A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).

NO. COA01-1499

NORTH CAROLINA COURT OF APPEALS

Filed: 16 July 2002

STATE OF NORTH CAROLINA

         v.                        Wake County
                                No. 99 CRS 85270, 97205
CHARLES EDWARD MALLOY

    Appeal by defendant from judgment entered 11 September 2001 by Judge J.B. Allen, Jr., in Wake County Superior Court. Heard in the Court of Appeals 1 July 2002.

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

    William B. Gibson, for defendant-appellant.

    BRYANT, Judge.

    Defendant was charged by indictment with driving while impaired, habitual driving while impaired, and driving while license revoked. He was also charged with attaining the status of habitual felon.
    The State presented evidence tending to show that at approximately 10:00 p.m. on 19 November 1999, Officer H.G. Kellar of the Raleigh Police Department witnessed a vehicle headed south on Haywood Street jump the curb, strike a sign, and collide with the porch of an apartment building. Officer Kellar stopped his vehicle immediately and called for emergency medical assistance. Officer Kellar saw defendant walk from the wrecked vehicle and head north. Officer Kellar stopped defendant and detected “an extremeodor of alcohol” on defendant's person. Officer Kellar did not see any passengers in the wrecked vehicle, which still had its engine running, or anyone standing around the vehicle. Officer Kellar noted that defendant was bleeding from cuts and abrasions and his arm was apparently broken. While waiting for emergency medical assistance to arrive, Officer Kellar observed that defendant's speech was slurred and his attitude was “insulting and cocky.” Defendant refused to submit to any tests for impairment or receive medical treatment. In Officer Kellar's opinion, defendant was appreciably impaired by an impairing substance, namely, alcohol.
    James Fishel, an identification technician and certified chemical analyst, testified that defendant refused to sign the form advising defendant of his rights and refused to submit to a breath test at 11:48 p.m. on that evening. Fishel observed that defendant had bloodshot eyes and the strong odor of alcohol on his breath. In his opinion, defendant was highly intoxicated.
    Defendant did not present any evidence.
    The jury found defendant guilty of driving while impaired. Defendant stipulated prior to trial that prior to 19 November 1999, he had been convicted of three impaired driving offenses within the previous seven years. Defendant pled guilty to habitual felon status after the jury found him guilty of driving while impaired. Defendant also pled guilty to driving while his license was revoked. The court sentenced defendant to an active term of 120 days for driving while his license was revoked. The court sentenced defendant as a habitual felon and habitual driver whileimpaired to a minimum term of 121 months and a maximum term of 155 months.
    As his first assignment of error, defendant contends that the court erred by denying this motion to dismiss at the close of all the evidence. He argues the State failed to present sufficient evidence to show that defendant was the driver of the vehicle and that defendant was impaired.
    Upon a motion to dismiss, the court must determine whether there is substantial evidence (1) of each essential element of the charged offense and (2) of perpetration of the offense by the defendant. State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). The evidence must be viewed in the light most favorable to the State, giving it the benefit of every reasonable inference that may be drawn from the evidence. State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992). Contradictions and discrepancies in the evidence are to be disregarded and left for resolution by the jury. State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 653 (1982). The test is the same whether the evidence is direct, circumstantial, or both. State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 388 (1984). Circumstantial evidence is sufficient to withstand a motion to dismiss and support a conviction as long as a reasonable inference of the defendant's guilt may be inferred from the circumstances. State v. Stone, 323 N.C. 447, 452, 373 S.E.2d 430, 433 (1988).
    Here, Officer Kellar observed defendant walk away from a vehicle that Officer Kellar had just moments earlier witnessedcrash into an apartment building. Officer Kellar did not find any passengers inside the wrecked vehicle or see anyone else leave the vehicle. Defendant had fresh cuts and abrasions on his person. From these circumstances, a reasonable inference may be drawn that defendant was driving the vehicle.
    The odor of alcohol on the breath of a vehicle operator is some evidence that the operator has been drinking. Atkins v. Moye, 277 N.C. 179, 185, 176 S.E.2d 789, 793 (1970). Evidence that a driver has been drinking, coupled with evidence of faulty driving, is sufficient evidence to take a charge of driving while impaired to the jury and to defeat a motion to dismiss. State v. Hewitt, 263 N.C. 759, 764, 140 S.E.2d 241, 244 (1965).
    In this case, both law enforcement officers detected the strong odor of alcohol about defendant. Defendant exhibited slurred speech, bloodshot eyes, and an uncooperative and belligerent attitude. This evidence, combined with evidence that defendant failed to keep the vehicle under control and on the roadway, is sufficient to support a conclusion that defendant was impaired by an intoxicating substance, alcohol.
    We hold the court properly denied defendant's motion to dismiss. This assignment of error is overruled.
    As his final assignment of error, defendant contends that the court erred by accepting the jury's verdict on the ground that it could not have been the product of adequate deliberation because the jury only deliberated four minutes before returning to the courtroom with its verdict. More than thirty days after filinghis brief and after the State filed its appellee's brief, defendant filed a motion to amend the record on appeal to amend this assignment of error to state that the court committed plain error. Considering the untimeliness of the motion, we deny it.
    Even if we reviewed the assignment of error for plain error, we hold the court did not commit error in accepting the verdict. A jury is not required to deliberate for an established minimum amount of time. United States v. Brotherton, 427 F.2d 1286, 1289 (8th Cir. 1970). For example, if the duration of trial is short, the evidence is clear, or the issue to be decided is simple, deliberations of brief duration are acceptable. Id. Here, only two witnesses testified. The evidence presented by the State was clear, unambiguous, and overwhelming. Defendant did not present any evidence to contradict the State's showing. Under these circumstances, the brevity of the jury's deliberative process is not unreasonable.
    No error.
    Judges MARTIN and HUNTER concur.
    Report per Rule 30(e).

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