An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1145


Filed: 3 May 2005


         v.                        Wayne County
                                No. 03CRS057194

    Appeal by defendant from judgment entered 11 May 2004 by Judge Jerry Braswell in Wayne County Superior Court. Heard in the Court of Appeals 25 April 2005.

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

    Thomas E. Fulghum for defendant-appellant.

    ELMORE, Judge.

    Defendant Elmer Berkley was charged with driving while impaired (DWI). He was initially tried and convicted of the offense in district court. Defendant then appealed to the superior court, and this matter was tried de novo on 11 May 2004 before Judge Jerry Braswell and a duly empaneled jury.
    The State's evidence tended to show that on the afternoon of 6 August 2003, Trooper Michael Conley of the North Carolina State Highway Patrol observed defendant traveling southbound on U.S. 117, outside of Mount Olive, North Carolina. Defendant was operating a moped, which was proceeding next to the fog line and traveling about 20 m.p.h. The trooper noted, “The defendant was wobblingreal bad on the moped and kind of jerking the wheel, like as if he was about to wreck, maybe [as] if he was impaired or had a medical condition. That's what brought my attention to the moped.” Trooper Conley thereafter activated his blue lights, but defendant failed to respond. The trooper also turned on his siren for five seconds, but defendant still refused to pull over.
    When defendant stopped for the red light at the intersection of U.S. 117 and N.C. 55, Trooper Conley did also. The trooper then got out of his vehicle and approached defendant. The trooper tapped defendant on the shoulder, whereupon defendant turned and asked, “where the G-- D--- Food Lion was?” Trooper Conley informed defendant that he was in Mount Olive and that Food Lion was across the road. During this exchange, Trooper Conley noticed a strong odor of alcohol about defendant's person. The trooper also noted that defendant's eyes were bloodshot and that his speech was slurred and mumbled. Trooper Conley asked defendant to get off of the moped and step back to his patrol car. Defendant complied, but was rather unsteady on his feet as he walked back to the trooper's patrol car. After speaking briefly with defendant, Trooper Conley placed defendant under arrest for DWI and transported him to the Intoxilyzer room at the Wayne County Jail.
    Once they arrived at the Intoxilyzer room, Trooper Conley asked defendant to perform some field sobriety tests. However, when defendant “almost fell over” when trying to perform the finger-to-nose test, the trooper decided to stop the test for fear defendant would injure himself. Defendant subsequently refusedTrooper Conley's offer to take the Intoxilyzer test. Defendant also refused to answer any questions on the A.I.R. form. Based upon his interaction with defendant, the trooper formed the opinion that defendant had consumed a sufficient quantity of an impairing substance to cause an appreciable impairment of his mental and physical faculties. On cross-examination, Trooper Conley denied ever beating defendant.
    Defendant testified during his case-in-chief that he drank about four beers on the night before he was arrested by Trooper Conley for DWI. Defendant explained that he had stayed up late that night and got little sleep, which accounted for his bloodshot eyes on the date of his arrest. Defendant stated that he did not shower before leaving for groceries at about 2:30 or 3:00 p.m. on his moped. Defendant further stated that it was his habit to drive his moped on the right side of the fog line to leave a clear path for cars. Defendant denied ever seeing Trooper Conley before the trooper tapped him on his shoulder. Defendant insisted that it was impossible that the trooper activated his lights and siren because he would have noticed them. Defendant also denied asking the trooper where the Food Lion was located, but explained that he probably told the trooper that he was on his way to Food Lion when asked where he was going.
    Defendant admitted to refusing to perform any tests, and stated that he asked for an attorney before he would talk. Defendant testified that he refused the Intoxilyzer test because he “thought [he] was being set up.” Defendant insisted that he neverattempted the finger-to-nose test. Defendant testified that after he refused to take the Intoxilyzer test, Trooper Conley handcuffed him for the first time. After taking him to the booking counter, defendant alleged that the trooper punched him and beat him about his body with his fists and baton. In fact, defendant testified that two jailers assisted Trooper Conley by throwing him to the floor. Defendant asserted that when Trooper Conley got tired of beating him, the trooper told him that he had better answer his questions. Defendant testified that he then answered the questions as best he could and placed an “X” on the signature line to show that threats and force had been used on him to get him to sign the form. Defendant did not seek medical assistance for his injuries, and did not report the incident to any officials except a certain magistrate after defendant's release from jail.
    Defendant explained that after he told the magistrate about the beating, the magistrate told defendant that he would check into the allegations and get back to defendant. Defendant stated, however, that he never heard from the magistrate. Defendant stated that his sister Eloise Carlton was present when he told the magistrate about Trooper Conley beating him.
    Defendant sought to admit the testimony of his sister, but the State objected and those objections were sustained by the court. Defendant made an offer of proof, that Carlton heard defendant tell the magistrate that he had been beaten by Trooper Conley.
    The jury found defendant guilty as charged. The trial court entered judgment on the jury's verdict, sentencing defendant to a term of 12 months imprisonment. Defendant again appeals.
    On appeal, defendant argues that the trial court erred in excluding testimony of his sister regarding statements he made to the magistrate about Trooper Conley beating him. Defendant contends that the testimony was admissible as a prior consistent statement. We disagree.
    “Relevant evidence” has been defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.C. Gen. Stat. § 8C-1, Rule 401 (2003). It is well settled that “[e]vidence which is not relevant is not admissible.” N.C. Gen. Stat. § 8C-1, Rule 402 (2003). The trial court's rulings on relevancy are given great deference on appeal. State v. Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228 (1991) (“[E]ven though a trial court's rulings on relevancy technically are not discretionary and therefore are not reviewed under the abuse of discretion standard applicable to Rule 403, such rulings are given great deference on appeal.”).
    In the case sub judice, defendant was charged with DWI, and therefore, the issue is whether there was sufficient evidence to show that defendant was driving while impaired. The testimony of defendant's sister that she heard him report an alleged beating by Trooper Conley to the magistrate, as earlier detailed by defendant during his testimony, would not have made the existence of defendant's impairment any less or more probable. Hence, the testimony was not relevant. Moreover, in light of the overwhelmingevidence of defendant's guilt, we conclude that even if the trial court erred in excluding the testimony of defendant's sister, said error was harmless. See State v. Collins, 345 N.C. 170, 173-174, 478 S.E.2d 191, 194 (1996) (stating that even assuming that the trial court had erred in excluding defendant's character evidence as not being “pertinent,” i.e. relevant, “exclusion of the evidence could not have affected the outcome of this case in light of the overwhelming evidence of defendant's guilt”; and therefore “any possible error would have been harmless”). Accordingly, the trial court did not err in excluding the testimony of defendant's sister.
    Having so concluded, we hold that defendant received a fair trial, free from prejudicial error.
    No error.
    Judges BRYANT and GEER concur.
    Report per Rule 30(e).

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