NO. COA NORTH CAROLINA COURT OF APPEALS. Filed: 7 August v. Onslow County Nos. 10 CRS CRS JAMES ERIC MARSLENDER

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1 An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA NORTH CAROLINA COURT OF APPEALS Filed: 7 August 2012 STATE OF NORTH CAROLINA v. Onslow County Nos. 10 CRS CRS JAMES ERIC MARSLENDER Appeal by Defendant from judgments entered 22 July 2011 by Judge Phyllis M. Gorham in Superior Court, Onslow County. Heard in the Court of Appeals 3 April Attorney General Roy Cooper, by Special Deputy Attorney General Jennie Wilhelm Hauser, for the State. Geoffrey W. Hosford for Defendant-Appellant. McGEE, Judge. James Eric Marslender (Defendant) was indicted on 8 February 2011 on charges of driving while impaired, seconddegree murder, failing to secure a passenger under the age of sixteen in a vehicle, and exceeding safe speed, all alleged to have occurred on 26 September At trial on 18 July 2011, the trial court denied Defendant's motions to dismiss at the

2 -2- close of the State's evidence and at the close of all evidence. The jury found Defendant guilty of driving while impaired and of second-degree murder. The trial court sentenced Defendant to 144 months to 182 months in prison. Defendant appeals. I. Factual Background Defendant was driving his truck eastbound on Highway 24 in Onslow County on the evening of 26 September Defendant's son, James Eric Marslender, II, was riding with Defendant. At about 8:10 p.m., Defendant's truck collided with a tree located in the highway median, and Defendant's son was killed. Rebecca Ann Silvia (Ms. Silvia) was driving in the right-hand eastbound lane of Highway 24. Ms. Silvia testified that she witnessed Defendant's truck pass her in the left-hand lane as "heavy rains" began to fall. From a distance of "about one to two car lengths," Ms. Silvia witnessed Defendant's truck "sp[i]n out of control into the median and [wrap] around a tree." Ms. Silvia testified that she was not sure exactly what happened to cause the collision, but that she "figured overcompensating." Police officers responding to the accident scene noted that Defendant "smelled like beer" and the officers administered a horizontal gaze and nystagmus test to Defendant, the results of which indicated impairment. Defendant was given a blood test at

3 -3- the hospital at 9:50 p.m. that showed Defendant had a blood alcohol content of.12. Officer Brittany Hall testified that, upon arriving at the scene, she examined Defendant's son and attempted to locate a pulse but was unable to do so. Dr. John Almeida (Dr. Almeida) performed an autopsy on Defendant's son the following morning and determined that the child died from "blunt head trauma, secondary to a motor vehicle accident." The State presented evidence of Defendant's two prior driving while impaired convictions that showed Defendant had been convicted of "DWI, level five" in Cabarrus County on 19 August 1997, and of "[DWI], level two" in Onslow County on 30 October At trial, Defendant did not object to the introduction of evidence of his two prior driving while impaired convictions. During cross-examination, the State questioned Defendant about an incident that occurred in Ohio in 2008 and Defendant testified that, after drinking in a motel room, he drove his son and two other minors "through the parking lot" of the motel to a restaurant. Defendant testified that he got a flat tire and that the incident was reported to "the department of social services[.]" II. Issues on Appeal

4 -4- Defendant raises on appeal the issues of whether: (1) the trial court correctly denied Defendant's motion to dismiss the charge of second-degree murder; and (2) the trial court committed plain error when, without prior notice, it allowed the State to impeach Defendant during cross-examination with prior driving while impaired convictions from 2000 and 1997; and Defendant argues the trial court also erred when it allowed the State to cross-examine Defendant as to the incident in Ohio in 2008 in which Defendant consumed alcohol and drove a vehicle with his son and two other minors present in the vehicle. III. Motion to Dismiss Defendant argues that the trial court erred by denying his motion to dismiss the charge of second-degree murder. Defendant contends that "the State did not introduce substantial evidence that [Defendant's] act was the proximate cause of the death of his son." Upon review of the evidence presented at trial, we find that the State did present such evidence and, therefore, the trial court properly denied Defendant's motion to dismiss. Upon reviewing a trial court's denial of a motion to dismiss, "we must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences." State v. Benson, 331 N.C. 537, 544, 417 S.E.2d

5 -5-756, 761 (1992). We then consider de novo 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 of such offense. If so, the motion is properly denied. If the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, the motion should be allowed. State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002) (citations omitted). "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). Contradictions and discrepancies must be resolved in favor of the State, and a defendant's evidence, unless favorable to the State, is not to be taken into consideration. State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 653 (1982). Defendant argues that "[t]he State offered no evidence from which a rational trier of fact could conclude that the collision with the tree was the natural result of driving while impaired." Evidence of Defendant's driving while impaired is not sufficient, in itself, to support a finding of proximate cause. The trial court must also consider "the element[s] of causal

