State v Bruton, (04-407) 04/05/2005

Appeal by defendant from judgments entered 16 September 2003 by Judge Jerry Braswell in Lenoir County Superior Court. Heard in the Court of Appeals 17 January 2005.

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

Brian Michael Aus for defendant-appellant.

GEER, Judge.

    Defendant Cabarrus Lyndale Bruton appeals from his convictions for driving while impaired ("DWI"), reckless driving, and driving with a revoked license, arguing that the trial court committed plain error when it allowed the State to present evidence of a prior civil license revocation (resulting from a DWI) that had expired. Because we believe that the jury would likely have reached the same verdict even in the absence of the evidence, we hold defendant received a trial free from prejudicial error.
    The State's evidence tended to show that in the early morning hours of 16 June 2002, Kinston police officer Brooks Bennett was conducting surveillance in an unmarked car in an area plagued with break-ins and armed robberies. Between 1:00 a.m. and 2:30 a.m., heobserved defendant's car drive slowly past the convenience store he was watching on four occasions, alternately traveling east and west.
    After defendant passed by the fourth time, Bennett began to follow him. Bennett radioed for uniformed officers to assist him in stopping defendant's vehicle. After turning right onto another road, defendant accelerated to a speed "well in excess of 55 miles per hour in a 35 miles per hour zone." After making two more turns, defendant abruptly stopped his car in the middle of the road for 15 to 20 seconds, then accelerated rapidly again. He continued to make turns while running three stop signs. After executing a wide turn, defendant's car "went left of center and actually into the other lane."
    A marked patrol car, with its blue lights activated, blocked defendant's lane of travel, and defendant stopped his car. Bennett approached defendant's vehicle with uniformed officer Preston Ellis. Defendant was "very belligerent, very loud, very agitated and . . . was demanding to know why he was stopped." Bennett detected a strong odor of alcohol emanating from defendant; observed that his eyes were red, glassy, and watery; and determined that defendant "appeared to have been impaired by alcoholic beverage." Bennett turned the investigation over to Ellis and returned to his surveillance post.
    Ellis, like Bennett, noted a very strong odor of alcohol about defendant's person and described his eyes as red and glassy. Ellis testified that it was "very obvious to anyone that could see[defendant] that he seemed to be impaired." Defendant denied that he had been drinking, but refused to perform any field sobriety tests. Based upon their interaction, Ellis believed that defendant "had consumed enough of an impairing substance to appreciably impair his mental and physical capacities" and placed him under arrest. While transporting defendant to the police station, Ellis had to roll down the windows to reduce the odor of alcohol in his car.
    They arrived at the police station at approximately 2:45 a.m. After a 15-minute observation period, Ellis advised defendant of his rights and attempted to administer an Intoxilyzer test. Defendant refused to sign the rights form or submit to the test. As Ellis was completing his paperwork, defendant began complaining of chest pains. Ellis contacted E.M.S. When E.M.S. personnel arrived, defendant collapsed onto the floor. He was transported to Lenoir Memorial Hospital and admitted for observation.
    William H. Wilkins, Senior Medical Technologist at the hospital's hematology lab, testified that a blood sample taken from defendant in the course of his treatment registered 204 milligrams of ethanol per deciliter of blood. Converted to a ratio of grams of alcohol per hundred milliliters of blood, the equivalent of a Intoxilyzer result, defendant's blood alcohol level was 0.17289.
    The State introduced records from the Department of Motor Vehicles and the Clerk of Court reflecting that defendant's license was under a 30-day civil revocation beginning 1 June 2002, due to a DWI charge. After the State rested, defendant offered noevidence. The jury found defendant guilty of DWI, driving with a revoked license, and reckless driving. The trial court sentenced defendant to one year of imprisonment for the DWI and two consecutive 60-day prison terms for the two other offenses. Defendant gave notice of appeal in open court.
    On appeal, defendant assigns plain error to the introduction of evidence that his license had previously been revoked due to a DWI charge, although that revocation had expired. He contends that the fact of his prior expired license revocation was irrelevant and improperly suggested to the jury that he had a propensity to drive while impaired, thereby depriving him of a fair trial. See State v. Woodson, 49 N.C. App. 696, 697, 272 S.E.2d 167, 168 (1980).
    The State first introduced defendant's DMV driving record, during Officer Ellis' testimony, in order to establish that defendant's license was revoked at the time of his arrest on 16 June 2002. The exhibit, however, also reflected a second 30-day civil license revocation from 29 April 2002 to 29 May 2002. Defendant did not object to the admission of defendant's DMV driving record.
    Thereafter, the prosecutor questioned Officer Ellis regarding the contents of the exhibit:
Q: Now can you look at the record, State's Exhibit Number 3, and does State's Exhibit Number 3 indicate when the Defendant's driving record was suspended prior to your stop?

