An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-791


Filed: 18 April 2006


v .                         Buncombe County
                            03 CRS 12657
ABRAHAM ADAMS                    03 CRS 59648    

    Appeal by defendant from judgments dated 21 October 2004 by Judge James L. Baker in Superior Court, Buncombe County. Heard in the Court of Appeals 21 February 2006.

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

    Hall & Hall, P.C., by Douglas L. Hall, for defendant- appellant.

    McGEE, Judge.

    Abraham Adams (defendant) was arrested on 6 August 2003 and charged with driving while impaired in violation of N.C. Gen. Stat. § 20-138.1; failing to stop at a stop sign in violation of N.C. Gen. Stat. § 20-158; and possession of an open container in violation of N.C. Gen. Stat. § 20-138.7(a1). Defendant pled guilty in district court to the open container charge and pled not guilty to the remaining two charges. Defendant was convicted of all three offenses at the 25 June 2004 session of district court. Defendant appealed to superior court. Defendant was tried before a jury in superior court on 19 July 2004 and was found guilty on all three charges. On defendant's motion, the verdicts were set aside because the State called the jury bailiff as a rebuttal witness.Defendant was retried on 20 October 2004.
    The evidence at trial tended to show that on 6 August 2003, at approximately 2:00 a.m., Officer Jonathan Brown (Officer Brown) of the Asheville Police Department was on patrol in the downtown area of Asheville. At the intersection of Edgehill Avenue and Martin Luther King Drive, Officer Brown saw defendant, who was driving a van at approximately fifteen miles per hour, run a stop sign. Officer Brown stopped defendant, approached defendant's van, and informed defendant that he had stopped him for failing to stop at the stop sign. As Officer Brown spoke with defendant, he detected a "moderate odor of alcohol."
    Officer Brown administered field sobriety tests to defendant in a nearby parking lot. Officer Brown observed that defendant swayed noticeably from left to right. After defendant failed to stand on one foot for more than twenty-two seconds, Officer Brown formed the opinion that defendant's mental and physical capacities were impaired. Officer Brown arrested defendant for driving while impaired.
    A wrecker was called to the scene, and defendant's van was inventoried. Officer Brown found a square box behind the driver's seat containing a bottle of beer and a cup of what appeared to be a malt beverage. Officer Brown transported defendant to the Buncombe County Detention Facility for the purpose of administering an Intoxilyzer test.
    During the pre-test observation period, Officer Brown observed that defendant's eyes were red and glassy, and that defendant wasextremely talkative. Defendant became increasingly uncooperative and refused to perform any further field sobriety tests. Officer Brown read defendant his Intoxilyzer rights and then asked defendant to sign an acknowledgment form, which he did. Defendant did not request an attorney or witness for the administration of the Intoxilyzer test. Officer Brown testified that when the Intoxilyzer tube was offered to defendant, defendant "took a short breath and went 'whew' and blew for approximately one second and stopped and refused to blow any longer." Defendant refused to blow again and complained that Officer Brown was trying to manipulate the test. Officer Brown marked the Intoxilyzer test a "refusal."     The jury found defendant guilty of all charges. For the charge of driving while impaired, defendant was sentenced at Level V to a suspended term of sixty days, with twenty-four months of supervised probation. For the other charges, defendant was fined $201.00. On appeal, defendant argues five assignments of error.


