Opinion
No. COA12–1171.
2013-06-4
STATE of North Carolina v. John Robert SWANN.
Attorney General Roy Cooper, by Assistant Attorney General Tammera S. Hill, for the State. James E. Tanner III, for Defendant–Appellant.
Appeal by Defendant from judgment entered 9 April 2012 by Judge Bradley Letts in Superior Court, Henderson County. Heard in the Court of Appeals 14 May 2013. Attorney General Roy Cooper, by Assistant Attorney General Tammera S. Hill, for the State. James E. Tanner III, for Defendant–Appellant.
McGEE, Judge.
John Robert Swann (Defendant) appeals from judgment entered upon his conviction for driving while impaired (DWI).
Officer Kyle Nix (Officer Nix) testified he received a call regarding a motor vehicle collision, resulting in Defendant's being issued a citation for “hit-and-run[.]” Officer Nix ran the license plate number of the vehicle involved, a red 1987 Dodge Ram Charger (the vehicle), registered to Defendant. Officer Nix went to the residence listed for the vehicle, where he observed an SUV. The SUV's license plate matched that of the vehicle in the accident. Officer Nix also noticed damage to the SUV's right front side.
Officer Nix observed Defendant drive the SUV into the driveway. Defendant admitted he had been in the accident. Officer Nix detected a strong odor of alcohol from the SUV and saw Defendant had bloodshot, glassy eyes. Officer Nix asked Defendant if he had been drinking. Defendant admitted he had consumed one alcoholic beverage.
Officer Nix conducted two field sobriety tests on Defendant that indicated, in Officer Nix's opinion, that Defendant was impaired. Defendant was advised of his rights under N.C. Gen.Stat. § 20–16.2(a) and submitted to an intoxilyzer test, which showed he had a blood alcohol content of 0.22.
Defendant first argues the trial court erred in admitting testimony regarding Defendant's blood alcohol content. As Defendant failed to object to the testimony, Defendant did not preserve the issue for review. To establish plain error, Defendant must show the error “was a fundamental error—that the error had a probable impact on the jury verdict.” State v. Lawrence, 365 N.C. 506, ––––, 723 S.E.2d 326, 334 (2012).
Defendant contends the trial court violated the best evidence rule in admitting the testimony without the actual printed test results. “To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute.” N.C. Gen.Stat. § 8C–1, Rule 1002 (2011). “However, it is well-settled that Rule 1002 applies only when the content of a writing, recording, or photograph is in question.” State v. Haas, 202 N.C.App. 345, 349, 688 S.E.2d 98, 100 (2010) (emphasis added).
In the present case, the content of the document was not in question. The printed test indicated Defendant had a blood alcohol content of 0.22, and Defendant does not dispute this fact. The trial court did not err in admitting the testimony.
Defendant further contends the trial court erred in instructing the jury. This argument is derivative of Defendant's first argument that the testimony was inadmissible. Because we hold the trial court did not err in admitting that testimony, we reject Defendant's challenge to the instruction. Lastly, Defendant argues “a signed Notice of Rights required by N.C. Gen.Stat. § 20–16.2(a) may not be demonstrated merely by testifying that it exists [.]” Defendant cites no authority requiring a written notice be entered into evidence. This argument is also unavailing.
No error. Judges ELMORE and STEPHENS concur.
Report per Rule 30(e).