State v. Strange

• Decision Date: 11 March 1992
• Docket Number: No. 1795,1795
• Citation: 417 S.E.2d 609,308 S.C. 256
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Gary Wayne STRANGE, Appellant. . Heard

Page 609

417 S.E.2d 609

308 S.C. 256

The STATE, Respondent, v. Gary Wayne STRANGE, Appellant.

No. 1795.

Court of Appeals of South Carolina.

Heard March 11, 1992.

Decided March 30, 1992.

Asst. Appellate Defender, Tara Dawn Shurling, of S.C. Office of Appellate Defense, Columbia, for appellant.

Atty. Gen. T. Travis Medlock, Asst. Attys. Gen. Harold M. Coombs, Jr., E. Jean Howard, and Alexandria Broughton Skinner, Columbia, and Sol. Larry F. Grant, York, for respondent.

GOOLSBY, Judge:

Gary Wayne Strange appeals his conviction for driving under the influence. The issue on appeal relates to a jury charge. We affirm.

On September 2, 1990, around 1:30 a.m., the police stopped a car driven by Strange at a license check. The stopping officer, Officer Jamison, detected the odor of alcohol about Strange.

After asking Strange to pull off the road and step outside the car, Officer Jamison administered an eye nystagmus test. During the test, Strange continuously moved his head to follow a pen instead of using his eyes as Officer Jamison had instructed him to do.

Officer Jamison also noticed Strange's eyes were red and bloodshot and his speech was slightly slurred. Strange additionally had difficulty walking and slightly stumbled when Officer Jamison asked him to walk to the car of another officer, Officer Blair. In fact, the two officers had to hold Strange to keep him steady.

Like Officer Jamison, Officer Blair detected a strong odor of alcohol about Strange. He determined it would be unsafe to conduct any further field sobriety tests because of Strange's problems with standing and walking.

Officer Blair then arrested Strange for driving under the influence and took him to the police department. He placed Strange in a cell to await the taking of a breathalyzer test. While in the cell, Strange fell asleep.

About an hour later when it came time for Strange to take the breathalyzer, the officers had to awaken Strange.

The breathalyzer operator also noted Strange had a strong odor of alcohol "on his person or breath," he had difficulty maintaining his balance, his speech was slurred, and his eyes were bloodshot. Strange's reading on the breathalyzer was 0.14 per cent of blood alcohol content. ¹

We need not determine whether the jury charge about which Strange complains ² was an unconstitutional burden- shifting charge. Cf. State v. Patrick, 289 S.C. 301, 345 S.E.2d 481 (1986) (wherein our Supreme Court noted that jury instructions creating a burden-shifting presumption are unconstitutional and admonished trial judges that it is best to never use words such as "rebuttable" in any jury charge), overruled in part on other grounds, Casey v. State, --- S.C. ----, 409 S.E.2d 391 (1991); State v. Key, 282 S.C. 413, 319 S.E.2d 338 (1984) (wherein our Supreme Court reversed a conviction for possession of marijuana with intent to distribute because of a burden-shifting jury charge).

Even assuming the charge here was improper, the error was harmless beyond a reasonable doubt. See State v. Kinner, 301 S.C. 209, 391 S.E.2d 251 (1990) (wherein our Supreme Court affirmed the defendant's conviction for driving under the influence because the overwhelming evidence of his impairment rendered the trial court's erroneous jury instruction harmless); State v. Bailey, 298 S.C. 1, 377 S.E.2d 581 (1989) (the Supreme Court will not set aside a conviction because of insubstantial errors not effecting the result when the defendant's guilt has been conclusively proven by competent evidence such that no other rational conclusion could be reached); cf. Yates v. Evatt, --- U.S. ----, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991) (applying the harmless beyond a reasonable doubt analysis...