STATE OF NORTH CAROLINA
v
.
Cabarrus County
Nos. 99 CRS 20064
CHARLES LANDON COUSINS 99 CRS 20065
99 CRS 20067
99 CRS 20068
00 CRS 16536
Attorney General Roy Cooper, by Special Deputy Attorney
General Isaac T. Avery, III, and Assistant Attorney General
Patricia A. Duffy, for the State.
Baucom & Robertson, by Scott C. Robertson, for defendant-
appellant.
CAMPBELL, Judge.
On 27 November 1999, Defendant was arrested and charged with
two counts of driving while impaired (DWI) in violation of N.C.
Gen. Stat. § 20-138.1, two counts of driving while license revoked
in violation of N.C. Gen. Stat. § 20-28, and one count of failure
to stop at the scene of an accident resulting in property damage
(“hit and run”) in violation of N.C. Gen. Stat. § 20-166(c).
Defendant pled guilty in district court to the two DWI charges and
the two driving while license revoked charges. In return, the hitand run charge was dismissed. Defendant subsequently appealed to
superior court and the State reinstated the hit and run charge.
Defendant was tried and found guilty by a jury on all five
charges. Defendant was sentenced to consecutive prison terms of
120 days for the driving while license revoked convictions. The
hit and run conviction was consolidated for sentencing with one of
the driving while license revoked convictions. Defendant was
sentenced to consecutive two year prison terms for the DWI
convictions, with the terms set to run at the expiration of the
driving while license revoked sentences. In sum, defendant was
sentenced to four years and 240 days in prison.
The State's evidence at trial tended to show that on the night
of 27 November 1999, Wilbert Beaston (“Beaston”) was traveling on
Old Charlotte Road in Cabarrus County approaching the intersection
with Highway 601. As Beaston approached the intersection, he
noticed that a truck being driven by defendant appeared to be
initiating a right turn on red onto Old Charlotte Road into
Beaston's lane of travel. Beaston saw defendant's truck stop so he
proceeded through the intersection. As Beaston continued through
the intersection, defendant's truck accelerated through the red
light, slamming into Beaston's truck and spinning it around in the
intersection.
Following the collision, defendant got out of his truck and
walked over to Beaston's truck. From approximately ten feet away,
defendant began pointing his finger at Beaston and yelling, “It was
your fault, it's your fault. I'm not taking the blame for this.” Beaston testified that defendant was “kind of staggering,” was
“looking around like he was dazed,” and was “very loud and
argumentative.”
Defendant then walked over to a white Chevy Cavalier that had
been traveling behind him prior to the accident. Defendant's wife
and two children had gotten out of the Cavalier. Defendant and his
wife got into an argument over whether defendant should stay and
take responsibility for the accident. Defendant's wife insisted
that he stay, but defendant refused. Instead he got into the
Cavalier and drove away from the accident scene.
Officer Richard Hooper (“Officer Hooper”) arrived at the scene
of the accident, spoke briefly with Beaston, and was then directed
to defendant's wife, who was still at the scene. Defendant's wife
told Officer Hooper that she had been following defendant when he
was involved in the accident in the intersection, and, after the
accident, defendant had taken her vehicle (the Cavalier) and left
the scene. Officer Hooper testified that he, or one of the other
officers at the scene, then radioed in a description of the
Cavalier along with defendant's name. A few minutes later, Officer
J.C. Worth (“Officer Worth”) radioed to the scene that he had
located both defendant and the Cavalier.
Officer Worth testified that defendant was in the driver's
seat of the Cavalier when it was located. The vehicle was
stationary and the engine was not running. Officer Worth asked
defendant to step out of the vehicle and defendant did so. Officer
Worth testified that defendant “appeared unbalanced” and had to usethe vehicle for support, that defendant staggered when he walked,
and that defendant's speech was “mumbled.” Although Officer Worth
did not administer any sobriety tests on defendant, it was his
opinion that defendant's mental and physical faculties were
appreciably impaired.
Officer Hooper then arrived at the location where Officer
Worth was holding defendant. Officer Hooper asked defendant “if he
had had anything to drink,” and defendant responded that he had
not. Officer Hooper testified that defendant “appeared very
unsteady, not able to move around very well[,] just sort of
generally incoherent and not really the way you would expect a
normal person to be acting and moving around.” Officer Hooper
asked defendant if he had been injured in the earlier accident, and
defendant replied that he had not. Defendant did not have a
driver's license to give to Officer Hooper, and, upon checking,
Officer Hooper discovered that defendant's license had been
revoked.
Defendant then agreed to submit to a roadside breath test.
