State v. Clapp

519 S.E.2d 90, 135 N.C. App. 52, 1999 N.C. App. LEXIS 918
CourtCourt of Appeals of North Carolina
DecidedSeptember 21, 1999
DocketNo. COA98-1099
StatusPublished
Cited by2 cases

This text of 519 S.E.2d 90 (State v. Clapp) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Clapp, 519 S.E.2d 90, 135 N.C. App. 52, 1999 N.C. App. LEXIS 918 (N.C. Ct. App. 1999).

Opinions

TIMMONS-GOODSON, Judge.

Barry Douglas Clapp (“defendant”) was indicted and subsequently convicted of Habitual Impaired Driving and Driving While License Revoked. The State’s evidence at trial tended lo show the following. On 2 March 1997 prior to 3:00 in the morning, defendant entered the Islander Kwik Mart (“Kwik Mart”) in Carolina Beach. John McDade (“McDade”), Kwik Mart employee, observed that defendant was bobbing and weaving. McDade later noticed that defendant was sitting in the driver’s seat of a car in the parking lot, apparently asleep. The car engine was running and the car was blocking the gas pumps at the Kwik Mart. McDade called the Carolina Beach Police Department.

A few minutes later, Officer John Knoll of the Carolina Beach Police Department arrived. After speaking with McDade, Officer Knoll approached the car in which defendant was seated wearing the seat belt. Officer Knoll shined his flashlight in the car and commanded defendant to wake up. Defendant did not wake up, however, until Officer Knoll reached through the partially open window and tugged defendant’s shoulder.

When defendant awoke, Officer Knoll told him that he needed to talk to him. Defendant stated that he was not driving and then said, “Let me pull over.” Defendant put the car in forward gear and the car rolled forward. Officer Knoll commanded defendant to stop the car. Defendant put the car into park, but subsequently put the car into forward gear again and the car moved forward. Officer Knoll repeated his command that defendant stop the car. Defendant stopped the car, but then put it into forward gear a third time, causing Officer Knoll to command him a third time to stop the car.

Defendant exited the car and accompanied Officer Knoll to the patrol car. Officer Knoll noticed that defendant was unsteady on his feet, his clothing was mussed, his eyes were glassy and bloodshot, his speech was slurred, and he had a moderate odor of alcohol on his breath. Defendant told Officer Knoll that his name was “Buddy D. [54]*54Clemmons” and that his date of birth was “June 25, 1954.” Officer Knoll later determined that information was not correct.

Officer Knoll took defendant to the police department where defendant refused all field sobriety tests as well as the Intoxilyzer 5000 breath test. Defendant admitted that he was seated behind the steering wheel of the car with the motor running and that he put the car in gear. Defendant denied that he was under the influence of alcohol but indicated that he took medicine, specifically tranquilizers. He denied that he had been drinking and also that he had been driving. Finally, defendant admitted that he had previously been convicted of three charges of Driving While Impaired, Larceny, Possession of Cocaine, two charges of Driving While License Revoked and Disorderly Conduct.

Defendant’s evidence tended to show the following. On 1 March 1997, David Clapp, defendant’s brother, helped defendant move from St. Joseph’s Street to Harbor Avenue. Defendant had consumed two beers at around 11:00 that evening and had taken medication around midnight. Defendant takes the prescription medication, Elavil, for back and neck injuries he sustained in an auto accident. The medication causes him to become sleepy, have slurred speech and red and glassy eyes.

During the early morning on 2 March 1997 shortly before defendant was arrested, David Clapp left defendant in the car at the Kwik Mart and walked back to Harbor Avenue. David Clapp left the Kwik Mart on foot in order to get a battery pack to start the car, which had been switching off when he put it into gear. After his brother left, defendant went into the Kwik Mart, bought a sandwich and a soda, returned to the car and fell asleep. When Officer Knoll awakened him, defendant stated that he was not driving the car. He was wearing the seat belt because the car had automatic seat belts. When defendant put the car into gear, he was attempting to show the officer how the car would switch off and he did not intend to go anywhere.

Defendant did not give the officer the name “Barry D. Clemmons,” but instead the officer misunderstood defendant when he gave his name. At the police department, defendant was unable to perform the sobriety field tests because of his physical condition. He refused to take the breathalyzer test because his brother once registered .02 on the test after having consumed no alcohol. Defendant requested a blood test.

[55]*55After deliberations, the jury found defendant guilty of Habitual Impaired Driving and Driving During Revocation and not guilty of Hindering and Delaying a Public Officer. On 16 October 1997, Judge James D. Llewellyn entered judgment on the jury verdict. The trial court sentenced defendant to a minimum term of sixteen (16) months and a maximum term of twenty (20) months in the North Carolina Department of Correction for Habitual Impaired Driving. Additionally, the trial court sentenced defendant to sixty (60) days in the Department of Correction for Driving During Revocation, to run at the expiration of the sentence imposed for Habitual Impaired Driving. Defendant did not appeal. Defendant filed a Petition for Writ of Certiorari which was granted by this court on 26 February 1998.

On appeal, in his only assignment of error, defendant argues that the trial court committed error by allowing the State’s motion in lim-ine to prohibit the introduction of evidence by defendant that the vehicle he was alleged to have been operating was not operable. Defendant further argues that this error was prejudicial and entitles him to a new trial for the offenses of Habitual Impaired Driving and Driving During Revocation. We cannot agree.

A ruling on a motion in limine is within the sound discretion of the trial court and will only be disturbed on appeal in the case of a manifest abuse of discretion. State v. Hightower, 340 N.C. 735, 746-47, 459 S.E.2d 739, 745-46 (1995). Such a motion operates to “exclude anticipated prejudicial evidence before such evidence is actually offered in the hearing of a jury.” Id. at 746, 459 S.E.2d at 745. A motion in limine may be granted to “prevent the jury from ever hearing the potentially prejudicial evidence thus obviating the necessity for an instruction during trial to disregard that evidence if it comes in and is prejudicial.” State v. Tate, 300 N.C. 180, 182, 265 S.E.2d 223, 225 (1980).

A party must preserve a motion in limine for appeal as “[r]ulings on motions in limine are preliminary in nature and subject to change at trial[.]” State v. Hayes, 350 N.C. 79, 80, 511 S.E.2d 302, 303 (1999). In the case sub judice, defendant preserved for appeal his challenge to the State’s motion in limine by introducing evidence out of the presence of the jury that the car was not operable.

Defendant argues that evidence that the car he was driving was not operable would have tended to disprove that the car was a vehicle, thereby rebutting one of the elements that the State had the bur[56]*56den to prove. In order to establish a case of Driving While Impaired or Driving During Revocation, the State must prove that defendant drove a vehicle. A person is guilty of the offense of Impaired Driving if he “drives any vehicle upon any highway, any street, or any public vehicular area ...

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Related

State v. Sadler
823 S.E.2d 170 (Court of Appeals of North Carolina, 2019)
State v. Leskiw
652 S.E.2d 72 (Court of Appeals of North Carolina, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
519 S.E.2d 90, 135 N.C. App. 52, 1999 N.C. App. LEXIS 918, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-clapp-ncctapp-1999.