State v. Clements

275 S.E.2d 222 (1981)

STATE of North Carolina v. Tiny Tom CLEMENTS.

No. 8020SC903.

Court of Appeals of North Carolina.

March 3, 1981.

*224 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Dennis P. Myers, Raleigh, for State.

E. A. Hightower and H. P. Taylor, Jr., Taylor & Bower, Wadesboro, for defendant-appellant.

HEDRICK, Judge.

Defendant first assigns error to the court's allowing the State to amend the warrant alleging death by vehicle to strike the portion alleging following too closely and to add an allegation of "failure to reduce speed to avoid an accident, a violation of G.S. 20-141(m)." Defendant argues that the amendment "changed the nature of the offense charged" and thus defendant was "prejudiced" by having to defend himself on two charges throughout the trial only to have the case submitted to the jury on a third charge. We disagree.

G.S. § 15A-922(f) provides: "A statement of charges, criminal summons, warrant for arrest, citation, or magistrate's order may be amended at any time prior to or after final judgment when the amendment *225 does not change the nature of the offense charged." This statute conforms to the long-held principle in this State that an amendment to a warrant under which a defendant is charged is permissible as long as the amended warrant does not charge the defendant with a different offense. See, e. g., State v. Wilson, 237 N.C. 746, 75 S.E.2d 924 (1953); State v. Hunt, 197 N.C. 707, 150 S.E. 353 (1929).

G.S. § 20-141.4 in pertinent part provides:

(a) Whoever shall unintentionally cause the death of another person while engaged in the violation of any State law or local ordinance applying to the operation or use of a vehicle or to the regulation of traffic shall be guilty of death by vehicle when such violation is the proximate cause of said death.

In the present case, the record discloses that defendant was originally charged in a proper warrant with death by vehicle in violation of G.S. § 20-141.4. The record also shows that the case was submitted to the jury on the death by vehicle charge. Although the amendment allowed by the court replaced the language "following too closely" with the wording "failure to reduce speed to avoid an accident, a violation of G.S. 20-141(m)," defendant was still charged with unintentionally causing the death of John Carelock while violating a state statute or local ordinance pertaining to the operation of motor vehicles, when such violation was the proximate cause of Carelock's death. Although the death by vehicle statute contemplates that some violation of a motor vehicle statute or ordinance be specified in a warrant charging death by vehicle, it is not essential that the motor vehicle violation alleged in the warrant as originally issued be the same as the motor vehicle violation alleged in the warrant as considered by the jury where, as here, the substituted motor vehicle violation is subtantially similar to that originally alleged. The nature of the offense with which defendant was charged, death by vehicle, was not changed simply by striking the allegation of following too closely (a violation of G.S. § 20-152) and substituting therefore "failure to reduce speed to avoid an accident, a violation of G.S. 20-141(m)." This assignment of error is without merit.

By his second assignment of error, defendant contends that the court erred in denying his motion to dismiss the charge of death by vehicle as alleged in the amended warrant. We do not agree. In ruling upon a defendant's motion to dismiss, the trial court is required to interpret the evidence in the light most favorable to the State, and all reasonable inferences favorable to the State must be drawn therefrom. State v. Fletcher, 301 N.C. 709, 272 S.E.2d 859 (1981); State v. Hardy, 299 N.C. 445, 263 S.E.2d 711 (1980).

Considering the evidence in the present case in the light most favorable to the State, the evidence tends to show that the intersection at which vehicles were stopped in the lane of travel waiting to turn left was at the bottom of a long sloping hill, and signs warning of the intersection were located 300 feet from the intersection near the crest of the hill. The evidence also tends to show that visibility was unimpaired, such that vehicles coming over the crest of the hill would have ample time to see those vehicles stopped at the intersection waiting to turn, and would have ample distance to slow down in anticipation of having to stop behind the vehicles waiting to turn. In addition, the evidence tends to show that the vehicle in which John Carelock was riding had come over the crest and was in fact slowing down in anticipation of having to stop. The evidence further tends to show that the sand truck driven by defendant came over the crest of the hill sometime after the vehicle in which Carelock was a passenger, and defendant's truck then hit the right rear of the vehicle in which Carelock was riding, forcing it into the lane of oncoming traffic and precipitating the collision in which Carelock was killed. Moreover, the evidence tends to show that defendant's truck left tire impressions up to the point of "impact" of approximately 187 feet in length. In our opinion, the evidence is sufficient to raise *226 the reasonable inferences that defendant failed to reduce his speed in order to avoid a collision with the vehicle in which Carelock was a passenger, and that this failure proximately caused Carelock's death. The trial judge therefore properly denied defendant's motion to dismiss and this assignment of error is without merit.

Finally, defendant contends that G.S. § 20-141(m), which makes failure to reduce speed to avoid an accident a violation of the State's motor vehicle law, and G.S. § 15A-922(f), the amendment statute previously discussed, are unconstitutional. We will not consider defendant's arguments. It is well settled in this State that the appellate court cannot consider questions raised as to the constitutionality of a statute that have not been raised or considered in the trial court. City of Durham v. Manson, 285 N.C. 741, 208 S.E.2d 662 (1974); Wilcox v. North Carolina State Highway Commission, 279 N.C. 185, 181 S.E.2d 435 (1971); Mayton v. Hiatt's Used Cars, Inc., 45 N.C.App. 206, 262 S.E.2d 860, disc. rev. denied, 300 N.C. 198, 269 S.E.2d 624 (1980). The record in the present case indicates that defendant did not move to quash the warrant charging him with death by vehicle after the amendment of the warrant, nor did defendant move to arrest the judgment. Indeed, the record fails to disclose that a question as to the constitutionality of either G.S. § 20-141(m) or G.S. § 15A-922(f) was ever mentioned while the trial court was vested with jurisdiction, and thus the constitutional questions are not properly before us.

We hold that defendant had a fair trial free from prejudicial error.

No error.

ROBERT M. MARTIN and CLARK, JJ., concur.