The results of the test were 0.0, indicating that there was no
alcohol present. Officer Hooper then asked defendant to perform
some field sobriety tests. Officer Hooper testified that defendant
performed “very poorly” on the walk-and-turn test, was unable to
stand as instructed, had to use his arms for balance throughout the
test, and “missed heel to toe contact more times than he made it.”
Defendant stopped during the middle of the test and told Officer
Hooper, “Look, I haven't been drinking but I'm taking painmedication.” Upon inquiry, defendant told Officer Hooper that he
had been taking Lortab, a pain killer.
Officer Hooper then asked defendant to perform the one-leg
stand test. Officer Hooper testified that defendant also performed
poorly on the one-leg stand test, unable “to keep his foot up for
more than two or three seconds at a time.” Finally, defendant
voluntarily stopped the test and told Officer Hooper “to go ahead
and arrest him.” After defendant was arrested Officer Hooper
transported him to a medical center where he advised defendant of
his rights regarding the giving a blood sample. Defendant refused
to submit to a blood test.
The State also introduced into evidence a Motor Vehicle
Records Check from the Division of Motor Vehicles indicating that
defendant's driver's license had been suspended indefinitely on 13
April 1999 for failure to appear in court. The State also
introduced into evidence a copy of a notice of revocation dated 12
February 1999 notifying defendant that his license was subject to
indefinite revocation as of 13 April 1999 for failure to appear.
Defendant raised thirteen assignments of error in the record
on appeal. Defendant has expressly abandoned assignments of error
six, twelve, and thirteen in his brief to this Court. We further
note that defendant has failed to cite any authority in support of
assignments of error one, two, three, seven, eight and eleven.
Accordingly, these assignments of error are deemed abandoned. See
N.C. R. App. P. 28(b)(6) (2002) (“The body of the argument shall
contain citations of the authorities upon which the appellantrelies.”); State v. McNeill, 140 N.C. App. 450, 537 S.E.2d 518
(2000); State v. Stevenson, 136 N.C. App. 235, 523 S.E.2d 734
(1999). We turn to those assignments of error properly set out and
supported in defendant's brief.
Defendant contends that the trial court erred in denying his
motion to dismiss the two DWI charges for insufficiency of the
evidence.
In ruling on a motion to dismiss, the question for the Court
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. State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455
(2000). In reviewing the evidence, it must be viewed in the light
most favorable to the State, giving the State the benefit of all
reasonable inferences. State v. Benson, 331 N.C. 537, 544, 417
S.E.2d 756, 761 (1992). “Contradictions and discrepancies do not
warrant dismissal of the case but are for the jury to resolve.”
Fritsch, 351 N.C. at 379, 526 S.E.2d at 455. The test for
sufficiency of the evidence is the same whether the evidence is
direct or circumstantial or both. State v. Bullard, 312 N.C. 129,
322 S.E.2d 370 (1984). Circumstantial evidence may be enough to
withstand a motion to dismiss if a reasonable inference of guilt
may be drawn therefrom. Fritsch, 351 N.C. at 379, 526 S.E.2d at
455. “When ruling on a motion to dismiss, the trial court should
be concerned only about whether the evidence is sufficient for jury
consideration, not about the weight of the evidence.” Id. N.C. Gen. Stat. § 20-138.1 (2001) provides:
(a) Offense.---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. § 20-4.01(14a) (2001) defines an impairing
substance as “[a]lcohol, [a] controlled substance under Chapter 90
of the General Statutes, any other drug or psychoactive substance
capable of impairing a person's physical or mental faculties, or
any combination of these substances.”
The offense of driving while impaired is proven by evidence
that the defendant drove a vehicle after ingesting a sufficient
quantity of an impairing substance to cause his physical and mental
faculties to be appreciably impaired. N.C.G.S. § 20-138.1(a);
State v. Phillips, 127 N.C. App. 391, 393, 489 S.E.2d 890, 891
(1997); State v. George, 77 N.C. App. 580, 582-83, 335 S.E.2d 768,
770 (1985). Defendant contends that the State failed to present
sufficient evidence that his condition was caused by an impairing
substance. We disagree.
Wilbert Beaston testified that defendant ran a red light and
slammed into Beaston's truck. When defendant got out of his truck,
Beaston observed that he “was kind of staggering,” “looking around
like he was dazed,” and “very loud and argumentative.” Officer
Hooper testified that defendant “appeared very unsteady, not able
to move around very well, just sort of generally incoherent[.]” Officer Hooper also testified that defendant performed “very
poorly” on two field sobriety tests. In addition, defendant
refused to submit to a blood test to reveal the substances present
in his system. This evidence, coupled with defendant's admission
to having taken Lortab, a painkiller, was sufficient evidence to
show that defendant was impaired and that his impairment was caused
by an impairing substance. Contrary to defendant's assertion, the
State was not required to produce expert testimony concerning the
impairing effects of Lortab and whether defendant's condition was
consistent with what would be expected of someone who had taken
Lortab. Therefore, we conclude that the trial court did not err in
denying defendant's motion to dismiss the two DWI charges.
