STATE OF NORTH CAROLINA v. SCOT A. JONES
No. COA99-1142
Appeal by defendant from judgment entered 26 May 1999 by Judge
Jerry Cash Martin in Superior Court, Surry County. Heard in the
Court of Appeals 24 August 2000.
Attorney General Michael F. Easley, by Special Deputy Attorney
General Isaac T. Avery, III, for the State.
Franklin Smith for defendant-appellant. TIMMONS-GOODSON, Judge.
Scot A. Jones (“defendant”) was convicted by a jury of
impaired driving in a commercial motor vehicle. The trial court
sentenced defendant to a suspended term of forty-five days
imprisonment and further ordered him to serve an eighteen-month
term of unsupervised probation. From this judgment, defendant
appeals.
The evidence presented at trial tended to show the following:
While driving cross-country from California to the North Carolina
coast, defendant stopped at Brindle's Truck Stop (“Brindle's”) in
Mount Airy, North Carolina, on the morning of 20 March 1998.
Defendant was driving a tractor-trailer loaded with strawberries.
Defendant, feeling ill, visited the local hospital emergency
room, where he was diagnosed with acute bronchitis with pleurisy.
An emergency room physician prescribed a narcotic for defendant's
chest pain and an antibiotic for his bronchial infection.
Defendant filled his prescription and returned to the truck stop,
where he fell asleep in his tractor-trailer. Defendant testified
at trial that although he had been taking Nyquil (an over-the-
counter cold medication containing alcohol) prior to visiting the
emergency room, he did not take the cold medication after being
seen by the physician.
Defendant testified that he awoke at approximately 8:00 p.m.
and was still feeling sick. Defendant stated that he unhooked the
trailer portion of his tractor-trailer and drove himself to thehospital. Defendant testified, however, that the wait at the
emergency room was too long and he therefore did not see a
physician at that time.
On 21 March 1998, at approximately 12:00 a.m., North Carolina
State Trooper Dan Kiger (“Trooper Kiger”) observed two truck
tractors parked outside a bar near Mount Airy. Trooper Kiger
noticed the driver of one of the truck tractors climb into his
vehicle. While in the process of turning his patrol car around,the trooper observed a set of headlights traveling toward his
direction, which he assumed belonged to one of the truck tractors.
Trooper Kiger followed the tractor, driven by defendant, and
observed it swerving left of center and traveling forty-five miles
an hour in a fifty-five mile an hour speed zone. The trooper
activated his emergency lights and followed the tractor until it
pulled into Brindle's.
Trooper Kiger testified that defendant informed him that he
had unhooked his trailer, left it at the truck stop, and visited
the bar for only a few minutes. Trooper Kiger noted that he “never
heard anything about any treatment or anything like that, nothing
other than alcohol.”
During the encounter, Trooper Kiger detected an odor of
alcohol on defendant's breath. Based on this and other
observations, the trooper concluded that defendant had consumed a
sufficient quantity of alcohol to be appreciably impaired. As
such, the trooper arrested defendant for driving a commercial
vehicle while impaired. Trooper Kiger confirmed, through a series
of physical assessments, that defendant was indeed impaired.
Trooper Kiger also administered an Intoxilyzer test, which
indicated that defendant's blood alcohol concentration was .06.
At trial, Trooper Kiger offered testimony concerning thevehicle defendant was driving at the time of his arrest.
Specifically, the trooper noted that the vehicle was
what generally people talk, they call transfer
truck, tractor trailer truck that you see on
the major highways. It, however, did not have
a trailer attached to it at that time. It was
just what people commonly say bobtail. It had
the truck tractor, front axle, two rear axles,
large heavy truck, big truck.
Defendant testified that he left the hospital at 12:00 a.m.,
drove straight to the truck stop, and did not visit a bar.
Defendant stated that he told the trooper about his visit to the
hospital and even showed him his hospital “paperwork” and
medication. Defendant also stated that at the time of his arrest,
he was driving a vehicle known as a “[19]96 [] Freightliner condo,”
which he described as “a little apartment.” Defendant noted that
the truck had a sink, stove, refrigerator, shower, and bunk beds.
Defendant testified that he did not know the exact unloaded weight
of his tractor-trailer, but that the tractor-trailer's typical
loaded weight was between 78,000 and 79,000 pounds. Defendant
affirmed that on the day he was arrested, the tractor-trailer's
loaded weight was approximately 70,000 pounds. Defendant testified
that without the trailer, the three-axle, ten-wheel tractor weighed
between 17,000 and 18,000 pounds.
