An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-451


Filed: 18 February 2003


v .                         Lenoir County
                            No. 00 CRS 51840

    Appeal by defendant from judgment entered 17 July 2001 by Judge Jerry Braswell in Lenoir County Superior Court. Heard in the Court of Appeals 8 January 2003.

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

    Adrian M. Lapas for defendant-appellant.

    TYSON, Judge

    Christopher Cullen Dawson, ("defendant") appeals from a judgment entered upon a jury verdict finding him guilty of one count of habitual driving while impaired, (“DWI”). We find no prejudicial error.

I. Background
    The State's evidence tended to show that on 1 April 2000 around 8:00 p.m., Detective Edward Eubanks, along with other members of the Lenoir County Sheriff's Department, were conducting surveillance at the Ponderosa Mobile Home Park due to complaints about drug activity at one of the homes. The mobile home under surveillance was located at the end of a quarter-mile long driveway. The deputies observed individuals inside several vehicles pull up to the back door of that home, turn their lightsoff, and remain a couple of minutes before leaving. Detective Eubanks watched this pattern for over an hour, chased a car leaving the home, and eventually retrieved a large amount of controlled substances from the owners of the mobile home under surveillance. Detective Eubanks secured the home while other officers obtained a warrant to search for suspected cocaine inside the home.
    At 11:30 p.m., deputies returned to the mobile home with a warrant and began searching inside the home. Some officers remained outside and watched for other vehicles approaching the home. If a vehicle approached, the officers would alert other officers searching the home, wait until the vehicle entered the property, and interview the driver and passengers in the vehicle.     Defendant's white pickup truck approached while the home was being searched. Defendant drove to the back of the home and turned off his lights. Several deputies and Detective Eubanks approached the driver's door. Eubanks asked defendant to step outside his vehicle.
    As Eubanks approached defendant, he detected the odor of alcohol on defendant. Defendant's eyes were glassy, and his clothes were loosened and soiled. Defendant gave the officers permission to search his person and his vehicle. Eubanks interviewed defendant and concluded that defendant was impaired. Eubanks requested that a Highway Patrol unit be dispatched to the mobile home park.
    Trooper Ronald Alphin of the North Carolina Highway Patrol arrived on the scene ten to fifteen minutes later. Alphin talkedwith defendant and immediately noticed the odor of alcohol on defendant's breath. Alphin knew defendant from high school and asked defendant whether he had consumed alcohol. Defendant answered affirmatively and stated that he had drunk two to three beers at 4:30 p.m. Defendant informed Alphin that he had recently been injured after a concrete wire had struck his eye, and that he was suffering from a sinus infection. Alphin asked defendant to sit on the passenger seat of his patrol vehicle and continued their conversation. Based upon his observations and information obtained, Alphin arrested defendant for DWI.
    Alphin took defendant to the Intoxilyzer room just after 1:00 a.m. on 2 April 2000. Alphin called in a request for a certified Intoxilyzer operator to meet him at the Intoxilyzer room. Alphin asked defendant to perform the one-legged stand psycho-physical test. Defendant started the test before he was instructed to do so, sped up the count, and put his leg down before completing the test.
    Trooper Michael Turner, a certified chemical analyst, arrived at the Intoxilyzer room. Turner read defendant his Intoxilyzer rights and defendant signed the Intoxilyzer acknowledgment form. After the observation period expired, Alphin asked defendant to submit a breath sample which required seven to eight seconds of steady blowing. Defendant was given three minutes to provide a sample, but he never blew long enough for the unit to register a reading. After several attempts, Turner marked the test a “refusal.”     Defendant did not testify on his own behalf at trial, but offered the testimony of his girlfriend, Anita Davis, who testified that she was present with defendant on 1 April 2000 from the time she picked him up from work around 6:30 p.m. until approximately 10:30 p.m. Ms. Davis testified that defendant did not consume any alcoholic beverage during that time period. Ms. Davis testified that she did not believe defendant was impaired when he left her house around 10:30 p.m.
    The jury found defendant guilty of driving while impaired. The court sentenced defendant as a prior record level 3 felon for the felony of habitual impaired driving, within the presumptive range for an active term of eighteen to twenty-two months.
II. Issues
    The issues are: (1) whether the State presented sufficient evidence that defendant's faculties were “appreciably impaired” as a result of consuming alcoholic beverages; (2) whether the trial court committed plain error that prejudiced defendant by allowing Detective Eubanks to testify about the search of the mobile home; and (3) whether the trial court erred in assigning one prior record level point when defendant had not been previously convicted of habitual driving while impaired.
