Volume 77 — North Carolina Court of Appeals Reports

1. Criminal Law — 99.6 — incest — court's social contact with the victim's doctor — no expression of opinion as to credibility The trial court did not express an opinion as to the credibility of a witness in a prosecution for incest where, at the close of the victim's<page_number>Page 213</page_number> doctor's testimony, the court stated. "Members of the jury, I need to speak to Dr. Mintz. He is originally from Wilmington and I want to say something to him . . . . ," although the better practice would be for trial judges to avoid all contact of a social nature with witnesses at the trial. 2. Criminal Law 99.6 — incest — comment by court — no prejudicial error The trial court in a prosecution for incest did not express an opinion as to defendant's character and as to defendant's defense where, following testimony concerning injuries inflicted on other children by the victim, the court said, "We're not trying him for child abuse." Although the trial court's remark seems to lack logical relevance to the conduct of the trial and appears to have been entirely gratuitous, it was not prejudicial conduct. 3. Incest 1 — incidents between defendant's father and sisters — irrelevant — no objection at trial Although questions as to incestuous conduct between defendant's father and sisters were irrelevant to defendant's trial for incest with his daughter, defendant's failure to object at trial failed to preserve the question for review. Rules of App. Procedure Rule 10(1)(1). 4. Incest 1; Criminal Law 85.2 — incest — evidence of defendant's bad character — admissible Evidence that the victim was afraid of her father because he was mean was admissible in a prosecution for incest to explain why the victim had not told her mother about the incident and was not elicited to show the bad character of defendant. G.S. <cross_reference>8C-1</cross_reference>, Rule 402.

Automobiles and Other Vehicles 121 — while impaired — sitting behind steering wheel of motionless car with motor running — evidence sufficient The court did not err by denying defendant's motion to dismiss the charge of driving while impaired where the State's evidence was that defendant was found upon a street in Blowing Rock behind the wheel of a motionless car with the engine running, and defendant's evidence was that he had started the car in order to operate the heater and had no intention of driving. One "drives" within the meaning of G.S. <cross_reference>20-138.1</cross_reference> if he is in actual physical control of a vehicle which is in motion or which has the engine running; defendant's purpose for taking actual physical control of the car and starting the engine is irrelevant. G.S. <cross_reference>20-4.01</cross_reference> (7).