State v. Clapp

¶1concurs in the result.

¶2I believe the trial court committed error in allowing the State’s motion in limine. I, nonetheless, join with the majority because the error was harmless.

¶3The offenses with which Defendant was charged, driving while impaired and driving while license revoked, required the State to prove that Defendant was driving a vehicle upon a highway, street, public vehicular area and a motor vehicle upon the highways, respectively. N.C.G.S. § 20-138.1(a) (1993) (impaired driving); N.C.G.S. § 20-28(a) (Supp. 1998) (driving while license revoked). This required the State to show that the 1989 Dodge Colt in which Defendant was found was “self-propelled” or capable of transporting a person or property upon a highway. N.C.G.S. § 20-4.01(49) (Supp. 1998); N.C.G.S. § 20-4.01(23) (Supp. 1998). Defendant was therefore entitled to present evidence on this issue, see State v. Marshall, 105 N.C. App. 518, 525, 414 S.E.2d 95, 99, disc. review denied, 332 N.C. 150, 419 S.E.2d 576 (1992) (accused in criminal case has right to defend against State’s accusations), and have the matter determined by the jury. The allowance of the motion in limine denied Defendant of this right.

¶4The issue presented in this case is quite different from that presented in State v. Fields, 77 N.C. App. 404, 335 S.E.2d 69 (1985). In that case, this Court held that one seated in the driver’s seat of a motor vehicle, with the engine running, is the driver of that vehicle for purposes of section 20-138.1(a). In Fields, there also was no dispute that the vehicle in which the defendant was seated was in fact a “vehicle” within the meaning of section 20-138.1(a). In this case, Defendant disputes that the Dodge Colt was a “vehicle” or “motor vehicle” within the meaning of the pertinent statutes.

¶5I, however, do not believe Defendant is entitled to a new trial. The evidence suppressed would have tended to show only that the Dodge Colt would not move “if the head lights were on.”1 All the evidence showed that the Dodge Colt was capable of moving “if the head lights were off’ and did move forward once it was put in gear by Defendant in the presence of the arresting officer. The question for the jury was whether the Dodge Colt was capable of moving, with or without the head lights switched on. The exclusion of Defendant’s evidence therefore was harmless. See N.C.G.S. § 15A-1443(b) (1997).