III. Sufficiency of the Evidence
    Defendant asserts that the trial court erred in denying his motion to dismiss for insufficient evidence that defendant's faculties were “appreciably impaired” as a result of alcohol consumption. Our standard of review for a denial of a motion todismiss is whether there is sufficient evidence for a jury to reasonably infer guilt when such evidence is viewed in the light most favorable to the State. State v. Phillips, 127 N.C. App. 391, 393, 489 S.E.2d 890, 892 (1997).
    A conviction for habitual impaired driving, N.C.G.S. § 20- 138.5 (2001), requires evidence that defendant either drove a vehicle “[w]hile under the influence of an impairing substance; or ... [a]fter having consumed sufficient alcohol that he ha[d], at any relevant time after the driving, an alcohol concentration of 0.08 or more” as stated in N.C.G.S. § 20-138.1 (2001), and three convictions of “offenses involving impaired driving as defined in G.S. 20-4.01 (24a) within seven years of the date of this offense.” N.C.G.S. § 20-138.5 (2001). Defendant's alcohol level was not measured by an Intoxilyzer because he failed to provide an adequate breath sample for the Intoxilyzer to measure the alcohol concentration. Defendant's inadequate breath sample was marked as a “refusal” to submit to the Intoxilyzer. This Court previously held that a defendant's failure to follow instructions of a breathalyzer operator is an adequate basis for the trial court to conclude the refusal was willful. Tedder v. Hodges, 119 N.C. App. 169, 175, 457 S.E.2d 881, 885 (1995)(citation omitted). Defendant's refusal to submit to an Intoxilyzer test, whether willful or not, is admissible as substantive evidence of guilt. State v. Pyatt, 125 N.C. App. 147, 150-51, 479 S.E.2d 218, 220 (1997).
    In addition to the refusal, Eubanks and Alphin observeddefendant and testified that in their opinion, defendant was appreciably impaired. Their conclusions were based upon defendant's appearance and demeanor, including his glassy eyes, breath odor, and physical instability. Eubanks had been a certified chemical analyst and was accustomed to recognizing signs of impairment. Alphin had defendant perform the one-leg stand test, and noticed that defendant began the test early, sped up the count, and dropped his leg early. Alphin also observed the other indicia of impairment that Eubanks did.
    Defendant cites several cases to support his contention. Some uphold the sufficiency of evidence, while others do not. In comparing the facts of each, defendant contends that the evidence at bar is not sufficient to withstand a motion to dismiss. We disagree. Defendant's refusal to submit to the Intoxilyzer, whether willful or not, was properly admitted into evidence. We hold that this evidence, together with the observations and tests by the officers as well as defendant's statement to Alphin that he had consumed alcohol that afternoon, is sufficient evidence for a jury to conclude that defendant was appreciably impaired at the time he drove his motor vehicle. This assignment of error is overruled.
IV. Detective Eubanks' Testimony
    Defendant assigns plain error to the trial court's admission of Detective Eubanks' testimony concerning the events of drug activity leading up to the search of the mobile home. Specifically, defendant argues error as to Eubanks' testimony (1)that Eubanks was executing a search warrant at the home when defendant came upon the scene, (2) that Eubanks told defendant he thought he knew why defendant had come to the home being searched, and (3) that defendant's vehicle approached like the other vehicles which approached the home. Defendant argues that this evidence was irrelevant and highly prejudicial. We disagree.
    “'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.C. R. Evid. 401 (2001). It is not necessary for testimonial evidence to bear directly on the issue if it is helpful for the trier of fact to understand the conduct of the parties, their motives, or “if it reasonably allows the jury to draw an inference as to a disputed fact.” State v. Arnold, 284 N.C. 41, 47-48, 199 S.E.2d 423, 427 (1973) (citations omitted).
    Relevant evidence is subject to the N.C. Rule of Evidence 403 balancing test. “[E]vidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” N.C. R. Evid. 403 (2001).
The trial court did not find the probative value to substantially outweigh any prejudice. Defendant failed to object to the admission of this evidence at trial. We review the evidence for plain error.    Our scope of review of plain error is whether
        the claimed error is a “fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,” or “where [the error] is grave error which amounts to a denial of a fundamental right of the accused,” or the error has “[]resulted in a miscarriage of justice or in the denial to appellant of a fair trial[]” or where the error is such as to “seriously affect the fairness, integrity or public reputation of judicial proceedings” or where it can be fairly said “the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.”

