               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-1426

                                Filed: 5 February 2019

Onslow County, Nos. 15 CRS 2306; 2269; 54250-51 & 54253

STATE OF NORTH CAROLINA

              v.

JOSEPH BRIAN SHELTON


        Appeal by defendant from judgment entered 9 May 2017 by Judge Charles H.

Henry in Onslow County Superior Court. Heard in the Court of Appeals 16 October

2018.


        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
                                  STATE V. SHELTON

                                  Opinion of the Court



      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been revoked for over a year, Defendant got into his green Dodge pickup truck and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



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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



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                                   Opinion of the Court



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




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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



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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




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                                   Opinion of the Court



$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



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                                         Opinion of the Court



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


       1 Following the jury’s verdict, the trial court arrested judgment on Defendant’s convictions for
involuntary manslaughter and misdemeanor death by vehicle.

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                                   Opinion of the Court



      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).




                                          -9-
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                                   Opinion of the Court



      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:



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              (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. 20-138.1 . . . , and
                     (3) The commission of the offense in subdivision (2)
                     of this subsection is the proximate cause of death.

N.C. Gen. Stat. § 20-141.4 (2017).

      The offense of driving while impaired is, in turn, defined in N.C. Gen. Stat.

§ 20-138.1.

              (a) Offense. — A person commits the offense of impaired
              driving if he drives any vehicle upon any highway, any
              street, or any public vehicular area within this State:
                     (1) While under the influence of an impairing
                     substance; or
                     (2) After having consumed sufficient alcohol that
                     he has, at any relevant time after the driving, an
                     alcohol concentration of 0.08 or more. The results of
                     a chemical analysis shall be deemed sufficient
                     evidence to prove a person’s alcohol concentration;
                     or
                     (3) With any amount of a Schedule I controlled
                     substance, as listed in G.S. 90-89, or its metabolites
                     in his blood or urine.

N.C. Gen. Stat. § 20-138.1 (2017).

      Here, Defendant was convicted of felony death by vehicle based on the theory

of impairment set out in N.C. Gen. Stat. § 20-138.1(a)(1). This Court has held that

“[t]o support a charge of driving while impaired, the State must prove that the

defendant has . . . taken a sufficient amount of narcotic drugs, to cause him to lose

the normal control of his bodily or mental facilities, or both, to such an extent that

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                                        Opinion of the Court



there is an appreciable impairment of either or both of these faculties.” State v.

Norton, 213 N.C. App. 75, 78, 712 S.E.2d 387, 390 (2011) (internal citation and

quotation marks omitted).           The fact that a motorist has consumed impairing

substances “when considered in connection with faulty driving or other conduct

indicating an impairment of physical and mental faculties, is sufficient prima facie

to show a violation of N.C. Gen. Stat. § 20-138.1.” Id. at 79, 712 S.E.2d at 390

(internal quotation marks, brackets, and citation omitted).

       Defendant argues that the trial court erred by denying his motion to dismiss

because there was a lack of substantial evidence that he was actually impaired at the

time he struck Anderson as a result of his prior ingestion of Tramadol or Oxycodone.2

He contends that the State’s evidence merely showed negligence regarding his

operation of his truck at the time of the collision as opposed to giving rise to a

reasonable inference that he was impaired. We disagree.

       It is undisputed that Defendant ingested both drugs on the day of the accident

and that they were still present in his blood after the crash. Taking these facts

together with the evidence at trial regarding Defendant’s lack of awareness of the




       2 We note that unlike N.C. Gen. Stat. § 20-138.1(a)(3), which provides that operating a vehicle
with any amount of a Schedule I drug present in one’s blood or urine constitutes driving while
impaired, § 20-138.1(a)(1) requires a finding that the defendant was actually driving “under the
influence of an impairing substance” in order for criminal liability to attach. N.C. Gen. Stat. §§ 20-
138.1(a)(1), (3) (emphasis added).

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circumstances around him and his conduct before and after the collision, reasonable

jurors could — and did — find that Defendant was appreciably impaired.

