State v Alexander, 151 NC App 598 (01-1002) 07/16/2002

Appeal by defendant from judgments entered 16 July 1998 by Judge Michael E. Beale in Alexander County Superior Court. Heard in the Court of Appeals 16 May 2002.

Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Isaac T. Avery, III, and Assistant Attorney General Patricia A. Duffy, for the State.

C. Gary Triggs, P.A., by C. Gary Triggs, for defendant- appellant.

    MARTIN, Judge.

    Defendant was tried upon his pleas of not guilty to charges of driving while impaired (DWI) in violation of G.S. § 20-138.1; displaying or representing as his own a license not issued to him in violation of G.S. § 20-30(3); and resisting, delaying, or obstructing a public officer in discharging his duty in violation of G.S. § 14-223. A jury found him guilty of all charges. For the DWI conviction, defendant was sentenced to a term of 120 days which was suspended on condition that he be placed on special probation, serve an active term of 48 hours, and pay a fine and costs totaling $437. As to the remaining convictions, defendant was sentenced toa term of 45 days, which was suspended on condition that he complete 50 hours of community service and pay a fine and costs totaling $522. Defendant appeals.
    The evidence tended to show the following: At approximately 1:00 a.m. on 29 June 1997, Sergeant A.M. Paterno of the North Carolina Highway Patrol was traveling westbound on N.C. 90 from Iredell County to Taylorsville in Alexander County. As Sergeant Paterno approached the Alexander County line, he observed a white van directly in front of him, also traveling westbound. The van, with its right turn signal flashing, almost came to a complete stop before making its right turn, which he considered unusual since there was no other traffic around. After turning right onto Calhoun Road, the van crossed some railroad tracks and then immediately turned left onto Ruritan Road, with the right turn signal still flashing. Sergeant Paterno continued traveling west on N.C. 90 while defendant continued traveling west on Ruritan Road which parallels N.C. 90, with the railroad tracks separating the two roads. Sergeant Paterno drove alongside the van and noticed that defendant's van was traveling at only 10 to 15 m.p.h. in a 35 m.p.h. zone. After driving passed the van, Sergeant Paterno observed in his rear-view mirror that the van's right turn signal was still flashing. Sergeant Paterno testified that he then observed the van make a left turn, without stopping at a stop sign, and re-cross the railroad tracks so that the van was then traveling west on N.C. 90 behind Sergeant Paterno.
    Sergeant Paterno decided to stop the driver of the van becauseof his unusual driving patterns. At the next intersection, the van made a right turn back across the railroad tracks and then turned back left onto Ruritan Road. Sergeant Paterno turned his marked patrol car around and eventually drove behind defendant on Ruritan Road. Sergeant Paterno noticed that the van was still traveling 10 to 15 m.p.h. and was weaving some but did not cross the center line. Sergeant Paterno activated his blue lights but the van failed to pull over and stop so Sergeant Paterno activated his siren. The van still gave no indication that it was going to stop. As the van approached a sharp curve, it crossed the center line about three to four feet and then all the van's headlights and taillights went out. The van continued a short distance and then turned into a parking lot. The van made a wide turn to the back of the parking lot and parked close to the building. Sergeant Paterno parked his patrol car directly behind the van and observed a white male occupant in the driver's seat. As Sergeant Paterno exited his vehicle, he observed defendant exit the van and stumble, causing Sergeant Paterno to believe that defendant was going to run from the scene. Sergeant Paterno then ordered defendant to put his hands on the van. Defendant complied with the instructions by assuming a spread eagle position. Sergeant Paterno patted defendant down and while doing so he detected a strong odor of alcohol. He also noticed that defendant's eyes were red and watery and that defendant was breathing heavily.
    Sergeant Paterno asked defendant for his driver's license and registration. Defendant presented a driver's license that bore thename Harold Dean Alexander. Sergeant Paterno asked defendant if he was Harold Dean Alexander. Defendant responded, “That's what it says on the license there, can't you read[?]” Sergeant Paterno acknowledged on cross-examination that when defendant opened his billfold to produce identification, he thought he saw what could possibly have been two sets of licenses. Sergeant Paterno arrested defendant for DWI and placed him in the patrol car. Sergeant Paterno described defendant as being extremely arrogant and disrespectful but stated that defendant did not offer any resistance. After handcuffing defendant, Sergeant Paterno searched defendant's van but failed to find any impairing substance. Defendant then signed a consent form permitting the van to remain parked in the private parking lot.
    Sergeant Paterno transported defendant to the Alexander County Jail in order to administer an intoxilyzer test. According to Sergeant Paterno, while being transported to the jail, defendant was “voicy” but periodically “passed out.” At the jail, Sergeant Paterno, a certified chemical analyst, read defendant his intoxilyzer rights. Thereafter, defendant refused to sign the acknowledgment that he had been read his rights and refused to submit to the intoxilyzer test.
    While Sergeant Paterno and defendant were in the intoxilyzer room, another highway patrol trooper informed Sergeant Paterno that defendant had an identical twin who was present at the jail. Sergeant Paterno took defendant, who was still handcuffed, to the magistrate for his probable cause hearing, introducing him as HaroldDean Alexander. While defendant was being processed, defendant's identical twin asked Sergeant Paterno several times to remove the handcuffs from his brother.
    Because of defendant's refusal to take the intoxilyzer test, a DMV hearing was held on 18 October 1997. Sergeant Paterno testified at trial that during the DMV hearing, defendant testified that his name was Carroll Gene Alexander. Sergeant Paterno testified that he had learned to distinguish defendant from his twin brother by a mole on defendant's forehead.
    Defendant presented several witnesses to testify on his behalf including Normand Beliveau, owner of “My Place,” a beer establishment in Alexander County. Beliveau testified that the Alexander twins (Harold and Carroll) were in his bar from around 9:00 p.m. until approximately 1:08 a.m. on the night defendant was arrested. According to Beliveau, Carroll Alexander, and not Harold, had been drinking beer in his bar on the night in question. Beliveau further testified that he went out to the twins' van as they were leaving and at that point, Harold was driving while Carroll was sitting in the passenger seat. Beliveau also stated that the twins had a habit of only carrying one billfold for the two of them. Beliveau testified that he went to the police station soon after he had heard from Harold that defendant had been arrested for DWI. According to Beliveau, he told Sergeant Paterno twice that he had arrested the wrong man but was told to be quiet or he would be arrested. Sergeant Paterno testified that he did not recall a conversation with Beliveau. Brandon Sherrill, who has known theAlexander twins for years, corroborated Beliveau's testimony that the twins only carry one wallet and that Harold was driving when the twins left the bar. Wayne Campbell also testified that he saw the twins leave the bar with Harold driving on 29 June 1997.

