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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. SUSAN DANETTE WOOD
Filed: 6 December 2005
1. Motor Vehicles--felonious fleeing by motor vehicle to elude arrest--instruction
The trial court did not commit plain error by instructing the jury on the charge of felony
fleeing by motor vehicle
to elude arrest, because: (1) defendant failed to cite to any case law or
statute that requires the trial court to define the terms of reckless driving, negligent driving,
and driving with license revoked during its jury instruction; (2) the trial court charged the jury
using the language of the pattern jury instruction which stated it had to find at least two of the
three aggravating factors set out in the bill of indictment were present in order to convict
defendant of felonious speeding to elude arrest; (3) while defendant was not specifically charged
with either reckless driving under N.C.G.S. § 20-140 or driving while her license was revoked
under N.C.G.S. § 20-28, substantial evidence was presented which tended to show defendant had
struck an officer's vehicle and caused more than $1,000 in damage; and (4) evidence was
presented that tended to show defendant's driving was erratic, she accelerated to hit an officer's
vehicle, and the jury found her speeding twelve miles per hour over the limit.
2. Motor Vehicles--driving while impaired--motion to dismiss--sufficiency of evidence
The trial court did not err by denying defendant's motion to dismiss the charge of
impaired driving, because: (1) defendant admitted she had consumed alcohol prior to driving, a
fact confirmed by the breathalyzer result and an open half-filled bottle of vodka found in the
passenger area of her vehicle; (2) an officer smelled an odor of alcohol when he approached
defendant's vehicle a second time and also testified that in his opinion defendant's faculties were
appreciably impaired; and (3) nothing in the record indicated that defendant requested the jury to
designate on the verdict sheet which prong of the statute it found defendant to have violated.
Appeal by defendant from judgments entered 3 February 2005 by
Judge Mark E. Klass in Rowan County Superior Court. Heard in the
Court of Appeals 2 December 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Patricia A. Duffy, for the State.
Richard Croutharmel, for defendant-appellant.
Susan Danette Wood (defendant) appeals from judgments
entered after a jury found her to be guilty of: (1) felonious
fleeing to elude arrest with a motor vehicle; (2) impaired driving;(3) driving with an expired registration; and (4) speeding. We
find no error.
The State's evidence tended to show that at approximately 6:45
a.m. on 12 July 2003, defendant was driving a 1986 Mercury vehicle
on North Main Street in China Grove, North Carolina. China Grove
Police Officer Nicholas J. Villa (Officer Villa) noticed
defendant's vehicle displayed an expired license tag and he
followed her in his marked patrol vehicle with its blue lights
activated. Defendant drove an additional one-half mile before
pulling off the road at 1740 Highway 29 North. Defendant testified
that was the nearest point where she could safely pull off the
Officer Villa approached defendant's vehicle and asked her to
roll down her window so that he could check her driver's license
and registration. Defendant rolled down her window about two
inches and informed Officer Villa that her driver's license and
registration were inside her purse, located in the trunk. Officer
Villa instructed defendant to retrieve the items from the trunk.
Defendant retrieved a Florida driver's license from her purse but
failed to produce the registration card for her vehicle. After
checking defendant's license plate number, Officer Villa learned
that the vehicle had an insurance stop on file.
Officer Villa informed defendant that upon receiving a report
of an insurance stop, an officer must remove the license plate
and have the vehicle towed and stored until proper insurance couldbe verified or obtained. Defendant told Officer Villa that the
vehicle was insured and she had just paid $20 for the tag and [he]
was not going to take her tag. Officer Villa returned to his
patrol vehicle, called a tow truck, and began to write a citation
charging defendant with failure to maintain liability insurance and
failure to show registration. During this time, Rowan County
Sheriff's Department Lieutenant Sam Towne (Lieutenant Towne)
joined Officer Villa at the scene.
When Officer Villa saw the tow truck approaching at 6:55 a.m.,
he picked up a screwdriver and walked toward defendant's vehicle.
As Officer Villa bent down to remove the license plate, defendant
drove off. Officer Villa and Lieutenant Towne chased defendant in
their respective vehicles. During the five mile chase, defendant
accelerated to fifty-seven miles per hour in a forty-five miles per
hour speed zone. Eventually, defendant hit her brakes, turned off
into a driveway area, and started to turn around as if to return
onto the highway. Lieutenant Towne positioned his vehicle to block
defendant's entrance back onto the highway. Defendant accelerated
and slammed into [Lieutenant Towne's] car causing an estimated
$1,830.55 in damage. Officer Villa boxed in defendant by
positioning his vehicle behind her vehicle.
Other law enforcement officers arrived and removed defendant
from her vehicle. As defendant was removed from her vehicle,
Officer Villa testified he noticed a strong odor of alcohol
emitting from defendant. A half-empty bottle of vodka was found in
defendant's vehicle. Officer Villa asked defendant if she wouldsubmit to a field breathalyser test. Defendant refused to answer.
Based on defendant's demeanor and Officer Villa's past experience,
he formed the opinion that defendant's mental and physical
faculties were impaired by alcohol.
After being transported to the Salisbury Police Department,
defendant was read her rights, observed for the mandatory waiting
period, and at 8:50 a.m. took the Intoxilyzer test. The test
registered a 0.07 breath alcohol concentration.
At trial on 2 February 2005, Paul Glover (Glover), an
employee of the Department of Health and Human Services for the
Forensic Tests Alcohol Branch, testified that he had performed a
retrograde extrapolation which he believed would show defendant's
alcohol concentration at the time of the original stop of
defendant's vehicle to have been 0.10. The State laid no
foundation to show the relevancy of this testimony and Glover
failed to correlate any factors to be consistent with this
defendant or to compare his averages to defendant's individual
On 3 February 2005, the jury returned guilty verdicts for
felony speeding to elude arrest, impaired driving, expired
registration, and speeding fifty-seven miles per hour in a forty-
five miles per hour zone. The trial court entered judgments and
imposed an active sentence of six months for the driving while
impaired conviction and a suspended term of eight to ten months for
the speeding to elude arrest, speeding, and expired registration
convictions. Defendant appeals.
