IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-1090

Filed 2 July 2024

Mecklenburg County, No. 17 CRS 226368

STATE OF NORTH CAROLINA

v.

PHILLIP ANDREW BARKER, Defendant.

Appeal by defendant from judgment entered 14 December 2022 by Judge 

Robert C. Ervin in Mecklenburg County Superior Court. Heard in the Court of 

Appeals 30 April 2024.

Attorney General Joshua H. Stein, by Assistant Attorney General Jonathan J. 

Evans, for the State.

Drew Nelson for defendant-appellant.

DILLON, Chief Judge.

Defendant, a police officer, was convicted of misdemeanor death by motor 

vehicle for causing the death of a pedestrian he struck with his patrol car while 

rushing to the scene of an emergency. We conclude Defendant received a fair trial, 

free of reversible error.

I. Background

At approximately 3:20 A.M. on 8 July 2017, Defendant Phillip Barker, an 

officer with the Charlotte-Mecklenburg Police Department (“CMPD”), struck and 
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killed a pedestrian with his vehicle as he was driving faster than the posted speed 

limit while traveling to an emergency scene where he was needed.

Defendant was charged with involuntary manslaughter. He was convicted by 

a jury of the lesser-included crime of misdemeanor death by vehicle. Defendant was 

sentenced to sixty days in custody, which was suspended for twelve months of 

unsupervised probation. He appeals.

II. Analysis

Defendant presents multiple arguments on appeal, which we address in turn.

A. N.C. Gen. Stat. § 20-145

Defendant’s first arguments concern the applicability of N.C. Gen. Stat. § 20-

145 (“When speed limit not applicable”), which exempts law enforcement officers from 

speed limit regulations when they are “in the chase or apprehension of” criminal 

suspects: 

The speed limitations set forth in this Article shall not 

apply to vehicles when operated with due regard for safety 

under the direction of the police in the chase or 

apprehension of violators of the law or of persons charged 

with or suspected of any such violation[.] . . . This 

exemption shall not, however, protect the driver of any 

such vehicle from the consequence of a reckless disregard 

of the safety of others.

N.C. Gen. Stat. § 20-145 (2023) (emphasis added).

Defendant essentially argues that it is legally impossible for him to have been 

acquitted of involuntary manslaughter but convicted of misdemeanor death by motor 
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vehicle based on his speeding. 

Here, the jury was instructed that the difference between the two crimes is 

that a conviction for involuntary manslaughter required the jury to find Defendant 

acted with “culpable negligence.” A conviction for misdemeanor death by motor 

vehicle, however, merely required a finding that Defendant caused the victim’s death 

by his act of driving in violation of the law, but not in a way which amounted to “gross 

negligence.” 

Defendant contends that “culpable negligence” and “gross negligence” are the 

same and that, based on G.S. 20-145, he could not be convicted of speeding unless he 

acted out of gross negligence. Therefore, he contends the jury should have never been 

instructed on the misdemeanor, as it is illogical for the jury to find that he was not

culpably negligent (in acquitting him for involuntary manslaughter) but to also find 

that he did break a law (speeding) which necessarily requires (based on G.S. 20-145) 

that the jury to find he acted with culpable/gross negligence in his speeding.

We first address the applicability of G.S. 20-145 in this case. The plain 

language of the statute suggests that a police officer is not culpable for speeding if he 

speeds while “in a chase or apprehension” of a suspect, so long as he is driving “with 

due regard for [the] safety” of others. Id. Based on the jurisprudence of our State, as 

explained below, the statute applies, not only when an officer is in hot pursuit of a 

suspect, but also when he is hurrying to the scene of an emergency. Further, under 

our case law interpreting G.S. 20-145, an officer cannot be guilty of speeding if he did 
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not act with gross negligence.

In a 1999 case in which a high-speed pursuit by police resulted in a crash, our 

Supreme Court stated that, based on G.S. 20-145, “in any civil action resulting from 

the vehicular pursuit of a law violator, the gross negligence standard applies in 

determining the officer’s liability.” Parish v. Hill, 350 N.C. 231, 238, 513 S.E.2d 547, 

551 (1999).

In 2014 and again in 2022, our Court held that G.S. 20-145 is “not only 

applicable to the pursuit of a law violator, but [is] also applicable when an officer is 

‘emergency response driving’ to the scene of an incident.” Est. of Graham v. Lambert, 

282 N.C. App. 269, 275, 871 S.E.2d 382, 387 (2022) (citing Truhan v. Walston, 235 

N.C. App. 406, 413, 762 S.E.2d 338, 343 (2014)). That is, these decisions suggest that 

the exemption may apply when an officer is hurrying to a scene, not just when (s)he 

is in hot pursuit of a suspect. Our 2022 decision involved in part the application of 

G.S. 20-145 in a claim against an officer in his individual capacity, as well as in his 

official capacity and against the city for whom he worked.