    Defendant first contends the trial court erred when it allowed Sergeant Paterno to testify on direct examination as to his opinion that he thought defendant was going to flee the scene, that he would have seen anyone else besides defendant exiting the van, and that defendant periodically “passed out” while being transported to the jail. Defendant asserts that this testimony violated G.S. § 8C-1, Rule 602 since Sergeant Paterno was not testifying from personal knowledge.
    Rule 602 provides:
            A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself.

N.C. Gen. Stat. § 8C-1, Rule 602 (2001). The Commentary to Rule 602 further provides that “. . . personal knowledge is not an absolute but may consist of what the witness thinks he knows from personal perception.” None of Sergeant Paterno's testimony about which defendant complains violates Rule 602. Sergeant Paterno observed defendant stumbling as he got out of the van and was, therefore, entitled to testify as to what he thought defendant was about to do. Additionally, the trial court did not err in allowing Sergeant Paterno to testify that in his opinion he would have seen someoneelse exiting the van because he testified that he had anticipated the possibility of there being more than one person in the van and was on the look-out for such other person. Finally, the trial court properly allowed Sergeant Paterno to testify that defendant periodically “passed out” on the way to the jail since Sergeant Paterno observed defendant falling asleep in the midst of conversation, due to what the officer perceived as defendant's intoxicated condition. These assignments of error are overruled.

    Defendant next argues that the trial court erroneously admitted written notes which Sergeant Paterno had made shortly after defendant's arrest, because the notes included a statement made by defendant that “Timothy McVeigh was his hero.” The jury was instructed that the notes were only to be considered as corroborative, and not as substantive, evidence. Defendant asserts that Sergeant Paterno's notes should have been excluded as unduly prejudicial under G.S. § 8C-1, Rule 403. We disagree.
    G.S. § 8C-1, Rule 403 states that “[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . .” Whether to exclude evidence on this ground is left to the sound discretion of the trial court. State v. Mickey, 347 N.C. 508, 495 S.E.2d 669, cert. denied, 525 U.S. 853, 142 L. Ed. 2d 106 (1998). “A trial court may be reversed for abuse of discretion only upon a showing that its ruling was manifestly unsupported by reason and could not have been the result of a reasoned decision.” State v. Riddick, 315N.C. 749, 756, 340 S.E.2d 55, 59 (1986).
    During trial, defense counsel requested that Sergeant Paterno retrieve his notes that he had used to refresh his recollection and bring them to court. Defense counsel then examined Sergeant Paterno on the contents of the notes and read aloud various portions of the notes. On redirect, the State had Sergeant Paterno read all of his notes into evidence pursuant to G.S. § 8C-1, Rule 106. Since the information in the notes had already been published to the jury, admitting the notes into evidence could not have prejudiced defendant. Defendant's assignment of error is overruled.

