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NO. COA98-841 NORTH CAROLINA COURT OF APPEALS Filed: 16 November 1999 PAMELA NUNNERY, Plaintiff, v. ERIC JONATHAN BAUCOM and BAUCOM'S NURSERY COMPANY, Defendants 1. Trials--allowance of exhibit in jury room--absence of consent by defendants--failure to show prejudice

Although the trial court erred in a four-car automobile collision case by allowing the police report to go to the jury room during jury deliberations without defendants' consent, defendants are not entitled to a new trial because defendants have failed to show any prejudice since: (1) the trial court found the copy of the report delivered to the jury room was the redacted version and defendants failed to include in the record on appeal either evidence or the verbatim transcript of the hearing relating to defendants' motion under N.C. R. App. P. 9(a)(1)(e); and (2) defendants' contention that prejudice is manifest regardless of which copy of the report was received by the jury in light of the fact the jury was not allowed to review testimony of certain defense witnesses is not preserved because defendants failed to present to the trial court a timely request, objection, or motion that any witness testimony be made available to the jury under N.C. R. App. P. 10(b)(1). 2. Evidence--police report and testimony relating to police report--waiver of objections

The trial court did not err in a four-car automobile collision case by admitting into evidence certain notations contained in the police report and the testimony of a sergeant relating to the report because: (1) defendants' objection at the time the report was introduced into evidence was limited to the diagram of the accident scene and the narrative contained in the "describe what happened" portion of the report; and (2) having once allowed the evidence to come in without objection, defendants waived their objections to the evidence. 3. Evidence--hearsay--business records exception--descriptions in police report--firsthand knowledge

The trial court did not err in a four-car automobile collision case by admitting into evidence descriptions in the police report relating to vehicle #3 even though that vehicle fled the scene since the business records hearsay exception under Rule 803(6) expressly provides for the use of information of those having first-hand knowledge of the incident in question and the record indicates several other witnesses with knowledge of the acts were present. 4. Appeal and Error--preservation of issues--liability insurance--motion in limine-failure to object at trial

The trial court did not err in a four-car automobile collision case by admitting into evidence the existence of liability insurance during cross-examination of a witness employed by the insurance company because defendants' pre-trial motion in limine to exclude all references to insurance is insufficient to preserve for appeal the question of the admissibility of evidence if the movant fails to further object to the evidence at the time it is offered at trial under Rule 10(b)(1).

Appeal by defendants from order entered 9 February 1998 by Judge Dennis J. Winner in Mecklenburg County Superior Court. Heard in the Court of Appeals 25 February 1999. Crews & Klein, P.C., by Paul I. Klein and James N. Freeman, Jr., for plaintiff-appellee. Caudle & Spears, P.A., by L. Cameron Caudle, Jr. and J. Scott Lewis, and Anderson, Daniel & Coxe, by Henry L. Anderson, Jr., for defendants-appellants. JOHN, Judge. Defendants appeal the trial court's denial of their motion for judgment notwithstanding the verdict or, in the alternative, for new trial (defendants' motion). We find no reversible error.

Pertinent facts and procedural history include the following: On 15 November 1991, plaintiff Pamela Nunnery and defendant Eric Jonathan Baucom (Baucom) were each traveling eastbound on Rural Paved Road 2665 in Mecklenburg County, North Carolina. Baucom was

operating an automobile registered to defendant Baucom's Nursery Company. Two vehicles separated those being operated by plaintiff Plaintiff stopped her automobile in a line of traffic

and Baucom.

waiting at a red light; Baucom failed to stop and struck the vehicle immediately preceding his. That automobile, driven by

William Doggette, collided with the next preceding vehicle (whose driver fled the scene shortly thereafter), which in turn struck plaintiff's automobile. Sergeant V.C. Lessane of the State Highway Patrol (Sergeant Lessane) prepared an accident report (the report) in the course of his investigation of the collision and issued a citation to Baucom for "failure to reduce speed." Plaintiff complained of injuries at the scene and visited a local hospital emergency room the next day complaining of headache and soreness in her neck. Over the next three years, plaintiff

-3sought treatment from numerous physicians for symptoms she

attributed to the collision, including headaches, diffuse muscle pain and sleep paralysis. Plaintiff filed the instant suit 14 November 1994 alleging "severe and painful injuries to her person" caused by Baucom's negligent driving. Sometime thereafter, defendants engaged the

services of Laurie Rountree (Rountree), a private investigator. Rountree, using a pretext, developed a friendly relationship with plaintiff and visited her on several social occasions. testified regarding her impressions of plaintiff's Rountree physical

condition, and conceded on cross-examination that she was being paid by defendants' insurance company. At trial, the jury found Baucom negligent and returned a verdict in favor of plaintiff in the amount of $350,000.00. Defendants' motion followed, based primarily on the action by the Trial Court allowing an unredacted State Highway Patrol report . . . [to be] sent to the jury room during deliberations . . . . The trial court denied defendants' motion 9 February 1998 and the latter timely appealed. Defendants raise nine assignments of error, condensed into five main issues for our review. Assignments of error 5, 7, 8, 11,