Defendant moved to dismiss the case at the end of the State'spresentation of evidence and at the end of the present
ation of all
evidence. The trial court denied both motions, finding there was
substantial evidence to support each and every element of the
charged offense.
Defendant also objected to the court's jury instructions
concerning “commercial motor vehicles,” arguing that the vehicle in
question was not being used as a commercial vehicle at the time of
his arrest. Defendant asserted that the truck tractor was being
operated in a private manner without its commercial load attached.
Finding that simply disconnecting a portion of the vehicle does not
alter its nature as defined by our General Statutes, the court
denied defendant's objection. The jury returned a guilty verdict,
and defendant has appealed.
[1]By his first assignment of error, defendant contends that
the trial court erred in failing to grant his motion to dismiss at
the close of the State's evidence. As a preliminary issue, we note
that because defendant presented evidence below, he has waived his
right to challenge the denial of his motion to dismiss made at the
close of the State's case-in-chief. N.C. Gen. Stat. § 15-173
(1999);
State v. Franklin, 327 N.C. 162, 393 S.E.2d 781 (1990). We
therefore consider whether the trial court erred in denyingdefendant's motion to dismiss made following the presentation of
all evidence.
In ruling on a motion to dismiss for insufficient evidence,
the trial court must examine whether substantial evidence exists to
support the essential elements of the charged offense.
State v.
Vause, 328 N.C. 231, 400 S.E.2d 57 (1991). “Substantial evidence
is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.”
State v. Scott, 323 N.C. 350,
353, 372 S.E.2d 572, 575 (1988). The court must examine the
evidence in the light most favorable to the State, giving the State
the benefit of “every reasonable inference and intendment that can
be drawn therefrom.”
State v. Barrett, 343 N.C. 164, 173, 469
S.E.2d 888, 893 (1996)
(citation omitted). The court must not
grant the motion based on contradictions and discrepancies; “they
are for the jury to resolve.”
State v. Earnhardt, 307 N.C. 62, 67,
296 S.E.2d 649, 653 (1982) (citation omitted). "If there is
substantial evidence--whether direct, circumstantial, or both--to
support a finding that the offense charged has been committed and
that the defendant committed it, the case is for the jury and the
motion to dismiss should be denied." State v. Locklear, 322 N.C.
349, 358, 368 S.E.2d 377, 383 (1988) (citation omitted).
Defendant was charged with driving a commercial motor vehiclewhile impaired.
A person commits the offense of impaired
driving in a commercial motor vehicle if he
drives a commercial motor vehicle upon any
highway, any street, or any public vehicular
area within the State:
(1) While under the influence of an
impairing substance; or
(2) After having consumed sufficient
alcohol that he has, at any relevant
time after the driving, an alcohol
concentration of 0.04 or more.
N.C. Gen. Stat. § 20-138.2 (Cum. Supp. 1998).
Defendant does not argue on appeal that the State failed to
prove he was driving on a public vehicular area, that he was under
the influence of an impairing substance, or that he had a blood
alcohol concentration of 0.04 or greater. Rather, defendant argues
that the court should have dismissed his case because he was not
driving a “commercial motor vehicle” at the time of his arrest. We
disagree.
Section 20-4.01(3d) of our General Statutes defines a
“Commercial Motor Vehicle” as follows:
Any of the following motor vehicles that are
designed or used to transport passengers or
property:
a.
A Class A motor vehicle that has a
combined GVWR of at least 26,001 pounds
and includes as part of the combination a
towed unit that has a GVWR of at least
10,001 pounds.
b.
A Class B motor vehicle.
c. A Class C motor vehicle that meets either
of the following descriptions:
1. Is designed to transport 16 or more
passengers, including the driver.
2.
Is transporting hazardous materials
and is required to be placarded in
accordance with 49 C.F.R. Part 172,
Subpart F.
d. Any other motor vehicle included by
federal regulation in the definition of
commercial motor vehicle pursuant to 49
U.S.C. Appdx. § 2716.
N.C. Gen. Stat. § 20-4.01(3d) (Cum. Supp. 1998).
A “Class A Motor Vehicle” is
[a] combination of motor vehicles that meets
either of the following descriptions:
a.
Has a combined GVWR of at least 26,001
pounds and includes as part of the
combination a towed unit that has a GVWR
of at least 10,001 pounds.
b.
Has a combined GVWR of less than 26,001
pounds and includes as part of the
combination a towed unit that has a GVWR
of at least 10,001 pounds.
N.C.G.S. § 20-4.01(2a).
