Opinion
No. COA12–59.
2012-08-21
STATE of North Carolina v. Christine HUFFMAN, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Jess D. Mekeel, for the State. Kimberly P. Hoppin for defendant-appellant.
Appeal by defendant from judgment entered 18 August 2011 by Judge Kevin M. Bridges in Rowan County Superior Court. Heard in the Court of Appeals 23 May 2012. Attorney General Roy Cooper, by Assistant Attorney General Jess D. Mekeel, for the State. Kimberly P. Hoppin for defendant-appellant.
HUNTER, Robert C., Judge.
Defendant Christine Huffman (“defendant”) appeals from a judgment entered against her after a jury found her guilty of Driving While Impaired (“DWI”). Defendant argues on appeal that: (1) the trial court erred in denying defendant's motion to dismiss; (2) the trial court committed plain error by admitting a police officer's testimony that a glass pipe found in defendant's car was used for smoking narcotics; and (3) the trial court committed plain error in admitting the glass pipe as an exhibit because it was not relevant and its probative value was substantially outweighed by its prejudicial value. After careful review, we find no error.
Background
Defendant was charged with: (1) felony possession with intent to sell and deliver a schedule IV controlled substance; (2) maintaining a vehicle or dwelling for the purpose of the sale of a controlled substance; (3) possession of drug paraphernalia; and (4) DWI. Prior to trial, the State dismissed the maintaining a vehicle or dwelling charge and reduced the felony charge of possession with intent to sell to a misdemeanor. During the trial, the State took a voluntary dismissal on the misdemeanor possession of a schedule IV controlled substance charge. After the State rested its case, the trial court granted defendant's motion to dismiss the drug paraphernalia charge. On 18 August 2011, the jury found defendant guilty of DWI.
The evidence at trial tended to establish the following: Rowan County Sheriff's Deputy Patrick Jones (“Deputy Jones”) was on-duty the night of 18 May 2009. While defendant was traveling in the opposite direction from him, Deputy Jones noticed that defendant's tag light was not functioning. Deputy Jones turned on his blue lights and initiated a stop of defendant. While pulling her vehicle over, defendant hit the curb of the road. After approaching the vehicle, Deputy Jones noted that defendant was “mumbling and extremely nervous [,]” although he stated that her speech got “a little better” toward the end of the stop. Deputy Jones further testified defendant took two and a half to three and a half minutes to find her driver's license. Additionally, he stated that he noticed an odor of alcohol and a heavy perfume smell coming from defendant's vehicle and an odor of alcohol on her breath. After asking her if she had been drinking, defendant admitted she had. Deputy Jones observed an open bottle of Smirnoff Ice, a malt beverage, between the driver and passenger seats of defendant's car. The bottle was three-fourths full.
After Deputy Jones asked defendant to exit her vehicle, he performed three field sobriety tests on her: (1) the one-legged stand test; (2) the walk and turn test; and (3) the horizontal gaze nystagmus test (“HGN”). On the one-legged test where defendant was required to pick up one of her feet and stand for as long as possible without losing her balance, ideally around 25 seconds, defendant made it to the count of 11 the first try and 14 the next. Deputy Jones noted that defendant “swayed” and “hopp[ed]” trying to keep her balance. On the walk and turn test which entailed defendant walking heel to toe nine steps in a straight line before turning around, defendant missed heel to toe on every step both ways, stepped off the line several times, and had to use her arms for balance on all steps. Finally, on the HGN test which required defendant to follow a stimulus, either a finger or a light, with her eyes, defendant “looked up where [Deputy Jones] could not see her eyes or closed them while attempting to do this test.”
On cross-examination, Deputy Jones testified that he did not believe defendant was impaired on alcohol; thus, he did not administer an alcohol screening device to defendant. However, he did take defendant to Rowan Regional Medical Center to undergo a blood test to check for the presence of other substances. The results of the blood test were never admitted into evidence. After conducting a voir dire examination outside the presence of the jury, the trial court allowed Deputy Jones to testify that defendant told him that “her blood would come back dirty” and that “she[ ][was] guilty.”
Next, Rowan County Sheriff's Detective Jay Davis (“Detective Davis”) testified that he arrived on scene and conducted a search of defendant's vehicle based on defendant's consent. After noticing that the arm rest appeared to be loose, Detective Davis “popped” the arm rest off and found a white paper towel wrapped around a long glass smoking device (“smoking device”). At trial, the smoking device was introduced as State's Exhibit No. 1, and defendant did not object to its admission. Detective Davis testified that this device is most commonly used to smoke methamphetamine but could also be used to smoke cocaine or crack. Defendant did not object to this testimony.