The issues on appeal are whether the trial court erred by:
(1) failing to properly instruct the jury on the felony fleeing to
elude arrest by motor vehicle; and (2) denying defendant's motion
to dismiss the driving while impaired charge.
III. Felony Fleeing to Elude Arrest by Motor Vehicle
 Defendant first contends the trial court failed to
properly instruct the jury on the charge of felony fleeing to elude
arrest by motor vehicle.
Defendant did not object to the trial
court's instructions and asks this Court to review for plain error.
Plain error arises when the error is 'so basic, so
prejudicial, so lacking in its elements that justice cannot have
been done[.]' State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375,
378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002
(4th Cir. 1982), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d. 513
Here, the trial court instructed the jury on felony fleeing to
elude arrest by motor vehicle as follows:
The defendant has been charged with felonious
operation of a motor vehicle to elude arrest.
For you to find the defendant guilty of this
offense, the State must prove four things
beyond a reasonable doubt.
First, that the defendant was operating a
motor vehicle. Second, that the defendant was
operating that motor vehicle on a street,
highway or public vehicular area. Third, that
the defendant was fleeing or attempting to
elude a law enforcement officer who was in the
lawful performance of his duties, a law
enforcement officer with authority to enforce
motor vehicle laws . . . And fourth, that two
or more of the following factors were presentat the time - reckless driving,  negligent
driving leading to an accident causing
property damage in excess of $1,000, or
driving while her license were revoked.
Defendant specifically argues that since reckless driving,
negligent driving, and driving with license revoked were the
three named aggravating factors that led to her conviction under
N.C. Gen. Stat. § 20-141.5(b)(5), the trial court should have
defined those terms for the jury. Defendant fails to cite to any
case law or statute which requires the trial court to define those
terms during its jury instruction. Furthermore,
the trial court
properly charged the jury using the language of the pattern jury
instruction which stated it had to find at least two of the three
aggravating factors set out in the bill of indictment were present
in order to convict defendant of felonious speeding to elude
arrest. N.C.P.I. Crim. 270.54A;
see State v. Woodard, 146 N.C.
App. 75, 552 S.E.2d 650 (2001). While defendant was not
specifically charged with either reckless driving under N.C. Gen.
Stat. § 20-140 or driving while her license was revoked under N.C.
Gen. Stat. § 20-28, substantial evidence was presented which tended
to show defendant had struck Lieutenant Towne's vehicle and caused
more than $1,000.00 in damage. Evidence was presented that tended
to show defendant's driving was erratic, she accelerated to hit
Lieutenant Towne's vehicle, and the jury found her speeding twelve
miles over the limit. Defendant has failed to meet her burden
under plain error review to warrant a new trial. This assignment
of error is overruled.
IV. Motion to Dismiss
Defendant also contends the trial court erred in denying
her motion to dismiss her driving while impaired conviction based
on insufficiency of the evidence. Defendant argues that the State
did not present substantial evidence that she was impaired. We
A. Standard of Review
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 the
offense. State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814
(1990). Substantial evidence is 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) (citing State v. Powell,
299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980)).
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 ormore.
N.C. Gen. Stat. § 20-138.1 (2003).
Under section (2) of the
statute, the only relevant evidence of this defendant's alcohol
concentration was a breathalyser result of 0.07. Other testimony
sufficiently supports the jury's conviction of defendant under N.C.
Gen. Stat. § 20-138.1(a)(1) of driving [w]hile under the influence
of an impairing substance. See State v. Coker, 312 N.C. 432, 440,
323 S.E.2d 343, 349 (1984) (N.C. Gen. Stat. § 20-138.1 creates one
offense that may be proved by either or both theories.); see also
State v. Mark, 154 N.C. App. 341, 346, 571 S.E.2d 867, 871 (2002),
aff'd, 357 N.C. 242, 580 S.E.2d 693 (2003) (The opinion of a law
enforcement officer . . . has consistently been held sufficient
evidence of impairment . . . .). An officer's opinion that a
defendant is appreciably impaired is competent testimony and
admissible evidence when it is based on the officer's personal
observation of an odor of alcohol and of faulty driving or other
evidence of impairment. State v. Gregory, 154 N.C. App. 718, 721,
572 S.E.2d 838, 840 (2002) (citation omitted).
Here, defendant admitted she had consumed alcohol prior to
driving, a fact confirmed by the breathalyzer result, and an open
half-filled bottle of vodka was found in the passenger area of her
vehicle. Officer Villa
smelled an odor of alcohol when he
approached defendant's vehicle a second time. Officer Villa also
testified that in his opinion defendant's faculties were
The jury's verdict does not reflect which prong of the statutethey found defendant had violated. Nothing in the record indicates
defendant requested the jury designate on the verdict sheet which
prong it found defendant to have violated. As defendant failed to:
(1) request separate instructions; (2) object to the trial court's
instructions; (3) assign error to the instructions; or (4) request
that the jury determine on the verdict sheet under which prong of
the statute they found her guilty or argue plain error, this issue
is not reviewable. T
he trial court properly denied defendant's
motion to dismiss. This assignment of error is overruled.
The trial court properly instructed the jury on the charge of
felony fleeing to elude arrest by motor vehicle. The trial court
did not err in denying defendant's motion to dismiss the charge of
driving. Sufficient evidence was presented which tended
to show defendant was driving while impaired. We find no error.
Judges MCCULLOUGH and ELMORE concurs.
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