State v. Teesateskie, COA20-190

Docket NºNo. COA20-190
Citation863 S.E.2d 644, 278 N.C.App. 779
Case DateAugust 03, 2021
CourtCourt of Appeal of North Carolina (US)

278 N.C.App. 779
863 S.E.2d 644

STATE of North Carolina
Kimberly Gail TEESATESKIE, Defendant.

No. COA20-190

Court of Appeals of North Carolina.

Filed August 3, 2021

Attorney General Joshua H. Stein, by Assistant Attorney General John W. Congleton, for the State.

Hynson Law, PLLC, by Warren D. Hynson, Raleigh, for defendant-appellant.

MURPHY, Judge.

863 S.E.2d 647

¶ 1 A trial court properly denies a defendant's motion to dismiss charges of driving while impaired and felony death by motor vehicle when there is sufficient evidence of the defendant's impairment. Sufficient evidence of impairment is such evidence, viewed in the light most favorable to the State, as a reasonable mind might accept as adequate to support the conclusion that the defendant was appreciably impaired, either mentally or physically. Here, the trial court properly denied Defendant's motion to dismiss, where there was sufficient evidence of appreciable physical impairment due to Defendant's failure of multiple sobriety tests, unsteady gait, lethargy, slurred speech, and a drug recognition expert's opinion that Defendant was impaired.

¶ 2 Additionally, a defendant must show an abuse of discretion to be entitled to relief for a trial court's error in allowing expert testimony that does not comply with the requirements of North Carolina Rule of Evidence 702. However, when the substance of improperly admitted expert testimony is admitted properly via another source, a defendant cannot show prejudice. Here, even assuming the trial court abused its discretion in admitting expert testimony indicating that Hydrocodone could have been in Defendant's blood test and been hidden by other results, this assumed abuse of discretion was not prejudicial since there was evidence that Defendant admitted to an officer that she had taken Hydrocodone.


¶ 3 On 1 January 2015, around 10:45 p.m., Defendant Kimberly Teesateskie was driving back from a party with her best friend, Maggie Whachacha, in the passenger seat when Defendant drove off Snowbird Road, a state-maintained highway, and struck a tree. Defendant sustained minor injuries; however, Ms. Whachacha did not survive her injuries. As a result of the accident, Defendant was charged with felony death by motor vehicle, reckless driving, driving while impaired, and murder. Defendant's murder charge was later voluntarily dismissed by the State.

¶ 4 When first responders arrived at the scene of the accident, they had Defendant leave her vehicle and walk to a patrol car so that emergency services could try to help Ms. Whachacha. On the way to the car, Defendant walked normally and without need of assistance. One of the first responders testified Defendant struggled to stay awake and fell asleep while sitting in his patrol car. Additionally, an emergency medical technician ("EMT") testified that, after the accident, Defendant could hear and understand him, had properly functioning and reacting eyes, good pulse and blood pressure, and was able to answer questions competently, such that he did not believe Defendant had ingested any impairing substance.

¶ 5 However, Trooper Harold Hoxit of the North Carolina Highway Patrol, upon speaking with Defendant at the scene, was concerned that she was impaired. Defendant spoke with a "thick fat tongue, sort of mumbling her speech" and seemed to struggle to stay awake. She was responsive and Trooper Hoxit did not notice a smell of alcohol or observe glassy eyes, although he did notice she swayed when walking and he believed it seemed like her balance was off. Defendant claimed to Trooper Hoxit that she was blinded by a truck's headlights, causing her to drive off the left side of the road and her car hit the tree almost immediately after. Trooper Hoxit believed "she possibly could be impaired" and contacted a drug recognition expert. Trooper Hoxit then drove Defendant in his patrol vehicle to the Graham County Sheriff's Office.