After the State rested, defendant made a motion to dismiss the DWI based on lack of evidence. Specifically, defendant argued that because the State failed to identify what the impairing substance was and failed to produce any evidence of the impairing substance, the trial court should grant her motion to dismiss. The trial court denied defendant's motion to dismiss the DWI.
Defendant did not present any evidence at trial.
The trial court gave the following jury instructions with regard to the DWI charge:
The defendant has been charged with impaired driving. For you to find the defendant guilty of this offense, the State must prove three things beyond a reasonable doubt:
First, that the defendant was driving a vehicle.
Second, that the defendant was driving that vehicle upon a highway or street within the State.
And, third, that at the time the defendant was driving that vehicle, the defendant was under the influence of an impairing substance.
Alcohol is an impairing substance. The defendant is under the influence of an impairing substance when the defendant has taken or consumed a sufficient quantity of that impairing substance to cause the defendant to lose the normal control of the defendant's bodily or mental faculties or both to such an extent that there is an appreciable impairment of either or both of these faculties.
During deliberations, the jury sent the trial court a note asking if they were required to prove alcohol was the impairing substance or that defendant was driving while impaired. The trial court instructed the jury that, “[t]he only substance that has been presented as an impairing substance in this trial is alcohol[ ]” and that they “may not speculate as to other impairing substances that have not been presented in this trial.” The trial court sent the jury back to deliberate.
The jury sent another note to the trial court indicating that they would not be able to come to a unanimous verdict, but the trial court instructed the jury to continue and try to deliberate and reach an agreement. On 18 August 2011, the jury found defendant guilty of DWI. The trial court sentenced defendant to 30 days imprisonment but suspended the sentence for 12 months of supervised probation.
Defendant gave oral notice of appeal in open court on 18 August 2011.
Discussion
I. Defendant's Motion to Dismiss
Defendant first argues that the trial court erred by denying defendant's motion to dismiss the DWI charge for insufficient evidence. While defendant concedes that the State provided sufficient evidence that defendant was driving a vehicle on a highway or street, defendant contends that the State failed to produce sufficient evidence of her impairment. Specifically, defendant cites the following facts in support of her argument: (1) Deputy Jones did not observe defendant weaving, swerving, or recklessly driving; (2) Deputy Jones testified he did not believe defendant was impaired on alcohol; (3) Deputy Jones did not administer a breath analysis test to defendant; (4) defendant was able to perform substantial portions of the walk and turn test and one-legged stand test; and (5) the blood analysis performed at the hospital was not submitted into evidence. Furthermore, defendant seems to contend that because the trial court limited the jury to only consider alcohol as the impairing substance, the State was required to provide substantial evidence that her impairment was due to her consumption of alcohol. Based on these reasons, defendant argues that the trial court erred in not granting her motion to dismiss, and defendant's conviction should be vacated. We disagree.
This Court reviews a trial court's denial of a motion to dismiss de novo. State v. Sanders, 208 N.C.App. 142, ––––, 701 S.E.2d 380, 382 (2010). “This Court, under a de novo standard of review, considers the matter anew and freely substitutes its own judgment for that of the trial court.” Id. (citing State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008)).
“In ruling on a motion to dismiss, the trial court must interpret the evidence in the light most favorable to the State, drawing all reasonable inferences in the State's favor.” State v.. Williams, 136 N.C.App. 218, 219–20, 523 S.E.2d 428, 430 (1999) (citation omitted). The trial court must determine whether “there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, 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) (internal quotation marks and citation omitted). Substantial evidence “is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980). “[T]he State must introduce more than a scintilla of evidence of each essential element of the offense and that the defendant was the perpetrator of the offense.” State v. Davy, 100 N.C.App. 551, 556, 397 S.E.2d 634, 636–37,disc. review denied and appeal dismissed, 327 N.C. 638, 398 S.E.2d 871 (1990). The trial court should not consider the weight of the evidence, which is a matter for the jury, but may only consider whether it would permit a “reasonable inference” of a defendant's guilt. State v. Vause, 328 N.C. 231, 236–37, 400 S.E.2d 57, 61 (1991).
