An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in accordance 

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-656

NORTH CAROLINA COURT OF APPEALS

Filed: 4 March 2014

STATE OF NORTH CAROLINA

v. Robeson County

Nos. 11 CRS 5000

09 CRS 57970

09 CRS 706839

09 IFS 707165

09 CRS 8828

TERRY DEAN SPIVEY, SR.

Appeal by defendant from judgment entered 19 October 2012

by Judge James Gregory Bell in Robeson County Superior Court. 

Heard in the Court of Appeals 11 December 2013.

Roy Cooper, Attorney General, by Kathryne E. Hathcock, 

Assistant Attorney General, for the State.

T. Craig Wright for defendant-appellant.

STEELMAN, Judge.

Where the exclusion of photographs of the scene of the 

collision would not have had a probable impact on the outcome of 

trial, the trial court did not commit plain error. Where other 

evidence supported the finding that defendant was the driver of 

the vehicle, the admission of a hearsay statement as to the 
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driver’s identity was harmless error. Where defendant failed to 

offer legal arguments to support the exclusion of medical 

reports, this argument is deemed abandoned. Where defendant was 

not sentenced for both manslaughter and felony death by vehicle, 

the indictment alleging both offenses was not fatally flawed. 

Where the State presented evidence that defendant was found at 

the scene of the collision, pinned beneath the steering wheel, 

there was sufficient evidence that defendant was operating the 

vehicle at the time of the collision. The trial court did not 

err in denying defendant’s motion to dismiss at the close of all 

of the evidence.

I. Factual and Procedural Background

On 2 October 2009, Terry Dean Spivey, Sr., (defendant) 

attended a cookout at the home of his mother, along with his 

wife and six year-old granddaughter. Defendant consumed alcohol 

at the cookout. Defendant got into an altercation with his 

half-brother and stepfather, and left with his wife and 

granddaughter. Shortly thereafter, defendant returned, and 

smashed the windshields of his mother’s and stepfather’s 

vehicles. Defendant again departed.

At roughly 9:30 p.m. that evening, Lori and Jimmy Chavis 

heard a “loud bang sound” outside of their home, and discovered 
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defendant’s vehicle in a ditch against an uprooted pine tree. 

Beer cans were scattered in the roadway and ditch. Mr. Chavis 

helped defendant’s granddaughter from the vehicle, and Mrs. 

Chavis’ mother cleaned up the girl’s bloody nose until emergency 

responders arrived. Defendant requested assistance getting out 

of the vehicle, but could not be removed because his legs were 

pinned beneath the steering wheel. Mrs. Chavis noted that 

defendant smelled of alcohol.

Defendant’s son arrived at the scene of the collision, and

observed defendant pinned beneath the steering column. 

Defendant’s wife informed defendant’s son that she was dying.

Emergency responders found defendant pinned in the driver’s 

seat by the steering wheel, his knees trapped under the 

dashboard. The driver’s seat had to be forcibly repositioned to 

remove defendant. Defendant was not wearing a seatbelt, but 

insisted that he had been wearing one at the time of the 

collision. Assistant Chief Elaine Dixon-Parker of the South 

Robeson Rescue Squad testified that defendant’s injuries were 

inconsistent with seatbelt usage, and defendant admitted at 

trial that he was not wearing a seatbelt at the time of the 

collision. The extraction team observed that defendant smelled 

of alcohol, that his breathing was heavy, that his speech was 
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slurred, and that there were open cans of alcohol in the 

vehicle.

In the front passenger seat of the vehicle, which had been 

hurled into the dashboard, rescue workers found defendant’s 

wife. She was taken to the hospital in Chapel Hill, where she 

died sixteen days later from her injuries.

While defendant and his wife were being extracted, other 

emergency responders were attending to defendant’s 

granddaughter, who stated that she had been seated in the back 

seat. She later informed emergency room doctors that defendant 

had been driving too fast, lost control, and struck a tree.

Defendant was charged with second-degree murder, aggravated 

felony death by vehicle, misdemeanor child abuse and reckless 

driving, failure to wear a seat belt, failure to secure a 

passenger under 16, driving while impaired, and driving while 

license revoked. The jury found defendant guilty of all

criminal charges and responsible for all infractions. The jury 

also found the existence of an aggravating factor: that

defendant committed the offense while on pretrial release on 

another charge. All of defendant’s convictions were 

consolidated into one judgment, and defendant was sentenced to 
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an active term of imprisonment of 276-341 months, from the 

aggravated range.

