Opinion
No. COA09-1500
Filed 3 August 2010 This case not for publication
Appeal by defendant from judgment entered 27 August 2009 by Judge Russell J. Lanier, Jr. in Sampson County Superior Court. Heard in the Court of Appeals 26 April 2010.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Jess D. Mekeel, for the State. Daniel F. Read, for defendant-appellant.
Sampson County Nos. 08 CRS 988; 08 CRS 51035.
Stanley Chestang ("defendant") appeals from a conviction for habitual impaired driving. For the reasons set forth below, we hold no prejudicial error in part, no error in part, and remand for correction of a clerical error.
On 22 March 2008, Glynis Campfield ("Campfield") was in her vehicle, preparing to leave the Piggly Wiggly store ("Piggly Wiggly") in Clinton, North Carolina when she witnessed defendant weaving while driving his moped through the store's parking lot. She observed defendant as he attempted to pull into a parking space, struck a car in the adjacent space, and fell to the ground. Campfield, a registered nurse, attempted to aid defendant, but he refused her assistance, insisting that he was fine. As she leaned over him, Campfield detected the odor of alcohol on defendant's breath and noticed that he appeared disheveled. It took defendant three attempts to right his moped successfully. Campfield then watched as he staggered into the Piggly Wiggly. She placed a call to 911 from her mobile phone, explaining what she had witnessed. At trial, Campfield testified that, in her opinion, defendant "seemed intoxicated."
Police officers Mathews ("Officer Mathews") and Edwards ("Officer Edwards") responded to Campfield's call. Officer Mathews located defendant, based on Campfield's description of his appearance and dress, as he staggered out of the store wearing his moped helmet. Officer Mathews observed that defendant had a strong odor of alcohol on his breath and red, glassy eyes. Officer Mathews questioned defendant, and defendant admitted to drinking beer that day and to riding his moped. Defendant agreed to take an Alco-Sensor test but did not comply with Officer Mathews's instructions and failed to produce a sufficient sample. When Officer Edwards asked to administer standard field sobriety tests, defendant refused to perform any more tests. Officer Mathews then took defendant into custody, placing him in handcuffs and into a police vehicle for transport to the Sampson County Detention Center. On the walk to the police car, defendant attempted to pull away from Officer Mathews and cursed at him.
Upon his arrival at the detention center, defendant cursed at the officers and threatened to kick out the window of the police car. Once inside, defendant was taken to the Intoxilyzer room for the purpose of obtaining a breath sample to determine whether he was impaired. Defendant continued to act in a combative and argumentative manner. He "snatched away" from the officers and fell from the chair in which he was placed. Officer Edwards read defendant his chemical analysis rights, but defendant refused to give an Intoxilyzer sample. Both Officer Mathews and Officer Edwards testified that they believed defendant was impaired by alcohol.
On 13 October 2008, a grand jury returned true bills of indictment against defendant for resisting, delaying, or obstructing a public officer, failure to give information when damaging a parked and unattended vehicle, and habitual driving while impaired. At the 24 August 2009 Criminal Session of Sampson County Superior Court, defendant's case was called for trial. On 27 August 2009, a jury found defendant guilty of misdemeanor resist, delay or obstruction of a public officer and felony habitual driving while impaired. The charge of failure to give information when damaging a parked and unattended vehicle was dismissed at trial. The trial court sentenced defendant as a prior record level III offender to a prison term of twenty-one to twenty-six months imprisonment, with credit for time served while awaiting disposition in the case. Defendant appeals his felony conviction for habitual driving while impaired.
On appeal, defendant first argues that the trial court erred in admitting Campfield's lay opinion that defendant was intoxicated during the events of 22 March 2008. Defendant, however, has failed to preserve this argument for appellate review.
The North Carolina Rules of Appellate Procedure, Rule 10(b)(1) provides that
[i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.
N.C. R. App. P. 10(b)(1) (2007). This Court has held "that a general objection, if overruled, is ordinarily not effective on appeal." State v. Hamilton, 77 N.C. App. 506, 509, 335 S.E.2d 506, 508 (1985), disc. rev. denied, 315 N.C. 593, 341 S.E.2d 33 (1986). See also State v. Jones, 342 N.C. 523, 535, 467 S.E.2d 12, 20 (1996) (holding general objections are "ordinarily not adequate unless the evidence, considered as a whole, makes it clear that there is no purpose to be served from admitting the evidence"); State v. Faulkner, 180 N.C. App. 499, 512, 638 S.E.2d 18, 28 (2006) (holding defense counsel's general objections to lay opinion testimony waived his right to raise the issue on appeal).
In the case sub judice, counsel for defendant failed to state specific grounds for the objection. The following colloquy occurred during the relevant portion of Campfield's testimony:
[PROSECUTION]: Based upon your life experiences and what you have [sic] observed that particular day regarding that individual, did you form an opinion as to whether or not he was impaired when you observed him?
[DEFENSE COUNSEL]: Objection.
[THE COURT]: Overruled.