6 -6- relation, and... proximate cause; for mere proof of a negligent act does not establish its causal relation to the injury." State v. Lowery, 223 N.C. 598, 603, 27 S.E.2d 638, 641 (1943). See also State v. McGill, 314 N.C. 633, 637, 336 S.E.2d 90, 93 (1985) (holding that "when a death is caused by one who was driving under the influence of alcohol," successful prosecution depends on demonstrating "the causal link between that violation and the death"). However, upon review of the evidence presented at trial in the present case, it is clear that the State did present substantial evidence to support a causal link between Defendant's driving while impaired and the collision that resulted in the death of Defendant's son. During direct examination by the State, Ms. Silvia was asked: [THE STATE:] And when you -- when you state to the court that you observed the white vehicle begin to go out of control, what do you mean by that, ma'am? [MS. SILVIA:] It looked like -- I saw the vehicle pull to the right, I figured overcompensating. I wasn't sure what happened. He was about one to two car lengths ahead of me. Then I saw it start to spin out of control, and I was slowing down because of rain, so I pulled over to the side. [THE STATE:] About how fast were you traveling, at that point in time?

7 -7- [MS. SILVIA:] About 50, 55 miles per hour. [THE STATE:] And it was clear to you that the white truck was passing you? A. Yes, sir. We find Ms. Silvia's testimony sufficient to allow a jury to reasonably infer that Defendant's impairment caused him to overcorrect. Our Supreme Court has held that, to show a defendant's intoxication proximately caused a victim's death, "only one causal link must be shown that between the intoxication and the death." McGill, 314 N.C. at 633, 336 S.E.2d at 90. When Ms. Silvia's testimony is considered in the light most favorable to the State, and with all reasonable inferences in favor of the State, a jury could reasonably determine that her testimony established a causal link between Defendant's driving while impaired and the death of Defendant's son. Accordingly, we find that Defendant's motion to dismiss was properly denied. IV. Impeachment Defendant next argues that the trial court committed plain error by admitting evidence of Defendant's two prior convictions for driving while impaired from 1997 and 2000 to impeach him. Further, Defendant contends that the State spent a significant amount of time questioning Defendant about an alleged incident

8 -8- where he was "drinking and driving with the minors in his truck, in 2008." Defendant contends that the questioning was "offered simply to show that [Defendant] drank alcohol in the past and had an accident with minors in his truck, demonstrating that he acted in conformity with his character on 26 September 2010." Defendant states that our appellate courts have "approved the introduction of a defendant's driving record, including prior convictions as evidence of malice." Defendant also concedes that, in the present case, "the introduction of the prior convictions for driving while impaired was proper as to the element of malice[.]" Defendant asserts that "[t]he prosecution, however, chose to impeach [Defendant] with these prior convictions to which he did not object and the trial court did not intervene." We note that Defendant's argument on this issue refers to the State's "line of questioning" but does not include a citation to the transcript to show us what questioning Defendant now challenges. Reviewing the transcript, we find only the following references to Defendant's prior convictions. The State examined Jayne Vlassis (Ms. Vlassis), a supervisor in the criminal division of the Clerk of Court's Office in Onslow County. Ms. Vlassis authenticated the records of two prior impaired driving convictions of Defendant. After

9 -9- Defendant's driving record was admitted into evidence, the following exchange occurred: THE COURT: Do you want me to give the instruction on these charges now, or had you rather wait to give it to them? [THE STATE]: That's up to [DEFENSE COUNSEL]. [DEFENSE COUNSEL]: I'm sorry, I didn't hear that. [THE STATE]: Do you want a special instruction about the convictions now, or do you want to wait and have it at the end? [DEFENSE COUNSEL]: I think we'll wait until the instructions. THE COURT: Okay. All right. Later, the State and Defendant engaged in the following exchange during the State's cross-examination of Defendant: [THE STATE:] So you're saying alcohol had nothing do with [the accident], is that right? [Defendant:] No, sir, not that accident. [THE STATE:] But you know driving while impaired is illegal. [Defendant:] Yes, sir. [THE STATE:] You've been convicted of it twice before this day, haven't you? [Defendant:] Yes, sir. [THE STATE:] And you know driving while impaired is a reckless act, don't you? [Defendant:] Yes, sir.

