NO. COA04-559
Appeal by defendant from judgments entered 20 November 2003 by
Judge Orlando F. Hudson, Jr., in Person County Superior Court.
Heard in the Court of Appeals 28 December 2004.
Attorney General Roy Cooper, by Assistant Attorney General
Patricia A. Duffy, for the State.
The Turrentine Group, PLLC, by Karlene Scott-Turrentine, for
defendant-appellant.
MARTIN, Chief Judge.
Defendant was charged with driving while impaired, driving
while licence revoked, and exceeding the speed limit, and
subsequently indicted for habitual impaired driving. The evidence
presented at trial tended to show the following: On 27 October
2002, Officer Aaron Lappin of the Roxboro Police Department was on
patrol when he saw a vehicle traveling toward him at a high rate of
speed. The car, a Chevrolet Corsica, was driving erratically and
came into Officer Lappin's lane, almost hitting him. Officer
Lappin turned around and pursued the vehicle. As he caught up to
it, he noticed it make a right turn, cut through a parking lot, and
enter Henry's Quick Stop parking lot. Officer Lappin activated hisblue lights and initiated a stop.
Once the vehicle came to a stop, Officer Lappin approached the
vehicle and asked defendant for his driver's license and
registration. Defendant did not have a driver's license in his
possession, and could only give him his name and date of birth.
While at the vehicle, Officer Lappin noticed a strong odor of
alcohol coming from the defendant's car. Officer Lappin also
noticed that defendant's eyes were glassy and he was slow to
respond to questions. Defendant got out of the vehicle, leaning on
the door as he did so, and swayed as he walked towards the patrol
car. Officer Lappin again noticed a strong odor of alcohol coming
from defendant's person. Officer Lappin administered a field
sobriety test, and defendant had to “feel around” to find the tip
of his nose. Defendant refused to perform any other test. Officer
Lappin formed the opinion that defendant had consumed a sufficient
quantity of some impairing substance to sufficiently impair his
mental and physical faculties.
Officer Lappin transported defendant to the Law Enforcement
Center for the purpose of administering an intoxilyzer test.
Defendant submitted one sample, but refused to give a second
sample. The first sample registered an alcohol concentration of
0.12.
Defendant was convicted of habitual impaired driving and
driving while license revoked. Defendant was sentenced to a term
of nineteen to twenty-three months imprisonment for the habitual
impaired driving conviction, and a consecutive term of 120 days fordriving while license revoked. Defendant appeals.
__________________
We first consider whether the trial court should have
dismissed the case because there was insufficient evidence to
support a finding of probable cause for the stop. Defendant
contends that the arresting officer's testimony was completely
different than his investigative report, and it was apparent that
the officer did not have probable cause for the stop. Thus,
defendant argues that his conviction must be vacated. We do not
agree.
After the trial had started, defendant's counsel asked for a
voir dire to question Officer Lappin regarding the legality of the
stop. Although defendant's argument on appeal is couched in terms
of a denial of a motion to dismiss, it was in actuality a motion to
suppress and was treated by the trial court as such. The motion to
suppress was denied. “The scope of review on appeal of the denial
of a defendant's motion to suppress is strictly limited to
determining whether the trial court's findings of fact are
supported by competent evidence, in which case they are binding on
appeal, and in turn, whether those findings support the trial
court's conclusions of law.”
State v. Corpening, 109 N.C. App. 586,
587-88, 427 S.E.2d 892, 893 (1993).
Here, based on Officer Lappin's testimony, the trial court
found that defendant crossed the center lane, forcing Officer
Lappin to take evasive action and almost forcing his car off the
road. The trial court found that Officer Lappin had probable causeto investigate and detain defendant to determine why he was
operating his car “in an erratic manner.” The trial court's
findings were based on competent evidence in the record. Based on
the evidence and findings of fact, the trial court could properly
conclude that Officer Lappin had at least reasonable suspicion, if
not probable cause, to execute the stop. Accordingly, the motion
to suppress was properly denied.
