State v Storer, (02-1012) 04/01/2003

Appeal by defendant from judgments entered 25 April 2002 by Judge Judson D. Deramus, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 24 March 2003.

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

Benjamin D. Porter for defendant-appellant.

ELMORE, Judge.

    Defendant Randi Elaine Storer was charged with driving while impaired, open container after consuming, and driving after consuming alcohol while less than twenty-one years of age. Defendant was convicted of all charges in district court. Thereafter, defendant appealed to the superior court. The State proceeded to trial on the driving while impaired and driving after consuming alcohol while less than twenty-one years of age convictions. The State's evidence tended to show that in the early morning hours of 7 August 2001, Officer Michael K. Allen of the Winston-Salem Police Department was dispatched to a scene of acrash. At the scene, Officer Allen observed the front end of an Isuzu Rodeo SUV vehicle had crashed into the front of a brick and glass building. Defendant, who was sitting on the curb near the driver's side of the vehicle crying, had minor abrasions on her face and a small laceration on the bottom of her right foot. Officer Allen noticed broken glass, including a broken bottle of Heineken beer, on the ground outside the driver's side of the vehicle.
    Inside the SUV, Office Allen discovered a woman's sandal on the driver's side floorboard underneath the brake pedal. The front passenger area of the floorboard contained clothing, a backpack, and an opened bottle and an unopened bottle of Heineken beer. Clothing was also on the passenger seat. The cargo area contained dresser drawers, clothes, a duffel bag and books.
    Officer Allen detected a strong odor of alcohol about defendant and noted that defendant's speech was slow and slurred. Defendant requested that Officer Allen call her father. Upon her father's arrival, defendant attempted to perform some sobriety tests. Defendant could not perform the walk-and-turn and the one- legged-stand test because she was unable to stand without her father's help. Defendant successfully completed the alphabet test. After completing his investigation, Officer Allen arrested defendant and transported her to the Forsyth County Magistrate's Office Intoxilyzer room. Defendant stipulated before trial that her alcohol concentration reading was 0.15.
    Defendant presented evidence as follows. Defendant'sstepmother observed a pink area from her right shoulder across her chest in a diagonal pattern that appeared to be made by a seat belt restraint. Stanley Dove (Mr. Dove) testified that he was standing at a phone booth adjacent to the building when the collision occurred. After the collision, Mr. Dove observed defendant get out of the passenger's side of the vehicle. He also observed a young man get out of the driver's side of the vehicle and walk away from the scene.
    A jury convicted defendant of driving while impaired and driving after consuming alcohol while less than twenty-one years of age. The trial court sentenced defendant to sixty days in the custody of the Forsyth County Sheriff for the driving while impaired conviction, suspended the sentence and placed defendant on twenty-four months probation. The trial court also sentenced defendant to thirty days in the custody of the Forsyth County Sheriff for the driving after consuming alcohol while less than twenty-one years of age conviction, suspended the sentence and placed defendant on twelve months supervised probation. Defendant appeals.
    Defendant first contends the trial court erred by denying her motion to dismiss based on insufficiency of the evidence. Defendant argues the State failed to present sufficient evidence that she was driving a motor vehicle. We disagree.
    The standard for ruling on a motion to dismiss “is whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of theoffense.” State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). Substantial evidence is that relevant evidence which a reasonable mind might accept as adequate to support a conclusion. State v. Patterson, 335 N.C. 437, 449-50, 439 S.E.2d 578, 585 (1994). In ruling on a motion to dismiss, the trial court must consider all of the evidence in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence. State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998). “Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal.” State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996).
    In this case, the State presented evidence that defendant was sitting on the curb on the driver's side of the vehicle, that a pair of women's sandals was found on the driver's side floorboard, that personal possessions filled the passenger side floorboard and passenger seat, and that broken glass was located outside the driver's side of the SUV and the bottom of defendant's foot was cut. In the light most favorable to the State, this evidence is sufficient to submit to the jury the question of whether defendant was driving a motor vehicle. Accordingly, the trial court properly denied defendant's motion to dismiss.
    Defendant contends that the trial court erred in excluding from evidence a statement made by defendant to the investigating officer. On cross-examination, defense counsel asked Officer Allen if defendant had told him that she was not the operator of thevehicle. The trial court sustained the district attorney's objection, and the record indicates that, if allowed to answer, Officer Allen would have testified that defendant indeed told him that she was not the operator of the vehicle. Defendant argues that this statement should have been admitted into evidence because other statements of the defendant which were part of the same verbal transaction were admitted. We disagree.
    A statement is “an oral or written assertion.” N.C.R. Evid. 801(a)(2001). Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” N.C.R. Evid. 801(c) (2001).
    After a careful review of the record, we conclude that the State did not introduce any statement made by the defendant. Thus, contrary to defendant's assertion, the State did not “open the door” by having other statements made by defendant admitted. In addition, the statement here was clearly inadmissible hearsay since it was to be introduced to show defendant did not drive the vehicle. Finally, defendant cannot show prejudice as required by N.C. Gen. Stat. § 15A-1443 (2001). Defendant's witness, Mr. Dove, testified that he saw defendant exit the SUV through the passenger side door and a young man exit out of the driver's side door. Thus, defendant was able to put on direct evidence that she was not the driver of the vehicle. Accordingly, this assignment of error is without merit.
    No error.
    Judges HUNTER and BRYANT concur.
    Report per Rule 30(e).

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