In 2024, after briefing was completed in the present case, our Supreme Court 

issued its opinion in an appeal from our decision in Graham. See Est. of Graham v. 

Lambert, 385 N.C. 644, 898 S.E.2d 888 (2024). The Court, though, only considered 

the claims against the officer in his official capacity and against the city, as our 

decision regarding the claims against the officer in his individual capacity was not 

appealed. Id. at 646–47, 898 S.E.2d at 892. In reversing our decision, the Supreme 
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Court held that G.S. 20-145 does not apply to claims against a governmental entity 

or an individual in his official capacity, but only to claims against one in his individual 

capacity. See id. at 658, 898 S.E.2d at 900. In dicta, in reminding that G.S. 20-145

does not exempt officers for gross negligence, the Supreme Court arguably suggested 

that the statute only applies to hot pursuits, and not to situations where an officer is 

hurrying to a location: “We also clarify the legal framework for suits to which 

N.C.G.S. § 20-145 (2023) applies. That statute exempts police officers from speed 

limits when chasing or apprehending criminal absconders. But it does not shield 

officers for their gross negligence.” Graham, 385 N.C. at 646, 898 S.E.2d at 892. The

Court, though, never expressly overruled our Court’s holding in Graham that expands 

the application of G.S. 20-145 to situations where an officer is hurrying to a scene. 

Accordingly, we remain bound by our decisions. See In re Civil Penalty, 324 N.C. 373, 

384, 379 S.E.2d 30, 37 (1989) (“Where a panel of the Court of Appeals has decided the 

same issue, albeit in a different case, a subsequent panel of the same court is bound 

by that precedent, unless it has been overturned by a higher court.”).

Here, though, we disagree with Defendant’s arguments relating to G.S. 20-145. 

Rather, we conclude that it is logically possible under the law and, therefore, 

permissible for an officer to be convicted of misdemeanor death by motor vehicle 

where he causes the death by speeding while in hot pursuit of a suspect or while 

hurrying to an emergency scene, for the reasoning below.

Admittedly, there are cases which describe “gross negligence” and “culpable 
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negligence” with very similar, if not identical, language. See, e.g., State v. 

Blankenship, 229 N.C. 589, 595, 50 S.E.2d 724, 729 (1948) (describing “culpable 

negligence” as “an intentional, willful, or wanton violation of a statute”); Yancey v. 

Lea, 354 N.C. 48, 52, 550 S.E.2d 155, 157 (2001) (describing “gross negligence” as 

“willful and wanton conduct”). However, there are cases which suggest that there 

may be slight differences between the terms. See Kizer v. Bowman, 256 N.C. 565,

571, 124 S.E.2d 543, 548 (1962) (recognizing that under Florida law “[g]ross 

negligence” and “culpable negligence” are not necessarily synonymous). For instance, 

there are several cases which suggest that culpable negligence is a high form of gross 

negligence, specifically that “[c]ulpable negligence is such gross negligence or

carelessness as ‘imports a thoughtless disregard of consequences’ or a ‘heedless 

indifference to the safety and rights of others.’ ” See State v. Thompson, 118 N.C. 

App. 33, 36, 454 S.E.2d 271, 273 (1995) (quoting State v. Everhart, 291 N.C. 700, 702, 

231 S.E.2d 604, 606 (1977)).

However, presuming “gross negligence” is the same as “culpable negligence,” 

we conclude that it was logically possible for the jury to convict Defendant of 

misdemeanor death by motor vehicle based on his speeding, based on a shifting of 

burden of proof. Indeed, to prove Defendant guilty of involuntary manslaughter, the 

burden was on the State to prove beyond a reasonable doubt that Defendant acted 

with culpable negligence. However, to prove Defendant guilty of misdemeanor death 

by motor vehicle, the State only needed to prove that Defendant was speeding. Based 
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on our jurisprudence, the State had no burden to prove that Defendant was not acting 

with gross negligence to show that Defendant was guilty of speeding. Rather, based 

on our case law, under G.S. 20-145 the burden was on Defendant to prove to the 

satisfaction of the jury (as an affirmative defense to speeding) that he was not acting 

with gross negligence while he was speeding. See State v. Flaherty, 55 N.C. App. 14, 

22, 284 S.E.2d 565, 571 (1981).

Here, It is possible that the jury was not satisfied that Defendant had met his 

burden of showing to the jury’s satisfaction that he was not grossly negligent, and, 

therefore, found that Defendant caused the victim’s death while violating our laws 

against speeding. But, at the same time, the jury could still not be convinced beyond 

a reasonable doubt that the State met its burden of showing Defendant was grossly 

negligent, thereby justifying their verdict of “not guilty” on the involuntary 

manslaughter charge.

We note Defendant’s challenge to the trial court’s jury charge regarding G.S.

