An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-656
                       NORTH CAROLINA COURT OF APPEALS

                               Filed: 4 March 2014


STATE OF NORTH CAROLINA

      v.                                      Robeson County
                                              Nos. 11 CRS 5000
                                              09 CRS 57970
                                              09 CRS 706839
                                              09 IFS 707165
                                              09 CRS 8828
TERRY DEAN SPIVEY, SR.



      Appeal by defendant from judgment entered 19 October 2012

by Judge James Gregory Bell in Robeson County Superior Court.

Heard in the Court of Appeals 11 December 2013.


      Roy Cooper, Attorney General, by Kathryne                    E.   Hathcock,
      Assistant Attorney General, for the State.

      T. Craig Wright for defendant-appellant.


      STEELMAN, Judge.


      Where the exclusion of           photographs of the scene of the

collision would not have had a probable impact on the outcome of

trial, the trial court did not commit plain error.                    Where other

evidence supported the finding that defendant was the driver of

the vehicle, the admission of a hearsay statement as to the
                                        -2-
driver’s identity was harmless error.              Where defendant failed to

offer   legal     arguments   to    support       the    exclusion     of   medical

reports, this argument is deemed abandoned.                Where defendant was

not sentenced for both manslaughter and felony death by vehicle,

the indictment alleging both offenses was not fatally flawed.

Where the State presented evidence that defendant was found at

the scene of the collision, pinned beneath the steering wheel,

there was sufficient evidence that defendant was operating the

vehicle at the time of the collision.               The trial court did not

err in denying defendant’s motion to dismiss at the close of all

of the evidence.

                  I. Factual and Procedural Background

    On    2   October     2009,   Terry    Dean    Spivey,    Sr.,     (defendant)

attended a cookout at the home of his mother, along with his

wife and six year-old granddaughter.              Defendant consumed alcohol

at the cookout.          Defendant got into an altercation with his

half-brother      and    stepfather,      and     left    with   his    wife   and

granddaughter.          Shortly    thereafter,      defendant      returned,    and

smashed     the   windshields      of     his   mother’s     and     stepfather’s

vehicles.     Defendant again departed.

    At roughly 9:30 p.m. that evening, Lori and Jimmy Chavis

heard a “loud bang sound” outside of their home, and discovered
                                            -3-
defendant’s vehicle in a ditch against an uprooted pine tree.

Beer cans were scattered in the roadway and ditch.                             Mr. Chavis

helped    defendant’s        granddaughter        from     the      vehicle,    and     Mrs.

Chavis’ mother cleaned up the girl’s bloody nose until emergency

responders arrived.            Defendant requested assistance getting out

of the vehicle, but could not be removed because his legs were

pinned    beneath      the    steering      wheel.         Mrs.     Chavis     noted    that

defendant smelled of alcohol.

       Defendant’s son arrived at the scene of the collision, and

observed       defendant          pinned     beneath       the       steering     column.

Defendant’s wife informed defendant’s son that she was dying.

       Emergency responders found defendant pinned in the driver’s

seat     by   the     steering      wheel,     his     knees        trapped    under     the

dashboard.      The driver’s seat had to be forcibly repositioned to

remove defendant.            Defendant was not wearing a seatbelt, but

insisted      that    he    had    been    wearing     one     at    the   time    of    the

collision.          Assistant Chief Elaine Dixon-Parker of the South

Robeson Rescue Squad testified that defendant’s injuries were

inconsistent         with    seatbelt      usage,    and     defendant        admitted    at

trial that he was not wearing a seatbelt at the time of the

collision.      The extraction team observed that defendant smelled

of alcohol, that his breathing was heavy, that his speech was
                                            -4-
slurred,    and    that      there    were       open    cans     of    alcohol    in   the

vehicle.

       In the front passenger seat of the vehicle, which had been

hurled    into    the   dashboard,          rescue      workers    found      defendant’s

wife.     She was taken to the hospital in Chapel Hill, where she

died sixteen days later from her injuries.

       While defendant and his wife were being extracted, other

emergency         responders         were          attending           to     defendant’s

granddaughter, who stated that she had been seated in the back

seat.     She later informed emergency room doctors that defendant

had been driving too fast, lost control, and struck a tree.