    Defendant first argues that the warrantless search of his vehicle was a violation of his Fourth Amendment rights, and that the open container of alcohol seized as a result of the search should have been suppressed.
    Defendant contends, and the State argued at trial, that the alcohol container was seized pursuant to an inventory search. A determination of whether the warrantless search of the van can be justified as a lawful inventory search, however, is not dispositive of this appeal because the evidence was also the fruit of a lawfulsearch incident to arrest. Defendant was lawfully arrested by Officer Brown after defendant performed a field sobriety test. After lawfully arresting defendant, Officer Brown had the right to make a "contemporaneous warrantless search of the passenger compartment" of defendant's van. State v. Massenburg, 66 N.C. App 127, 129, 310 S.E.2d 619, 621 (1984) (citing New York v. Belton, 453 U.S. 454, 69 L. Ed. 2d 768 (1981)); see State v. Brooks, 337 N.C. 132, 144-45, 446 S.E.2d 579, 587 (1994) (holding that officers may search the entire interior of a vehicle incident to arrest). Since the evidence sought to be suppressed was obtained through lawful means unrelated to the arguably invalid inventory search, the "fruit of the poisonous tree" doctrine has no application to the present case. State v. Phifer, 297 N.C. 216, 226, 254 S.E.2d 586, 591 (1979).
    Moreover, defendant has failed to preserve this assignment of error for appellate review. Defendant did not object to the contested evidence at trial. Rule 10(b)(1) of the North Carolina Rules of Appellate Procedure states, in part, that "[i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make[.]" N.C.R. App. P. 10(b)(1). As our Supreme Court recently stated in State v. Garcia, 358 N.C. 382, 597 S.E.2d 724 (2004), cert. denied, ___ U.S. ___, 161 L. Ed. 2d 122 (2005), "[i]t is well settled that constitutional matters that are not 'raised and passed upon' at trial will not be reviewed for the first timeon appeal." Id. at 410, 597 S.E.2d at 745 (quoting State v. Watts, 357 N.C. 366, 372, 584 S.E.2d 740, 745 (2003), cert. denied, ___ U.S. ___, 158 L. Ed. 2d 370 (2004)). Accordingly, defendant has failed to prevail on this assignment of error and has also failed to preserve this assignment of error for appellate review.

    Defendant next argues the trial court erred in admitting into evidence the results of the Intoxilyzer test and defendant's refusal of the test. The first basis of defendant's argument is that defendant was denied his statutory right to have a person of his choosing administer the test. The second basis is that the State failed to lay a proper foundation for admission of the evidence. We find neither basis has merit.
    N.C. Gen. Stat. § 20-16.2(a)(5)(2005) provides that, before a chemical analysis is performed pursuant to an implied consent offense, the person charged "may choose a qualified person to administer a chemical test or tests in addition to any test administered at the direction of the charging officer." However, "if the person charged willfully refuses to submit to that chemical analysis, none may be given under the provisions of this section[.]" N.C. Gen. Stat. § 20-16.2(c)(2005) (emphasis added); see State v. Bumgarner, 97 N.C. App. 567, 389 S.E.2d 425, 427, disc. review denied, 326 N.C. 599, 393 S.E.2d 873 (1990) (noting that "a defendant who submits to chemical analysis" is informed that he has the right to an additional chemical test). A refusal under N.C.G.S. § 20-16.2(c) includes "[a] person's refusal to givethe sequential breath samples necessary to constitute a valid chemical analysis." N.C. Gen. Stat. § 20-139.1(b3) (2005) (providing that "the regulations of the Commission for Health Services governing the administration of chemical analyses of the breath shall require the testing of at least duplicate sequential breath samples.").
    In the present case, defendant verbally agreed to submit to the Intoxilyzer test but then failed to provide an adequate breath sample for the Intoxilyzer to measure the alcohol concentration. After defendant's first attempt failed to register, Officer Brown explained to defendant that a longer breath was required for the machine to produce an accurate reading. Defendant refused to provide a sequential breath sample. We conclude that defendant's refusal to provide an adequate breath sample constitutes a refusal. See Tedder v. Hodges, 119 N.C. App. 169, 175, 457 S.E.2d 881, 885 (1995) (holding that a person's "failure to follow the instructions of the breathalyzer operator was an adequate basis for the trial court to conclude that [the person] willfully refused to submit to a chemical analysis."). Accordingly, defendant was not entitled to a second test by a person of his choosing.
        [a] person's refusal to give the second or subsequent breath sample shall make the result of the first breath sample . . . 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.G.S. § 20-139.1(b3). Accordingly, defendant's refusal made theresult of the first breath sample admissible at trial.
    Defendant argues the North Carolina Administrative Code requires evidence of the proper calibration and maintenance of an Intoxilyzer machine before any results from the machine can be deemed admissible at trial. Defendant is correct that, in order to be valid, a chemical analysis such as an Intoxilyzer test must be performed "according to methods approved by the Commission for Health Services[,]" which may adopt rules approving such methods. N.C. Gen. Stat. § 20-139.1(b) (2005). However, the statute continues:
        (b2) . . . Notwithstanding the provisions of subsection (b), the results of a chemical analysis of a person's breath performed in accordance with this section are not admissible in evidence if:

            (1)    The defendant objects to the introduction into evidence of the results of the chemical analysis of the defendant's breath; and

            (2)    The defendant demonstrates that, with respect to the instrument used to analyze the defendant's breath, preventive maintenance procedures required by the regulations of the Commission for Health Services had not been performed within the time limits prescribed by those regulations.

