Opinion
No. COA11–1334.
2012-05-1
STATE of North Carolina v. Cedric Mensah BETTIS.
Attorney General Roy Cooper, by Assistant Attorney General Tammera S. Hill, for the State. Richard Croutharmel, for Defendant.
Appeal by Defendant from judgment entered 18 May 2011 by Judge Paul C. Ridgeway in Durham County Superior Court. Heard in the Court of Appeals 21 March 2012. Attorney General Roy Cooper, by Assistant Attorney General Tammera S. Hill, for the State. Richard Croutharmel, for Defendant.
BEASLEY, Judge.
Cedric Mensah Bettis (Defendant) appeals from judgment entered on his conviction of driving while impaired. For the following reasons, we find no error.
On 16 October 2010, Defendant was charged with impaired driving under N.C. Gen.Stat. § 20–138.1 and driving while license revoked under N.C. Gen.Stat. § 20–28. Defendant was found guilty of impaired driving and acquitted of driving while license revoked by the Durham County District Court on 10 February 2011. Defendant appealed this conviction to the Durham County Superior Court. He was again found guilty of driving while impaired by a Durham County jury on 19 May 2011. Defendant was sentenced to 120 days in the custody of the North Carolina Department of Correction, the sentence was suspended and Defendant was placed on supervised probation for 18 months. Defendant gave notice of appeal in open court following his sentencing.
I.
Defendant argues that his trial attorney rendered ineffective assistance of counsel when he failed to renew Defendant's motion to dismiss at the close of all the evidence. We disagree.
The United States Supreme Court set forth the test for ineffective assistance of counsel claims:
A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction ... has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687, 80 L.Ed.2d 674, 693 (1984). In order to establish that he was prejudiced by counsel's allegedly deficient performance, Defendant “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 80 L.Ed.2d at 698. Our Supreme Court explicitly adopted the Strickland test “as a uniform standard to be applied to measure ineffective assistance of counsel under the North Carolina Constitution” so the Strickland factors apply to claims under both the state and federal constitutions. State v. Braswell, 312 N.C. 553, 562–63, 324 S.E.2d 241, 248 (1985).
Defendant claims that his trial counsel's failure to renew his motion to dismiss at the close of all the evidence amounted to ineffective assistance of counsel, so we must evaluate whether there is a reasonable probability that the motion, if made, would have been granted. “On a defendant's motion for dismissal, the trial court must determine only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.” State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992). In other words, “[t]he trial court's function is to determine whether the evidence will permit a reasonable inference that the defendant is guilty of the crimes charged.” State v. Vause, 328 N.C. 231, 237, 400 S.E.2d 57, 61 (1991). “In so doing the trial court should only be concerned that the evidence is sufficient to get the case to the jury; it should not be concerned with the weight of the evidence.” State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 652 (1982).
Defendant was charged with, and found guilty of, impaired driving under N.C. Gen.Stat. § 20–138.1 which provides in pertinent part that “[a] person commits the offense of impaired driving if he drives any vehicle upon ... any street, or any public vehicular area ... [a]fter having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more.” Here, the State presented evidence, in the form of Trooper D.M. Pennell's testimony, that on 16 October 2010, Defendant's vehicle was in the right lane in the middle of the road on T.W. Alexander Drive in Durham County. When Trooper Pennell asked Defendant if he needed any help, Defendant answered that he was driving down the road and his vehicle ran out of gas. During his conversation with Defendant, Trooper Pennell smelled the odor of alcohol, and observed that Defendant had red, glassy eyes and his speech was slurred. When Defendant was given an intoxilyzer test later that evening to measure the alcohol in his breath samples, the lower of his two samples showed a result of 0.08.
Based on the foregoing, the State presented substantial evidence that Defendant was driving on a public street after having consumed sufficient alcohol that he had an alcohol concentration of 0.08 approximately one and a half hours after he was stopped by Trooper Pennell. This proffered evidence was more than sufficient to permit the jury to make a reasonable inference that Defendant was guilty of the charged crime. Thus, there is no reasonable probability that the trial court would have granted Defendant's motion to dismiss had it been renewed at the close of all evidence and so Defendant's contention that he received ineffective assistance of counsel from his trial attorney is without merit.