      First, evidence was presented that the labels on the bottles of Tramadol and

Oxycodone warned that they may cause drowsiness or dizziness and that care should

be taken when operating a vehicle after their ingestion. Under North Carolina law,

Oxycodone and Tramadol are classified as Schedule II and Schedule IV controlled

substances, respectively. See N.C. Gen. Stat. §§ 90-90(1)(a)(14), 90-92(a)(5) (2017).

      Second, Defendant testified that he failed to see Anderson standing on the side

of the road before the accident despite the fact that it was daytime, visibility was

clear, and the road was straight. Moreover, all three of the eyewitnesses who testified

at trial — one of whom was at least 150 yards away — were able to see Anderson

before Defendant struck her with his truck.

      Third, Defendant admitted that following the accident he was unaware that

his vehicle had even collided with a human being despite the fact that the impact of

the collision was sufficiently strong to cause Anderson’s body to fly 59 feet through

the air down the side of Old Folkstone Road. Fourth, although Defendant testified

that his brakes had completely stopped functioning when he attempted to slow down

immediately prior to the accident, he decided not to remain at the scene and instead

elected to drive his truck out of the ditch back onto Old Folkstone Road and all the

way to his home despite the fact that the vehicle lacked operable brakes.



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                                  Opinion of the Court



       None of this evidence conclusively established that Defendant was legally

impaired. But that is not the question before us. Rather, the sole issue is whether

sufficient evidence was presented that could have led a rational jury to conclude that

Defendant was, in fact, impaired. We are unable to agree with Defendant that this

standard was not met. The evidence discussed above lends itself to a reasonable

inference that Defendant’s senses were appreciably impaired at the time of the

collision.

       Moreover, we reject Defendant’s attempt to separate the concepts of negligence

and impairment in this context as mutually exclusive. While the evidence certainly

shows, at a bare minimum, negligent driving by Defendant, it also supports the

conclusion that such negligence was caused by Defendant’s impairment due to his

ingestion of Tramadol and Oxycodone earlier that day.

       Although Defendant also argues that the failure of his brakes was a cause of

the accident, the fact that his brakes were in poor condition is not incompatible with

the proposition that he was driving while impaired and that his impairment

constituted a proximate cause of the death of Anderson. Based on the evidence

presented at trial, the jury could reasonably have concluded that a non-impaired

driver — upon realizing his brakes were inoperable — would not have chosen to




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                                         Opinion of the Court



swerve in the direction of a person standing on the side of the road whose presence

should have been clearly visible to him.3

        Defendant further points to the evidence that the troopers who met with him

following the accident did not charge him with driving while impaired. However,

although this fact could support an inference of a lack of impairment, when reviewing

the trial court’s denial of a defendant’s motion to dismiss we are required to draw

every reasonable inference and resolve every conflict in the State’s favor — not the

defendant’s.4 See Rose, 339 N.C. at 192, 451 S.E.2d at 223. The other evidence

discussed above — taken in the light most favorable to the State — was sufficient to

support a finding that Defendant was, in fact, impaired.

        In reaching this result, we are guided by our Supreme Court’s decision in

Atkins v. Moye, 277 N.C. 179, 176 S.E.2d 789 (1970). In Atkins, the plaintiff was

driving on a highway at night in the rain and fog when he collided with the

defendant’s truck — which was stopped in the plaintiff’s lane of travel — that the

plaintiff failed to see in time to prevent the accident. Id. at 180-81, 176 S.E.2d at 790-

91. The plaintiff did not “break his speed” before he hit the defendant’s truck with


        3 Indeed, Jones testified that there was no oncoming traffic in the westbound lane at the time
of the accident, meaning that Defendant could have safely swerved to the left in order to avoid striking
both Jones’ vehicle and Anderson.

        4 It is undisputed that Defendant did not inform the law enforcement officers about his
ingestion of Oxycodone or Tramadol. We observe that signs of drowsiness — a side effect of both
Oxycodone and Tramadol — would have been less readily apparent during an interview under these
circumstances than, for example, the odor of alcohol or bloodshot and glassy eyes typically exhibited
by one who has recently consumed alcohol.

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his vehicle. Id. at 185, 176 S.E.2d at 793. After the accident, the defendant detected

an odor of alcohol on the plaintiff’s breath. Id. The investigating officer smelled

alcohol in the plaintiff’s vehicle and observed that there was a pint bottle containing

a small amount of whiskey on the floorboard under the front seat of the plaintiff’s car.

