State v. Anderson, No. COA04-891 (NC 6/7/2005)
| Decision Date | 07 June 2005 |
| Docket Number | No. COA04-891,COA04-891 |
| Court | North Carolina Supreme Court |
| Parties | STATE OF NORTH CAROLINA v. RANDY ANDERSON. |
Duncan B. McCormick, for defendant-appellant.
Randy Anderson ("defendant") appeals from judgment entered upon a jury verdict finding him guilty of habitual impaired driving. We find no prejudicial error.
In the late morning of 26 February 2003, Farmville Police Officer Macon Moore, Jr. ("Officer Moore") noticed a parked empty sedan. Its license tag was dangling from the bracket. Officer Moore checked and learned the license tag had been issued to a pick-up truck, which was reported stolen. Officer Moore drove to a nearby parking lot to wait and see if anyone approached the car. Officer Moore later returned to the parking lot and the sedan was gone. He began searching for the sedan and spotted it parked in front of a grocery store. Officer Moore parked nearby and waited to see if anyone returned.
Five minutes later, defendant and a female companion approached and entered the sedan. Defendant started the sedan and began pulling out of the parking space. Officer Moore immediately activated his blue lights and stopped the vehicle. He approached the sedan and asked defendant for his driver's license and vehicle registration. As Officer Moore spoke with defendant, he noticed a strong odor of alcohol on defendant's breath and defendant's bloodshot eyes.
Officer Moore asked defendant to exit the sedan and walk to Officer Moore's patrol car. Officer Moore observed defendant stumbling and swaying as he walked. At the patrol car, Officer Moore asked defendant to take an ALCOSENSOR test. Defendant refused. Officer Moore placed defendant under arrest for possession of a stolen license tag and driving while impaired.
Officer Moore transported defendant to the Farmville Police Department. Upon arrival, Officer Moore asked defendant to perform field sobriety tests, including the "arms out" sway, one-leg standing, and finger-to-nose. Defendant performed the one-legged standing test satisfactorily, but performed poorly on the others. Officer Moore then read defendant his Intoxilizer rights. Defendant refused to submit to the test. Officer Moore read defendant his Miranda rights and completed the Alcohol Influence Report with defendant. Throughout completion of the Alcohol Influence Report, defendant was "insulting and carefree" to Officer Moore.
Defendant was previously convicted on three separate occasions of driving while impaired during the seven year period prior to the date of this offense. The State filed an indictment against defendant for: (1) operating a motor vehicle on a public vehicular area while subject to an impairing substance within seven years of being convicted of this offense on three prior and separate occasions; (2) operating a motor vehicle on a public vehicular area while subject to an impairing substance; and (3) possessing a stolen license plate tag.
Defendant was tried by a jury on 11 February 2004. Defendant did not offer any evidence. At the close of all evidence, the jury returned a verdict of guilty to the charge of "habitual impaired driving." The trial court found defendant's prior record level of V and sentenced defendant to a minimum thirty-four months, maximum forty-one months imprisonment. Defendant appeals.
Defendant argues: (1) the trial court erred in denying his motion to dismiss the charge of habitual impaired driving; and (2) the trial court lacked jurisdiction due to an invalid indictment.
Defendant argues the State "merely raised the suspicion that [he] was impaired," and thus the trial court erred in denying his motion to dismiss the charge of habitual impaired driving. We disagree.
Our standard of review of the trial court's denial of defendant's motion to dismiss a criminal charge is well-established.
"When considering a motion to dismiss, `[i]f the trial court determines that a reasonable inference of the defendant's guilt may be drawn from the evidence, it must deny the defendant's motion and send the case to the jury even though the evidence may also support reasonable inferences of the defendant's innocence.'" State v. Alexander, 337 N.C. 182, 187, 446 S.E.2d 83, 86 (1994) (quoting State v. Smith, 40 N.C. App. 72, 79, 252 S.E.2d 535, 540 (1979)), quoted in State v. Grigsby, 351 N.C. 454, 456-57, 526 S.E.2d 460, 462 (2000). In analyzing a motion to dismiss, the trial court must consider the evidence in the light most favorable to the State. State v. Davis, 325 N.C. 693, 696, 386 S.E.2d 187, 189 (1989). Moreover, the State is given every reasonable inference to be drawn from the evidence. Id. If substantial evidence exists, whether direct, circumstantial, or both, supporting a finding that the offense charged was committed by the defendant, the case must be left for the jury. Id. at 696-97, 386 S.E.2d at 189. "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984).