II.
Defendant next argues that the trial court erred by instructing the jury that “a person is driving a vehicle when the person is in actual physical control of a vehicle which is in motion[.]” Defendant asserts that this instruction was in error because it failed to include that the vehicle needed to be capable of self-propelled motion. We disagree.
At the outset we note that Defendant failed to object to the trial court's instruction at trial. Consequently, we are limited to plain error review. N.C. R.App. P. 10(a)(4). “Plain error in the context of jury instructions is when the instructional mistake had a probable impact on the jury's finding that defendant was guilty.” State v. Grainger, 78 N.C.App. 123, 127, 337 S.E.2d 77, 80 (1985) (citation and internal quotation marks omitted). Implicit in the test for plain error is, of course, a finding that the jury instructions were flawed in some way.
Here, the jury was instructed with regard to whether Defendant was “driving” for the purpose of the offense of impaired driving as follows:
THE COURT: For you to find the defendant guilty of impaired driving the State must prove three things beyond a reasonable doubt. First, that the defendant was driving a vehicle. For the purposes of this element, a person is driving a vehicle when the person is in actual physical control of a vehicle which is in motion or which has the engine running.
N.C. Gen.Stat. § 20–4.01(7) (2011) defines a driver as “[t]he operator of a vehicle, as defined in subdivision (25)” and § 20–4.01(25) provides that a “driver” is “[a] person in actual physical control of a vehicle which is in motion or which has the engine running.” The trial court's instruction matches the statutory definition, so we fail to see where the trial court erred.
.N.C. Gen.Stat. § 20–4.01(25) (2011) defines “operator,” but also explicitly states that the terms “operator” and “driver” are synonymous.
In support of his assertion that this definition of “vehicle” was incomplete, Defendant relies on N.C. Gen.Stat. § 20–4.01(23) (2011), which defines a “motor vehicle” as “[e]very vehicle which is self-propelled and every vehicle designed to run upon the highways which is pulled by a self-propelled vehicle.” The statute clearly differentiates between the word “vehicle” and the specific category of “motor vehicles.” The word “vehicle” is separately defined in the statute as “[e]very device in, upon, or by which any person or property is or may be transported or drawn upon a highway....” N.C. Gen.Stat. § 20–4.01(49) (2011). Nowhere in the definition of a “vehicle” is there any mention that it must be capable of self-propelled motion. N.C. Gen.Stat. § 20–138.1 (2011), the statute that defines the offense of impaired driving and that Defendant was found guilty of violating, clearly states that someone “commits the offense of impaired driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this State[.]” (emphasis added). Thus, the definition of “motor vehicle” is not applicable to Defendant's offense, and the trial court correctly instructed the jury using the definition of “vehicle.”
Defendant also argues that this Court's opinion in State v. Clapp, 135 N.C.App. 52, 519 S.E.2d 90 (1999) states that a charge of driving while impaired requires the State to show that the defendant's vehicle was capable of self-propelled motion. Defendant misquotes and mischaracterizes the concurring opinion in Clapp. The concurring opinion actually stated that the charge of driving while license revoked requires the State to prove that the defendant was driving a motor vehicle. Id. at 58, 519 S.E.2d at 94 (Greene, J. concurring). Defendant was not tried for this offense before the Superior Court so any analysis of its requirements is irrelevant to the case sub judice. This argument is overruled.
III.
Finally, Defendant argues that the trial court abused its discretion in answering a jury deliberation question about whether rolling backwards while sitting behind the steering wheel of an inoperable car amounted to “operating a motor vehicle.” Again, we disagree.
Defendant bases this argument on the same flawed logic as his argument that the jury instruction amounted to plain error. See Part II, infra. It is Defendant's contention that “the trial court plainly and prejudicially erred in its initial instructions to the jury and it abused its discretion by repeating those instructions when the jury asked about the issue in deliberation.” Because we have already concluded that the trial court's jury instructions contained no error, we find that repetition of those instructions is not an abuse of discretion.
No error. Judge BRYANT concurs in result only.
Judge HUNTER, JR. concurs.
Report per Rule 30(e).