[THE WITNESS]: Yes.
[PROSECUTION]: And what was that opinion?
[DEFENSE COUNSEL]: Objection.
[THE COURT]: Overruled.
There was no further explanation as to the grounds for defendant's objection or any subsequent objection. For these reasons, and because defendant has not specifically and distinctly alleged plain error, we hold that defendant's general objection failed to preserve this issue for appeal. See State v. Parker, 140 N.C. App. 169, 183, 539 S.E.2d 656, 665 (2000).
Next, defendant contends the trial court erred by overruling his objection to the introduction of Officer Edwards's testimony regarding two subsequent encounters with defendant after his arrest. On appeal, defendant claims that Officer Edwards's testimony was irrelevant and unduly prejudicial. Although defendant failed to state specific grounds for his objection at trial, we believe that defendant's objection properly was preserved because the specific ground upon which defendant objected, relevance, was apparent from the context of the colloquy. See N.C. R. App. P. 10(b)(1) (2007) ("In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.").
When the State questioned Officer Edwards about his subsequent encounters with defendant, the following colloquy occurred:
[PROSECUTION]: Since March 22, have you had
any personal interaction with the defendant, Stanley Chestang?
[DEFENSE COUNSEL]: Objection.
[THE WITNESS]: Yes; I have.
[DEFENSE COUNSEL]: Objection.
[PROSECUTION]: Your Honor, if I may be heard?
[THE COURT]: Okay; this would be a good time.
[PROSECUTION]: If they see a person at another period of time it helps to know whether they have altered the opinion or —
[THE COURT]: Well just ask him the question. You don't have to go into details.
[PROSECUTION]: How many times have you been able to observe Mr. Chestang since March 22?
[THE WITNESS]: Twice.
[PROSECUTION]: Has his demeanor and physical capabilities, how do they compare, those two times, to March 22?
[DEFENSE COUNSEL]: Objection.
[THE COURT]: Overruled.
[THE WITNESS]: The times I spoke with him, he was very calm, more respectful. Obviously, I couldn't — there was no alcohol detected from his breath. He was a lot more pleasant on those occasions than he was the night we dealt with him at the Piggly Wiggly.
(Emphasis added).
The specific ground for the objection was apparent from the context, as demonstrated by the prosecutor's explanation to the trial court for the State's desire to examine Officer Edwards regarding his subsequent encounters with defendant. The context reveals that, when the State offered its explanation that, "[i]f they [ i.e., law enforcement officers] see a person at another period of time it helps to know whether they have altered the opinion or —," the State was explaining to the trial court why the question was relevant to its case. Furthermore, the trial court understood the context as it, in anticipation of the completion of the State's explanation, overruled defendant's objection and interjected, "[w]ell just ask him the question. You don't have to go into details." It was apparent that the State and the trial court understood that defendant's objection was based on the ground of relevance. Therefore, this issue properly is preserved for appellate review.
Nonetheless, the trial court's admission of Officer Edwards's statement regarding his subsequent interactions with defendant is harmless error. See State v. Bunch, 363 N.C. 841, 845, 689 S.E.2d 866, 869 (2010) ("[A]n error is harmless beyond a reasonable doubt if it did not contribute to the defendant's conviction.") (internal citation and quotation marks omitted).
In the case sub judice, there was substantial evidence supporting defendant's conviction for habitual impaired driving. Defendant, while operating his moped, weaved in his lane, struck a car and fell to the ground as he attempted to park his moped, smelled of alcohol, staggered as he left the Piggly Wiggly, and admitted to Officer Mathews that he had consumed beer prior to riding his moped. After his arrest, defendant used profane language toward and "snatched away" from the officers. Finally, defendant had the requisite prior convictions of impaired driving to be convicted for habitual impaired driving. Accordingly, Officer Edwards's statement did not contribute to defendant's conviction and, regardless of relevance, if there was error, it clearly was harmless. See id.
Defendant's next assignment of error claims that the trial court erred in overruling defendant's objection to the admission of evidence relating to defendant's prior convictions for driving while impaired. On appeal, defendant contests the lack of identifying information as well as the absence of a judicial signature on the records. Again, defendant has failed to preserve this issue for appellate review.
As we have noted already, a general objection made without specific grounds generally does not preserve the issue for appeal. N.C. R. App. P. 10(b)(1) (2007); Hamilton, 77 N.C. App. at 509, 335 S.E.2d at 508. Here, the following colloquy occurred:
[PROSECUTION]: Your Honor, at this time the State would move to admit State's Exhibit Numbers 2, 3, and 4 into evidence.
[DEFENSE COUNSEL]: And, Judge, we would object to the introduction of those documents into evidence.
[THE COURT]: Okay; they will be admitted. Your objection is noted.
However, because defendant failed to offer more than a general objection to the admission of the State's evidence and did not allege plain error, we hold that the issue has not been preserved for appeal.
Next, defendant argues that the trial court erred by denying his motion to dismiss for insufficient evidence establishing his guilt beyond a reasonable doubt. We disagree.