Id.

      The plaintiff brought a civil action in which he alleged negligence on the part

of the defendant. Id. at 181, 176 S.E.2d at 791. The defendant asserted the defense

of contributory negligence, arguing that the plaintiff had caused the accident by

operating his vehicle while under the influence of alcohol. Id. At trial, the jury

determined that the plaintiff had, in fact, been contributorily negligent due to his

impairment resulting from his prior consumption of alcohol. Id. at 183, 176 S.E.2d

at 792.

      Our Supreme Court held that the evidence presented was sufficient to support

the jury’s verdict, noting that the plaintiff was traveling 30 miles per hour upon a

straight road and failed to see the tractor trailer until he was ten feet away despite

the presence of blinking lights and reflectors. Id. at 185, 176 S.E.2d at 793. In its

opinion, the Court further explained its ruling as follows:

                   An odor of alcohol on the breath of the driver of an
             automobile is evidence that he has been drinking.
             However, an odor, standing alone, is no evidence that he is
             under the influence of an intoxicant, and the mere fact that
             one has had a drink will not support such a finding.
             Notwithstanding, the fact that a motorist has been


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             drinking, when considered in connection with faulty
             driving or other conduct indicating an impairment of
             physical or mental faculties, is sufficient prima facie to
             show [impairment].

                    We hold that the evidence of the “broken pint” and
             the odor of alcohol on plaintiff’s breath and in his
             automobile, when taken in conjunction with his failure to
             take any action to avoid a collision with the truck, was
             sufficient to support a finding that plaintiff’s faculties had
             been appreciably impaired by the consumption of an
             alcoholic beverage. It is quite true . . . that the only
             testimony of any odor of alcohol on plaintiff’s breath came
             from defendant . . . . We also note that plaintiff testified he
             had consumed no alcoholic beverages all day and that he
             failed to see the truck because the lights of an approaching
             car, reflected on the wet, blacktop pavement, blinded him.
             The credibility of the witnesses and conflicts in the
             evidence, however, are for the jury, not the court.

Id. at 185-86, 176 S.E.2d at 793-94 (internal citations, quotation marks, brackets, and

ellipses omitted).

      Thus, Atkins stands for the proposition that impairment can be shown by a

combination of evidence that a defendant has both (1) ingested an impairing

substance; and (2) operated his vehicle in a manner showing he was so oblivious to a

visible risk of harm as to raise an inference that his senses were appreciably

impaired.

      While Defendant argues that the upholding of his conviction for felony death

by vehicle will have the effect of creating a strict liability standard for persons who

lawfully take prescription drugs and then are parties to a motor vehicle collision



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caused by their negligent driving, this contention is misplaced for several reasons.

First, the circumstances of every case are different, and not every accident involving

a driver who has ingested prescription drugs will raise an inference that the driver

was appreciably impaired. Second, even in cases where a defendant is charged with

an offense based on impaired driving under such circumstances, it is ultimately the

role of the jury to determine whether the defendant was actually impaired and

whether the impairment was a proximate cause of the accident.

        Finally, we wish to emphasize that our holding today does not break new legal

ground as we are simply applying in the context of prescription drugs the same rules

that apply to driving after consuming alcohol.5 It is not per se illegal to operate a

motor vehicle after consuming alcohol just as it is not — without more — illegal to do

so after ingesting prescription drugs. But both are potentially impairing substances,

and criminal liability attaches when a driver operates a vehicle despite being

appreciably impaired. As Atkins demonstrates, this is not a novel proposition.

        Were we to accept Defendant’s argument, it is unclear how a jury would ever

have the opportunity to determine whether a driver with an indeterminate amount

of drugs in his bloodstream was impaired in the absence of opinion testimony from




        5  While the State did not dispute the fact that Defendant possessed prescriptions for
Oxycodone and Tramadol, the potentially impairing effects of these substances are the same whether
they are taken with or without a prescription. Although Defendant presented testimony suggesting
that frequent users of these drugs often develop a tolerance for these side effects, it was up to the jury
to decide the appropriate weight to give that evidence.