20-145 and misdemeanor death by vehicle: 

If you find, ladies and gentlemen, from the evidence beyond 

a reasonable doubt that on or about the alleged date, the 

Defendant violated the law of this State concerning or 

governing the operation of motor vehicles, if the Defendant 

has failed to satisfy you that he was exempt from those 

statutes, or if the Defendant satisfied you that he was 

exempt from those statutes [but] that he acted with 

reckless disregard for the safety of others, and that the 

Defendant’s violation proximately caused the death of the 

alleged victim, then it would be your duty to return a 

verdict of misdemeanor death by vehicle.
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However, if you do not so find, or if you have a reasonable 

doubt as to one or more of these things, then it would be 

your duty to return a verdict of not guilty.

(Emphasis added). The instructions properly place the burden on Defendant that he 

was exempt under G.S. 20-145 for speeding.

In any event, Defendant concedes that he did not object to the instructions at 

trial, and therefore he asks for plain error review. See State v. Lawrence, 365 N.C. 

506, 512, 723 S.E.2d 326, 330 (2012). The State argues Defendant has waived 

appellate review because any error was invited by Defendant. See State v. Wilkinson, 

344 N.C. 198, 235–36, 474 S.E.2d 375, 396 (1996). Even assuming Defendant did not 

invite error and reviewing under Defendant’s requested standard of review, we 

conclude any error did not rise to the level of plain error. “For error to constitute 

plain error, a defendant must demonstrate that a fundamental error occurred at trial. 

To show that an error was fundamental, a defendant must establish prejudice—that, 

after examination of the entire record, the error had a probable impact on the jury's 

finding that the defendant was guilty.” Lawrence, 365 N.C. at 518, 723 S.E.2d at 334 

(cleaned up).

Defendant also challenges the sufficiency of the evidence to submit the charge 

of misdemeanor death by vehicle to the jury. We conclude the record contains

sufficient evidence showing that Defendant violated North Carolina law by speeding 

and that he failed to show that he was exempt under G.S. 20-145. The State 

presented evidence tending to show that Defendant was driving approximately 100
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miles per hour in a 35 miles per hour zone. The State also presented evidence 

concerning the reckless disregard for the safety of others element; for example, a 

driving instructor from the CMPD training academy testified that Defendant was not 

abiding by CMPD’s directives for emergency response driving because Defendant did 

not slow down to clear intersections and was “outrunning his headlights” by traveling 

at a speed faster than his headlights could shine to illuminate potential hazards in 

the road in front of him.

For the reasoning above, we do not agree with Defendant that the trial court 

erred by failing to set aside the verdict ex mero motu. “Failure to set aside the verdict 

ex mero motu would be reviewable only in the situation where the jury’s verdict is 

manifestly unjust and against the greater weight of the evidence.” State v. Mack, 81 

N.C. App. 578, 584, 345 S.E.2d 223, 226–27 (1986). Here, the jury’s verdict convicting 

Defendant of misdemeanor death by vehicle is neither manifestly unjust nor against 

the greater weight of the evidence. Thus, the trial court did not err in sustaining the 

verdict. For the same reasoning, we disagree with Defendant that his trial counsel

provided ineffective assistance of counsel by failing to move to set aside the verdict.

B. The State’s Closing Argument

Defendant argues the trial court should have intervened ex mero motu during 

the State’s closing argument.

“The standard of review for assessing alleged improper closing arguments that 

fail to provoke timely objection from opposing counsel is whether the remarks are so 
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grossly improper that the trial court committed reversible error by failing to 

intervene ex mero motu.” State v. Parker, 377 N.C. 466, 471, 858 S.E.2d 595, 599 

(2021) (citation omitted).

Defendant contends the State’s closing argument was “designed to place the 

jury in the shoes of the victim . . . by framing the case against [Defendant] as being 

one in which he had, allegedly, harmed the public, including members of the jury.” 

Specifically, Defendant points to the State’s comments that Defendant “broke that 

level of trust that you had a right to expect of him in the performance of his duties”

and “potentially [endangered] the citizens [Defendant] swore [he] would protect” by 

not following his training.

Our Supreme Court has held that “[a]rguments that ask the jurors to place 

themselves in the victim’s shoes are improper.” State v. Prevatte, 356 N.C. 178, 244, 

570 S.E.2d 440, 476 (2002) (citation omitted). However, comments portraying the 

victim as a “typical community member” are allowed. See id.

Here, the State’s comments appear intended to illustrate how the victim in this 

case was a typical citizen like the jurors. It does not appear that the State was asking 

the jurors to place themselves in the victim’s shoes.

Thus, Defendant fails to meet the high bar required to show that the trial court 

erred by failing to intervene ex mero motu during closing arguments.

NO ERROR.

Judges HAMPSON and GRIFFIN concur.