Defendant next contends that the trial court erred in denying
his motion to dismiss the two driving while license revoked
charges. Specifically, defendant contends that the State presented
insufficient evidence of defendant's knowledge that his license was
revoked.
To convict defendant under N.C.G.S. § 20-28(a) of driving
while his license was revoked, the State had to prove (1) that he
operated a motor vehicle (2) on a pubic highway (3) while his
operator's license was suspended or revoked , and (4) that he had
actual or constructive knowledge of the suspension or revocation.
State v. Atwood, 290 N.C. 266, 271, 225 S.E.2d 543, 545 (1976);
State v. Woody, 102 N.C. App. 576, 578, 402 S.E.2d 848, 850 (1991);
State v. Chester, 30 N.C. App. 224, 226 S.E.2d 524 (1976). A
rebuttable presumption that a defendant had knowledge that hislicense was revoked at the time charged arises “when, nothing else
appearing [the State] has offered evidence of compliance with the
notice requirements of G.S. 20-48 . . . .” Chester, 30 N.C. App.
at 227, 226 S.E.2d at 526; see also Atwood, 290 N.C. at 271, 225
S.E.2d at 545. If the defendant does not present any evidence to
rebut this presumption, it is not necessary for the trial court to
instruct on guilty knowledge. Chester, 30 N.C. App. at 227, 226
S.E.2d at 526. However, “where there is some evidence of failure
of defendant to receive the notice or some other evidence
sufficient to raise the issue, then the trial court must, in order
to comply with G.S. 1-180 and apply the law to the evidence,
instruct the jury that guilty knowledge by the defendant is
necessary to convict.” Id. at 227-28, 226 S.E.2d at 527 (emphasis
in original). When all the evidence shows that the defendant did
not receive notice of revocation, a motion to dismiss should be
granted. Id.
In the instant case, the State admitted into evidence a copy
of a notice of revocation dated 12 February 1999 which provided
that defendant's license was to be suspended indefinitely for
failure to appear in court effective 13 April 1999. The State also
admitted into evidence a certification signed by the Commissioner
of Motor Vehicles and a DMV employee stating that the revocation
order was mailed to defendant at the address shown in DMV's records
(117 Cascade Drive). The rebutting evidence presented by defendant
is that at the time of his arrest he no longer lived on Cascade
Drive. There was no evidence presented that defendant did not liveon Cascade Drive at the time the revocation notice was sent. The
record further shows that the trial court instructed the jury that
they must find that defendant had actual knowledge of the
revocation in order to convict him. Accordingly, we conclude that
the State presented sufficient evidence of defendant's knowledge to
get to the jury, and the trial court instructed the jury in
accordance with this Court's holding in Chester. Defendant's
assignment of error is overruled.
Defendant's final assignment of error is that the trial court
erred in proceeding with defendant's trial in his absence. We
disagree.
“It is well established that both the United States and North
Carolina Constitutions provide criminal defendants the right to
confront their accusers at trial.” State v. Richardson, 330 N.C.
174, 178, 410 S.E.2d 61, 63 (1991). However, in noncapital trials,
it is also well established that this right to confrontation may be
waived by a defendant, State v. Braswell, 312 N.C. 553, 558, 324
S.E.2d 241, 246 (1985), and a defendant's voluntary and unexplained
absence from court after trial commences constitutes such a waiver.
State v. Wilson, 31 N.C. App. 323, 327, 229 S.E.2d 314, 317 (1976).
“Once trial has commenced, the burden is on the defendant to
explain his or her absence; if this burden is not met, waiver is to
be inferred.” Richardson, 330 N.C. at 178, 410 S.E.2d at 63.
In the instant case, following opening statements and prior to
the trial court hearing evidence on defendant's motion to suppress,
defendant voluntarily left the courtroom to go to the restroom. The trial court then adjourned for lunch. Following lunch,
defendant did not return to the courtroom and the trial court
proceeded with defendant's motion to suppress. Following the trial
court's ruling on defendant's motion to suppress, defendant still
had not returned to the courtroom and the trial court concluded
that defendant had waived his right to be present. Defendant's
absence was not sufficiently explained to the court, thus, we
conclude that the trial court correctly concluded that he waived
his right to be present. See State v. Stockton, 13 N.C. App. 287,
185 S.E.2d 459 (1971).
For the foregoing reasons, we hold that defendant received a
fair trial free from prejudicial error.
No error.
Judges WALKER and McGEE concur.
Report per Rule 30(e).
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