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an officer — regardless of the strength of the evidence showing that he was oblivious

to an obvious risk of harm to others. Neither law nor logic supports such a result.

       It was the role of the jury to determine based on the evidence presented at trial

whether (1) Defendant was appreciably impaired due to his ingestion of one or both

of the controlled substances he had taken earlier that day; and (2) whether his

impairment was a proximate cause of Anderson’s death. We therefore conclude that

the trial court properly denied Defendant’s motion to dismiss.

II.   Exclusion of Trooper Acuna’s Testimony

       Defendant also contends that the trial court committed reversible error in

excluding Trooper Acuna’s testimony as to the fact that he did not charge Defendant

with the offense of driving while impaired. On cross-examination, the following

exchange occurred.

             [DEFENDANT’S COUNSEL]:             What       did   you   tell
             [Defendant] he was under arrest for?

             [PROSECUTOR]: Objection.

             THE COURT: Sustained.

             [TROOPER ACUNA]: I believe –

             [DEFENDANT’S COUNSEL]: Wait a minute.

             [PROSECUTOR]: Don’t answer that.

             THE COURT: I sustained the objection.

             [DEFENDANT’S COUNSEL]:                What charges did you


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             charge him with?

             [PROSECUTOR]: Objection.

             THE COURT: Sustained.

             [DEFENDANT’S COUNSEL]: Did you charge him with
             driving while impaired?

             [PROSECUTOR]: Objection.

             THE COURT: Sustained.

      “A trial court’s evidentiary rulings are subject to appellate review for an abuse

of discretion, and will be reversed only upon a finding that the ruling was so arbitrary

that it could not be the result of a reasoned decision.” Lord v. Customized Consulting

Specialty, Inc., 182 N.C. App. 635, 644-45, 643 S.E.2d 28, 33-34 (citation omitted),

disc. review denied, 361 N.C. 694, 652 S.E.2d 647 (2007). It is well established that

“[e]ven if the complaining party can show that the trial court erred in its ruling,

ordinarily relief will not be granted absent a showing of prejudice.” State v. Herring,

322 N.C. 733, 749, 370 S.E.2d 363, 373 (1988).

      Even assuming — without deciding — that the trial court erred in sustaining

the State’s objections to questioning by Defendant’s counsel regarding whether

Defendant had been charged with driving while impaired, Defendant has failed to

show that he was prejudiced by any such error. Despite the trial court’s exclusion of

this testimony, it would have been apparent to the jury that Defendant was never

charged with that offense. Troopers Acuna and Kirk both testified that they did not


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                                  STATE V. SHELTON

                                  Opinion of the Court



form an opinion that Defendant was impaired based on their interactions with him

on the day of the accident.     Moreover, in his closing argument the prosecutor

expressly acknowledged that the Defendant was not separately charged with driving

while impaired.

       Therefore, Defendant cannot establish prejudice from the trial court’s

exclusion of this testimony. See State v. Boone, 302 N.C. 561, 565, 276 S.E.2d 354,

357 (1981) (holding that trial court’s exclusion of testimony, while erroneous, was not

prejudicial).

III. Closing Argument

       Finally, Defendant argues that the trial court reversibly erred in failing to

intervene ex mero motu during the State’s closing argument. Specifically, he contends

that the prosecutor’s argument was grossly improper in that it (1) incorrectly stated

the legal standard for impairment; and (2) improperly appealed to the passion and

prejudice of the jury.

       “The standard of review for assessing alleged improper closing arguments that

fail to provoke timely objection from opposing counsel is whether the remarks were

so grossly improper that the trial court committed reversible error by failing to

intervene ex mero motu.” State v. Jones, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002)

(citation omitted). Our Supreme Court has held that “[i]n determining whether the

[State’s] argument was grossly improper, this Court must examine the argument in



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                                  Opinion of the Court



the context in which it was given and in light of the overall factual circumstances to

which it refers.” State v. Tyler, 346 N.C. 187, 205, 485 S.E.2d 599, 609 (citation

omitted), cert. denied, 522 U.S. 1001, 139 L. Ed. 2d 411 (1997).

