 463,
466 (1985). Accordingly, this Court has granted a new trial
where defendant requested an instruction on intervening
negligence because the question of whether defendant’s
conduct was the proximate cause of death is a question for
the jury. Id. In the instant case, however, defendant did not
seek such an instruction. Moreover, the trial court
accurately instructed the jury by stating that, “‘[t]here may
be more than one proximate cause of an injury. The State
must prove beyond a reasonable doubt only that the
defendant’s negligence was a proximate cause.’”
Accordingly, we find that the trial court did not err in
denying defendant’s requested instruction.
Id. at 749, 646 S.E.2d at 839.
The Court further explained:
Even assuming [the decedent] was negligent, “[i]n order for
negligence of another to insulate defendant from criminal
liability, that negligence must be such as to break the
causal chain of defendant’s negligence; otherwise,
defendant’s culpable negligence remains a proximate
cause, sufficient to find him criminally liable.”
Hollingsworth, 77 N.C. App. at 39, 334 S.E.2d at 465. In
the instant case, [the decedent’s] negligence, if any, would
be, at most, a concurring proximate cause of her own death.
See id. at 39, 334 S.E.2d at 466. This is especially true here,
where the State’s evidence tended to show that defendant’s
blood alcohol content was over twice the legal limit. This
impairment inhibited defendant’s ability to “exercise [] due
care [and] to keep a reasonable and proper lookout in the
direction of travel[.]” Id.
Id. at 749, 646 S.E.2d at 839-40 (emphasis in original).
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While Defendant’s counsel argued at various times that causation was an issue
in this case, our review of the record does not demonstrate “the jury probably would
have reached a different result” if the instruction on intervening negligence was
given. Jordan, 333 N.C. at 440, 426 S.E.2d at 697. Overwhelming evidence, including
the testimonies of three eye witnesses, was presented to show Defendant drove
through the red light, while grossly impaired and caused the crash. Our review of
the record on appeal concludes the only evidence to hint Ms. Siu may have been
negligent in causing the crash is Defendant’s off-handed comment to Officer Cerdan
prior to the blood draw, when he asked if Officer Cerdan “tested the person that ran
the red light.” Defendant has failed to show plain error by the absence of a jury
instruction on intervening negligence.
Even presuming Ms. Siu was somehow negligent, “her negligence, if any, would
be, at most, a concurring proximate cause of her own death.” Bailey, 184 N.C. App. at
749, 646 S.E.2d at 839-40 (emphasis in original). The State’s evidence tended to show
that Defendant’s blood alcohol content was over twice the legal limit. “This
impairment inhibited defendant’s ability to exercise due care and to keep a
reasonable and proper lookout in the direction of travel.” Id. (citation, quotation
marks, and brackets omitted). The trial court’s supplemental instruction on
proximate cause was an accurate statement of the law. See id. at 749, 646 S.E.2d at
839.
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C. Instruction on Felonious Serious Injury by Vehicle
Defendant also argues the trial court erred by instructing the jury with regard
to the charge of felonious serious injury by vehicle, as follows:
And fifth, that the impaired driving by the defendant
proximately, but unintentionally, caused the victim’s
serious injury. Proximate cause is a real cause, a cause
without which the victim’s serious injury would not have
occurred. The defendant’s act need not have been the last
or nearest cause. It is sufficient if it concurred with some
other cause acting at the same time which, in combination
with it, proximately caused the victim’s serious injury.
Defendant cites N.C. Gen. Stat. § 20-141.4(a4)(3) (2015), which states: “The
commission of the offense . . . is the proximate cause of the serious injury.” (emphasis
supplied). Defendant asserts this language “forecloses the possibility of the state
proving proximate cause in conjunction with some other concurrent cause.” We
disagree.
Defendant acknowledges in his brief this Court’s previous rejection of this
argument. See State v. Leonard, 213 N.C. App. 526, 530, 711 S.E.2d 867, 871 (2011)
(defendant’s operation of a motor vehicle under the influence of an impairing
substance “need not be the only proximate cause of a victim’s injury in order for
defendant to be found criminally liable; a showing that defendant’s action of driving
while under the influence was one of the proximate causes is sufficient.”) The trial
court accurately instructed the jury in conformity with the law. This argument is
without merit and is overruled.
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STATE V. COX
Opinion of the Court
VI. Exclusion of Evidence that the Child Victim was not Properly Restrained
Defendant argues the trial court erred by denying his requests to allow
evidence that Khai was not properly restrained in a child seat pursuant to N.C. Gen.
Stat. § 20-137.1. We disagree.
A. Standard of Review
This Court reviews the trial court’s decision to exclude evidence for an abuse
of discretion. State v. Cooper, 229 N.C. App. 442, 227, 747 S.E.2d 398, 403-404 (2013).
B. Analysis
The statute cited by Defendant states, “Every driver who is transporting one
or more passengers of less than 16 years of age shall have all such passengers
properly secured in a child passenger restraint system or seat belt which meets
federal standards applicable at the time of its manufacture.” N.C. Gen. Stat. § 20-
137.1(a) (2015). However, the law also provides, “Evidence of failure to wear a seat
belt shall not be admissible in any criminal or civil trial, action, or proceeding except
in an action based on a violation of this section or as justification for the stop of a
vehicle or detention of a vehicle operator and passengers.” N.C. Gen. Stat. § 20-
135.2A(d) (2015). Furthermore, a child restraint system violation “shall not be
evidence of negligence or contributory negligence.” N.C. Gen. Stat. § 20-137.1(d)(4)
(2015). Defendant’s argument is without merit and is overruled.
VII. Conclusion
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STATE V. COX
Opinion of the Court
Defendant elected not to exercise multiple opportunities to have witnesses or
an attorney present after his arrest pursuant to N.C. Gen. Stat. § 15A-501(5).
Defendant cannot demonstrate he was irreparably prejudiced by the absence of a
witness or attorney or by the time period, which elapsed between his arrest and
appearance before a magistrate to warrant dismissal of his charges.
Cooke offered no testimony that would tend to sway the jury in deciding
Defendant’s guilt. Defendant has failed to show the trial court committed prejudicial
error by not allowing Defendant to cross-examine Cooke regarding the contents of his
civil complaint against Defendant and Ms. Siu to show bias.
The trial court’s jury instructions on proximate cause were accurate and did
not mislead the jury. Defendant has failed to show the trial court committed plain
error by failing to give an instruction on intervening negligence.
The trial court did not abuse its discretion by not allowing evidence that Khai
was not properly restrained in a child seat. Defendant received a fair trial, free from
prejudicial errors he argued. It is so ordered.
NO PREJUDICIAL ERROR.
Judges McCULLOUGH and DILLON concur.
Judge McCULLOUGH concurred in this opinion prior to 24 April 2017.
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