State v. Matias, 354 N.C. 549, 551-52, 556 S.E.2d 269, 270 (2001).
Defendant was charged with violation of N.C. Gen. Stat. § 20-138.5(a) (2003), habitual impaired driving. That Statute provides, "[a] person commits the offense of habitual impaired driving if he drives while impaired as defined in G.S. 20-138.1 and has been convicted of three or more offenses involving impaired driving as defined in G.S. 20-4.01(24a) within seven years of the date of this offense." N.C. Gen. Stat. § 20-138.1 (2003) states in part, "[a] person commits the offense of impaired driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this State: (1) While under the influence of an impairing substance . . . ." Defendant questions whether the State proffered substantial evidence that defendant was "appreciably impaired" when he drove the sedan.
1. Impairment
This Court discussed the definition of "impairment" in State v. Harrington:
"Impairment" does not appear to have any special legal meaning, but simply means "weakening, making worse, diminishment." See Black's Law Dictionary 677 (5th ed. 1979). Under our former "driving under the influence" statutes, the test was whether the accused had "drunk a sufficient quantity of intoxicating beverage or taken a sufficient amount of narcotic drugs, to cause him to lose the normal control of his bodily or mental faculties, or both, to such an extent that there is an appreciable impairment of either or both of these faculties." State v. Carroll, 226 N.C. 237, 241, 37 S.E.2d 688, 691 (1946). The new statute, 1983 N.C. Sess. Laws c. 435, s. 24, codified at G.S. 20-138.1, consolidated existing impairment offenses into a single offense with two different methods of proof, but it does not appear to have changed the basic definition of "impaired." See State v. Shuping, 312 N.C. 421, 323 S.E.2d 350 (1984); State v. Coker, 312 N.C. 432, 323 S.E.2d 343 (1984).
Under our statutes, the consumption of alcohol, standing alone, does not render a person impaired. State v. Ellis, 261 N.C. 606, 135 S.E.2d 584 (1964). An effect, however slight, on the defendant's faculties, is not enough to render him or her impaired. State v. Hairr, 244 N.C. 506, 94 S.E.2d 472 (1956). Nor does the fact that defendant smells of alcohol by itself control. State v. Cartwright, 12 N.C. App. 4, 182 S.E.2d 203 (1971). On the other hand, the State need not show that the defendant is "drunk," i.e., that his or her faculties are materially impaired. See State v. Painter, 261 N.C. 332, 134 S.E.2d 638 (1964) [emphasis in original]. The effect must be appreciable, that is, sufficient to be recognized and estimated, for a proper finding that defendant was impaired. See State v. Felts, 5 N.C. App. 499, 168 S.E.2d 483 (1969) ().
78 N.C. App. 39, 45, 336 S.E.2d 852, 855 (1985) (emphasis supplied).
"The opinion of a law enforcement officer, for instance, has consistently been held sufficient evidence of impairment, provided that it is not solely based on the odor of alcohol." State v. Mark, 154 N.C. App. 341, 346, 571 S.E.2d 867, 871 (2002) (citing State v. Rich, 351 N.C. 386, 397-98, 527 S.E.2d 299, 305 (2000); Atkins v. Moye, 277 N.C. 179, 185, 176 S.E.2d 789, 793 (1970); State v. Willard, 241 N.C. 259, 264, 84 S.E.2d 899, 902 (1954)), aff'd, 357 N.C. 242, 580 S.E.2d 693 (2003). The officer's opinion of a defendant being "impaired" must be supported by observations of faulty driving or other conduct demonstrating probable cause of mental or physical impairment. Id. at 346, 571 S.E.2d at 871.
"If any person charged with an implied-consent offense refuses to submit to a chemical analysis, evidence of that refusal is admissible in any criminal action against him for an implied-consent offense under G.S. 20-16.2." N.C. Gen. Stat. § 20-139.1(f) (2003); State v. Pyatt, 125 N.C. App. 147, 150-51, 479 S.E.2d 218, 220 (1997); State v. O'Rourke, 114 N.C. App. 435, 438, 442 S.E.2d 137, 138 (1994).
Officer Moore testified he observed that defendant: (1) had bloodshot eyes; (2) mumbled when he spoke; (3) smelled of alcohol; (4) swayed when he walked; (5) stumbled occasionally while walking; (6) swayed "from side to side in a circular motion" during the "arms out" sway field sobriety test; (7) (8) "insulted me, calling me names, calling me clown;" and (9) refused both the ALCOSENSOR and...
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