An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-891


NORTH CAROLINA COURT OF APPEALS

Filed: 7 June 2005

STATE OF NORTH CAROLINA

v .                         Pitt County
                            No. 03 CRS 052511
RANDY ANDERSON

    Appeal by defendant from judgment entered 12 February 2004 by Judge W. Russell Duke, Jr., in Pitt County Superior Court. Heard in the Court of Appeals 9 May 2005.

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

    Duncan B. McCormick, for defendant-appellant.

    TYSON, Judge.

    Randy Anderson (“defendant”) appeals from judgment entered upon a jury verdict finding him guilty of habitual impaired driving. We find no prejudicial error.

I. Background
    In the late morning of 26 February 2003, Farmville Police Officer Macon Moore, Jr. (“Officer Moore”) noticed a parked empty sedan. Its license tag was dangling from the bracket. Officer Moore checked and learned the license tag had been issued to a pick-up truck, which was reported stolen. Officer Moore drove to a nearby parking lot to wait and see if anyone approached the car. Officer Moore later returned to the parking lot and the sedan was gone. He began searching for the sedan and spotted it parked infront of a grocery store. Officer Moore parked nearby and waited to see if anyone returned.
    Five minutes later, defendant and a female companion approached and entered the sedan. Defendant started the sedan and began pulling out of the parking space. Officer Moore immediately activated his blue lights and stopped the vehicle. He approached the sedan and asked defendant for his driver's license and vehicle registration. As Officer Moore spoke with defendant, he noticed a strong odor of alcohol on defendant's breath and defendant's bloodshot eyes.
    Officer Moore asked defendant to exit the sedan and walk to Officer Moore's patrol car. Officer Moore observed defendant stumbling and swaying as he walked. At the patrol car, Officer Moore asked defendant to take an ALCOSENSOR test. Defendant refused. Officer Moore placed defendant under arrest for possession of a stolen license tag and driving while impaired.
    Officer Moore transported defendant to the Farmville Police Department. Upon arrival, Officer Moore asked defendant to perform field sobriety tests, including the “arms out” sway, one-leg standing, and finger-to-nose. Defendant performed the one-legged standing test satisfactorily, but performed poorly on the others. Officer Moore then read defendant his Intoxilizer rights. Defendant refused to submit to the test. Officer Moore read defendant his Miranda rights and completed the Alcohol Influence Report with defendant. Throughout completion of the AlcoholInfluence Report, defendant was “insulting and carefree” to Officer Moore.
    Defendant was previously convicted on three separate occasions of driving while impaired during the seven year period prior to the date of this offense. The State filed an indictment against defendant for: (1) operating a motor vehicle on a public vehicular area while subject to an impairing substance within seven years of being convicted of this offense on three prior and separate occasions; (2) operating a motor vehicle on a public vehicular area while subject to an impairing substance; and (3) possessing a stolen license plate tag.
    Defendant was tried by a jury on 11 February 2004. Defendant did not offer any evidence. At the close of all evidence, the jury returned a verdict of guilty to the charge of “habitual impaired driving.” The trial court found defendant's prior record level of V and sentenced defendant to a minimum thirty-four months, maximum forty-one months imprisonment. Defendant appeals.
II. Issues
    Defendant argues: (1) the trial court erred in denying his motion to dismiss the charge of habitual impaired driving; and (2) the trial court lacked jurisdiction due to an invalid indictment.
III. Motion to Dismiss
    Defendant argues the State “merely raised the suspicion that [he] was impaired,” and thus the trial court erred in denying his motion to dismiss the charge of habitual impaired driving. We disagree.
A. Standard of Review
    Our standard of review of the trial court's denial of defendant's motion to dismiss a criminal charge is well- established.
        “When considering a motion to dismiss, '[i]f the trial court determines that a reasonable inference of the defendant's guilt may be drawn from the evidence, it must deny the defendant's motion and send the case to the jury even though the evidence may also support reasonable inferences of the defendant's innocence.'” State v. Alexander, 337 N.C. 182, 187, 446 S.E.2d 83, 86 (1994) (quoting State v. Smith, 40 N.C. App. 72, 79, 252 S.E.2d 535, 540 (1979)), quoted in State v. Grigsby, 351 N.C. 454, 456-57, 526 S.E.2d 460, 462 (2000). In analyzing a motion to dismiss, the trial court must consider the evidence in the light most favorable to the State. State v. Davis, 325 N.C. 693, 696, 386 S.E.2d 187, 189 (1989). Moreover, the State is given every reasonable inference to be drawn from the evidence. Id. If substantial evidence exists, whether direct, circumstantial, or both, supporting a finding that the offense charged was committed by the defendant, the case must be left for the jury. Id. at 696-97, 386 S.E.2d at 189. “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984).

