STATE OF NORTH CAROLINA
v. Wake County
No. 99 CRS 85270, 97205
CHARLES EDWARD MALLOY
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Defendant also pled guilty to driving while his license was
revoked.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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