An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1016


Filed: 18 March 2003


         v.                        Northampton County
                                No. 00CRS 694-95

    Appeal by defendant from judgments entered 2 May 2002 by Judge J. Richard Parker in Northampton County Superior Court. Heard in the Court of Appeals 3 March 2003.

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

    Peter Wood for defendant-appellant.

    HUNTER, Judge.

    Following convictions in district court, Timothy Lawrence Brooks (“defendant”) was tried de novo in superior court and was found guilty of driving while impaired and of driving while license revoked. He was sentenced to a minimum of ten months and a maximum of twelve months for the conviction of driving while impaired. He was sentenced to a consecutive term of 120 days for the conviction of driving while license revoked. Defendant appealed. We find no error.
    The evidence tends to show that at approximately 7:25 a.m. on 26 March 2000, Trooper J.W. Crissman of the North Carolina Highway Patrol arrived at the scene of a one-vehicle accident on State Highway 1204 near Pleasant Hill, North Carolina, to find a vehicleflipped on its side, with its driver's side facing the sky. Rescue personnel were using special equipment to pry open the passenger compartment of the vehicle so they could extricate the sole occupant, defendant, from the vehicle. Defendant had a strong odor of alcohol on his breath. Defendant's eyes were bloodshot and glassy, and his speech was slurred. Defendant told rescue personnel that he had been drinking and consuming cocaine that evening.
    Defendant denied that he had been operating the vehicle. He also refused to submit to a blood alcohol test. At the time of the accident, defendant's operator's license had been permanently revoked. The wrecked vehicle belonged to defendant's wife.
    By his first two assignments of error, defendant contends the court erred by denying his motions to dismiss the charges for insufficient evidence. He argues the State failed to present sufficient evidence to establish that (1) he was operating the vehicle, and (2) he was impaired by an intoxicating substance.
    In ruling upon a motion to dismiss, the court must consider all of the evidence in the light most favorable to the prosecution, giving it the benefit of every reasonable inference that may be drawn. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980). The court must decide whether substantial evidence has been presented to establish every element of the charged offense and to identify the defendant as a perpetrator. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982).
        Where there is no direct evidence as to the essential fact involved in the issue to bepassed upon by the jury, such fact may nevertheless be inferred by the jury from facts and circumstances which they may find from the evidence. Where such inference may be reasonably drawn by the jury, and is altogether consistent with the facts and circumstances which the jury may find from the evidence, the evidence should be submitted to them; where the inference cannot be thus reasonably drawn, it should be withdrawn from the jury.

State v. Weston, 197 N.C. 25, 28-29, 147 S.E. 618, 620 (1929). If a reasonable inference of the defendant's guilt may be deduced from the evidence, then the court must deny the motion to dismiss and submit the case to the jury even though the evidence may also support inferences of innocence. State v. Alexander, 337 N.C. 182, 187, 446 S.E.2d 83, 86 (1994).
    We conclude a reasonable inference may be drawn from the evidence that defendant was operating the vehicle at the time of the accident. Defendant was the only occupant of the wrecked vehicle, which was flipped over and resting on its passenger's side. Rescue personnel were unable to open the doors of the vehicle, and the windows of the vehicle were all intact and in a raised position. A trail of blood extended from the driver's seat to where defendant was located in the vehicle. A burn mark, consistent with a seat belt burn, was found extending from defendant's left shoulder across his chest to his right hip.
    We also conclude a reasonable inference may be drawn that defendant was impaired by an intoxicating substance. “The fact that a motorist has been drinking, when considered in connection with faulty driving such as following an irregular course on thehighway or other conduct indicating an impairment of physical or mental faculties, is sufficient prima facie to show a violation of G.S. 20-138.” State v. Hewitt, 263 N.C. 759, 764, 140 S.E.2d 241, 244 (1965). Whether the charging statute is the former N.C. Gen. Stat. § 20-138, driving under the influence, or N.C. Gen. Stat. § 20-138.1, driving while impaired, the offense is basically the same: operating a vehicle after consuming a quantity of an alcoholic beverage or impairing substance sufficient to cause appreciable or cognizable impairment of a person's bodily or mental faculties. See State v. Harrington, 78 N.C. App. 39, 45, 336 S.E.2d 852, 855 (1985). Defendant acknowledged to rescue personnel that he had been drinking and using cocaine, and Trooper Crissman observed physical and objective manifestations of alcohol consumption and impairment, such as the odor of alcohol on defendant's breath, bloodshot eyes, and slurred speech. The physical evidence at the scene of the accident showed the vehicle followed an irregular course.
    By his remaining assignment of error, defendant contends the court erred in sentencing him to a minimum and maximum term of imprisonment on the ground the Structured Sentencing Act does not apply to impaired driving offenses. He argues he should not have received a sentence with a minimum and maximum component, but rather should have received one definite term of imprisonment. This contention is without merit. The statute which governs sentencing of persons convicted of driving while impaired, N.C. Gen. Stat. § 20-179 (2001), expressly provides for the impositionof a minimum and a maximum term of imprisonment. See, e.g., N.C. Gen. Stat. § 20-179(h) (“[a] defendant subject to Level Two punishment may be fined up to two thousand dollars ($2,000) and shall be sentenced to a term of imprisonment that includes a minimum term of not less than seven days and a maximum term of not more than 12 months”).
    No error.
    Judges BRYANT and ELMORE concur.
    Report per Rule 30(e).

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