State v. Matias, 354 N.C. 549, 551-52, 556 S.E.2d 269, 270 (2001).
B. N.C. Gen. Stat. § 20-138.5
    Defendant was charged with violation of N.C. Gen. Stat. § 20- 138.5(a) (2003), habitual impaired driving. That Statute provides, “[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 thisoffense.” N.C. Gen. Stat. § 20-138.1 (2003) states in part, “[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 . . . .” Defendant questions whether the State proffered substantial evidence that defendant was “appreciably impaired” when he drove the sedan.
1. Impairment
    This Court discussed the definition of “impairment” in State v. Harrington:
        “Impairment” does not appear to have any special legal meaning, but simply means “weakening, making worse, diminishment.” See Black's Law Dictionary 677 (5th ed. 1979). Under our former “driving under the influence” statutes, the test was whether the accused had “drunk a sufficient quantity of intoxicating beverage or taken a sufficient amount of narcotic drugs, to cause him to lose the normal control of his bodily or mental faculties, or both, to such an extent that there is an appreciable impairment of either or both of these faculties.” State v. Carroll, 226 N.C. 237, 241, 37 S.E.2d 688, 691 (1946). The new statute, 1983 N.C. Sess. Laws c. 435, s. 24, codified at G.S. 20-138.1, consolidated existing impairment offenses into a single offense with two different methods of proof, but it does not appear to have changed the basic definition of “impaired.” See State v. Shuping, 312 N.C. 421, 323 S.E.2d 350 (1984); State v. Coker, 312 N.C. 432, 323 S.E.2d 343 (1984).

        Under our statutes, the consumption of alcohol, standing alone, does not render a person impaired. State v. Ellis, 261 N.C. 606, 135 S.E.2d 584 (1964). An effect, however slight, on the defendant's faculties, is not enough to render him or her impaired. State v. Hairr, 244 N.C. 506, 94 S.E.2d 472 (1956). Nor does the fact that defendantsmells of alcohol by itself control. State v. Cartwright, 12 N.C. App. 4, 182 S.E.2d 203 (1971). On the other hand, the State need not show that the defendant is “drunk,” i.e., that his or her faculties are materially impaired. See State v. Painter, 261 N.C. 332, 134 S.E.2d 638 (1964) [emphasis in original]. The effect must be appreciable, that is, sufficient to be recognized and estimated, for a proper finding that defendant was impaired. See State v. Felts, 5 N.C. App. 499, 168 S.E.2d 483 (1969) (new trial on other grounds).

