Appeal by defendant from judgments entered 31 July 2002 by
Judge James E. Ragan, III in Craven County Superior Court. Heard
in the Court of Appeals 27 October 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.
Penny K. Bell and Mark A. Key for defendant-appellant.
HUNTER, Judge.
Larry Wayne Wright (“defendant”) appeals judgments based upon
jury verdicts convicting him of several offenses regarding the
illegal operation of a motor vehicle. For the reasons stated
herein, we conclude the trial court did not err.
On 12 July 2001, defendant was charged with driving while
license revoked, driving while impaired, possessing an open alcohol
container in a vehicle passenger area, and hit and run with
property damage. He was convicted in Craven County District Court
and Craven County Superior Court. At trial the following evidence
was offered.
Judith Morris (“Morris”) was visiting the home of her sister,
Imogene McLawhorn (“McLawhorn”), when she heard a loud noise comingfrom the front yard at approximately 7:10 p.m. Morris, McLawhorn,
and their cousin, Carolyn Patterson (“Patterson”), hurried out of
the house to find Morris' pewter-colored Dodge Intrepid
(“Intrepid”), which was parked in the front of McLawhorn's home,
had been hit by a white Buick Regal (“Regal”). Defendant, an
acquaintance of Morris whose father lived across the street from
McLawhorn, was sitting in the Regal with the engine running. As
Morris and McLawhorn approached defendant, he exited the Regal,
indicated he had insurance, and walked away. Morris testified that
defendant had a strong order of alcohol on his breath, had slurred
speech, and weaved as he walked across the street and around the
back of his father's house. Patterson also testified that “[w]hat
little [defendant] said sounded slurred. He was staggering. It
did not look like [he was in] a sober condition.”
Sergeant Mickey Tilghman (“Sergeant Tilghman”) and Officer
Jason Buck (“Officer Buck”) arrived at the accident scene at
approximately 7:25 p.m. Sergeant Tilghman observed several empty
containers of beer in the passenger area of the Regal. He also
found a partially consumed beer in the driver's area of the vehicle
that was “cool to the touch.” Following the collection of witness
statements, the officers went in search of defendant at
approximately 9:15 p.m.
At approximately 10:30 p.m., the officers located defendant
walking on the shoulder of a road approximately five miles from the
accident scene. Sergeant Tilghman testified, over defendant's
objection, that upon approaching defendant Sergeant Tilghman was ofthe opinion that “defendant had consumed a sufficient amount of
impairing substance to appreciably impair his mental faculties[]”
based on the manner in which defendant was walking and the odor of
alcohol coming from his person. Officer Buck also testified, over
defendant's objection, that he was of the opinion that defendant's
slurred speech, odor, and mannerisms suggested “[h]e had consumed
an intoxicating substance.” Defendant was subsequently placed
under arrest and transported to the Craven County Sheriff's Office.
At the Sheriff's Office, Highway Patrol Trooper Victor Lee
(“Trooper Lee”) asked defendant to submit to an Intoxilyzer test
and/or field sobriety tests. Defendant refused. Trooper Lee
testified, over defendant's objection, that during his time with
defendant he formed the opinion that “defendant had consumed a
sufficient amount of alcohol so as to appreciably impair both his
mental and physical faculties[]” based on his slurred speech and
the odor of alcohol on his breath.
After the State rested, defendant moved to dismiss all the
charges against him. Following the denial of that motion,
defendant testified on his own behalf. According to his testimony,
defendant was at his father's house on 12 July 2001 attempting to
let his father listen to a noise the Regal was making. He
testified as follows:
I reached in [the Regal], put it in gear,
pulled the gear shift down to drive, standing
halfway in the car, halfway out, mashed the
accelerator, [and it] wouldn't move. Mashed
it a little harder and when I did, the
accelerator hung, spinned off, pushed me out
of the door and I started chasing out of the
car across the street . . . [and] when it hitthe curbing, it detoured and hit the lady's
car across the street.
. . . .
[W]hen [the Regal] got over there and hit
[Morris'] car, I got in the [Regal], mashed
the brake and put it in park. As I was
getting out, the ladies was coming up from
behind the fence.
Defendant further testified that the alcohol found in the Regal
belonged to a friend of his who had driven the vehicle earlier that
morning. Finally, defendant testified that he had not consumed any
alcoholic beverages prior to the accident, but had consumed a
substantial amount of beer thereafter.
I.
Defendant argues the trial court committed prejudicial error
by allowing Sergeant Tilghman, Officer Buck, and Trooper Lee to
testify regarding his intoxication several hours after the
accident. We disagree.
“A defendant is prejudiced by errors relating to rights
arising other than under the Constitution of the United States when
there is a reasonable possibility that, had the error in question
not been committed, a different result would have been reached at
the trial . . . .” N.C. Gen. Stat. § 15A-1443(a) (2001). The
defendant has the burden of showing he was prejudiced by the
admission of the evidence.