    Defendant next argues that the trial court erred in denying his motions to dismiss at the close of the State's evidence and at the close of all the evidence. Because defendant offered evidence, he effectively waived his motion to dismiss at the close of the State's evidence. State v. Leonard, 300 N.C. 223, 266 S.E.2d 631, cert. denied, 449 U.S. 960, 66 L. Ed. 2d 227 (1980). Therefore, we direct our attention to defendant's motion to dismiss made at the close of all the evidence.
    When ruling on a motion to dismiss based on the 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. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith,300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). In determining the sufficiency of the evidence, the evidence must be considered in the light most favorable to the State and the State is entitled to every reasonable inference that may be drawn therefrom. Id. “Contradictions and discrepancies are for the jury to resolve and do not warrant dismissal.” Id.
    Defendant contends that the State failed to present substantial evidence of his guilt of resisting, delaying, or obstructing a public officer since there was no evidence that Sergeant Paterno was actually delayed or obstructed in discharging his duties. G.S. § 14-223 makes it unlawful for any person to “. . . willfully and unlawfully resist, delay or obstruct a public officer in discharging or attempting to discharge a duty of his office . . . .” Neither actual physical assault nor force is necessary to constitute a violation of this statute. State v. Burton, 108 N.C. App. 219, 423 S.E.2d 484 (1992), disc. review denied, 333 N.C. 576, 429 S.E.2d 574 (1993). Further, it is unnecessary for the State to prove that defendant's conduct permanently prevented the officer from discharging his duties. Id. The State must only show that
        “the officer was obstructed or interfered with, and that such obstruction or interference was willful on the part of the defendant. . . . To 'interfere' is to check or hamper the action of the officer, or to do something which hinders or prevents or tends to prevent the performance of his legal duty; and to 'obstruct' signifies direct or indirect opposition or resistance to the lawful discharge of his official duty.”

State v. Leigh, 278 N.C. 243, 248, 179 S.E.2d 708, 711 (1971) (quoting State v. Estes, 185 N.C. 752, 117 S.E. 581 (1923)).    In the present case, Sergeant Paterno was investigating what he suspected was an impaired driving offense and was, therefore, unquestionably performing an official duty of a law enforcement officer. Defendant produced his twin brother's driver's license to Sergeant Paterno. Sergeant Paterno did not become aware of this until he attended the DMV hearing on defendant's license revocation. At that point, the hearing had to be continued so that all the paperwork could be straightened out charging defendant under the correct name. Thus, we conclude that defendant's use of his twin brother's identity had the effect of delaying and obstructing the administration of the motor vehicle laws. Therefore, we find that the State presented substantial evidence on the charge of resisting, delaying, or obstructing a public officer in discharging his duties.
    We now turn to the charge of violating G.S. § 20-30(3) which makes it unlawful “[t]o display or to represent as one's own a license or learner's permit not issued to the person so displaying same.” Defendant asserts that convicting him of both offenses (displaying as his own a license not issued to him and resisting, delaying, or obstructing a public officer) violates the prohibition of double jeopardy.
    This Court has stated, “[w]hen the same act or transaction constitutes a violation of two criminal statutes, the test to determine whether there are two separate offenses is whether each statute requires proof of a fact which the other does not.” State v. Haynesworth, 146 N.C. App. 523, 530-31, 553 S.E.2d 103, 109 (2001) (citing Blockburger v. United States, 284 U.S. 299, 76 L. Ed.306 (1932). Each of the offenses in question in the instant case requires proof of specific and distinct elements not required to be proved for conviction of the other. Therefore, we hold that defendant's punishment for both does not violate double jeopardy principles.
    Defendant also argues that the State failed to present substantial evidence of defendant's impairment to support the DWI charge. We again disagree.
    G.S. § 20-138.1 provides the following:
        (a) 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; or
            (2) After having consumed sufficient
alcohol that he has, at any relevant
time after the driving, an alcohol
concentration of 0.08 or more.
In order to convict a defendant under G.S. § 20-138.1(a)(1), “the State must prove beyond a reasonable doubt that defendant had ingested a sufficient quantity of an impairing substance to cause his faculties to be appreciably impaired[,]” meaning that defendant's impairment can be recognized and estimated. State v. Phillips, 127 N.C. App. 391, 393, 489 S.E.2d 890, 891 (1997).
    Sergeant Paterno testified that he observed defendant driving slowly, repeating a pattern of travel for no apparent reason, failing to stop at a stop sign, and weaving over the center line. Sergeant Paterno further testified that defendant stumbled when he exited his vehicle, had a strong odor of alcohol about his person, was verbally belligerent, “passed out” while being transported tothe jail, had bloodshot eyes, and refused to submit to the intoxilyzer test. We hold that the State presented substantial evidence that defendant's mental or physical faculties were appreciably impaired.
    Defendant also argues there was insufficient evidence that he was the driver of the van. Defendant emphasizes the testimony of three different witnesses who stated that when they observed the Alexander twins leaving the bar shortly before the arrest, defendant (Carroll) was sitting in the passenger seat while his twin brother (Harold) was driving. However, Sergeant Paterno testified that defendant was driving at the time he pulled the van over and that he did not see anyone else exit the vehicle even though he was anticipating such a possibility. Thus, when the evidence is viewed in the light most favorable to the State, the trial court did not err in denying defendant's motion to dismiss the DWI charge.