An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-210


Filed: 3 May 2005


         v.                        Caldwell County
                                No. 02 CRS 6688

    Appeal by defendant from judgment entered 3 September 2003 by Judge James W. Morgan in Caldwell County Superior Court. Heard in the Court of Appeals 21 February 2005.

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

    W. C. Palmer, Attorney at Law, PLLC, by W. C. Palmer, for defendant-appellant.

    GEER, Judge.

     Defendant Max Von Hilton appeals from his conviction of driving while impaired, arguing that the trial court erred (1) in not holding a separate hearing on his motion to suppress, (2) in admitting evidence relating to the chemical analysis and sobriety testing without requiring a proper foundation, (3) in making suggestions to the prosecuting attorney, and (4) in denying defendant's motion to set aside the verdict for insufficient evidence. We hold that defendant received a trial free of prejudicial error.
    On 13 August 2002, at approximately 5:15 p.m., Officer Brian Bennett of the Caldwell County Sheriff's Office received a callregarding a possible intoxicated driver. He located the vehicle (a truck), followed it for 500 to 600 yards, and observed it cross over the fog line on two occasions. He activated his blue lights and stopped the vehicle, which was being driven by defendant. When he approached defendant's truck, the front window was rolled down and there was a strong odor of alcohol coming from inside the truck. Defendant's speech was confused and he had red, bloodshot eyes.
    Officer Bennett asked defendant to step to the rear of the truck. As he walked back, defendant had to continually support himself by holding onto the side of the truck. Defendant then performed poorly on two field sobriety tests. Officer Bennett arrested defendant, searched his vehicle, and found two open containers of Coors Lite beer. Officer Bennett testified that after observing defendant for approximately 20 minutes, he formed the opinion that defendant had consumed a sufficient quantity of an impairing substance to appreciably impair his mental and physical faculties.
    Officer Bennett transported defendant to the Caldwell County Sheriff's Department where he administered the Intoxilyzer 5000 breath test. The test indicated that defendant had a breath alcohol concentration of 0.15. Officer Bennett then read defendant his Miranda rights and asked him a series of questions. When asked what day it was, defendant responded that it was Friday although it was actually Tuesday. When asked "[w]hat city or county are you in now," defendant replied that he wasn't in a city.    Defendant was charged with driving while impaired in violation of N.C. Gen. Stat. § 20-138.1 (2003). He was found guilty in district court and appealed to superior court. Following a jury trial with the Honorable James W. Morgan presiding, defendant was found guilty and sentenced to a term of 60 days imprisonment and fined $381.00. Defendant's sentence was suspended and he was placed on unsupervised probation for 18 months. Defendant appealed from his conviction and sentence.
    D efendant has failed to cite any legal authority at all in support of his arguments on appeal. In his entire brief, he references not a single statute, rule, or case from North Carolina or any other jurisdiction. In his "Table of Cases and Authorities," he states remarkably: "Counsel for the Defendant- Appellant has been unable to find any North Carolina cases on any of the questions raised by this appeal." Even if there were a lack of pertinent North Carolina case law authority _ which there is not _ defendant could still cite statutes, rules, or authority from other states or the federal courts. Rule 28(b)(6) of the Rules of Appellate Procedure specifies that any assignments of error not supported by authority are deemed abandoned. N.C.R. App. P. 28(b)(6). Nevertheless, in the exercise of our discretion under Rule 2 of the Rules of Appellate Procedure, we have reviewed the record for prejudicial error and found none.
    With respect to defendant's contention that the trial court failed to conduct a separate hearing on the motion to suppress, the State points out that defense counsel's request for a transcriptstated, "The transcription to be transcribed is: All of the trial transcript of the evidence and the charge of the Court and to be excluded is the motion to suppress and the evidence on the motion to suppress and argument of counsel." (Emphasis added.) It appears, therefore, contrary to the representation of counsel in the brief that there was indeed a motion to suppress hearing. To the extent that defendant meant to contend that there was error in the motion to suppress hearing, we cannot review any such error because of the lack of a transcript of the hearing. It is the appellant's responsibility to ensure that all materials necessary for deciding the appeal are included in the record on appeal. State v. Brown, 142 N.C. App. 491, 492-93, 543 S.E.2d 192, 193 (2001).
    Defendant next argues in two assignments of error that the State failed to establish that the officer administering the intoxilyzer test was certified to perform the test and, therefore, failed to lay a proper foundation for admission of the test results. N.C. Gen. Stat. § 20-139.1(b1) (2003), addressing the admissibility of chemical analysis and sobriety testing, requires that the officer possess a current permit issued by the Department of Health and Human Services for the type of chemical analysis involved. The State submitted sufficient evidence to meet this requirement through the testimony of Officer Bennett regarding his certification and admission of his current certificate. See State v. Franks, 87 N.C. App. 265, 267, 360 S.E.2d 473, 474 (1987) (requirement of a valid permit met "'by presenting any otherevidence which shows that the individual who administered the test holds a valid permit issued by the Department of Human Resources'" (quoting State v. Mullis, 38 N.C. App. 40, 41, 247 S.E.2d 265, 266 (1978))).
    Defendant next challenges certain suggestions made by the trial court to the prosecutor after the court had sustained objections to questions by the prosecutor. At trial, the following exchange occurred:
    Q: . . . . Okay. Did he acknowledge he understood his rights regarding Miranda?

    A. He did.

    MR. PALMER: Objection.

    THE COURT: Sustained.

    Members of the jury, I need for you to step out for just a minute, please.

    (At 11:55 a.m. the jury exits courtroom.)

    THE COURT: Mr. Van Buren, I don't mean to tell you how to try your case, but to just ask him if he read his Miranda rights is a very conclusory question. He needs to be asked what rights he read to him _

    MR. VAN BUREN: Okay.

    THE COURT: _ and what his responses were to that reading.

    MR. VAN BUREN: I apologize, sir.

    THE COURT: I don't mean to embarrass you or anything like that. It's just that the jury _ they may have heard of Miranda on TV, but they don't know what a Miranda right is.

    MR. VAN BUREN: Okay. I'm sorry, sir.

    THE COURT: Okay. Bring them back in, please.
We can perceive no error in this exchange, especially since it did not take place in front of the jury. See N.C. Gen. Stat. § 15A- 1222 (2003) (prohibiting any expression of opinion "in the presence of the jury on any question of fact to be decided by the jury").
    Finally, defendant contends that the trial court erred in not setting aside the verdict and ordering a new trial on the grounds that the evidence was insufficient to support the verdict. In his brief, however, defendant appears primarily to argue that the denial of the motion suggested a predisposition on the part of the trial court to favor the prosecution and represented a denial of a fair and unbiased trial. We hold that the record contains ample evidence to support the verdict and that the trial court exhibited no apparent bias.

    No error.
    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

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