State v. Rabas
| Decision Date | 07 March 2023 |
| Docket Number | COA22-616 |
| Parties | STATE OF NORTH CAROLINA v. TIMOTHY ARTHUR RABAS |
| Court | North Carolina Court of Appeals |
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Heard in the Court of Appeals 10 January 2023.
Appeal by Defendant from judgment entered 17 February 2022 by Judge Bradley B. Letts in Buncombe County Superior Court. Nos 18CRS711334, 18CRS90653
Attorney General Joshua H. Stein, by Assistant Attorney General Matthew Baptiste Holloway, for the State.
Hyler &Agan, PLLC, by George B. Hyler, Jr., for Defendant-Appellant.
Timothy Rabas ("Defendant") appeals from a 17 February 2022 jury verdict and judgment finding him guilty of driving while impaired and driving while license revoked for an impaired driving revocation. On appeal, Defendant challenges a number of issues related to his driving while license revoked for an impaired driving revocation conviction. For the reasons stated, we hold Defendant received a fair trial free from error.
On the evening of 13 October 2018, Defendant was driving on Interstate 40 through Asheville, North Carolina. At approximately 7:20 p.m., Defendant was stopped, arrested, and cited by State Highway Patrol Trooper Brown ("Trooper Brown") with driving while impaired and speeding at 84-mph in a 55-mph zone (the "first set of charges"). Defendant was transported to the Buncombe County Detention Center. Due to Trooper Brown's suspicions of impairment, Defendant was taken into the Intoxilyzer room and provided with a copy of an Implied Consent Rights form. Trooper Brown read aloud the Implied Consent Rights form to Defendant, and Defendant signed the form at approximately 8:51 p.m. The form states, in relevant part, "Your driving privilege will be revoked immediately for at least 30 days if . . . the test result is 0.08 or more ...." Defendant underwent a breath test by blowing into the Intoximeter EC/IR II instrument ("breath testing instrument") and his test results were recorded above 0.08. Defendant appeared before a magistrate for a bond hearing and was formally charged with speeding and driving while impaired; was booked by the jail staff; and subsequently, was released from custody that same evening.
After his release, Defendant asked Trooper Brown for a ride back to his vehicle, which was parked at a location off the Interstate. Trooper Brown declined the request and, instead, provided Defendant directions to his vehicle's parked location. Defendant took an Uber back to his vehicle and proceeded to drive again, as he needed to be in Raleigh by 9:00 a.m. the next morning for work.
At approximately 11:00 p.m., Defendant was stopped by State Highway Patrol Trooper Grieve ("Trooper Grieve"), who had been alerted by Trooper Brown about Defendant's first set of charges and that Defendant might attempt to drive his vehicle despite his revoked driver license.
After observing Defendant texting while driving and failing to maintain lane control as he swerved and almost struck another vehicle, Trooper Grieve pulled Defendant over. Upon being stopped, Defendant handed Trooper Grieve a North Carolina identification card rather than a driver license. Smelling alcohol during his encounter with Defendant, Trooper Grieve began an investigation to determine whether Defendant was driving while impaired. Trooper Grieve asked Defendant to submit to a field sobriety test, which he did. Trooper Grieve also requested Defendant submit to a portable breath test, which Defendant refused. Based upon Trooper Grieve's observations of Defendant and his performance during the field sobriety test, Defendant was arrested a second time for driving while impaired. Defendant was again transported to the detention center where he read and signed a second Implied Consent Rights form and underwent a second breath test using the breath testing instrument. The result of Defendant's second breath test was greater than 0.08. Trooper Grieve charged Defendant with failing to maintain lane control, operating a motor vehicle on a highway while his driver license was revoked for an impaired driving revocation, texting while driving, and driving while impaired (the "second set of charges").
