Summary
finding no error in the defendant's conviction of DWI where the defendant smelled of alcohol, admitted to drinking alcohol the night before, had bloodshot eyes and slurred speech, was unsteady on her feet, could not follow field sobriety test instructions, and refused to take an intoxilyzer test
Summary of this case from United States v. RiosOpinion
No. COA12–1143.
2013-06-4
STATE of North Carolina v. Deborah Gay RHODES.
Attorney General Roy Cooper, by Assistant Attorney General Carrie D. Randa, for the State. Ryan McKaig, for Defendant–Appellant.
Appeal by Defendant from judgment entered 26 April 2012 by Judge Anna Mills Wagoner in Superior Court, Rowan County. Heard in the Court of Appeals 14 May 2013. Attorney General Roy Cooper, by Assistant Attorney General Carrie D. Randa, for the State. Ryan McKaig, for Defendant–Appellant.
McGEE, Judge.
Deborah Gay Rhodes (Defendant) appeals from judgment entered upon her convictions for habitual driving while impaired and having attained habitual felon status. We find no error.
Officer Chris Branham (Officer Branham) was on patrol as an employee of the Code Enforcement Division of the City of Salisbury on 27 January 2011, when he overheard a call over the police radio concerning a white Nissan sports utility vehicle with license plate number “R–O–O–S–T–E–R.” Shortly thereafter, Officer Branham observed a vehicle fitting that description. Officer Branham began following the vehicle and radioed the Salisbury Police Department. The vehicle eventually pulled into a driveway, and police vehicles arrived at the same time.
Officer Joe Miller (Officer Miller) of the Salisbury Police Department testified that on 27 January 2011, he heard a call over the police radio regarding a stolen sports utility vehicle, and that he responded to the call that Officer Branham had located the vehicle. Officer Miller arrived at the scene at approximately 8:30 a.m. He observed that a male had exited the vehicle and was standing at the back of the vehicle, and that another passenger was in the vehicle. Officer Miller further testified that the driver's side door was open and a female was getting out of the vehicle. Officer Miller identified Defendant as being the driver.
Officer Rebecca Sexton (Officer Sexton) of the Salisbury Police Department arrived at the scene soon after Officer Miller. Officer Sexton ordered the occupants of the vehicle to proceed to the rear of the vehicle and to keep their hands visible. Officer Sexton testified that the two male occupants of the vehicle complied with the request, but Defendant had to be told multiple times to keep her hands out of her pockets. When Officer Sexton approached Defendant, she noticed a strong odor of alcohol. Officer Sexton further testified that Defendant's “speech was slurred” and “[h]er eyes were bloodshot.” Officer Sexton asked Defendant if she had been drinking, and Defendant stated that “she had been drinking last night.”
Officer Brad Jordan (Officer Jordan) of the Salisbury Police Department also responded to the scene. Officer Jordan testified that Defendant “had a strong odor of an alcoholic beverage about her person.” Officer Jordan further testified that “[p]hysically [Defendant] was kind of drooped, slouched, leaning against the vehicle. Her eyes had kind of a glassy red state about them. When she began speaking she was kind of a mush-mouth, just very hard to understand exactly what she was saying.” Officer Jordan attempted to perform a field sobriety test—the horizontal gaze nystagmus test. However, Officer Jordan was unable to get valid results from the test because Defendant failed to follow his commands. Officer Jordan did not perform the standardized field sobriety tests such as the walk-and-turn and the one-legged stand because Defendant was “unsteady” on her feet and Officer Jordan felt Defendant would “not be able to perform the test adequately and would probably fall and injure herself.” Defendant was arrested and taken to the Salisbury Police Department where she refused to take an intoxilyzer test to analyze her breath.
Defendant was convicted of habitual driving while impaired and having attained habitual felon status. The trial court sentenced Defendant to a term of 90 to 117 months' imprisonment. Defendant appeals.
We first consider Defendant's argument that the trial court erred by allowing Officer Sexton to testify that Defendant was impaired from ingesting alcohol. Defendant asserts that Officer Sexton was relatively inexperienced with driving while impaired cases, and did not have sufficient training to give an opinion that Defendant was impaired. We are not persuaded.