Defendant appeals.

II. Admission of Photographs

In his first argument, defendant contends that the trial 

court erred in admitting five photographs of the scene of the 

accident, showing a cross and flowers that were placed there 

after the accident. We disagree.

A. Standard of Review

[T]he plain error rule ... is always to be 

applied cautiously and only in the 

exceptional case where, after reviewing the 

entire record, it can be said the claimed 

error is a “fundamental error, something so 

basic, so prejudicial, so lacking in its 

elements that justice cannot have been 

done,” or “where [the error] is grave error 

which amounts to a denial of a fundamental 

right of the accused,” or the error has 

“‘resulted in a miscarriage of justice or in 

the denial to appellant of a fair trial’” or 

where the error is such as to “seriously 

affect the fairness, integrity or public 

reputation of judicial proceedings” or where 

it can be fairly said “the instructional 

mistake had a probable impact on the jury's 

finding that the defendant was guilty.”

State v. Lawrence, 365 N.C. 506, 516-17, 723 S.E.2d 326, 

333 (2012) (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 

375, 378 (1983)).

B. Analysis
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At trial, the State introduced five photographs of the tree 

at the scene of the collision. Several of these photographs 

were taken a year after the collision, and showed a cross and 

flowers, marking the site of the accident as a memorial. 

Defendant did not object to the admission of these photographs 

at trial, but now alleges that this was prejudicial, and that 

these photographs should not have been admitted. Because 

defendant did not make this objection at trial, we review the 

admission of these photographs for plain error.

In our review of the record, it appears that the evidence 

against defendant included these photographs, several reports, 

and eyewitness testimony. There was no shortage of evidence 

against defendant. The photographs themselves were admitted for 

illustrative purposes, to show how the tree had been uprooted by 

the impact. We hold that the exclusion of these photographs 

would not have “had a probable impact on the jury’s finding that 

the defendant was guilty,” and that the trial court did not 

commit plain error by admitting them into evidence.

This argument is without merit.

III. Admission of Minor Child’s Statement

In his second argument, defendant contends that the trial 

court erred in admitting the statement of defendant’s 
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granddaughter to emergency responders as to who was driving the 

vehicle. We disagree.

A. Standard of Review

“The trial court’s determination as to whether an out-ofcourt statement constitutes hearsay is reviewed de novo on 

appeal.” State v. Castaneda, ___ N.C. App. ___, ___, 715 S.E.2d 

290, 293, appeal dismissed and disc. review denied, 365 N.C. 

354, 718 S.E.2d 148 (2011).

B. Analysis

After the collision, defendant’s minor granddaughter gave a 

statement to emergency responders that defendant was driving the 

vehicle. At trial, the State sought to introduce this statement 

as a hearsay exception pursuant to Rule 803 of the North 

Carolina Rules of Evidence: a statement made in the course of 

medical treatment. Defendant objected, and the trial court 

overruled the objection. Defendant contends that the admission 

of the granddaughter’s statement to emergency responders, 

without calling the granddaughter as a witness, violated his 

right to confront the witnesses against him.

Even assuming arguendo that the trial court erred in 

admitting this evidence, we hold that any error was harmless. 

In addition to the statement by defendant’s granddaughter, other 
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witnesses testified that defendant’s legs were pinned under the 

steering column, and that defendant was in the driver’s seat 

subsequent to the collision. Defendant’s wife, the only other 

adult in the vehicle, was found crushed inside of the front 

passenger seat, which had collapsed on top of her. The physical 

evidence at the scene of the accident demonstrated that 

defendant had to have been the operator of the vehicle at the 

time of the collision. We hold that any error resulting from 

the admission of the granddaughter’s statement to medical 

examiners was harmless.

This argument is without merit.

IV. Admission of Medical Reports

In his third argument, defendant contends that the trial 

court erred in admitting medical reports as evidence of his

identity as the driver of the vehicle. We disagree.

