An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1332


Filed: 1 April 2003


         v.                                Buncombe Cou nty
                                        No. 01CRS054140

    Appeal by defendant from judgments entered 5 March 2002 by Judge Ronald K. Payne in Buncombe County Superior Court. Heard in the Court of Appeals 24 March 2003.

    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).

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