Opinion
No. COA09-1328
Filed 15 June 2010 This case not for publication
Appeal by Defendant from judgment entered 2 April 2009 by Judge Dennis J. Winner in Henderson County Superior Court. Heard in the Court of Appeals 8 June 2010.
Attorney General Roy Cooper, by Special Deputy Attorney General Neil Dalton, for the State. Hartsell Williams, P.A., by Christy E. Wilhelm, for Defendant-Appellant.
Henderson County No. 06 CRS 4237.
Timothy Wayne West ("Defendant") appeals after a jury found him guilty of impaired driving. On appeal, Defendant argues that the trial court erred by denying his motion to dismiss the charge for insufficient evidence. We find no error.
I. Factual Background and Procedural History
On 28 July 2006, Blue Ridge Fire and Rescue Chief Gary Brown ("Chief Brown") responded to a report of a motor vehicle accident. Chief Brown was the first emergency responder to arrive at the scene, where he saw an overturned moped in the ditch by the road. Defendant, whom Chief Brown knew and recognized, was lying next to the moped in the ditch. Chief Brown observed that Defendant had a shoulder injury and cuts over his eyes. Another motorist, who was not involved in the accident, stopped to help Defendant before Chief Brown arrived, but no one else was present at the accident scene. Chief Brown allowed the other motorist to leave because he was not involved in the accident and did not see it happen.
Defendant was initially belligerent when Chief Brown attempted to help him, but Defendant calmed down when he recognized Chief Brown. Chief Brown could smell alcohol and believed Defendant was impaired. Chief Brown was able to place Defendant on a backboard and administer first aid until EMS arrived. Ashley Oakman ("Ms. Oakman"), a paramedic, responded to the accident and rode in the ambulance with Defendant. Based on Ms. Oakman's experience treating vehicle accident victims, she believed that Defendant's injuries resulted from the moped accident. Ms. Oakman also noticed that Defendant smelled like alcohol. Defendant admitted to Ms. Oakman that he had consumed three beers prior to his accident.
As EMS personnel were preparing to take Defendant to the hospital, State Highway Patrol Officer John McMurray ("Trooper McMurray") arrived at the scene to investigate. Trooper McMurray spoke briefly to Defendant as he was loaded into the ambulance, and noticed a strong odor of alcohol, bloodshot eyes, and slurred speech. Based on those characteristics, Trooper McMurray believed that Defendant was impaired. Examining the crash area, Trooper McMurray found a ten-foot long tire track on the right side of the road where Defendant apparently drove the moped into the ditch. Trooper McMurray believed that, after driving into the ditch, Defendant struck the opposite side of the embankment, where the moped came to an immediate stop and rolled over on its side.
After he completed an incident report, Trooper McMurray asked Trooper Chris Goodson ("Trooper Goodson") to continue the investigation. Trooper Goodson met with Defendant at the hospital, and also noticed the odor of alcohol and Defendant's bloodshot eyes and slurred speech. Defendant spoke loudly and incoherently with Trooper Goodson. Based on this encounter, Trooper Goodson believed that Defendant was impaired. Because Defendant was not in good enough physical condition to go to the police station for blood alcohol level testing, Trooper Goodson asked him to submit to a blood test to measure his blood alcohol level at the hospital. Defendant refused to take the blood test and requested a lawyer.
Because Defendant refused to cooperate with the blood test, Trooper Goodson requested hospital records that included the results of the blood analysis performed in the course of treating Defendant in the emergency room. Defendant's emergency room records were introduced into evidence at trial. Dr. Thomas Lacy, an emergency room physician from the hospital where Defendant was treated, testified that Defendant's blood alcohol content was .158.
At the close of the State's evidence, Defendant made a motion to dismiss which was denied. Defendant did not present any evidence at trial. The jury found Defendant guilty of impaired driving. The trial court imposed a term of 6 months imprisonment, suspended the sentence, and imposed 18 months of supervised probation. On 9 April 2009, Defendant gave written notice of appeal from the trial court's judgment.
II. Discussion
Defendant's sole argument on appeal is that the trial court erred in denying his motion to dismiss because the State's evidence failed to demonstrate that Defendant was the driver of the moped or that he was intoxicated. We disagree.