       Defendant was charged with second-degree murder, aggravated

felony death by vehicle, misdemeanor child abuse and reckless

driving,    failure     to    wear     a    seat       belt,    failure     to    secure   a

passenger under 16, driving while impaired, and driving while

license    revoked.          The     jury       found    defendant      guilty     of    all

criminal charges and responsible for all infractions.                             The jury

also     found    the   existence          of     an    aggravating         factor:     that

defendant committed the offense while on pretrial release on

another     charge.           All      of        defendant’s       convictions          were

consolidated into one judgment, and defendant was sentenced to
                                    -5-
an   active    term   of   imprisonment   of   276-341   months,   from   the

aggravated range.

      Defendant appeals.

                       II. Admission of Photographs

      In his first argument, defendant contends that the trial

court erred in admitting five photographs of the scene of the

accident, showing a cross and flowers that were placed there

after the accident.        We disagree.

                           A. Standard of Review

              [T]he plain error rule ... is always to be
              applied   cautiously   and    only   in  the
              exceptional case where, after reviewing the
              entire record, it can be said the claimed
              error is a “fundamental error, something so
              basic, so prejudicial, so lacking in its
              elements that justice cannot have been
              done,” or “where [the error] is grave error
              which amounts to a denial of a fundamental
              right of the accused,” or the error has
              “‘resulted in a miscarriage of justice or in
              the denial to appellant of a fair trial’” or
              where the error is such as to “seriously
              affect the fairness, integrity or public
              reputation of judicial proceedings” or where
              it can be fairly said “the instructional
              mistake had a probable impact on the jury's
              finding that the defendant was guilty.”

      State v. Lawrence, 365 N.C. 506, 516-17, 723 S.E.2d 326,

333 (2012) (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d

375, 378 (1983)).

                                B. Analysis
                                     -6-
    At trial, the State introduced five photographs of the tree

at the scene of the collision.             Several of these photographs

were taken a year after the collision, and showed a cross and

flowers,   marking    the   site   of    the    accident   as   a    memorial.

Defendant did not object to the admission of these photographs

at trial, but now alleges that this was prejudicial, and that

these   photographs   should   not      have    been   admitted.       Because

defendant did not make this objection at trial, we review the

admission of these photographs for plain error.

    In our review of the record, it appears that the evidence

against defendant included these photographs, several reports,

and eyewitness testimony.          There was no shortage of evidence

against defendant.     The photographs themselves were admitted for

illustrative purposes, to show how the tree had been uprooted by

the impact.     We hold that the exclusion of these photographs

would not have “had a probable impact on the jury’s finding that

the defendant was guilty,” and that the trial court did not

commit plain error by admitting them into evidence.

    This argument is without merit.

              III. Admission of Minor Child’s Statement

    In his second argument, defendant contends that the trial

court   erred    in    admitting     the       statement   of       defendant’s
                                       -7-
granddaughter to emergency responders as to who was driving the

vehicle.        We disagree.

                               A. Standard of Review

         “The trial court’s determination as to whether an out-of-

court     statement     constitutes    hearsay      is    reviewed      de    novo   on

appeal.” State v. Castaneda, ___ N.C. App. ___, ___, 715 S.E.2d

290, 293, appeal dismissed and disc. review denied, 365 N.C.

354, 718 S.E.2d 148 (2011).

                                   B. Analysis

         After the collision, defendant’s minor granddaughter gave a

statement to emergency responders that defendant was driving the

vehicle.        At trial, the State sought to introduce this statement

as   a    hearsay     exception    pursuant    to     Rule   803   of    the     North

Carolina Rules of Evidence: a statement made in the course of

medical     treatment.         Defendant   objected,      and    the    trial    court

overruled the objection.           Defendant contends that the admission

of   the        granddaughter’s    statement     to      emergency      responders,

without calling the granddaughter as a witness, violated his

right to confront the witnesses against him.

         Even    assuming   arguendo   that    the       trial   court       erred   in

admitting this evidence, we hold that any error was harmless.

In addition to the statement by defendant’s granddaughter, other
                                            -8-
witnesses testified that defendant’s legs were pinned under the

steering column, and that defendant was in the driver’s seat

subsequent to the collision.                Defendant’s wife, the only other

adult in the vehicle, was found crushed inside of the front

passenger seat, which had collapsed on top of her.                      The physical

evidence    at    the        scene    of    the    accident    demonstrated     that

defendant had to have been the operator of the vehicle at the

time of the collision.               We hold that any error resulting from

the   admission       of     the     granddaughter’s     statement      to   medical

examiners was harmless.

      This argument is without merit.

                       IV. Admission of Medical Reports

      In his third argument, defendant contends that the trial

court erred      in    admitting medical reports as evidence of                    his

identity as the driver of the vehicle.                We disagree.

