State v. Cox, ___ N.C. App. ___, 800 S.E.2d 692 (May. 2, 2017)

(1) In this impaired driving second-degree murder case, the court rejected the defendant’s argument that the trial court’s instruction on proximate cause was erroneous and that the trial court committed plain error by failing to instruct the jury on intervening negligence. The trial court instructed the jury that it had to find that “[T]he death of the victim was proximately caused by the unlawful act of the defendant” and that “[T]he State must prove beyond a reasonable doubt only that the defendant’s negligence was a proximate cause.” The court rejected the notion that the jury probably would have reached a different result if an instruction on intervening negligence was given. Overwhelming evidence showed that the defendant drove through a red light while grossly impaired and caused the crash. The only evidence hinting that the victim may have been negligent in causing the crash was the defendant’s offhand question to an officer who arrived on the scene about whether the officer had tested “the person that ran the red light.” Even if the victim had somehow been negligent, her negligent would most be a concurring proximate cause of her own death. (2) The trial court did not err in instructing the jury with respect to proximate cause as to the charge of felonious serious injury by vehicle. The defendant argued that the language of the statute “forecloses the possibility of the state proving proximate cause in conjunction with some other concurrent cause.” The court disagreed, citing prior case law rejecting this argument.