Opinion
No. COA11–1304.
2012-05-1
STATE of North Carolina v. Quinton Antiwan LATHAM, Defendant.
Attorney General Roy A. Cooper, III, by Assistant Attorney General John W. Congleton, for the State. Peter Wood for defendant-appellant.
Appeal by defendant from judgment entered on or about 13 May 2011 by Judge Jack W. Jenkins in Superior Court, Beaufort County. Heard in the Court of Appeals 23 April 2012. Attorney General Roy A. Cooper, III, by Assistant Attorney General John W. Congleton, for the State. Peter Wood for defendant-appellant.
STROUD, Judge.
Quinton Antwain Latham (“defendant”) appeals from convictions for driving while impaired and speeding. For the following reasons, we find no error in defendant's trial.
Defendant on 13 November 2009 was issued uniform citations for speeding, reckless driving, and driving while impaired. Defendant was tried on these charges in district court and found guilty. Defendant appealed to the superior court. At defendant's trial on appeal in the superior court Trooper Michael Potter testified that on 13 November 2009 he stopped defendant for speeding on U.S. Highway 17 near Washington, North Carolina at approximately 9:30 p.m. Defendant told the trooper he was rushing to the hospital because his passenger was having contractions. There was a pregnant woman in the passenger seat. The trooper noticed a “strong odor of alcohol and marijuana ... emitting from the vehicle.” The trooper noticed defendant had “red, bloodshot eyes” and he asked defendant to submit to an alco-sensor test. The trooper obtained two positive readings on the alco-sensor. Defendant was arrested and transported to the magistrate's office. The trooper advised defendant of his rights concerning the Intoxilyzer test. Defendant submitted to a breath analysis and the test result was a .08.
The trial court dismissed the charge of reckless driving for insufficient evidence.
On 13 May 2011 a jury found defendant guilty of driving while impaired and speeding. For the speeding conviction, the trial court sentenced defendant to 45 days in the custody of the Beaufort County Sheriff, but suspended that sentence and placed defendant on unsupervised probation for 12 months. For the driving while impaired conviction, the trial court sentenced defendant to 60 days in the custody of the Beaufort County Sheriff, but suspended that sentence and placed defendant on unsupervised probation for 12 months with the special condition of probation that defendant complete 24 hours of community service. Defendant gave notice of appeal in open court.
Defendant argues the trial court committed plain error when it failed to instruct the jury that evidence of a blood alcohol level of .08 or above created only a prima facie case of impairment. “Defendant failed to object to the challenged instruction at trial, and thus, any error must be reviewed under the plain error rule.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993) (citation omitted). “Under the plain error rule, 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.” Id. (citation omitted).
Defendant argues the trial court erroneously charged that a blood alcohol level of .08 or above was sufficient evidence to support a guilty verdict. Defendant contends the jury should have decided what was more credible, the breathalyzer result or the other evidence showing he was not impaired. Defendant contends the trial court took that responsibility away from the jury when it did not charge the jury correctly.
The purpose of the charge to the jury “is to give a clear instruction which applies the law to the evidence in such manner as to assist the jury in understanding the case and in reaching a correct verdict.” State v. Williams, 280 N.C. 132, 136, 184 S.E.2d 875, 877 (1971) (citation omitted). “[T]here are two ways to prove the single offense of impaired driving: (1) showing appreciable impairment; or (2) showing an alcohol concentration of .08 or more.” State v. McDonald, 151 N.C.App. 236, 244, 565 S .E.2d 273, 277,appeal dismissed and disc. review denied,356 N.C. 310, 570 S.E.2d 892 (2002). “The ‘result of a chemical analysis' is a report of a person's alcohol concentration, and ... the result of such a test constitutes prima facie evidence of the defendant's alcohol concentration as reported in the results.” State v. Narron, 193 N.C.App. 76, 84, 666 S.E.2d 860, 866 (2008), disc. review denied,363 N.C. 135, 674 S.E.2d 140,cert. denied,––– U.S. ––––, 175 L.Ed.2d 26 (2009). A jury can “find that the report is what it purports to be—the results of a chemical analysis showing the defendant's alcohol concentration.” Id. Here, the trial court instructed the jury as to both theories of impaired driving, appreciable impairment and .08 or above blood alcohol concentration. We conclude the trial court did not commit plain error in its instruction to the jury
NO ERROR. Judges CALABRIA and BEASLEY concur.
Report per Rule 30(e).