Opinion
No. 08-956.
Filed April 21, 2009.
Appeal from the Davidson (06CRS53737).
Appeal by defendant from judgment entered 12 December 2007 by Judge Thomas D. Haigwood in Davidson County Superior Court. Heard in the Court of Appeals 23 March 2009.
Attorney General Roy A. Cooper, III, by Assistant Tamara Zmuda, for the State. Mercedes O. Chut for defendant-appellant.
Defendant appeals from a judgment entered against him for habitual impaired driving. On appeal, defendant contends that the trial court erred when it denied his motion to dismiss the underlying charge of impaired driving. We find no error.
On 30 May 2006, the Davidson County grand jury returned an indictment against defendant for habitual impaired driving. On 12 December 2007, defendant's attorney and the prosecutor signed a stipulation that defendant had previously been convicted of three impaired driving offenses within seven years of the alleged offense in this case.
The case came on for trial, and the State's evidence tended to show that on 20 April 2006, Sheriff's Deputy William McBride was called to assist at an accident scene on a Davidson County highway. The dispatch call described a person who was attempting to leave the scene. When Deputy McBride arrived at the scene about seven minutes later, he found a red scooter laying on its side in a ditch on the side of the highway. Deputy McBride observed marks in the grass that indicated the scooter left the road before it crashed. Deputy McBride found defendant walking away from the scene and wearing clothing that matched the description from the dispatch call. Defendant was about seventy-five to one hundred feet from the scene when Deputy McBride found him. Deputy McBride shouted at defendant to stop, but he did not respond. Defendant was stumbling and having a hard time keeping his balance. Deputy McBride caught up with defendant and asked him to come back to the scene and talk about the accident.
Defendant was still unsteady on his feet and needed assistance to walk, so Deputy McBride supported him as they walked about one hundred yards back to the accident scene. Defendant also had some minor scrapes and cuts on his arm and hand. Defendant told Detective McBride that a car ran him off the road. Detective McBride smelled alcohol on defendant. Detective McBride had defendant sit on the ground so that he would not fall. By the time that Deputy McBride and defendant returned to the scene, North Carolina State Highway Patrol Officer Eric Phillips had arrived.
Trooper Phillips arrived at the scene about ten minutes after Deputy McBride. Trooper Phillips also saw the scooter, and it appeared to have run off the road, collided with some landscaping, and overturned. The engine of the scooter was still warm when Trooper Phillips touched it. Trooper Phillips also found a sealed half-gallon plastic container of liquor near the scooter. Defendant told Trooper Phillips that the liquor was a gift for his wife.
Trooper Phillips noted that defendant was "very unsteady on his feet" when he walked over with Detective McBride. Defendant had a "very strange guarded stance" when he walked, and had difficulty walking in a straight line. Defendant also had a "strong odor" of alcohol, and had "red glassy eyes, extremely slurred mumbled speech." Defendant also exhibited mood swings, going suddenly from calm to depressed and angry. Defendant also told Trooper Phillips that he believed a blue car ran him off the road.
Trooper Phillips and Deputy McBride both believed that defendant had consumed sufficient alcohol to appreciably impair his mental and physical faculties, and Trooper Phillips arrested him for driving while impaired. Trooper Phillips did not have defendant perform any field sobriety tests. Instead, Trooper Phillips brought defendant back to the courthouse to administer a blood-alcohol test. After Trooper Phillips read him his rights, defendant refused the test. Defendant also refused to perform any sobriety tests at the courthouse.
Defendant made motions to dismiss at both the close of the State's evidence and after all the evidence was presented. The trial court denied both motions. The jury returned a verdict of guilty of impaired driving. Pursuant to defendant's stipulation to his prior driving while impaired convictions, the trial court entered a mitigated-range judgment of fourteen to seventeen months in prison for habitual impaired driving.
Defendant's sole argument on appeal is that the trial court erred when it denied his motions to dismiss the charge of impaired driving. Defendant essentially contends that there was insufficient evidence that he was impaired while operating the scooter. We disagree.
In ruling on a motion to dismiss, the trial judge must consider the evidence in the light most favorable to the State, allowing every reasonable inference that can be drawn therefrom. State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992) (citing State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980)). The Court must find that there is substantial evidence of each element of the crime charged and of defendant's perpetration of such crime. Olson, 330 N.C. at 564, 411 S.E.2d at 595 (citing State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991)). "Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion." Id.
"A person commits the offense of impaired driving if he drives any vehicle upon any highway, any street, or any public vehicular area within the State: (1) While under the influence of an impairing substance. . . ." N.C. Gen. Stat. § 20-138.1(a)(1) (2007); see State v. Barber, 93 N.C. App. 42, 44, 376 S.E.2d 497, 498, disc. review denied, 328 N.C. 334, 381 S.E.2d 775 (1989). Here, defendant admitted that someone ran him off the road, thus, he was driving when the accident occurred. Deputy McBride responded to the scene within minutes, and found defendant to be unsteady on his feet, to the point that Deputy McBride had to physically support him and had him sit down to prevent him from falling. Deputy McBride detected a strong odor of alcohol emanating from defendant. Trooper Phillips arrived at the scene within minutes of Deputy McBride, while the scooter engine was still warm, and also noted that defendant was very unsteady on his feet. Like Deputy McBride, Trooper Phillips detected the strong odor of alcohol, and noticed that defendant had "red glassy eyes, extremely slurred mumbled speech." Defendant also exhibited mood swings, going suddenly from calm to depressed and angry. In addition, defendant refused to submit to a chemical analysis or sobriety tests. See N.C. Gen. Stat. § 20-139.1(f) (2007). All of this evidence supports the trial court's denial of defendant's motion to dismiss. We find no error.
No error.
Judges McGEE and JACKSON concur.
Report per Rule 30(e).