Pursuant to N.C. Gen.Stat. § 20–138.1(a)(1) (2011), the “essential elements of DWI are: (1)[d]efendant was driving a vehicle; (2) upon any highway, any street, or any public vehicular area within this State; (3) while under the influence of an impairing substance.” State v. Tedder, 169 N.C.App. 446, 450, 610 S.E.2d 774, 777 (2005). “Before [the] defendant can be convicted under N.C. Gen.Stat. § 20–138.1(a)(1), the State must prove beyond a reasonable doubt that [the] defendant had ingested a sufficient quantity of an impairing substance to cause his faculties to be appreciably impaired.” State v. Phillips, 127 N.C.App. 391, 393, 489 S.E.2d 890, 891 (1997). In order for an individual to be “appreciably impaired,” “[t]he effect must be appreciable, that is, sufficient to be recognized and estimated, for a proper finding that [the] defendant was impaired.” State v. Harrington, 78 N.C.App. 39, 45, 336 S.E.2d 852, 855 (1985).
Since defendant conceded that there was substantial evidence that she was driving a vehicle on a road or highway, the only issue in our de novo review is whether there was substantial evidence that defendant was appreciably impaired under the influence of an impairing substance. Because the trial court instructed the jury to only consider alcohol as the impairing substance in this case, we will similarly limit our review of the record to determine whether there was substantial evidence that defendant's impairment was based on her consumption of alcohol.
In this case, the evidence, taken in the light most favorable to the State, is as follows: (1) defendant hit the curb after Deputy Jones turned on his blue lights; (2) defendant had an open container of alcohol in her car; (3) Deputy Jones smelled the odor of alcohol in defendant's car and on her breath; (4) defendant admitted to Deputy Jones she had been drinking; (5) Deputy Jones testified that in his opinion, defendant had consumed “enough of an impairing substance to be mentally ... appreciably impaired” as well as physically impaired; (6) defendant was unable to fully perform the sobriety tests; and (7) defendant admitted to Deputy Jones that her blood was “dirty” and “she did it.” This evidence would allow a reasonable person to determine that defendant's faculties were appreciably impaired based on her consumption of alcohol. Thus, there was substantial evidence of each element of DWI, and the trial court's denial of defendant's motion to dismiss the DWI was proper.
Although defendant correctly notes that there was contrary evidence presented at trial regarding defendant's impairment, our review does not examine the weight of the evidence but only whether the State provided “more than a scintilla of evidence of each essential element of the offense[.]” Davy, 100 N.C.App. at 556, 397 S.E.2d at 636–37. Here, since we have found that the State presented substantial evidence of each element of DWI, this assignment of error is overruled.
II. Plain Error–Detective Davis's Testimony that the Smoking Device Was Used for Smoking Narcotics
Next, defendant argues that because Detective Davis was not qualified nor tendered as an expert in drug identification or drug paraphernalia, his opinion testimony that the smoking device found in defendant's car could be used to smoke methamphetamine, crack, or cocaine constitutes plain error. Specifically, defendant cites N.C. Gen.Stat. § 8C–1, Rules 602 and 701 in support of her argument. We disagree.
“In order to preserve a question for appellate review, a party must have presented the trial court with a timely request, objection or motion, stating the specific grounds for the ruling sought if the specific grounds are not apparent.” State v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991); see alsoN.C.R.App. P. 10(a)(1) (2012). “In criminal cases, an issue that was not preserved by objection noted at trial ... may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.” N.C.R.App. P. 10(a)(4); see also State v. Goss, 361 N.C. 610, 622, 651 S.E.2d 867, 875 (2007), cert. denied,555 U.S. 835, 172 L.Ed.2d 58 (2008). “Under the plain error rule, [the] defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993). “A prerequisite to our engaging in a ‘plain error’ analysis is the determination that the [evidentiary admission] complained of constitutes ‘error’ at all.” State v. Spencer, 192 N.C.App. 143, 152, 664 S.E.2d 601, 607 (2008) (quotation marks omitted) (alteration in original).
“A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter.” N.C. Gen.Stat. § 8C–1, Rule 602 (2011). Pursuant to N.C. Gen.Stat. § 8C–1, Rule 701 (2011), lay witness “testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.”