      Defendant initially challenges the following portion of the State’s closing

argument:

             So, the controlled substances that were present in Joseph
             Shelton’s blood at the time of this collision, Oxycodone and
             Tramadol, and those are impairing substances, the
             presence of these drugs in his blood hours after the
             collision.

             And the laws of the State of North Carolina allow for you
             to find persons guilty of impaired driving if they have in
             their blood controlled substances.

             And the State submits to you that these controlled
             substances were in his blood and he was impaired by those
             controlled substances and you must follow the law in this
             case.

      Defendant contends that these statements were legally incorrect because in

order to convict Defendant of felony death by vehicle the jury had to find beyond a

reasonable doubt not merely that impairing substances were present in Defendant’s

bloodstream but also that he was appreciably impaired at the time of the accident.

However, in his brief, Defendant selectively quotes from this portion of the State’s

argument and omits other statements in which the prosecutor made clear that

Defendant could only be convicted if he was, in fact, legally impaired. The relevant

portion of the State’s argument — in its entirety — stated as follows:


                                         - 22 -
                                  STATE V. SHELTON

                                  Opinion of the Court



             The State alleges and has proven to you that the defendant
             was impaired by a controlled substance at the time of this
             collision.

             And you will find that the defendant is impaired if you find
             that he was under the influence of an impairing substance,
             which is what the Court will tell you the law is.

             So, the controlled substances that were present in Joseph
             Shelton’s blood at the time of this collision, Oxycodone and
             Tramadol, and those are impairing substances, the
             presence of these drugs in his blood hours after the
             collision.

             And the laws of the State of North Carolina allow for you
             to find persons guilty of impaired driving if they have in
             their blood controlled substances.

             And the State submits to you that these controlled
             substances were in his blood and he was impaired by those
             controlled substances and you must follow the law in this
             case.

(Emphasis added.)

      Therefore, when considered contextually the statements cited by Defendant

from the State’s closing argument did not require intervention ex mero motu by the

trial court. Furthermore, following closing arguments, the trial court instructed the

jury on the issue of impairment, and Defendant has not challenged this instruction.

      In addition, Defendant contends that the State improperly appealed to the

jury’s passion and prejudice in the following portion of its closing argument.

             The people of the State of North Carolina are entitled to
             guilty verdicts for what he did to her. Her family is entitled
             to justice for how he left her.


                                         - 23 -
                                  STATE V. SHELTON

                                  Opinion of the Court




             And you can send a message with your verdicts that this
             will not be tolerated. Let Joseph Shelton know that this
             will not be tolerated. That he’ll be held accountable. Let
             Rhonda Anderson’s family right there know that justice
             will be served and let the community, the community,
             right, let them know that people who drive while impaired
             will be severely punished.

             You must not let Joseph Shelton who drove under the
             influence with his history on a revoked license that ran
             over that woman and left her there for dead walk out of this
             courtroom with nothing more than a misdemeanor.

             You are the moral voice and conscience of this community,
             the community you live in, and you can be the somebody
             that ought to do something. If you don’t act, no one can. If
             you don’t decide, no one can.

             And the moment of decision is here. It’s here. You go back
             in that jury room, search your heart, search your mind,
             decide what you think is right. It’s not going to be easy,
             but you’ve got to decide.

      Our Supreme Court has held that it is permissible for a prosecutor to argue

“that for purposes of defendant’s trial, they are the voice and conscience of the

community.” State v. Brown, 320 N.C. 179, 204, 358 S.E.2d 1, 18, cert. denied, 484

U.S. 970, 98 L. Ed. 2d 406 (1987). It is also not improper for prosecutors to “tell the

jury that its verdict will send a message to the community[.]” State v. Golphin, 352

N.C. 364, 471, 533 S.E.2d 168, 237 (2000) (quotation marks and citation omitted),

cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001).




                                         - 24 -
                                 STATE V. SHELTON

                                 Opinion of the Court



      Based on our careful review of the transcript, we are once again unable to agree

with Defendant that the State’s argument was so grossly improper that intervention

ex mero motu was required. Accordingly, Defendant’s argument is overruled.

                                    Conclusion

      For the reasons stated above, we conclude that Defendant received a fair trial

free from error.

      NO ERROR.

      Judges BRYANT and STROUD concur.




                                        - 25 -