Id. The admittance of prejudicial
evidence results in the defendant receiving a new trial.
State v.
Alston, 307 N.C. 321, 339, 298 S.E.2d 631, 644 (1983). In the case
sub judice, defendant takes issue with the
admissibility of the testimony of the officers regarding his
intoxication after the accident.
Where intoxication is an issue at the trial,
the question whether the existence of
intoxication at a particular time is competent
to show the existence of that condition at
another time is a question of materiality or
remoteness to be determined upon the facts of
each particular case, including the length of
time intervening and the showing, if any,
whether the condition remained unchanged.
State v. Davis, 265 N.C. 720, 722, 145 S.E.2d 7, 9 (1965)
(citations omitted). All three officers opined that defendant was
impaired by alcohol when they observed him approximately three and
a half hours after the accident. Defendant contends that the
period of time between the accident and his arrest raises “a
question of materiality or remoteness.” Defendant essentially
supports his contention by analogizing his case to
Davis.
In
Davis, the defendant objected to testimony that he was
staggering on the street in front of the home of a woman he
allegedly raped three and a half hours earlier. The
Davis Court
stated that “[i]n order to determine the relevance and competency
of the testimony in question, it must be considered in relation to
other evidence on the subject and to the conduct of defendant.”
Id. The
Davis Court subsequently concluded that the testimony had
“no tendency to prove that defendant was intoxicated at the time of
the alleged crime, and [wa]s not competent for such purpose[]”
because (1) the victim stated that the defendant “did not 'act like
a drunk person'” and (2) the State never argued that the defendantwas intoxicated at the time of the offense.
Id. at 722-23, 145
S.E.2d at 9-10. Nevertheless, the
Davis Court also concluded that
the testimony was relevant and competent “as bearing upon [the
defendant's] mental state and motive in appearing at the home of
the [victim]” because “a guilty person, in full possession of his
faculties, does not ordinarily put himself in a position to be
readily identified as the assailant and to be readily apprehended.”
Id. at 723, 145 S.E.2d at 10.
Defendant contends that like
Davis, testimony tending to prove
his intoxication approximately three and a half hours after the
accident was not competent for that purpose. However, unlike in
Davis, there was “other evidence on the subject and to the conduct
of defendant” in the present case relevant and competent to the
officers' testimonies. Evidence as to defendant's conduct at the
accident scene was offered through the testimony of Morris and
Patterson. Although neither witness specifically opined that
defendant was under the influence of an intoxicating substance at
the time of the accident, their combined testimony established that
defendant smelled of alcohol, had slurred speech, staggered as he
walked, and did not appear to be in a “sober condition” when he
exited the Regal. Furthermore, other evidence established that
upon arriving at the scene of the accident, Sergeant Tilghman found
several empty cans of beer in the Regal, as well as one partially
consumed beer in the driver's area that was “cool to the touch.”
We note that defendant put forth evidence that the officers'
opinions as to his intoxication at the time they located him wasdue to defendant consuming a substantial amount of beer after the
accident. However, the credibility of a witness is a jury
question.
See State v. Williams, 304 N.C. 394, 284 S.E.2d 437
(1981). The jury was allowed to consider all the evidence and
determine whether defendant was intoxicated as a result of alcohol
consumed immediately preceding the accident or sometime thereafter.
Accordingly, based on the facts in this case, defendant was
not prejudiced by the admission of the officers' testimonies
because they were relevant and competent to other evidence offered
as to defendant's impairment at the time of the accident.
II.
Defendant also argues the court erred in denying his motion to
dismiss all the charges against him. In order to survive a motion
to dismiss in a criminal action, the trial court must view the
evidence in the light most favorable to the State, drawing every
reasonable inference in favor of the State.
State v. Benson, 331
N.C. 537, 544, 417 S.E.2d 756, 761 (1992). The evidence considered
must be “substantial evidence (a) of each essential element of the
offense charged, or of a lesser offense included therein, and (b)
of defendant's being the perpetrator of the offense.”
State v.
Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). Whether
the evidence presented is substantial is a question of law for the
court.
State v. Stephens, 244 N.C. 380, 384, 93 S.E.2d 431, 433
(1956). “[T]he rule for determining the sufficiency of evidence is
the same whether the evidence is completely circumstantial,completely direct, or both.”
State v. Wright, 302 N.C. 122, 126,
273 S.E.2d 699, 703 (1981) (citations omitted).
A. Driving While License Revoked
Defendant contends there was insufficient evidence to support
his conviction for driving while licensed revoked. N.C. Gen. Stat.