N.C. Gen. Stat. § 20-139.1 (b2)(1) & (2) (2005) emphasis added.
    In the present case, defendant did not object at trial to the introduction of the results of the chemical test. Nor did defendant carry his burden of demonstrating at trial that the preventive maintenance procedures had not been performed. Accordingly, defendant has shown no error.     Further, even if defendant could show error on appeal, defendant has failed to preserve the error for our review. As noted above, defendant did not object at trial when evidence of the Intoxilyzer was presented. Defendant waived his right to appellate review of this issue by failing to object at trial. N.C.R. App. P. 10(b)(1); State v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991) (holding that "[t]his Court will not consider arguments based upon matters not presented to or adjudicated by the trial tribunal."). Defendant further waived his opportunity for plain error review of the issue by failing to specifically allege plain error on appeal. N.C.R. App. P. 10(c)(4); State v. Bell, 359 N.C. 1, 27, 603 S.E.2d 93, 111 (2004), cert. denied, ___ U.S. ___, 161 L. Ed. 2d 1094 (2005) (holding failure to specifically assert plain error does not preserve issue for appellate review).

    Defendant argues the trial court erred in denying defendant's motion to dismiss the charge of possession of an open container because the citation was fatally flawed.
    At the close of the State's evidence, defendant moved to dismiss the open container charge. The trial court denied defendant's motion. On appeal, defendant argues the ground for his motion to dismiss was that the charging document was fatally flawed. The State contends defendant's ground at trial was insufficiency of the evidence, and that therefore defendant did not preserve for appellate review the question of whether the citation was fatally flawed. In order to preserve the question forappellate review, defendant's motion to dismiss must have stated "the specific grounds" for the ruling defendant desired the trial court to make, "if the specific grounds were not apparent from the context." N.C.R. App. P. 10(b)(1). A review of the transcript shows that defense counsel seemed to conflate the two grounds:
        Your Honor, we would move to dismiss possession of open container in 03-CRS-12657. And the basis for that is the statute Section 20.138.7 states that the pleading is sufficient if it states the time and place of the alleged offense in the usual form and charges that the Defendant possessed an open container of alcoholic beverage in a passenger area of a motor vehicle while the motor vehicle was on a highway or the right-of-way of the highway . . . .

        Your Honor, we would contend there has been no evidence whatsoever of that and would ask Your Honor to dismiss that charge.

    Even assuming defendant properly preserved the question for appellate review, we need not address his argument. Defendant argues the citation was fatally flawed in that it failed to allege that defendant possessed an open container "on a public highway," which is an essential element of N.C.G.S. § 20-138.7. However, the trial court granted the State's motion to amend the citation to include the omitted language. Accordingly, we will address defendant's next argument, that the trial court erred in granting the State's motion to amend.

    The North Carolina Uniform Citation used in the present case reads as follows:
        The undersigned officer has probable cause to believe that on or about ___, __ (a.)(p.)m.,the ___ day of ___, ___, in the named county, the named defendant did unlawfully and willfully operate a (motor) vehicle on a (street or highway) (public vehicular area)

        . . . .

        14. (Possess an open container of)(Consume) an alcoholic beverage in the passenger area of a motor vehicle. G.S. 20-138.7. [NOTE: Strike through "operate a (motor) vehicle" and "(public vehicular area)" at top of citation.]