State v. Black, 308 N.C. 736, 740-41, 303 S.E.2d 804, 806-07 (1983) (quoting United States v. McCaskill, 676 F. 2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982) (quotations omitted)).
    The date, time, place, circumstances, and events leading up to the officers' observations of defendant until his arrest are relevant and admissible. Our Supreme Court has upheld the admission of evidence providing a link “in the story of the crime . . . .” State v. Agee, 326 N.C. 542, 548, 391 S.E.2d 171, 174-75 (1990) (quoting United States v. Williford, 764 F.2d 1493, 1499 (11th Cir. 1985)).
        “Evidence, not part of the crime charged but pertaining to the chain of events explaining the context, motive and set-up of the crime, is properly admitted if linked in time and circumstances with the charged crime, or [if it] forms an integral and natural part of an account of the crime, or is necessary to complete the story of the crime for the jury.”

Id. “Evidence of another offense or prior bad act 'is admissible so long as it is relevant to show any [other] fact or issue otherthan the character of the accused.'” State v. Ratliff, 341 N.C. 610, 618, 461 S.E.2d 325, 329-30 (1995) (quoting State v. Weaver, 318 N.C. 400, 403, 348 S.E.2d 791, 793 (1986)).
    Detective Eubanks' testimony explained the date, time, place, and setting of the arrest as well as the circumstances which drew his attention to the defendant. The testimony was helpful and relevant to show the jury the chain of events at the time of the offense. The trial court did not commit error, plain or otherwise, in admitting Detective Eubanks' testimony. This assignment of error is overruled.
V. Assignment of Prior Record Level
    Defendant contends that the trial court erred in assigning defendant a prior record level point under N.C.G.S. § 15A- 1340.14(b)(6) where defendant had not been previously convicted of habitual impaired driving. The commission of the habitual impaired driving offense requires a person (1) drive while impaired as defined in N.C.G.S. § 20-138.1 and (2) be convicted of three or more offenses involving impaired driving as defined in N.C.G.S. § 20-4.01(24a) within seven years of the date of this offense. N.C.G.S. § 20-138.5 (2001). N.C.G.S. § 15A-1340.14(b)(6) provides that “[i]f all the elements of the present offense are included in any prior offense for which the offender was convicted, whether or not the prior offense or offenses were used in determining prior record level, 1 point[]” is to be assigned.
    We agree with defendant that no points should have been assigned under N.C.G.S. § 15A-1340.14(b)(6). The offense ofhabitual impaired driving carries an additional element other than the offense of impaired driving. Compare N.C.G.S. § 20-138.5, N.C.G.S. § 20-138.1.
    The applicable standard of review “[w]hen a defendant assigns error to the sentence imposed by the trial court ... is 'whether [the] sentence is supported by evidence introduced at the trial and sentencing hearing.'” State v. Deese, 127 N.C. App. 536, 540, 491 S.E.2d 682, 685 (1997) (quoting N.C.G.S. § 15A-1444(a1) (Cum. Supp. 1996)). The sentencing worksheet at bar is incorrect in assigning one point under N.C.G.S. § 15A-1340.14(b)(6). However, this error is harmless. Defendant stipulated to having a prior record level III at trial after the State produced evidence that defendant was on probation at the time of the convicted offense. N.C.G.S. § 15A- 1340.14(b)(7) (2001) states, “[i]f the offense was committed while the offender was on supervised or unsupervised probation, parole, or post-release supervision, or while . . . serving a sentence of imprisonment, or while . . . on escape from a correctional institution while serving a sentence of imprisonment, 1 point.” This evidence supports the prior record level determination made by the trial court. Error in the sentencing worksheet was harmless and did not affect the validity of the trial court's judgment.
VI. Conclusion
    We find no error in defendant's trial. We hold that any error contained in defendant's sentencing worksheet was harmless, and affirm the defendant's sentence, contained in the trial court's judgment.    No prejudicial error.
    Judges TIMMONS-GOODSON and LEVINSON concur.
    Report per Rule 30(e).

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