      At   trial,      the    State    introduced     the     medical    reports   of

defendant’s      granddaughter,            which   contained     statements     that

defendant was in the driver’s seat, was driving too fast and

lost control.         Defendant objected, and the trial court overruled

the objection.        Defendant contends that the trial court admitted

this evidence in error, but makes no legal argument as to why
                                    -9-
this was error.     Accordingly, we deem this argument abandoned

pursuant to N.C. R. App. P. 28(b).

    This argument is without merit.

                   V. Alleged Flaws in Indictment

    In    his   fourth    argument,       defendant   contends   that    the

indictment for aggravated felony death by vehicle was fatally

flawed.   We disagree.



                          A. Standard of Review

    “An attack on an indictment is waived when its validity is

not challenged in the trial court.” State v. Wallace, 351 N.C.

481, 503, 528 S.E.2d 326, 341, cert. denied, 531 U.S. 1018, 148

L. Ed. 2d 498 (2000). “However, where an indictment is alleged

to be invalid on its face, thereby depriving the trial court of

its jurisdiction, a challenge to that indictment may be made at

any time, even if it was not contested in the trial court.” Id.

                               B. Analysis

    Defendant     was    indicted   for    aggravated   felony   death    by

vehicle and second-degree murder.            With regard to the murder

charge, the trial court instructed the jury as to the lesser

included offense of involuntary manslaughter.
                                         -10-
       N.C. Gen. Stat. § 20-141.4 states that no defendant may be

charged with both death by vehicle and manslaughter arising from

the    same   incident.      N.C.       Gen.    Stat.   §   20-141.4(c)       (2013).

Defendant contends that the indictment alleging both was fatally

flawed.

       In our recent decision of State v. Elmore, ___ N.C. App.

___, 736 S.E.2d 568 (2012), we held that this statute prohibited

a   defendant    from   being     sentenced       for   both   manslaughter      and

felony death by vehicle.          It did not hold that a defendant could

not be indicted for both offenses.                 In the instant case, the

jury   was    instructed    on    involuntary      manslaughter     as    a    lesser

offense to second-degree murder,                as well as felony death by

vehicle.      Defendant was found guilty of second-degree murder,

not    manslaughter,      which    is    not    prohibited     by   the   statute.

Accordingly, we hold that the indictment, alleging both murder

and felony death by vehicle, was not fatally flawed.

       This argument is without merit.

                            VI. Motion to Dismiss

       In his fifth and sixth arguments, defendant contends that

the trial court erred in failing to grant his motion to dismiss

at the close of the State’s evidence and at the close of all of

the evidence.     We disagree.
                                -11-
                        A. Standard of Review

    “This Court reviews the trial court’s denial of a motion to

dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650

S.E.2d 29, 33 (2007).

    “Our courts have consistently held that when a defendant

presents evidence at trial, he waives his right on appeal to

assert the trial court's error in denying the motion to dismiss

at the close of the State's evidence.”    State v. Davis, 101 N.C.

App. 409, 411, 399 S.E.2d 371, 372 (1991).        Because defendant

presented evidence at trial, our review is limited to the motion

to dismiss at the close of all of the evidence.

                            B. Analysis

    At the close of the State’s evidence, and again at the

close of all of the evidence, defendant moved to dismiss the

charges against him.     Defendant contends that no evidence was

presented to show that he was driving the vehicle at the time of

the collision.

    Pursuant to a motion to dismiss at the close of all of the

evidence, “[t]he defendant's evidence, unless favorable to the

State, is not to be taken into consideration, except when it is

consistent with the State's evidence, the defendant's evidence

may be used to explain or clarify that offered by the State[.]”
                                   -12-
State v. Abshire, 363 N.C. 322, 328, 677 S.E.2d 444, 449 (2009)

(citations and quotations omitted).

    In   the    instant   case,   the   State’s    evidence       showed   that

defendant was found behind the steering wheel of the vehicle,

that defendant was intoxicated, that defendant was not wearing a

seatbelt,    that   defendant’s   granddaughter     was     not    wearing    a

seatbelt, that defendant’s driver’s license had been revoked,

and that defendant’s driving caused the death of defendant’s

wife.       Defendant’s   evidence,     to   the   extent     that    it     was

inconsistent with or sought to rebut the State’s evidence, was

not to be considered by the trial court.               We hold that the

evidence presented at trial was sufficient to support all of the

charges submitted to the jury.          The trial court did not err in

denying defendant’s motion to dismiss at the close of all of the

evidence.

    This argument is without merit.

    NO ERROR.

    Judges STEPHENS and DAVIS concur.

    Report per Rule 30(e).