¶ 6 A drug recognition expert, Trooper Mike McLeod of the North Carolina Highway Patrol, met Defendant and Trooper

863 S.E.2d 648

Hoxit at the Sheriff's office. Defendant appeared to be asleep in the car when they arrived, and when she awoke and walked into the Sheriff's office she shuffled and was unsteady on her feet. After a preliminary examination and conducting multiple sobriety tests, Trooper McLeod ultimately concluded Defendant was under the influence of a central nervous system depressant and narcotic analgesic and her mental and physical faculties were appreciably impaired by these substances. Trooper McLeod based this opinion on the totality of the circumstances, including Defendant's results from a horizontal gaze nystagmus ("HGN") test, which revealed six out of six indicators of impairment, a lack of convergence eye test, which indicated impairment, a walk and turn test, which revealed seven out of eight indicators of impairment, a finger to nose test, which indicated possible impairment, her pupil's reaction to light, which revealed a possible indicator of ingestion of drugs due to her pupil's "very slow" reaction to light, her muscle tone check, which indicated possible ingestion of drugs due to the muscle tone being "flaccid [and] excessively soft," and Defendant's statement regarding her drug and alcohol consumption.1

¶ 7 Defendant told Trooper McLeod that she had taken Citalopram, Ranitidine HCL, Metformin, Tramadol, Gabapentin, and Hydrocodone earlier that day. She also stated she drank a mixed drink, which had one-and-a-half shots of vodka, and two beers that evening, most recently at 9:30 p.m. Further, she stated she took two 10 mg Hydrocodone pills at 9:30 p.m. A blood sample taken at 2:12 a.m. found a blood alcohol concentration of 0.00 grams of alcohol per 100 millimeters, but revealed the presence of Xanax, Citalopram, and Lamotrigine. Over objection, the State's blood analyst confirmed it was possible "that Hydrocodone could have been present in [Defendant's] blood," but that "[she] could not [report its presence] based on a masking effect of Lamotrigine" or it could have been present in "an abundance that is much smaller than what [she could report] or it may have all been metabolized." The jury was only instructed on alcohol, Alprazolam, also known as Xanax, and Hydrocodone as potential impairing substances. Alcohol and Xanax are central nervous system depressants, and Hydrocodone is a narcotic analgesic.

¶ 8 At the conclusion of the State's evidence, Defendant moved to dismiss the charges, which the trial court denied. Defendant renewed this motion at the conclusion of all evidence, which was again denied.

¶ 9 Defendant was convicted of all charges and sentenced to 60 to 84 months in prison.2 She was convicted of felony death by motor vehicle and driving while impaired under the theory of impairment in N.C.G.S. § 20-138.1(a)(1). N.C.G.S. § 20-138.1(a)(1) (2019) ("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 timely appeals.


¶ 10 On appeal, Defendant contends the trial court erred in denying her motion to dismiss as there was insufficient evidence of impairment to support her charge of driving while impaired and, in turn, her charge of felony death by motor vehicle. Defendant also argues that she was prejudiced by the trial court's abuse of discretion in admitting speculative expert testimony that Hydrocodone could have been in Defendant's blood. We disagree.

A. Motion to Dismiss

¶ 11 Defendant argues her motion to dismiss the charges of felony death by motor vehicle and driving while impaired should have been granted because the evidence

863 S.E.2d 649

of impairment here was insufficient, as it only raised a suspicion or conjecture that Defendant was appreciably impaired.

We review the trial court's denial of [a] [d]efendant's motion to dismiss de novo. When ruling on a defendant's motion to dismiss, the trial court must determine whether the State presented sufficient evidence (1) of each essential element of the offense charged, and (2) that the defendant is the perpetrator of

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1 practice notes
  • Williams v. Allen, COA20-724
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • August 3, 2021
    ...until I can see each version of the proposed orders.....THE COURT: All right. Anything else we need to address?[DEFENSE COUNSEL]: No.863 S.E.2d 644 ¶ 45 This exchange demonstrates that Defense Counsel sought clarification pertaining to the trial court's ruling on the privilege to "establish......
1 cases
  • Williams v. Allen, COA20-724
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • August 3, 2021
    ...until I can see each version of the proposed orders.....THE COURT: All right. Anything else we need to address?[DEFENSE COUNSEL]: No.863 S.E.2d 644 ¶ 45 This exchange demonstrates that Defense Counsel sought clarification pertaining to the trial court's ruling on the privilege to "establish......

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