78 N.C. App. 39, 45, 336 S.E.2d 852, 855 (1985) (emphasis supplied).
    “The opinion of a law enforcement officer, for instance, has consistently been held sufficient evidence of impairment, provided that it is not solely based on the odor of alcohol.” State v. Mark, 154 N.C. App. 341, 346, 571 S.E.2d 867, 871 (2002) (citing State v. Rich, 351 N.C. 386, 397-98, 527 S.E.2d 299, 305 (2000); Atkins v. Moye, 277 N.C. 179, 185, 176 S.E.2d 789, 793 (1970); State v. Willard, 241 N.C. 259, 264, 84 S.E.2d 899, 902 (1954)), aff'd, 357 N.C. 242, 580 S.E.2d 693 (2003). The officer's opinion of a defendant being “impaired” must be supported by observations of faulty driving or other conduct demonstrating probable cause of mental or physical impairment. Id. at 346, 571 S.E.2d at 871.
    “If any person charged with an implied-consent offense refuses to submit to a chemical analysis, evidence of that refusal is admissible in any criminal action against him for an implied- consent offense under G.S. 20-16.2.” N.C. Gen. Stat. § 20-139.1(f) (2003); State v. Pyatt, 125 N.C. App. 147, 150-51, 479 S.E.2d 218, 220 (1997); State v. O'Rourke, 114 N.C. App. 435, 438, 442 S.E.2d 137, 138 (1994).
C. Analysis
    Officer Moore testified he observed that defendant: (1) had bloodshot eyes; (2) mumbled when he spoke; (3) smelled of alcohol; (4) swayed when he walked; (5) stumbled occasionally while walking; (6) swayed “from side to side in a circular motion” during the “arms out” sway field sobriety test; (7) “wouldn't walk in a straight line. He would walk diagonal to the . . . door;” (8) “insulted me, calling me names, calling me clown;” and (9) refused both the ALCOSENSOR and Intoxilizer chemical analysis tests.
    Defendant asserts he was not impaired as: (1) he did not need assistance walking; (2) when asked by Officer Moore, he stated the correct time, day, and month; (3) he performed the one-leg and finger-to-nose field sobriety tests satisfactorily; and (4) Officer Moore indicated on the Alcohol Influence Report that defendant was only “slightly” impaired.
    Viewed in the light most favorable to the State and giving the State every reasonable inference drawn from the evidence, the trial court did not err in denying defendant's motion to dismiss. Davis, 325 N.C. at 696, 386 S.E.2d at 189. The State proffered substantial evidence to satisfy the element of appreciable impairment under N.C. Gen. Stat. § 20-138.5. Defendant received and used his opportunity to cross-examine Officer Moore, the State's chief prosecuting witness, at length to present his evidence to the jury. The trial court correctly submitted the offense to the jury. This assignment of error is overruled.
IV. Validity of Indictment
    Defendant argues the trial court lacked jurisdiction due to the bill of indictment combining allegations of the current charge under N.C. Gen. Stat. § 20-138.5 with defendant's previous convictions for impaired driving, in violation of N.C. Gen. Stat. § 15A-928(a) (2003). We disagree.
    We note initially that defendant did not challenge the validity of the indictment at trial. See State v. Wallace, 351 N.C. 481, 503, 528 S.E.2d 326, 341, cert. denied, 531 U.S. 1018, 148 L. Ed. 2d 498 (2000), reh'g denied, 531 U.S. 1120, 148 L. Ed. 2d 784 (2001). “However, where an indictment is alleged to be invalid on its face, thereby depriving the trial court of its jurisdiction, a challenge to that indictment may be made at any time, even if it was not contested in the trial court.” Wallace, 351 N.C. at 503, 528 S.E.2d at 341.
    N.C. Gen. Stat. § 15A-928 (2003) states in part:
        (a) When the fact that the defendant has been previously convicted of an offense raises an offense of lower grade to one of higher grade and thereby becomes an element of the latter, an indictment or information for the higher offense may not allege the previous conviction. If a reference to a previous conviction is contained in the statutory name or title of the offense, the name or title may not be used in the indictment or information, but an improvised name or title must be used which labels and distinguishes the offense without reference to a previous conviction.

        (b) An indictment or information for the offense must be accompanied by a special indictment or information, filed with the principal pleading, charging that the defendant was previously convicted of a specified offense. At the prosecutor's option, the special indictment or information may be incorporated in the principalindictment as a separate count. Except as provided in subsection (c) below, the State may not refer to the special indictment or information during the trial nor adduce any evidence concerning the previous conviction alleged therein.

(Emphasis supplied).
    
In State v. Jernigan, this Court held:
        The purpose of section 15A-928 is to insure that the defendant is informed of the previous convictions the State intends to use and is given a fair opportunity to either admit or deny them or remain silent. State v. Ford, 71 N.C. App. 452, 454, 322 S.E.2d 431, 432 (1984). This purpose is analogous to that of N.C.G.S. § 15A-941 (Cum. Supp. 1994), the general arraignment statute. Under that statute, the defendant must be brought before a judge and must have the charges read or summarized to him and must be directed to plead. § 15A-941(a). If the defendant does not plead, he must be tried as if he pled not guilty. Id. The failure to arraign the defendant under section 15A-941 is not always reversible error. “Where there is no doubt that a defendant is fully aware of the charge against him, or is in no way prejudiced by the omission of a formal arraignment, it is not reversible error for the trial court to fail to conduct a formal arraignment proceeding.” State v. Smith, 300 N.C. 71, 73, 265 S.E.2d 164, 166 (1980).