At trial, the State introduced the medical reports of 

defendant’s granddaughter, which contained statements that 

defendant was in the driver’s seat, was driving too fast and 

lost control. Defendant objected, and the trial court overruled 

the objection. Defendant contends that the trial court admitted 

this evidence in error, but makes no legal argument as to why 
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this was error. Accordingly, we deem this argument abandoned 

pursuant to N.C. R. App. P. 28(b).

This argument is without merit.

V. Alleged Flaws in Indictment

In his fourth argument, defendant contends that the 

indictment for aggravated felony death by vehicle was fatally 

flawed. We disagree.

A. Standard of Review

“An attack on an indictment is waived when its validity is 

not challenged in the trial court.” State v. Wallace, 351 N.C. 

481, 503, 528 S.E.2d 326, 341, cert. denied, 531 U.S. 1018, 148 

L. Ed. 2d 498 (2000). “However, where an indictment is alleged 

to be invalid on its face, thereby depriving the trial court of 

its jurisdiction, a challenge to that indictment may be made at 

any time, even if it was not contested in the trial court.” Id.

B. Analysis

Defendant was indicted for aggravated felony death by 

vehicle and second-degree murder. With regard to the murder 

charge, the trial court instructed the jury as to the lesser 

included offense of involuntary manslaughter.
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N.C. Gen. Stat. § 20-141.4 states that no defendant may be 

charged with both death by vehicle and manslaughter arising from 

the same incident. N.C. Gen. Stat. § 20-141.4(c) (2013). 

Defendant contends that the indictment alleging both was fatally 

flawed.

In our recent decision of State v. Elmore, ___ N.C. App. 

___, 736 S.E.2d 568 (2012), we held that this statute prohibited 

a defendant from being sentenced for both manslaughter and 

felony death by vehicle. It did not hold that a defendant could 

not be indicted for both offenses. In the instant case, the 

jury was instructed on involuntary manslaughter as a lesser 

offense to second-degree murder, as well as felony death by 

vehicle. Defendant was found guilty of second-degree murder, 

not manslaughter, which is not prohibited by the statute. 

Accordingly, we hold that the indictment, alleging both murder 

and felony death by vehicle, was not fatally flawed.

This argument is without merit.

VI. Motion to Dismiss

In his fifth and sixth arguments, defendant contends that 

the trial court erred in failing to grant his motion to dismiss

at the close of the State’s evidence and at the close of all of 

the evidence. We disagree.
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A. Standard of Review

“This Court reviews the trial court’s denial of a motion to 

dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650 

S.E.2d 29, 33 (2007).

“Our courts have consistently held that when a defendant 

presents evidence at trial, he waives his right on appeal to 

assert the trial court's error in denying the motion to dismiss 

at the close of the State's evidence.” State v. Davis, 101 N.C. 

App. 409, 411, 399 S.E.2d 371, 372 (1991). Because defendant 

presented evidence at trial, our review is limited to the motion 

to dismiss at the close of all of the evidence.

B. Analysis

At the close of the State’s evidence, and again at the 

close of all of the evidence, defendant moved to dismiss the 

charges against him. Defendant contends that no evidence was 

presented to show that he was driving the vehicle at the time of 

the collision.

Pursuant to a motion to dismiss at the close of all of the 

evidence, “[t]he defendant's evidence, unless favorable to the 

State, is not to be taken into consideration, except when it is 

consistent with the State's evidence, the defendant's evidence 

may be used to explain or clarify that offered by the State[.]” 
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State v. Abshire, 363 N.C. 322, 328, 677 S.E.2d 444, 449 (2009) 

(citations and quotations omitted).

In the instant case, the State’s evidence showed that 

defendant was found behind the steering wheel of the vehicle, 

that defendant was intoxicated, that defendant was not wearing a 

seatbelt, that defendant’s granddaughter was not wearing a 

seatbelt, that defendant’s driver’s license had been revoked, 

and that defendant’s driving caused the death of defendant’s 

wife. Defendant’s evidence, to the extent that it was 

inconsistent with or sought to rebut the State’s evidence, was

not to be considered by the trial court. We hold that the 

evidence presented at trial was sufficient to support all of the 

charges submitted to the jury. The trial court did not err in 

denying defendant’s motion to dismiss at the close of all of the 

evidence.

This argument is without merit.

NO ERROR.

Judges STEPHENS and DAVIS concur.

Report per Rule 30(e).