    Officer Brown, following the citation instructions, struck through the two phrases at the top of the citation: "operate a (motor) vehicle" and "(public vehicular area)." However, Officer Brown also struck through the phrase "on a (street or highway)" that appeared in between the two phrases Officer Brown was instructed to strike through. At trial, the State moved to make two amendments to the charging document: (1) add "(a1)" to the statute listed, in order to specify the charge as an infraction under N.C.G.S. § 20-138.7(a1), rather than a misdemenor under N.C.G.S. § 20-138.7(a); and (2) unstrike language on the citation reading "on a (street or highway)." In allowing the motion to unstrike language on the citation, the trial court noted its belief that, despite the officer's strike-through, the citation still specified that the offense occurred on a street or highway. (T p 115) On appeal, defendant argues the trial court erred in allowing the stricken language to be added to the citation.
    A citation serves as the State's pleading for a misdemeanor prosecuted in the district court, unless the State files a statement of charges, or there is an objection to trial on the citation. N.C. Gen. Stat. § 15A-922(a) (2005). A citation may beamended at any time prior to or after final judgment when the amendment does not change the nature of the offense charged. N.C. Gen. Stat. § 15A-922(f) (2005). N.C.G.S. § 15A-922(f) "conforms to the long-held principle in this State that an amendment to a warrant under which a defendant is charged is permissible as long as the amended warrant does not charge the defendant with a different offense." State v. Clements, 51 N.C. App. 113, 116, 275 S.E.2d 222, 225 (1981) (holding that the nature of the offense with which the defendant was charged, death by vehicle, was not changed by striking the allegation of following too closely and substituting therefore the allegation of failure to reduce speed to avoid an accident). It is also well established that a fatally defective warrant cannot be amended. State v. Madry, 140 N.C. App. 600, 537 S.E.2d 827 (2000); State v. Bohannon, 26 N.C. App. 486, 216 S.E.2d 424 (1975). In Bohannon, our Court upheld the amendment of a defective warrant, where that warrant adequately notified the defendant of the offense charged. Bohannon, 26 N.C. App. at 488, 216 S.E.2d at 425. The facts of Bohannon were that the State's original warrant for arrest was defective in that it recited that the defendant drove a motor vehicle on a public highway "after" his operator's license had been suspended, instead of "while" his license had been suspended. Id. at 489-87, 216 S.E.2d at 424. Our Court held that the original warrant adequately notified defendant of the offense charged and was properly cured by amendment, i.e., insertion of the word "while" in place of the word "after." Id. at 488, 216 S.E.2d at 425. "But where the warrant does not containsufficient information to notify the defendant of the nature of the crime charged and fails to contain even a defective statement of the offense, it is fatally defective and cannot be cured by amendment." Id.
    In the present case, while the original citation contained a defective statement of the offense charged, the citation contained sufficient information to adequately notify defendant of the offense. In a prosecution for a violation of N.C.G.S. § 20- 138.7(a1), a pleading is sufficient
        if it states the time and place of the alleged offense in the usual form and charges that (i) the defendant possessed an open container of alcoholic beverage in the passenger area of a motor vehicle while the motor vehicle was on a highway or the right-of-way of a highway[.]

N.C. Gen. Stat. § 20-138.7(g) (2005). Even without the preprinted language "on a (street or highway)," the citation contained adequate information to give defendant sufficient notice of the charge of open container possession, in that the citation stated: (1) the time, date, and county in which the alleged offense occurred, (2) that defendant possessed an open container of an alcoholic beverage in the passenger area of a motor vehicle in violation of N.C.G.S. § 20-138.7, and (3) that defendant possessed a "green cup [with] malt beverage contained inside[,] [a] Budweiser bottle half full [and] cold[,] located behind [the] driver's seat." Moreover, the citation noted that Officer Brown was on Edgehill Avenue near the intersection with Martin Luther King Drive when he issued the citation to defendant. Because the citation adequately notified defendant of the offense charged and did not change thenature of the offense, the citation was properly cured by amendment.

    Defendant's final argument is that the trial court erred in excluding from evidence a manual developed by the National Highway Traffic Safety Administration and tendered by defendant. Defendant argues admission of the evidence was proper under Rules of Evidence 803(8), 803(17), and 902(5). We note first that defendant's assignment of error does not make reference to any court ruling or transcript page, as required by N.C.R. App. P. 10(c)(1) ("An assignment of error is sufficient if it directs the attention of the appellate court to the particular error about which the question is made, with clear and specific record or transcript references."). Overlooking this violation of the Rules, defendant's argument has no merit.
    Our Supreme Court has stated:
        A trial court's ruling on an evidentiary point will be presumed to be correct unless the complaining party can demonstrate that the particular ruling was in fact correct. Even if the complaining party can show that the trial court erred in its ruling, relief ordinarily will not be granted absent a showing of prejudice.

State v. Herring, 322 N.C. 733, 749, 370 S.E.2d 363, 373 (1988) (internal citations omitted). In the present case, defendant makes no allegation of prejudice, but instead simply states that the impropriety of the trial court's ruling entitles defendant to a new trial. Defendant does not explain what information was contained in the proposed exhibit, nor how the jury would have used theinformation contained in the exhibit. Defendant's bare allegation of error, with no offer of prejudice, cannot be sustained. This assignment of error is overruled.
    No error.
    Judges CALABRIA and GEER concur.
    Report per Rule 30(e).

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