Defendant's first set of charges were tried by a jury in Buncombe County Superior Court on 20 April 2021. During trial, the court declared a mistrial due to juror misconduct and an order memorializing this ruling was entered on 3 June 2021. Defendant subsequently filed a motion to dismiss the first set of charges pursuant to the Double Jeopardy Clause of the Fifth Amendment. The trial court granted Defendant's motion and dismissed the charges on 18 November 2021.
Defendant's second set of charges were tried in Buncombe County District Court on 19 November 2019, and the trial court found Defendant guilty of driving while impaired, driving while license revoked for an impaired driving revocation, texting while driving, and failure to maintain lane control. Defendant appealed his District Court convictions of the second set of charges to the Superior Court Division for a jury trial.
On 14 February 2022, a jury trial commenced in Superior Court to consider three of the second set of charges against Defendant; specifically, driving while impaired, driving while license revoked for an impaired driving revocation, and failure to maintain lane control. During the trial, conflicting testimony was given by Defendant and Trooper Brown about whether Trooper Brown told Defendant he could not drive after his driver license was revoked. Trooper Brown testified that he explicitly stated to Defendant "he was no longer allowed to drive in the State of North Carolina [because] [t]hat privilege had been revoked. . . [and] that he could get a sober licensed driver to go back and retrieve his vehicle." By contrast, Defendant denied that Trooper Brown told him he could not drive.
The State offered into evidence a copy of the Implied Consent Rights form which contained Defendant's signature. Trooper Brown testified that he read this form out loud to Defendant and provided Defendant a copy to read alongside, before obtaining Defendant's signature. He further testified that it is his standard process to give a copy of the form to an individual who can visually see and follow along with the Trooper's verbal recitation of the form. According to Defendant, he did not receive the form from Trooper Brown. He testified that the Implied Consent Rights form he signed was part of the paperwork he was given by the magistrate after being formally charged for the first set of charges. Defendant testified that
At the close of the State's evidence, Defendant moved to dismiss all three of the charges against him, arguing in relevant part, that the State had not shown sufficient evidence that his driver license had been revoked under applicable North Carolina law, as there was no order of revocation in evidence. The trial court denied Defendant's motion to dismiss.
During the charge conference, Defendant's trial counsel requested a jury instruction on the defense of entrapment in connection with the charge for driving while license revoked. The trial court denied Defendant's request for the jury instruction, finding that the defense was inapplicable to the charge because there was "no evidence of acts of persuasion, trickery, or fraud by law enforcement, or that the concept, design, or idea of criminal conduct in this case originated in the minds of government officials."
After the charge conference and prior to closing arguments, Defendant's trial counsel requested that he be allowed to argue to the jury that there was no document in evidence alerting Defendant that his license was immediately revoked. In reference to State's Exhibit 4,[1] Defense counsel argued to the trial court, The trial court ruled that Defense counsel was not permitted to make such an argument to the jury, finding that counsel's argument "misstates the evidence; in this case, Exhibit 4." On 17 February 2022, the jury returned verdicts finding Defendant guilty on the charges of driving while impaired, driving while license revoked for an impaired driving revocation, and failure to maintain lane control. The trial court entered judgment against Defendant for the above offenses. Defendant was sentenced as a Level 2 DWI to a term of twelve months suspended and placed on supervised probation for twenty- four months. On the remaining charges, he was sentenced to a term of forty-five days suspended and placed on supervised probation for a period of twenty-four months. Defendant timely filed and served notice of appeal on 3 March 2022.
On appeal, Defendant challenges only his conviction for driving while license revoked for an impaired driving revocation ("DWLR for an impaired driving revocation"). Having failed to raise issues relating to his other charges from the 17 February 2022 judgment, Defendant has abandoned any such arguments. State v. Harris, 21 N.C.App. 550, 551, 204 S.E.2d 914, 915 (1974); N.C. R. App. P. 28(b)(6). A. Defendant's motion to dismiss for insufficiency of evidence.
We first note that pursuant to our Rules of Appellate Procedure Defendant failed to properly...
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