STATE OF NORTH CAROLINA
v. Buncombe Cou
nty
No. 01CRS054140
STUART WELDON GRIFFITH
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General Isaac T. Avery, III and Assistant Attorney
General Patricia A. Duffy, for the State.
Allen W. Boyer for defendant-appellant.
HUNTER, Judge.
Stuart Weldon Griffith (“defendant”) was charged with driving
while impaired (“DWI”), habitual driving while impaired, and
driving while license revoked. A jury found defendant guilty of
DWI and driving while license revoked. The trial court sentenced
defendant to twenty-four months imprisonment for the DWI
conviction, suspended the sentence and placed defendant on thirty-
six months supervised probation on the condition of serving a six-
month active term. For the driving while license revoked
conviction, the trial court sentenced defendant to an active term
of 120 days to run concurrently with the sentence imposed on the
DWI conviction. Defendant appeals. We find no error. The State's evidence tended to show that at approximately
12:26 a.m. on 1 April 2001, Officer Mack Creson (“Officer Creson”)
of the Asheville Police Department was driving his patrol vehicle
on Holland Street when he observed a 1999 Ford four-door, with its
lights on and motor running, stopped in the middle of the street.
Officer Creson saw defendant, with whom he was “on a first name
basis,” exit the driver's side, “look[] at me and [take] off
running into his home.” Officer Creson approached the vehicle and
found a female asleep in the front passenger's seat, the driver's
side door open, and the driver's seat “all the way back.”
About five to ten minutes later, defendant came out of the
house, stumbling toward Officer Creson. Officer Creson detected a
strong odor of alcohol about defendant and noted that defendant's
speech was “very” slurred. When defendant asked what was going on,
Office Creson replied, “'[y]ou know exactly what's going on,
because I saw you get out of the vehicle, and you ran from me. And
so I need to get you to do some field sobriety tests.'” Defendant
said he did not know what was going on because he had been asleep.
Defendant attempted to perform the finger-to-nose test, but
missed his nose with both fingers. When defendant attempted to
perform the heel-to-toe test, he stepped off the line and said, “'I
can't do this. I'm not going to. My license are revoked. . . .'”
After completing his investigation, Officer Creson arrested
defendant and transported him to the Buncombe County Jail where
defendant refused to take the intoxilyzer test. Defendant did not
present any evidence. Defendant contends the trial court erred in denying his motion
to dismiss based on insufficiency of the evidence. He argues the
State failed to present sufficient evidence that he was the
operator of the stopped vehicle. Specifically, defendant argues
that there was no direct evidence that he had “actual physical
control over the vehicle.” We disagree.
When considering a motion to dismiss, the trial court must
determine “whether there is substantial evidence of each essential
element of the crime.” State v. Call, 349 N.C. 382, 417, 508
S.E.2d 496, 518 (1998). We have defined substantial evidence as
that amount of relevant evidence necessary to persuade a rational
juror to accept a conclusion. State v. Frogge, 351 N.C. 576, 584,
528 S.E.2d 893, 899 (2000). If there is substantial evidence,
either direct or circumstantial, that the defendant committed the
offense charged, a motion to dismiss is properly denied. State v.
Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988). In ruling
on a motion to dismiss, the trial court is required to view the
evidence in the light most favorable to the State, making all
reasonable inferences from the evidence in favor of the State.
State v. Lucas, 353 N.C. 568, 581, 548 S.E.2d 712, 721 (2001).
“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).
Here, the State presented substantial evidence that defendant
was operating the vehicle. Section 20-4.01(25) defines operator as“[a] person in actual physical control of a vehicle which is in
motion or which has the engine running.” N.C. Gen. Stat. § 20-
4.01(25) (2001). Officer Creson testified that he saw defendant,
with whom he was familiar, exit the stopped vehicle and run into a
house. Officer Creson immediately approached the vehicle and found
the motor running, headlights on, and a female asleep in the
passenger seat. In the light most favorable to the State, this
evidence is sufficient to submit to the jury the question of
whether defendant was operating the motor vehicle. Accordingly,
the trial court properly denied defendant's motion to dismiss.
No error.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***