Furthermore, we note that since Detective Davis is a law enforcement officer, the case of State v. Martin, 97 N.C.App. 19, 387 S.E.2d 211 (1990), provides guidance. In Martin, to establish he had probable cause, a police officer testified that he observed empty vials in the defendant's car and “recognized [the vials] as being used for trafficking drugs[.]” Id. at 28, 387 S .E.2d at 216. The defendant contended that this testimony was an inadmissible lay opinion; however, this Court disagreed noting that “[i]t is appropriate for law enforcement officers to testify as to various customs and practices observed by them in the exercise of their duties as officers.” Id. at 29, 387 S.E.2d at 216.
Here, Detective Davis testified that he has been working in the narcotics unit of the sheriff's department for one year. When the State asked if he had any education or training in narcotics, he noted he has “numerous certificates through MANTA, which is the training facility ran [sic] by the North Carolina National Guard Counter Drug Task Force through the North Carolina SBI, DEA, [and] Drug Administrative Task Force.” Furthermore, he stated that he is familiar with various controlled substances and “how those substances are used and consumed.”
The record reveals that Detective Davis's testimony about what types of narcotics could be smoked in the smoking device found in defendant's car was based on sufficient personal knowledge about drug paraphernalia he acquired while employed in the narcotics unit of the sheriff's department and, additionally, through his education and training in narcotics. Furthermore, his opinion was “rationally based” on his work and specialty training in narcotics. Finally, like the police officer in Martin, Detective Davis's testimony concerned customs and practices he would observe in his duties as a deputy in the narcotics unit of the sheriff's department. Therefore, the trial court did not commit error, much less plain error, in allowing Detective Davis to testify. Defendant's argument is overruled.
III. Plain Error—Admission of Glass Pipe
Finally, defendant argues that the trial court committed plain error when it admitted the smoking device found in defendant's car into evidence because it was not relevant or, in the alternative, because its probative value was substantially outweighed by its potential for unfair prejudice, confusion of the issue, or misleading the jury. Specifically, defendant contends that because the State failed to introduce any evidence showing that the smoking device contained any controlled substance or that defendant intended to use it to ingest a controlled substance, the smoking device was not relevant. Furthermore, defendant asserts that because the trial court dismissed the possession of drug paraphernalia charge, introduction of the smoking device was highly prejudicial. We disagree.
Pursuant to N.C. Gen.Stat. § 8C–1, Rule 401 (2011), “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Generally, all relevant evidence is admissible unless specifically excluded under the United States and North Carolina Constitutions, federal or state laws, or the North Carolina rules of evidence. N.C. Gen.Stat. § 8C–1, Rule 402 (2011).
Pursuant to N.C. Gen.Stat. § 8C–1, Rule 403 (2011), “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” “While all evidence offered against a party involves some prejudicial effect, the fact that evidence is prejudicial does not mean that it is necessarily unfairly prejudicial.” State v. Rainey, 198 N.C.App. 427, 433, 680 S.E.2d 760, 766 (2009).
Since defendant did not object at trial to admission of the smoking device, defendant must establish plain error on appeal. See State v. Blymyer, 205 N.C.App. 240, 243–44, 695 S.E.2d 525, 528 (2010) (holding that “[w]hen the issues not preserved for appeal involve errors in the trial court's instructions to the jury or rulings on the admissibility of evidence, we review them for plain error.”) Here, at the time the smoking device was introduced, defendant was still charged with possession of drug paraphernalia. Because the smoking device is a form of drug paraphernalia, it was relevant and admissible because its presence in defendant's vehicle makes it more likely than not that she possessed drug paraphernalia.
Furthermore, defendant fails to establish how the smoking device's prejudicial value would substantially outweigh its probative value. Defendant contends that because “[i]ts admission allowed the jury to consider evidence of other impairing substances,” it was “highly prejudicial.” However, defendant's argument is without merit because the trial court specifically limited the jury to only consider alcohol as the impairing substance. Therefore, its admission would have no effect, much less a prejudicial effect, on the jury's verdict. Additionally, since defendant was still charged with possession of drug paraphernalia, the prejudicial effect would not be unfairly prejudicial since it establishes a necessary element of that charge. Therefore, we find that the trial court did not err in admitting the smoking device into evidence.
Since defendant fails to establish error with regard to both alleged evidentiary rule violations, defendant's contention that the trial court committed plain error is without merit.
Conclusion
Based on the foregoing reasons, we find no error.
No error. Judges GEER and BEASLEY concur.
Report per Rule 30(e).