and 12 are not set out in appellant's brief and thus are deemed abandoned. See N.C.R. App. P. 28(b)(5) ("[a]ssignments of error

not set out in the appellant's brief . . . will be taken as abandoned"). [1] Defendants first assert the trial court erroneously

allowed the report to be sent to the jury room during jury deliberations. In a related argument, defendants assign error to

the court's denial of their new trial motion based upon receipt of

-4the report by the jury during deliberations. contention is unavailing. It is well settled that trial exhibits introduced into We conclude each

evidence may not be present in the jury room during deliberations unless both parties consent. Doby v. Fowler, 49 N.C. App. 162, Further,

163, 270 S.E.2d 532, 533 (1980).

the failure to make a timely objection to the taking of the exhibits to the jury room does not waive the error; "specific consent is required" of all parties, Robinson v. Seaboard System Railroad, 87 N.C. App. 512, 528, 361 S.E.2d 909, 919 (1987), disc. review denied, 321 N.C. 474, 364 S.E.2d 924 (1988) (quoting Doby, 49 N.C. App. at 164, 270 S.E.2d at 533), and "an indication of an unwillingness to consent is

sufficient," Dixon v. Taylor, 111 N.C. App. 97, 109, 431 S.E.2d 778, 784 (1993) (citation omitted). Plaintiff maintains defendants specifically consented, while defendants contend their objection was clear. Relevant portions of the trial transcript read as follows: THE COURT: They [the jury] want the accident report and the damage estimates. I take it that means -- I don't remember what exhibits they were but the car damage. I presume they are wanting the car damage estimates. I guess that's all. Do you object? [DEFENDANTS' ATTORNEY]: them having either one. THE COURT: You've both -We've both got to consent, No, I don't object for

[DEFENDANTS' ATTORNEY]: that's right. . . . .

Your Honor, let me tell you what happened. We don't object to the two appraisals, we objected to the actual report. It's got stuff on there that it's my belief should have never gone on it. I object to that going back there. . . . .

-5THE COURT: What do you all say.

[PLAINTIFF'S ATTORNEY]: We propose sending it all back; sending the three items requested. THE COURT: . . . Well, the Court, in its discretion, is going to allow those exhibits to be submitted to the Jury. Interpretations of the foregoing by plaintiff and defendants differ markedly. Plaintiff suggests that

defense counsel clearly consented to the requested exhibits being given to the jury during deliberations, when asked by the Trial Court[, and was merely reiterating] his previous objection to the accident report being admitted into evidence in the first instance. Defendants maintain their objection was

unambiguously indicated by counsel's statement, "I object to that going back there." We conclude defendants' reading of the cited exchange is the more accurate. The first statement of defendants' counsel simply

comprised a response to the trial court's inquiry as to whether there was an objection to the damage estimates being sent to the jury. Defendants' counsel stated he did not "object [to] them

having either one," an apparent reference to the appraisals, and shortly thereafter clarified, "[w]e don't object to the two

appraisals, we objected to the actual report. . . . I object to that going back there" (emphasis added). The acknowledgment of plaintiff's counsel that "three items [were] requested" and the court's directive that examination of the exhibits in the jury room was being allowed "in its discretion" support our reading of the transcript. As defendants point out, that Mr. have been perceived ruling.

[i]f the trial judge believed Anderson had consented, there would no reason for the judge to use his discretionary powers in making this

Significantly, moreover, even under plaintiff's interpretation

-6that defendants' counsel merely reiterated his objection to

introduction of the report into evidence, nothing in the record indicates defendants registered the "specific consent" required by Robinson, 87 N.C. App. at 528, 361 S.E.2d at 919, to sending the report into the jury room. To the contrary, the record reflects

"an indication of an unwillingness to consent," Dixon, 111 N.C. App. at 109, 431 S.E.2d at 784, on the part of defendants. Accordingly, the trial court erred in allowing the report to be viewed by the jury during the latter's deliberations. See

Robinson, 87 N.C. App. at 527, 361 S.E.2d at 919. Nonetheless, defendants are "not entitled to a new trial absent a showing that the error was prejudicial." Gardner v. see

Harriss, 122 N.C. App. 697, 700, 471 S.E.2d 447, 450 (1996);

also Robinson, 87 N.C. App. at 528, 361 S.E.2d at 919 ("party asserting the error must demonstrate that he has been prejudiced thereby"). As our Supreme Court has stated, [n]ew trials are not granted for error and no more. The burden is on the appellant not only to show error but also to show that he was prejudiced to the extent that the verdict of the jury was thereby probably influenced against him. Freeman v. Preddy, 237 N.C. 734, 736, 76 S.E.2d 159, 160 (1953) (citations omitted). Defendants insist that allowing the report into the jury room was prejudicial for two reasons. First, defendants maintain the

jury was allowed to view an unredacted version of the exhibit. When the report was first offered into evidence, defendants

objected to Sergeant Lessane's entries in the "Estimated Original Traveling Speed" and "Estimated Speed at Impact" portions of the report. The trial court received the report into evidence upon

redaction of the challenged entries.