Denial of a motion to dismiss for insufficient evidence is a question of law which we review de novo. See State v. Bagley, 183 N.C. App. 514, 523, 644 S.E.2d 615, 621 (2007). In order to uphold a denial of defendant's motion to dismiss, this Court must determine that "`there is substantial evidence (1) of each essential element of the offense charged . . . and (2) of defendant's being the perpetrator of such offense.'" State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002) (quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)). "Substantial evidence is that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion." Id. at 597, 573 S.E.2d at 869 (citing State v. Mann, 355 N.C. 294, 301, 560 S.E.2d 776, 781 (2002)). A motion to dismiss is properly denied when, "`view[ing] the evidence in the light most favorable to the State, [and] giving the State the benefit of all reasonable inferences,'" the direct and circumstantial evidence supports "a reasonable inference of defendant's guilt." Id. at 596-98, 573 S.E.2d at 869-70 (quoting State v. Fritsch, 351 N.C. 373, 378-79, 526 S.E.2d 451, 455 (2000)).
Here, defendant was charged with the crime of habitual driving while impaired. That offense is defined as "driv[ing] while impaired . . . ha[ving] been convicted of three or more offenses involving impaired driving . . . within [the preceding] 10 years." N.C. Gen. Stat. § 20-138.5(a) (2007). Pursuant to North Carolina's impaired driving statute, if a person drives a motor vehicle in a "public vehicular area" while his "physical or mental faculties, or both, [are] appreciably impaired by an impairing substance," he has committed the offense of driving while impaired. See N.C. Gen. Stat. §§ 20-4.01(48b), 20-138.1, 20-138.5(a) (2007).
In the case sub judice, the evidence admitted at trial sufficiently established each element of defendant's charged offense. Campfield testified that defendant was weaving on his moped before colliding with a parked vehicle. Campfield and both police officers testified to smelling alcohol on defendant and to his uncoordinated movements. The officers testified that he acted belligerently and combatively both in the police vehicle and at the detention center. Finally, all three witnesses testified that, in their opinions, defendant was intoxicated. The evidence presented was sufficient for a jury to determine that defendant was appreciably impaired when he drove his moped to the store on 22 March 2008.
There also was substantial evidence of defendant's prior convictions of driving while impaired. The State provided evidence of defendant's two convictions in February 2000 and a third in 2002. These were the convictions listed in the indictment and on the disposition printouts provided by the State. Furthermore, the disposition printouts contain defendant's name and case numbers matching the sentencing worksheet submitted by the State. These three convictions occurred within the statutorily prescribed ten-year limit. N.C. Gen. Stat. § 20-138.5(a) (2007). Taken together, these constitute substantial evidence that the convictions belonged to defendant, that they were for impaired driving pursuant to North Carolina General Statutes, section 20-138.1, and that they satisfy the statutory requirement for a charge of habitual driving while impaired.
Accordingly, the trial court properly denied defendant's motion to dismiss.
Finally, defendant contends that trial court erred in trying, convicting, and sentencing him for habitual driving while impaired. Defendant claims that two of his three convictions should be counted as a single offense because he was convicted of both during the same term of court. We disagree.
This Court reviews the sufficiency of an indictment de novo. State v. Marshall, 188 N.C. App. 744, 748, 656 S.E.2d 709, 712 (2008). A defect in an indictment is not considered fatal unless the indictment "wholly fails to charge some offense . . . or fails to state some essential and necessary element of the offense of which the defendant is found guilty." State v. Wilson, 128 N.C. App. 688, 691, 497 S.E.2d 416, 419 (1998) (footnotes omitted).
The indictment lists separate and distinct convictions for impaired driving committed within the ten-year limit of the habitual impaired driving statute. Two of these convictions were entered on 3 February 2000, however, the offenses themselves were committed on distinct dates. Defendant's third conviction was entered on 26 February 2002. The habitual driving while impaired statute is satisfied when the offender "has been convicted of three or more offenses involving impaired driving." N.C. Gen. Stat. § 20-138.5(a) (2007). The rule of lenity advanced by defendant is inapplicable, and the statute does not contain a requirement of "separate occurrences." See State v. Forrest, 168 N.C. App. 614, 623-24, 609 S.E.2d 241, 247 (2005) (holding misdemeanor assault statute contains no language requiring prior convictions "either occur on separate dates or arise from separate incidents.").
Accordingly, the trial court properly determined that the defendant had the three prior convictions necessary to charge, try, and sentence defendant as an habitual impaired driver.
For the foregoing reasons, we hold no prejudicial error in part and no error in part. We do note that the date listed on the judgment and commitment order is 26 August 2009, while the date of the trial and jury verdicts is 27 August 2009. It is clear from the trial transcript that the sentencing took place on 27 August 2009. We remand to correct the mistake on the judgment and commitment order.
No prejudicial error in part; No error in part; Remanded for correction of clerical error.
Chief Judge MARTIN and BEASLEY concur.
Report per Rule 30(e).