118 N.C. App. 240, 244, 455 S.E.2d 163, 166 (1995).
    This Court addressed the combination of elements within a single indictment in State v. Lobohe, 143 N.C. App. 555, 547 S.E.2d 107 (2001). In Lobohe, the defendant was indicted with one count of impaired driving under N.C. Gen. Stat. § 20-138.1 and one count of habitual impaired driving under N.C. Gen. Stat. § 20-138.5. Id. at 555, 547 S.E.2d at 108. The actual indictment included, but separated, both counts. Id. Count I contained all of the elementsof driving while impaired, but, did not allege the three previous impaired driving convictions. Id. at 558, 547 S.E.2d at 109. Count II alleged separately the three previous convictions of impaired driving. Id. This Court previously affirmed a trial court's decision to “strike from the principal indictment the allegations of defendant's prior convictions for the offense . . . because there was no accompanying special indictment alleging the prior conviction for the offense as required under Section 15A-928(b).” State v. Sullivan, 111 N.C. App. 441, 443-44, 432 S.E.2d 376, 378 (1993). However, in Lobohe we held the inclusion of both counts separate and apart from one another in the principal indictment complied with N.C. Gen. Stat. § 15A-928(a) and (b). 143 N.C. App. at 558, 547 S.E.2d at 109.
    Here, the principal indictment included three separate counts, although not individually enumerated as such. The first allegation states:
        The jurors for the State upon their oath present that on or about the 26th day of February, 2003, in the County named above the defendant named above unlawfully, willfully and feloniously did operate a motor vehicle on a public vehicular area, the Food Lion Parking Lot, Farmville, North Carolina, while subject to an impairing substance and within seven years of the date of this offense has been convicted of the offense of Impaired Driving on October 24, 1997, in Wilson County District Court; has been convicted of the offense of Impaired Driving on May 30, 2000, in Wilson County District Court; and for the offense of Impaired Driving on May 30, 2000, in Wilson County District Court, in violation of G.S. 20-138.5.
(Emphasis supplied). Like in Sullivan, this first allegation includes both the elements of impaired driving and the elements which elevate the offense to that of habitual impaired driving.
    Similar to Lobohe, the principal indictment includes a separate allegation for the charge of impaired driving under N.C. Gen. Stat. § 20-138.1. This allegation states:
        And the jurors for the State upon their oath present that on or about the 26th day of February, 2003, in the County named above the defendant named above unlawfully and willfully did operate a motor vehicle on a public street or highway while subject to an impairing substance, in violation of G.S. 20-138.1.

    In light of this separate allegation, we hold defendant was “in no way prejudiced” by combining the elements of impaired driving with those of habitual impaired driving in one allegation. Jernigan, 118 N.C. App. at 244, 455 S.E.2d at 166. Our review of the record and transcript shows defendant was “informed of the previous convictions the State intend[ed] to use and [was] given a fair opportunity to either admit or deny them or remain silent.” Id. Defendant failed to object at any point either before or during trial regarding notice, or lack thereof, concerning the State's intentions to charge him with habitual impaired driving and the validity of underlying previous convictions. At the close of the State's evidence, defendant denied his previous three impaired driving convictions, which prompted the State to offer proof of his underlying convictions.
    We do not condone the State's practice of: (1) combining the elements of the current offense with allegations of the previousconvictions in the same count; then (2) separately enumerating the elements of the current offense. However, defendant fails to show and the principal indictment did not prejudice defendant to warrant quashing the indictment and vacating defendant's convictions. This assignment of error is overruled.
V. Conclusion
    The trial court did not err in denying defendant's motion to dismiss the charge of impaired driving under N.C. Gen. Stat. § 20- 138.1. The State proffered substantial evidence to show defendant was “appreciably impaired.” The State's combining the elements of impaired driving with those of habitual impaired driving in one allegation in the principal indictment, while not the preferred form, does not warrant a new trial. Jernigan, 118 N.C. App. at 244, 455 S.E.2d at 166. The indictment complied with N.C. Gen. Stat. § 15A-928 by including a separate allegation concerning impaired driving. Lobohe, 143 N.C. App. at 558, 547 S.E.2d at 109. Defendant received a fair trial free from prejudicial error.
    No prejudicial error.
    Chief Judge MARTIN and Judge LEVINSON concur.
    Report per Rule 30(e).

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