A “Class B Motor Vehicle” is
[a] single motor vehicle that has a GVWR of at
least 26,001 pounds [or a] combination of
motor vehicles that includes as part of the
combination a towing unit that has a GVWR of
at least 26,001 pounds and a towed unit that
has a GVWR of less than 10,001 pounds.
N.C.G.S. § 20-4.01(2b).
A “Class C Motor Vehicle” is “[a] single motor vehicle not
included in Class B” or “[a] combination of motor vehicles notincluded in Class A or Class B.” N.C.G.S. § 20-4.01(2c).
A
vehicle's “Gross Vehicle Weight Rating” (“GVWR”) is “[t]he value
specified by the manufacturer as the maximum loaded weight of a
vehicle. The GVWR of a combination vehicle is the GVWR of the
power unit plus the GVWR of the towed unit or units.” N.C.G.S. 20-
4.01(12a).
We find that there was sufficient evidence to infer that
defendant was driving a “commercial motor vehicle,” as specified by
section 20-4.01 (3d)(a) of our General Statutes. As noted above,
under section 20-4.01(3d)(a), a vehicle is a “commercial motor
vehicle” if it is designed or used to transport property and is a
“Class A motor vehicle that has a combined GVWR of at least 26,001
pounds and includes as part of the combination a towed unit that
has a GVWR of at least 10,001 pounds.” N.C.G.S. § 20-401(3d)(a).
The evidence at trial revealed that defendant used the vehicle in
question to haul a load of strawberries from California to North
Carolina. This testimony established that the vehicle was
“designed or used” to transport property. Although there was no
direct evidence indicating the vehicle's GVWR, defendant himself
testified that the typical loaded weight of the tractor-trailer was
between 78,000 and 79,000 pounds. The weight specified by defendant
more than satisfies the statutory requirement that a vehicle havea combined GVWR of 26,001 pounds or more to be considered a
“commercial motor vehicle.” Based upon defendant's testimony that
the tractor portion of the tractor-trailer weighed between 17,000
and 18,000 pounds and that its typical loaded weight was between
78,000 and 79,000 pounds, a jury could infer that the trailer, the
towed unit, weighed at least 61,000 pounds. This weight far
exceeds the statutory requirement that the GVWR of a Class A
commercial motor vehicle's towed unit weigh at least 10,001 pounds.
Defendant argues on appeal that because he was driving the
tractor for his own private use and because he had detached the
trailer portion of the tractor-trailer, it was no longer a
commercial motor vehicle. We are unpersuaded by this argument for
two reasons. First, neither the statute defining “commercial motor
vehicle” nor the statute detailing the crime for which defendant
was convicted specify that if the vehicle is being used in a
private application at the time of the crime, it is no longer a
“commercial motor vehicle.” Rather, section 20-4.01(3d) specifies
that a vehicle is a “commercial motor vehicle” if the vehicle is
“
designed or used to transport passengers or property” and meets
other requirements. N.C.G.S. § 20-4.01(3d) (emphasis added). As
noted above, there was sufficient evidence to infer that the
vehicle in question met the statutory definition of a “commercialmotor vehicle.”
The second reason we reject defendant's argument is that the
tractor and trailer were properly considered as one unit for the
purpose of determining whether the vehicle was a “commercial motor
vehicle.” There was sufficient evidence that the portion of the
vehicle driven by defendant was an integral part of a larger, two-
part vehicle that was designed to transport property as one unit.
Trooper Kiger's testimony established that defendant's vehicle was
“what generally people . . . call [a] transfer truck, tractor
trailer truck that you see on the major highways.
It, however, did
not have a trailer attached to it at that time.” (Emphasis added.)
By simply detaching the trailer portion of a tractor-trailer,
defendant did not change the nature of the vehicle or what it was
designed or used to transport. Nor, did detaching the trailer
change the vehicle's GVWR, the maximum loaded weight of the
vehicle, which defendant's own testimony established was between
78,000 and 79,000 pounds. We therefore conclude that the court did
not err in refusing to grant defendant's motion to dismiss.
[2]By his second assignment of error, defendant contends that
the trial court erred in instructing the jury that the vehicle he
operated at the time of his arrest was a “commercial vehicle.”
Although defendant references this assignment of error in his briefto this Court, he provides no argument to support his contention.
Defendant has therefore abandoned his second assignment of error on
appeal.
See N.C.R. App. P. 28(b)(5) (“Assignments of error not set
out in the appellant's brief, or in support of which no reason or
argument is stated or authority cited, will be taken as
abandoned.”)
Based on the foregoing analysis, we hold that defendant
received a fair trial free from prejudicial error.
No error.
Judges WYNN and MCGEE concur.
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