“When reviewing a trial court's rulings on the admission or exclusion of lay witness or expert testimony, we review for abuse of discretion.” State v. Llamas–Hernandez, 189 N.C.App. 640, 643, 659 S.E.2d 79, 81 (2008). In the case before us, Officer Sexton testified that she based her opinion that Defendant was impaired on her observations that Defendant's speech was slurred and her eyes were bloodshot. Additionally, Defendant smelled of alcohol, was unable to follow commands, and officers had to repeat their questions to her. When Officer Sexton asked Defendant if she had been drinking, Defendant responded that she had been drinking “last night.” “A law enforcement officer may express an opinion that a defendant is impaired, so long as that opinion is based on something more than an odor of alcohol.” State v. Tedder, 169 N .C.App. 446, 450, 610 S.E.2d 774, 777 (2005) (citing State v. Rich, 351 N.C. 386, 397–98, 527 S.E.2d 299, 305 (2000)); see also State v. Johnson, 186 N.C.App. 673, 675, 651 S.E.2d 907, 908 (2007) (“ ‘[A] lay person may give his opinion as to whether a person is intoxicated so long as that opinion is based on the witness's personal observation.’ ”) (citations omitted). Officer Sexton personally observed Defendant and her opinion was based upon more than just the odor of alcohol. Accordingly, we find no abuse of discretion.
Defendant next argues that the trial court erred in denying her motion to dismiss for insufficiency of the evidence. Defendant further argues that the trial court erred by denying the motion without allowing her to present an argument. We disagree.
The following exchange occurred after the State rested its case:
THE COURT: And, Mr. Locklear [Defendant's counsel], are y'all going to
MR. LOCKLEAR: ... [D]efendant doesn't offer any evidence, your Honor.
THE COURT: Okay. Are you making a motion at the close of State's evidence?
MR. LOCKLEAR: Motion
THE COURT: Denied. Okay, now, you're not offering any evidence?
MR. LOCKLEAR: That's correct, your Honor.
Defendant contends the trial court failed to allow counsel to “fully articulate” the grounds supporting Defendant's motion to dismiss. However, it does not appear that Defendant intended to present a motion to dismiss, but was instead prompted by the trial court to do so. There is nothing in the record to support an inference that Defendant's counsel intended to make an argument in support of the motion, or that the trial court denied counsel the opportunity to make an argument.
Even assuming arguendo that the trial court prevented counsel from fully presenting the motion to dismiss, we find no prejudice. “ ‘Upon defendant's motion for dismissal, the question for the [c]ourt is 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. If so, the motion is properly denied.’ “ State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (quoting State v.. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)), cert. denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000). “In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied,515 U.S. 1135, 132 L.Ed.2d 818 (1995) (citation omitted). 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.’ “ Tedder, 169 N.C.App. at 450, 610 S.E.2d at 777 (citation omitted).
Defendant argues on appeal “that there were meritorious grounds for a motion to dismiss given that the evidence of her impairment came entirely from the opinion testimony of the arresting officers.” We disagree. The State presented evidence that: (1) Defendant smelled of alcohol; (2) she admitted to drinking alcohol the night before; (3) her eyes were bloodshot; (4) her speech was slurred; and (5) she was unable to complete sobriety tests because she could not follow instructions and was unsteady on her feet. Additionally, Defendant refused to take an intoxilyzer test. “A defendant's refusal of this test is admissible as substantive evidence of a defendant's guilt.” State v. Allen, 164 N.C.App. 665, 668, 596 S.E.2d 261, 263 (2004) (citing N.C. Gen.Stat. § 20–139.1(f) (2003); State v. Pyatt, 125 N.C.App. 147, 150–51, 479 S.E.2d 218, 220 (1997)). Accordingly, we conclude the trial court did not err by denying Defendant's motion to dismiss.
No error. Judges ELMORE and STEPHENS concur.
Report per Rule 30(e).