-7According to defendants, however, an unredacted copy actually was delivered to the jury room. Defendants cite the affidavit of

one juror, LaVera Bunn (juror Bunn), indicating the report sent to the jury room contained the complained of entries. However, in ruling on defendants' motion, the trial court pointedly found, on the basis of the "arguments of counsel as well as the papers submitted in favor of and in opposition to the [m]otion," that the copy of the report "furnished to the jury had completely redacted from it all written entries for `Estimated Original Traveling Speed' and `Estimated Speed At Impact.'" [F]indings of fact made by the trial judge are conclusive on appeal if supported by competent evidence, even if, arguendo, there is evidence to the contrary. Lumbee River Electric Corp. v. City of Fayetteville, 309 N.C. 726, 741, 309 S.E.2d 209, 219 (1983) (citation omitted). Although there is contrary evidence in the form of juror Bunn's affidavit, we must presume the trial judge's findings were based upon competent evidence in that defendants failed to include in the record on appeal either evidence or the verbatim transcript of the hearing relating to defendants' motion. See Baker v. Baker, 115 N.C. App.

337, 339, 444 S.E.2d 478, 480 (1994) (where plaintiff-appellant failed to include evidence or verbatim transcript in record, appellate court will not consider assignments of error directed at trial court's findings of fact, but "must assume that the trial court's findings of fact [we]re supported by competent evidence"). N.C.R. App. P. 9(a)(1)[(e)] requires that the record on appeal contain so much of the evidence, either in narrative form or in the verbatim transcript of the proceedings, as is necessary for an understanding of all errors assigned. See also N.C.R. App. P. 9(c). Where such evidence is not included in the record, it is presumed that the findings are supported by competent evidence, and the

-8findings are conclusive on appeal. In re Botsford, 75 N.C. App. 72, 74-75, 330 S.E.2d 23, 25 (1985). In this context, we note with interest that among plaintiff's Objections to Proposed Record on Appeal was the following: 11. Appellee objects to the failure to include in the Proposed Record on Appeal the following items: . . . . (d) The transcript of the hearing before the [trial court] on the Defendants' Motion for Judgment Notwithstanding the Verdict 50(B)/Motion for New Trial . . . . Upon defendants' request that the trial court settle the record on appeal, the parties resolved several of plaintiff's objections. The court, after "having heard arguments of counsel"

on the matter, thereupon entered an order excluding the transcript. The absence of the transcript from the record thus apparently resulted from defendants' failure to include it therein and their subsequent resistance to plaintiff's objection challenging its omission. In any event, defendants continue, prejudice is manifest whichever copy of the report was received by the jury because the jury was not allowed to review testimony of certain defense

witnesses.

According to defendants, plaintiff's "entire theory of

[the] case . . . was based upon the accident occurring" as set out in the report, and [i]n effect, the jurors were given a summary of the plaintiff's entire case to review, while the defendants had no similar opportunity. However, although the trial court acceded to defendants' request "to send every single exhibit so that they [the jury] can look at the damage to the cars and the pictures," defendants failed to

-9"present[] to the trial court a timely request, objection or motion" that any witness testimony be made available to the jury. N.C.R. App. P. 10(b)(1) (Rule 10(b)(1)). Therefore, defendants'

argument has not been properly preserved for our review in that defendants made no "timely request" to the trial court. Id.

As noted above, it is defendants' burden to demonstrate prejudice resulting from erroneous receipt by the jury during deliberations of the report absent defendants' consent. 237 N.C. at 736, 76 S.E.2d at 160. Freeman,

Having rejected defendants' two

arguments asserting prejudice, we conclude they have failed to meet this burden. In addition, [t]he granting or denial of a motion for new trial rests within the sound discretion of the trial judge, and his ruling will not be disturbed on appeal in the absence of a manifest abuse of such discretion or determination that his ruling is clearly erroneous. Pinckney v. Van Damme, 116 N.C. App. 139, 148, 447 S.E.2d 825, 831 (1994) (citations omitted). Having held defendants failed to

demonstrate prejudice resulting from the jury's viewing of the report during deliberations without defendant's consent, we cannot say the trial court abused its discretion in denying defendants' motion based upon the jury's receipt of the report. [2] Defendants also challenge the admission into evidence of certain notations contained in the report as well as the receipt of testimony from Sergeant Lessane related to the report. Defendants

concede the report was admissible pursuant to N.C.G.S.

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