Defendant next argues there was insufficient evidence to
sustain the convictions. Defendant contends there was no evidence
that he was too impaired to drive or that he was driving while
license revoked.
After careful review of the record, briefs and contentions of
the parties, we find no error. To survive a motion to dismiss, the
State must present substantial evidence of each essential element
of the charged offense.
State v. Cross, 345 N.C. 713, 716-17, 483
S.E.2d 432, 434 (1997)
. “'Substantial evidence is relevant
evidence that a reasonable mind might accept as adequate to support
a conclusion.'”
Id. at 717, 483 S.E.2d at 434 (quoting
State v.
Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992)).
In the present case
, defendant was charged with habitual DWI
under G.S. 20-138.5 and driving while license revoked. “A person
commits the offense of habitual impaired driving if he drives while
impaired as defined in G.S. 20-138.1 and has been convicted of
three or more offenses involving impaired driving as defined in
G.S. 20-4.01(24a) within seven years of the date of this offense.”
N.C. Gen. Stat. 20-138.5(a). At trial, defendant stipulated tothree prior convictions for impaired driving. Thus, the only issue
was whether defendant was guilty of impaired driving on 27 October
2002. Pursuant to G.S. 20-138.1(a):
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.
N.C. Gen. Stat. 20-138.1(a). The State presented evidence that: (1)
defendant's breath sample had an alcohol concentration of 0.12; (2)
defendant refused to submit a second breath sample; (3) defendant
was driving erratically; (4) defendant smelled of alcohol; and (5)
defendant was unable to pass a field sobriety test, and refused to
complete it.
“To convict a person of the crime of driving with a revoked
license, the State must prove beyond a reasonable doubt that
defendant was on notice that his driver's license was revoked.”
State v. Funchess, 141 N.C. App. 302, 311, 540 S.E.2d 435, 440
(2000)(citations omitted). Here, Officer Lappin testified that a
notice of revocation was mailed to defendant at his permanent
address on 16 July 2002. Additionally, defendant did not have a
driver's license on his person when he was arrested. Based on this
evidence, in the light most favorable to the State, a jury could
properly conclude that defendant committed the offenses of habitual
impaired driving and driving while license revoked. Defendant next argues that the trial court erred by admitting
evidence of the intoxilyzer results. After his arrest, defendant
submitted to an intoxilyzer test. However, defendant only
submitted one sample, refusing to submit to a second test. At
trial, defendant argued it was error to admit evidence of his
intoxilyzer test when the statutory requirement is that the State
have two tests within .02 reading of each other in order to utilize
the results. On appeal, defendant concedes that the statute has
been changed to read that:
A person's refusal to give the second or
subsequent breath sample shall make the result
of the first breath sample, or the result of
the sample providing the lowest alcohol
concentration if more than one breath sample
is provided, admissible in any judicial or
administrative hearing for any relevant
purpose, including the establishment that a
person had a particular alcohol concentration
for conviction of an offense involving
impaired driving.
N.C. Gen. Stat. 20-139.1(b3).
For the first time, on appeal, defendant attempts to instead
argue that the trial court should not have admitted the results of
the intoxilyzer because defendant failed to execute an affidavit in
accordance with G.S. 20-16.2(c1).
See also State v. Summers, 351
N.C. 620, 621-22, 528 S.E.2d 17, 19 (2000)(“If an individual
charged with an implied-consent offense willfully refuses to submit
to chemical analysis, after being informed of the consequences of
willful refusal, in accord with N.C.G.S. § 20-16.2, the charging
officer must execute an affidavit to that effect[.]”). We decline
to review defendant's argument. Our Supreme Court "has long held that where a
theory argued on appeal was not raised before
the trial court, 'the law does not permit
parties to swap horses between courts in order
to get a better mount'" in the appellate
courts. . . . . "The defendant may not
change his position from that taken at trial
to obtain a 'steadier mount' on appeal."
State v. Holliman, 155 N.C. App. 120, 123, 573 S.E.2d 682, 685
(2002). Accordingly, we find no error.
No error.
Judges McCULLOUGH and CALABRIA concur.
Report per Rule 30(e).
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