STATE OF NORTH CAROLINA
v. Alamance County
No. 03 CRS 60744-60745
BOBBY LEE SOUTHERN, JR.
Attorney General Roy Cooper, by Assistant Attorney General
Patricia A. Duffy for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Charlesena Elliott Walker for defendant-appellant.
Defendant was found guilty of felonious possession of stolen
goods and driving while impaired.
The State presented evidence tending to show that at approximately 11:30 a.m. on 17 November 2003, Chuck Lawson, owner of 86 Motors, an automobile dealership in Caswell County, observed defendant and two other men arrive at the business. One of the men, Marlo Southerland, asked to look at a 1995 Cadillac on the lot. Lawson handed the vehicle's keys to Southerland and continued to serve another customer. When Lawson finished talking to the other customer, he walked out to talk to Southerland. He discovered the 1995 Cadillac and the three men were gone. Lawson drove several miles looking for the Cadillac. He returned to hisoffice and reported the vehicle as stolen.
Between approximately 2:00 to 2:30 p.m. that afternoon, Corporal J.R. Marshall of the Burlington Police Department received a dispatch to be on the lookout for a white Cadillac occupied by three black males. At about 9:00 p.m. he saw a white Cadillac bearing a paper tag stating lost tag in the rear window traveling on Morningside Drive. Corporal Marshall stopped the vehicle after it rolled into the parking lot of a building.
Defendant exited the driver's seat of the Cadillac and walked, staggering, over to Corporal Marshall's police vehicle. He admitted to Corporal Marshall that he had been drinking since early that morning. Corporal Marshall detected a strong odor of alcohol on defendant's breath. Defendant's eyes were bloodshot and his speech was slow. Corporal Marshall found a three-quarters empty twelve ounce bottle of Peach Cisco on the front passenger seat of the Cadillac. The bottle was still cold. Corporal Marshall ran a VIN check of the vehicle and determined that it was the same vehicle reported stolen in Caswell County earlier that day. Defendant performed poorly on the field sobriety tests. Defendant underwent an Intoxilyzer test and registered an alcohol concentration of 0.37.
Defendant first contends the indictment charging him with possession of stolen property is fatally flawed because it does not allege 86 Motors is an entity capable of owning property. We dismiss this contention. In State v. Medlin, 86 N.C. App. 114, 124, 357 S.E.2d 174, 180 (1987), this Court held that an indictmentcharging one with possession of stolen property is not required to allege the name of the owner of the property. The allegation of ownership in the present indictment is surplusage and is harmless.
Defendant next contends the court erred by denying his motion to dismiss the charge of felonious possession of stolen goods on the ground there was a fatal variance between the identity of the victim identified in the indictment, 86 Motors, and the victim identified in the evidence at trial, Chuck Lawson. Again, State v. Medlin is controlling precedent as this Court also held in that case that a variance between an indictment's allegation of ownership and the proof at trial is not fatal. Id. at 124, 357 S.E.2d at 180.
Defendant's final contention is that the court erred in admitting Corporal Marshall's testimony regarding the results of the horizontal gaze nystagmus test he administered to defendant. He argues the testimony should have been excluded because Corporal Marshall lacked the expertise necessary to establish the scientific reliability of the test.
The State concedes that the court erred by admitting the testimony but argues the error was not prejudicial. We agree. Overwhelming evidence of a defendant's guilt of the charged crime may render an error harmless beyond a reasonable doubt. State v. Morgan, 359 N.C. 131, 156, 604 S.E.2d 886, 901 (2004). Here, the evidence of defendant's impairment is overwhelming. Defendant confessed that he had been drinking since early that morning. The officer found a still-cold three quarters empty bottle of PeachCisco on the front passenger seat of the stopped vehicle. Defendant failed to perform successfully any of the other sobriety tests administered by the officer. Defendant exhibited outward manifestations of alcohol intoxication, including inability to walk steadily and to maintain balance, bloodshot and glassy eyes and a strong odor of alcohol on his breath and person. Finally, defendant registered a blood alcohol concentration of .37, almost five times the legal limit of .08, on the Intoxilyzer test.
We hold defendant received a fair trial, free of prejudicial error.
Judges McCULLOUGH and TYSON concur.
Report per Rule 30(e).
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