A person is guilty of impaired driving if he drives a vehicle on a street, highway, or public vehicular area while under the influence of an impairing substance. N.C. Gen. Stat. § 20-138.1(a) (2009). "[O]ne `drives' within the meaning of [N.C. Gen. Stat. § ] 20-138.1 if he is in actual physical control of a vehicle which is in motion or which has the engine running." State v. Fields, 77 N.C. App. 404, 406, 335 S.E.2d 69, 70 (1985). "A person is under the influence of an intoxicant within the meaning of [N.C. Gen. Stat. § 20-138.1] whenever he has consumed sufficient alcohol to appreciably impair his mental or bodily faculties or both." State v. Bunn, 283 N.C. 444, 460, 196 S.E.2d 777, 788 (1973).
In evaluating the sufficiency of the evidence, "the trial court is to determine whether there is substantial evidence (a) of each essential element of the offense charged, or of a lesser offense included therein, and (b) of defendant's being the perpetrator of the offense." State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). "Substantial evidence is `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" State v. Munoz, 141 N.C. App. 675, 684, 541 S.E.2d 218, 223-24 (quoting Earnhardt, 307 N.C. at 66, 296 S.E.2d at 652), cert. denied, 353 N.C. 454, 548 S.E.2d 534 (2001).
"The trial court must review the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom." State v. Squires, 357 N.C. 529, 535, 591 S.E.2d 837, 841 (2003), cert. denied, 541 U.S. 1088, 159 L. Ed. 2d 252 (2004).
In this case, viewed in the light most favorable to the State, there is substantial evidence that Defendant drove the moped. Chief Brown, the first emergency personnel to respond to the accident, found Defendant alone, lying next to the overturned moped in the ditch. Chief Brown observed that Defendant had suffered a shoulder injury and cuts to his face. Ms. Oakman, based on her experience as a paramedic, believed that Defendant suffered his injuries as a result of the crash. Specifically, Ms. Oakman testified that "[i]t looked like [Defendant] had driven [the moped] into the ditch and going forward onto a moped . . . that's probably what caused his injury, the force of him stopping." None of the emergency personnel who responded to the accident saw any sign of another person who could have been the driver of the moped. Trooper McMurray observed a ten-foot tire track that indicated where Defendant drove the moped off the road, careened into the ditch, and struck the embankment on the other side. The evidence, although circumstantial, sufficiently demonstrates that Defendant was operating the moped at the time of the accident. See State v. Hernandez, 188 N.C. App. 193, 200, 655 S.E.2d 426, 431 (2008) (holding that circumstantial evidence supported the conclusion that the defendant was driving).
There is also substantial evidence of Defendant's impairment. Defendant was initially belligerent with emergency responders, and all of the emergency personnel who came into contact with Defendant immediately noted the strong odor of alcohol. Defendant admitted to Ms. Oakman that he had consumed alcohol earlier that evening. The troopers additionally noticed that Defendant exhibited bloodshot eyes and slurred speech, and his remarks to Trooper Goodson at the hospital were incoherent. Trooper Goodson formed the opinion, based on his interaction with Defendant, that Defendant "did consume a sufficient amount of alcohol so as to appreciably impair his mental and physical faculties." Based on their observations, all of the witnesses believed that Defendant was impaired.
Defendant argues that the results of the emergency room blood work were improperly admitted. Assuming arguendo that this evidence was inadmissible, the witnesses' observations provide sufficient evidence that Defendant was impaired when he was driving the moped, State v. Willard, 241 N.C. 259, 264, 84 S.E.2d 899, 902 (1954) (holding testimony describing defendant's impairment sufficient without the results of blood test), and constitute such overwhelming proof of impairment as to preclude any finding that the admission of the hospital test results constituted plain error. State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1980) (defining plain error as, among other things, an error that "had a probable impact on the jury's finding that the defendant was guilty." (Internal citation and quotation marks omitted)).
Thus, viewed in the light most favorable to the State, the evidence is sufficient to cause a reasonable person to believe that Defendant drove the moped while intoxicated. Accordingly, we hold that the trial court did not err by denying Defendant's motion to dismiss.
NO ERROR.
Judges ERVIN and BEASLEY concur.
Report per Rule 30(e).