10 -10- [THE STATE:] Which is dangerous to human life. Don't you? [Defendant:] Yes, sir. [THE STATE:] I mean, you knew that before September 26th, 2010, because you had been to court and been convicted of driving while impaired twice before then. Is that true? [Defendant:] Yes, sir. The above testimony of Defendant was the only time the State questioned Defendant about his prior convictions and, contrary to Defendant's argument, we do not construe that line of questioning as impeachment. The State's closing argument supports this interpretation as well, as the references to Defendant's prior convictions were all made in the following manner: What we're talking about is a different kind of malice, a kind of malice that is supported by the law and has been accepted by the courts that is specific in driving while impaired cases. And if you remember back during jury selection we began discussing this. Remember when I said to you, how many of you think you can't use someone's past against them? You shook your head. And I said to you, well, there will come a time in this case that you'll hear about the defendant's prior convictions, and the court will tell you that you can use those as evidence of malice. And each of you agreed to follow the law about that. So we have introduced evidence of his prior convictions to show malice. The clerk of court, Jayne Vlassis, came to court. She

11 -11- testified about the two prior convictions that [Defendant] had for driving while impaired, one in Cabarrus County, one here. So how do you take those two prior convictions and fit those into the definition of malice? Well, the court is going to give you an additional definition of malice, which may be of help to you..... To review: Prior convictions for driving while impaired, the law says you can consider those as evidence of malice. That's taken from a case. The prior driving while impaired arrest should have alerted him to the hazards of driving while impaired. That's what the courts have said about this issue. Thus, we find that the State did not impeach Defendant with evidence of his prior convictions and find Defendant's argument without merit. The trial court did, however, provide a jury instruction titled: " impeachment of the defendant as a witness by proof of unrelated crime." The charge conference occurred off the record, but the trial court afterward recited the jury instructions it intended to provide and allowed the parties to object in the following exchange: THE COURT: Motions are denied. We will move into our charge conference. I intend to charge the jury beginning with , function of the jury; , burden of proof and reasonable doubt; , credibility of witness; , weight of the evidence; , circumstantial evidence; , testimony of interested witness; , testimony of expert witness; , evidence related to the

12 -12- character of a witness, including the defendant, for truthfulness; impeachment of the defendant as a witness by proof of unrelated crime; , photographs as illustrative evidence, , second-degree murder by vehicle, including involuntary manslaughter; , accident; , failure to secure a child in a restraint system; , driving too fast for conditions; A, impaired driving; , making notes by jurors, and concluding instructions. Any additions, corrections, comments, regarding these instructions from the state...? [THE STATE]: No, no, ma'am. THE COURT: [Defense Counsel]? [DEFENSE COUNSEL]: No, Your Honor. THE COURT: All right. I'll have the clerk to print off rough drafts of the instructions for your review overnight, and I'll hear you in the morning regarding any additional corrections on the instructions. The trial court instructed the jury and allowed the parties the opportunity to object as follows: When evidence has been received that, at an earlier time, the defendant was convicted of criminal charges, you may consider this evidence for one purpose only. If, in considering the nature of the crimes, you believe that this bears on truthfulness, then you may consider it, together with all other facts and circumstances bearing upon the defendant's truthfulness, in deciding whether you will believe or disbelieve the defendant's testimony at this trial. It is not evidence of the defendant's guilt in this case. You must not convict the

13 -13- defendant on the present charge because of something the defendant may have done in the past..... THE COURT: Any comments, corrections regarding the instructions, from the state? [THE STATE]: No, ma'am. THE COURT: From the defense...? [DEFENSE COUNSEL]: No, Your Honor. Defense counsel therefore clearly had an opportunity to object to the jury instructions, but did not do so. Defendant makes no argument concerning the propriety of the jury instructions. We have concluded that the State did not impeach Defendant with evidence of his prior convictions, and any irregularity in the trial court's having instructed the jury on impeachment was neither preserved at trial nor argued by Defendant on appeal. We therefore find no plain error as to this argument. Defendant next argues that the trial court committed plain error by allowing the State to impeach Defendant by questioning him concerning an alleged incident in another state in 2008 (the 2008 incident). Defendant argues that "[t]he State's questioning of the alleged incident in Ohio in 2008 served only to try to show that [Defendant] had a history of excessive drinking and that he drove with minors in his truck, getting

14 -14- into an accident with them." However, we note that this argument suffers from the same procedural defects as Defendant's argument concerning his prior convictions in that Defendant failed to preserve the issue for review by: (1) not objecting during the questioning, (2) not objecting to the jury instructions, and (3) not citing, in his brief, the particular testimony in question. Further, regarding plain error, Defendant concludes his argument with the following: As such, the trial court committed plain error in allowing the State to question [Defendant] about the incident. This line of questioning deprived him of a fair trial. The error is plain and is aggravated based upon the State's immediately preceding questioning of him about his prior driving while impaired convictions. The cumulative effect of the improper crossexamination resulted in plain error. It had to have had an impact on the jury's determination. The jury had heard about the dated convictions and then also heard about [Defendant]'s alleged consumption of eighteen beers and an entire bottle of vodka right before having another accident with other children in his truck. That evidence had a probable impact in the juror's minds as to [Defendant]'s propensity or character. Defendant's plain error argument is that the alleged error involved in the questioning concerning the 2008 incident amounted to plain error because it was compounded by the alleged error arising from the criminal record inquiry. As we have concluded there was no error in the State's questioning

15 -15- concerning Defendant's prior criminal record, we find Defendant's argument is without merit. No error in part; no plain error in part. Judges STEPHENS and HUNTER, JR. concur. Report per Rule 30(e).