§ 20-28(a) (2001) prevents “any person whose drivers license has
been revoked [from] driv[ing] any motor vehicle upon the highways
of the State while the license is revoked[.]” Defendant only
asserts there was no evidence that he was driving the Regal or that
the vehicle was being driven on a vehicular highway. We disagree.
In
State v. Mabe, 85 N.C. App. 500, 504, 355 S.E.2d 186, 188
(1987), this Court recognized “that one 'drives' a motor vehicle
. . . 'if he is in actual physical control of a vehicle which is in
motion or which has the engine running.'” (Citation omitted.)
Defendant's own testimony provided sufficient evidence that he was
in “actual physical control” of the Regal when he “cranked the car
up,” “put it in gear, pulled the gear shift down to drive,” “mashed
the accelerator,” and then “mashed the brake and put [the car] in
park[]” after it hit Morris' Intrepid. Moreover, since Morris'
Intrepid was parked across the street when the Regal hit it, there
was substantial evidence that the Regal was driven on a vehicular
highway even if only for a short period of time. Thus, defendant's
contention is without merit.
B. Driving While Impaired
Having concluded there was sufficient evidence that defendant
was driving the Regal, we now address defendant's contention that
there was insufficient evidence that he was driving while impaired.
N.C. Gen. Stat. § 20-138.1(a) (2001) provides:
A person commits the offense of impaired
driving if he drives any vehicle upon any
highway, any street, or any public vehicular
area within this State:
(1) While under the influence of an impairing
substance; or
(2) After having consumed sufficient alcohol
that he has, at any relevant time after
the driving, an alcohol concentration of
0.08 or more.
Further, our Supreme Court has held that “'the “fact that a
motorist has been drinking, when considered in connection with
faulty driving . . . or other conduct indicating an impairment of
physical or mental faculties, is sufficient
prima facie to show a
violation of [N.C.G.S. §] 20-138.”'”
State v. Rich, 351 N.C. 386,
398, 527 S.E.2d 299, 306 (2000) (citation omitted). Evidence that
defendant, whose breath had the odor of alcohol, hit Morris'
Intrepid while it was parked across the street in her sister's yard
was sufficient to establish
prima facie, a violation of the
statute. Thus, defendant's motion to dismiss the charge of driving
while impaired was properly denied.
C. Open Alcohol Container in Vehicle Passenger Area
Next, defendant contends there was insufficient evidence to
support his conviction for possession of an open container of
alcohol in the passenger area of a vehicle.
N.C. Gen. Stat. § 20-138.7(a) (2001) provides: No person shall drive a motor vehicle on a
highway or the right-of-way of a highway:
(1) While there is an alcoholic beverage in
the passenger area in other than the
unopened manufacturer's original
container; and
(2) While the driver is consuming alcohol or
while alcohol remains in the driver's
body.
With respect to the second element of this statute, we previously
determined there was sufficient evidence that defendant was driving
while impaired by alcohol. Therefore, additional evidence offered
at trial that a partially consumed beer was found in the driver's
area of the Regal following defendant's exit from that vehicle
provided sufficient evidence to support the first element. Thus,
the court did not err in denying defendant's motion to dismiss this
charge.
D. Hit and Run
Finally, defendant contends there was insufficient evidence to
support a conviction for hit and run with property damage. N.C.
Gen. Stat. § 20-166 provides,
inter alia:
The driver of any vehicle, when he knows or
reasonably should know that the vehicle which
he is operating is involved in an accident or
collision, which accident or collision,
results:
(1) Only in damage to property; or
(2) In injury or death to any person,
but only if the operator of the
vehicle did not know and did not
have reason to know of the death or
injury;
shall immediately stop his vehicle at the
scene of the accident or collision. N.C. Gen. Stat. § 20-166(c) (2001). Defendant asserts that since
he was an acquaintance of Morris', his leaving the accident scene
should not have been considered “running” for purposes of the
statute because Morris' knew who he was and where his father lived.
We disagree.
It is undisputed that following the accident, which resulted
in damage to Morris' Intrepid, defendant immediately left the
scene. As further prohibited by N.C. Gen. Stat. § 20-166, a driver
may not leave the accident scene without first giving his “name,
address, driver's license number and the license plate number of
his vehicle to . . . any person whose property [wa]s damaged in the
accident or collision.” N.C. Gen. Stat. § 20-166(c1). Despite his
association with Morris, defendant's absence from the scene was
still a direct violation of this subsection because he left without
providing any of the required information to Morris. Therefore,
defendant's motion to dismiss the charge of hit and run with
property damage was properly denied.
In conclusion, defendant was not prejudiced by the admission
of the officers' testimony regarding his intoxication after the
accident. Also, there was sufficient evidence offered at trial to
support the court's denial of defendant's motion to dismiss the
charges against him.
No error.
Chief Judge EAGLES and Judge GEER concur.
Report per Rule 30(e).
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