State v Rumph, (05-281) 11/01/2005

Appeal by Defendant from judgment entered 8 October 2004 by Judge Timothy L. Patti in Superior Court, Gaston County. Heard in the Court of Appeals 10 October 2005.

Attorney General Roy Cooper, by Special Counsel Isaac T. Avery, III, for the State.

William D. Auman for defendant-appellant.

WYNN, Judge.

    The offense of fleeing to elude arrest is elevated to a felony if any two of eight listed aggravating factors are present at the time of the violation. N.C. Gen. Stat. § 20-141.5(b) (2004). In this case, Defendant contends the evidence was insufficient to establish the aggravating factors that his faculties were grossly impaired or that he was driving recklessly. We disagree as the record shows there was sufficient evidence to support the charged aggravating factors. Accordingly, we uphold the trial court's denial of Defendant's motion to dismiss. Moreover, we find no error by the trial court regarding Defendant's remainingassignments of error.
    At trial, the State presented evidence tending to show that at approximately 3:00 a.m. on 3 November 2003, Officer Rob Henninger of the Gaston County Police Department observed a white vehicle pass by his parked vehicle at a high rate of speed. The officer pursued the vehicle for about two miles and ultimately caught up with it at a traffic light. But the vehicle accelerated from the traffic light to a speed of seventy miles per hour, weaved in its lane of travel, and failed to stop after the officer activated his vehicle's blue light and siren. Additional patrol cars joined the pursuit with activated blue lights and sirens. Ultimately, the pursued vehicle struck a curb, blew a tire, continued to travel to about 100 yards ahead of a police roadblock, and stopped.
    Upon approaching the stopped vehicle, Officer Henninger identified the single occupant and driver of the vehicle as Defendant. As Officer Henninger prepared to handcuff Defendant, he asked him, “What were you doing?” Defendant responded, “I just wanted to finish my beer before I stopped[.]” A search of the vehicle revealed numerous beer cans, an open bottle of beer, and an open bottle of wine in the front passenger area. Officer Henninger described Defendant's eyes as “extremely bloodshot” and detected a strong odor of alcohol on Defendant's breath. Defendant's breath tested positive for the presence of alcohol on a field screening test. Defendant refused to submit to an Intoxilyzer test.
    Defendant was found guilty of felony fleeing to elude arrest, driving while impaired, driving while license revoked, and drivingwhile possessing an open container of alcoholic beverage in the passenger area of a motor vehicle. In exchange for his guilty plea to habitual felon status and misdemeanor larceny, all of the convictions were consolidated and Defendant was sentenced to 120 to 153 months imprisonment.
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    On appeal, Defendant contends that the trial court erred by denying his motion to dismiss the charges of felony fleeing to elude arrest because the evidence was insufficient to establish that his faculties were grossly impaired or that he was driving recklessly. We disagree.
    A person is guilty of the offense of fleeing to elude arrest if he operates a motor vehicle on a street, highway or public vehicular area while fleeing or attempting to elude a law enforcement officer who is in the lawful performance of his duties. N.C. Gen. Stat. § 20-141.5(a) (2004). The offense is elevated to a felony if any two of eight listed aggravating factors are present at the time of the violation. N.C. Gen. Stat. § 20-141.5(b).
    As aggravating factors in this case, the indictment charged that Defendant's faculties were grossly impaired due to consumption of an impairing substance, Defendant was driving while his driver's license was revoked, and Defendant was driving recklessly in violation of section 20-140 of the North Carolina General Statutes. Defendant concedes that he was driving while his license was revoked but argues the evidence was insufficient to establish that his faculties were grossly impaired or that he was drivingrecklessly.
    Considered in the light most favorable to the State, the evidence in the case at bar is sufficient to show that Defendant's faculties were grossly impaired by an impairing substance. Defendant's vehicle weaved in its lane of travel, struck a curb and blew a tire. Nonetheless, Defendant continued to drive the vehicle after the tire blew. Defendant's eyes were badly bloodshot, a strong odor of alcohol was on his breath, and his speech was slurred. Officer Henninger testified that, Defendant's impairment was “severe, extreme.” This evidence was sufficient to support the aggravating factor that Defendant's faculties were grossly impaired by an impairing substance.
    Moreover, the record shows sufficient evidence to support the aggravating factor that Defendant drove recklessly in violation of section 20-140 of the North Carolina General Statutes. State v. Folger, 211 N.C. 695, 697, 191 S.E. 747, 748-49 (1937) (holding a defendant is guilty of reckless driving if he drives an automobile on a public highway (1) “carelessly and heedlessly, in willful or wanton disregard of the rights or safety of others,” or (2) “without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property.”).
    Here, at the time Officer Henninger first saw Defendant's vehicle, he estimated that it was traveling at a speed of ninety miles per hour. Officer Henninger observed the vehicle quickly accelerate to a speed of seventy miles per hour after stopping ata traffic light. The vehicle veered sharply and struck a curb, and Defendant continued to operate the vehicle after it struck the curb and blew a tire. Based upon the foregoing evidence, a jury could find Defendant was guilty of reckless driving.
    Accordingly, we uphold the trial court's denial of Defendant's motion to dismiss.
    Defendant next contends the court erred by admitting testimony that the result of the alcohol screening test was positive. Section 20-138.7(d) of the North Carolina General Statutes provides that “an alcohol screening test may be administered to a driver suspected of violating subsection (a) [transportation of open container of alcoholic beverage] of this section, and the results of an alcohol screening test or the driver's refusal to submit may be used by a law enforcement officer, a court, or an administrative agency in determining if alcohol was present in the driver's body.” N.C. Gen. Stat. § 20-138.7(d) (2004). For the results of the test to “be used by . . . a court . . . in determining if alcohol was present in the driver's body,” it follows that the results must be admitted into evidence. This contention is without merit.
    Defendant next contends the court erred by allowing Officer Henninger to testify that Defendant stated he did not stop because he “wanted to finish [his] beer before [he] stopped.” Defendant argues this statement should have been excluded as a statement resulting from a custodial interrogation without a prior reading of Defendant's rights. However, Defendant interposed only an objection to possible “hearsay coming up at this point” and ageneral objection. At no time in the court below did Defendant contend that the evidence should have been excluded because his constitutional rights were not read to him before he made the statement. An appellate court will not consider a constitutional issue that was not raised in the court below. State v. Benson, 323 N.C. 318, 321-22, 372 S.E.2d 517, 519 (1988). This contention is dismissed.
    Defendant last contends the court committed plain error by failing to declare a mistrial when the prosecutor “underhandedly” told the jurors that it would be defense counsel's fault if they were required to come back into the courtroom to view exhibits. Plain error review is available only for errors in jury instructions and the admission of evidence. State v. Wolfe, 157 N.C. App. 22, 33, 577 S.E.2d 655, 663, appeal dismissed and disc. review denied, 357 N.C. 255, 583 S.E.2d 289 (2003). This issue is therefore not properly before the Court.
    No error.
    Judges CALABRIA and JACKSON concur.
    Report per Rule 30(e).

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