Opinion
No. COA12–188.
2012-08-7
STATE of North Carolina v. Randall Alford WISCHHUSEN.
Attorney General Roy Cooper, by Assistant Attorney General Tammera S. Hill, for the State. Guy J. Loranger for defendant-appellant.
On writ of certiorari to review judgment entered 12 August 2010 by Judge Howard E. Manning, Jr., in Wake County Superior Court. Heard in the Court of Appeals 30 July 2012. Attorney General Roy Cooper, by Assistant Attorney General Tammera S. Hill, for the State. Guy J. Loranger for defendant-appellant.
HUNTER, ROBERT C., Judge.
We review the 12 August 2010 judgment entered against defendant for habitual impaired driving and driving while license revoked. Defendant contends that the State's evidence of impaired driving was insufficient to withstand his motion to dismiss the habitual impaired driving charge and that the trial court committed a clerical error by entering judgment for driving while license revoked even though defendant was not convicted of that charge. We find no error in defendant's habitual impaired driving conviction, but remand the matter for correction of the clerical error.
On 27 February 2009, North Carolina State Highway Patrol Sergeant Joe Gaskins was standing at the counter in a convenience store when defendant entered the store. Sergeant Gaskins immediately noticed that defendant was unsteady on his feet and that he radiated a strong odor of alcohol. Defendant fumbled with his wallet and credit card when he paid for his purchase. Sergeant Gaskins watched defendant return to his car and then drive the car from the parking lot onto a public road. Defendant had a female passenger in the car.
Sergeant Gaskins pursued defendant's car and quickly stopped him. When Sergeant Gaskins approached defendant, he still noticed the strong odor of alcohol. Sergeant Gaskins asked defendant to get out of the car, and defendant supported himself by putting his hand on the door frame. Sergeant Gaskins observed that defendant appeared to be moving in “slow motion” and continued to use his hands to keep his balance. After defendant got in Sergeant Gaskins' patrol car, Sergeant Gaskins administered an Alco–Sensor breath test, which returned a positive result. Defendant admitted to having consumed beer, then slurred his speech during one field sobriety test and was unable to follow instructions to complete another test.
Trooper Calvin Harris responded to assist Sergeant Gaskins. Trooper Harris immediately noticed the strong odor of alcohol emanating from defendant. In addition, Trooper Harris saw that defendant's face was flushed, his eyes were red and glassy, his speech was slurred, and he was unsteady on his feet. Based on his observations, Trooper Harris concluded that defendant was intoxicated and arrested him. After Trooper Harris advised defendant of his Miranda rights, defendant told Trooper Harris that he knew that he should not have been driving, but that he felt fine. Defendant was unwilling to submit to a second breath test.
Defendant was indicted for impaired driving, habitual impaired driving, and driving while license revoked (“DWLR”). Prior to trial, the State informed the trial court that it was not pursuing the DWLR charge. Defendant stipulated that he had four prior impaired driving convictions. In the jury charge, the trial court instructed the jury only on the offense of impaired driving, and the jury found defendant guilty of that offense. Accordingly, the trial court entered judgment for habitual impaired driving. The judgment also indicates that the trial court entered judgment for DWLR. Defendant failed to give notice of appeal, but on 28 July 2011 this Court allowed his petition for writ of certiorari.
In his first argument, defendant contends that the State's evidence was insufficient to establish that he drove while impaired. We disagree.
“When a defendant moves to dismiss a charge against him on the ground of insufficiency of the evidence, the trial court must determine ‘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. Garcia, 358 N.C. 382, 412, 597 S.E.2d 724, 746 (2004) (citation omitted), cert. denied,543 U.S. 1156, 161 L.Ed.2d 122 (2005). “In reviewing challenges to the sufficiency of evidence, we must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences.” State v. Scott, 356 N.C. 591, 596, 573 S.E.2d 866, 869 (2002) (citation omitted).
“A person commits the offense of impaired driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this State: (1) While under the influence of an impairing substance[.]” N.C. Gen.Stat. § 20–138.1(a)(1) (2011). The offense of impaired driving should be submitted to the jury if “a reasonable inference of defendant's guilt may be drawn from the direct and circumstantial evidence presented by the State.” Scott, 356 N.C. at 598, 573 S.E.2d at 870.
Here, the State's evidence sufficiently established defendant's impairment. The evidence of defendant's impairment included: (1) defendant gave off a strong odor of alcohol to two Highway Patrol officers; (2) defendant had red, glassy eyes; (3) defendant was unsteady on his feet and needed to lean on objects for support; (4) defendant fumbled with his wallet and credit card; (5) defendant showed signs of impairment during two field sobriety tests; (6) defendant submitted a positive breath test; (7) defendant refused to submit to another breath test; (8) defendant admitted he consumed alcohol and he should not have been driving; and (9) both Highway Patrol officers testified that, in their opinions, the defendant's faculties were appreciably impaired due to alcohol consumption. Although, as defendant contends, Sergeant Gaskins did not testify that defendant's driving was erratic, we hold that the evidence, when viewed in the light most favorable to the State, sufficiently established defendant's impairment. See State v. Taylor, 165 N.C.App. 750, 758, 600 S.E.2d 483, 489 (2004) (holding that evidence establishing there was an odor of alcohol emanating from the defendant, the defendant's difficulty walking and writing, his blank expression, his failure to adequately perform a field sobriety test, and the officer's opinion that the defendant was appreciably impaired as the result of alcohol consumption was sufficient to support his DWI conviction); State v. Mark, 154 N.C.App. 341, 346, 571 S.E.2d 867, 871 (2002) (“The opinion of a law enforcement officer ... has consistently been held sufficient evidence of impairment, provided that it is not solely based on the odor of alcohol.”), aff'd per curiam,357 N.C. 242, 580 S.E.2d 693 (2003).
In his remaining argument, defendant contends that the trial court committed a clerical error by entering judgment on both habitual impaired driving and DWLR, when the State did not proceed on the DWLR charge, to which the State and we agree.
Accordingly, we remand the case for correction of this clerical error.
No error; remanded for correction of a clerical error. Judges ELMORE and McCULLOUGH concur.
Report per Rule 30(e).