A: Yes, sir. It shows that it was a 30 day civil revocation suspension.

Q: And what does a 30 day civil revocation suspension indicate to you?
[DEFENSE COUNSEL]: Objection.

THE COURT: Objection is overruled, if he knows.

        A: It means that the subject had been charged with a D.W.I. prior to that and his license w[as] revoked for a D.W.I. then.

        Q: Do you know what date . . . [defendant's] 30 day civil revocation began, looking at that record?

        A: Actually it shows two here on this record. It shows that the first one was 4/29 of 2002, to 5/29/2002, 30 day civil revocation. Then the second one was 6/1/2002.

        Q: And your stop [of defendant] was at what point?

        A: Okay. Mine was 6/16 of 2002.

Although the document was later published to the jury, no further mention of defendant's prior revocation or DWI charge was made by the prosecutor or the court.
    Because defendant did not object to the admission of evidence of the prior revocation, we review its admission by the trial court under the plain error standard. N.C.R. App. P. 10(c)(4). "The plain error rule is applied only in rare cases where the error was so fundamental that it had a probable impact on the jury's verdict." State v. Stevenson, 328 N.C. 542, 548, 402 S.E.2d 396, 399 (1991). We find no such probable impact on the verdict here.
    Defendant's guilt for driving while his license was revoked was essentially uncontested and was supported by DMV and court records. With respect to the DWI conviction, defendant's blood alcohol level was more than twice the level necessary to establish a per se violation of N.C. Gen. Stat. § 20-138.1(a)(2) (2003). Inaddition, the State offered evidence of (1) defendant's refusal to submit to an Intoxilyzer test pursuant to N.C. Gen. Stat. § 20-139.1(f) (2003) (refusal to submit to exam admissible); (2) defendant's demeanor, odor, and appearance; and (3) defendant's erratic driving. With respect to the reckless driving charge, even though the State relied exclusively on Bennett's testimony, defendant did not refute Bennett's account of that driving, which included speeding, abruptly stopping in the middle of the road, failing to stop at three stop signs, and swerving across the center line into the wrong lane of traffic. Given the extent of evidence supporting the jury's verdict, it is not probable that the jury would have returned a different verdict if the evidence of the prior revocation had been excluded. See State v. Smith, 351 N.C. 251, 265, 524 S.E.2d 28, 39 ("[D]efendant has failed to show plain error in light of the overwhelming evidence in the record of defendant's guilt."), cert. denied, 531 U.S. 862, 148 L. Ed. 2d 100, 121 S. Ct. 151 (2000).
    Defendant has identified an apparent clerical error on the "Impaired Driving Determination of Sentencing Factors" form accompanying the judgment entered for defendant's DWI in 02 CRS 52880. The judgment correctly reflects the trial court's imposition of a Level Two punishment pursuant to N.C. Gen. Stat. § 20-179(h) (2003), based on the court's finding of the grossly aggravating factor "that at the time of the current offense the defendant's driver's license was in a state of revocation and that the revocation was pursuant to [N.C. Gen. Stat. § 20-28.2(a)(2003)]." Although the "Impaired Driving Determination of Sentencing Factors" form reflects the court's finding of the grossly aggravating factor, it fails to further note the imposition of the corresponding Level Two punishment. It appears that the relevant box on the form was inadvertently left unchecked.
    The State concedes this clerical error and concurs with defendant's request that we remand to the trial court for correction. Accordingly, we remand for correction of the sentencing form to reflect the court's imposition of a Level Two punishment. See State v. Brooks, 148 N.C. App. 191, 195, 557 S.E.2d 195, 197-98 (2001) (remanding for correction of clerical error on form for aggravating and mitigating factors), disc. review denied, 355 N.C. 287, 560 S.E.2d 808 (2002).

    No error as to judgments; remanded for correction of clerical error.
    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

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