An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1613


Filed: 18 January 2005


         v.                        Randolph County
                                No. 02 CRS 55636

    Appeal by defendant from judgment entered 6 August 2003 by Judge James M. Webb in Randolph County Superior Court. Heard in the Court of Appeals 3 January 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Patricia A. Duffy, for the State.

    Amos Granger Tyndall, for defendant-appellant.

    CALABRIA, Judge.

    On 1 September 2002, Trooper Grady Robert Catherwood (“Trooper Catherwood”) of the North Carolina Highway Patrol parked his patrol vehicle in a parking lot located on U.S. 220 Business near Level Cross in Randolph County. Trooper Catherwood observed an older model Honda automobile traveling northbound on U.S. 220 Business. He ran a license check of the vehicle and determined that the tags on the vehicle did not correspond to the vehicle, but because traffic was heavy, he decided not to pursue the vehicle.
    A few minutes later, the same vehicle approached from the opposite direction, heading southbound on U.S. 220 Business. There was no traffic at this time, so Trooper Catherwood decided to follow the Honda automobile. As Trooper Catherwood prepared toactivate his blue lights, the automobile turned into a gasoline station and stopped at the pumps. Trooper Catherwood walked to the driver's side of the vehicle and spoke to the driver, whom he identified as Regina Denise Green (“defendant”). He noted that defendant's speech was slurred, that her eyes were red and glassy, that her clothing was “mussed,” and that there was a moderate to strong odor of alcohol on defendant's breath and person. Defendant told him that she did not have a driver's license and admitted that she had been drinking. Trooper Catherwood also noticed a passenger in the back seat with a half-full 40 ounce bottle of malt liquor between his feet.
    Trooper Catherwood arrested defendant. While en route to the Randolph County Jail, defendant repeatedly asked the trooper questions. Before the trooper could finish answering the question, defendant would interrupt and ask the same question again or another question. After arriving at the jail, defendant refused to submit to a chemical analysis of breath or to any psychophysical evaluations, e.g., balance or agility tests. Defendant told the officer that she had been convicted of driving while impaired six times since 1996 and that “she was not going to get railroaded this time.” Defendant gave a statement in which she indicated she had not eaten for two or three days, that she had not slept for four days, and that she drank a “one dollar shot” of Canadian Mist and one beer either forty-five minutes or two hours before she was stopped. In Trooper Catherwood's opinion, defendant had consumed a sufficient quantity of an impairing substance to appreciablyimpair her mental and physical capabilities. Defendant was found guilty of habitual impaired driving and was sentenced to an active term of imprisonment of a minimum of 18 months and a maximum of 22 months. Defendant appeals.
    The sole issue on appeal is whether the trial court erred by denying defendant's motion to dismiss for insufficient evidence. In deciding whether to grant a motion to dismiss, the court must consider the evidence in the light most favorable to the State, giving it the benefit of every reasonable inference that may be drawn from the evidence. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). "The test for sufficiency of the evidence is the same whether the evidence is direct or circumstantial or both. . . . [T]he court must consider whether a reasonable inference of defendant's guilt may be drawn from the [evidence]."
State v. Scott, 356 N.C. 591, 596, 573 S.E.2d 866, 869 (2002) (citation omitted).
    In the case at bar, the evidence shows (1) defendant was operating the vehicle without a license; (2) while the trooper was following defendant's vehicle, defendant pulled her vehicle into a gas station; (3) defendant had a moderate to strong odor of alcohol on her breath and person; (4) defendant was taking Paxil, Trazodone, and Remeron for anxiety; (5) defendant's clothing was “mussed;” (6) defendant's speech was slurred and her eyes were bloodshot and glassy; (7) the trooper observed an open container of an alcoholic beverage in defendant's vehicle; (8) defendant refused to submit to the Intoxilyzer; (9) defendant was upset and cryingafter refusing to submit to the Intoxilyzer; (10) defendant refused to submit to psychophysical evaluations; (11) defendant had not eaten in two or three days and had not slept in four; (12) defendant constantly interrupted the trooper and repeated the same questions before he could finish his answers; and (13) in the trooper's opinion, based upon his observations of defendant and experience as a law enforcement officer, defendant was impaired by an intoxicating substance. We conclude the trial court did not err in determining the foregoing evidence is sufficient to support a reasonable inference that defendant committed the offense of driving while impaired. Accordingly, the motion to dismiss was properly denied.
    No error.
    Judges TIMMONS-GOODSON and LEVINSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***