                 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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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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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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      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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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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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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                                   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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