An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA05-1121


NORTH CAROLINA COURT OF APPEALS

Filed: 6 June 2006

STATE OF NORTH CAROLINA

    v.                            Catawba County
                                No. 03 CRS 61072
ROBERT AMOS FARMER,
        Defendant.

    Appeal by defendant from judgment entered 12 May 2005 by Judge Nathaniel J. Poovey in Catawba County Superior Court. Heard in the Court of Appeals 22 May 2006.

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

    William D. Auman for defendant-appellant.

    GEER, Judge.

    Defendant Robert Amos Farmer appeals his conviction for driving while impaired ("DWI"). Because, contrary to defendant's contentions on appeal, the trial court properly admitted the lay opinion testimony of the arresting officer and the record contains substantial evidence to support the conviction, we hold that defendant received a trial free of error.
    Hickory Police Officer Kevin Wilson testified that at 4:48 a.m. on 27 December 2003, he initiated a traffic stop of defendant, who had been driving a Cadillac automobile eastward on Highway 70, a public highway in Catawba County, North Carolina. Over a distance of approximately one-half mile, Officer Wilson had observed that defendant's "vehicle was weaving in its own lane andwent off the road to the right side of the road." While speaking to defendant at his car door, Wilson "smelled an odor of . . . alcoholic beverage on his breath and . . . asked if he'd been drinking." Defendant told Wilson that he had consumed "several drinks."
    After asking defendant to exit the car, Wilson administered five roadside sobriety tests, each of which defendant failed. He was unable to recite the alphabet from J to Z and failed to perform properly the sway test, the one-legged stand test, the finger-to- nose test, or the walk and turn test. Although Wilson recalled that defendant "did not perform the test[s] correctly," he could not remember the details of defendant's performance, other than his use of his middle finger, rather than his index finger, to perform the finger-to-nose test.
    Based on defendant's driving and his inability to perform the field sobriety testing, Wilson formed an opinion that defendant "had consumed a sufficient amount of an impairing substance such as to impair his physical or mental faculties" and placed him under arrest. While at the Hickory Police Department, defendant refused Wilson's request to submit to an Intoxilyzer 5000 chemical breath analysis.
    On appeal, defendant first argues that the trial court erred in allowing Wilson to offer his lay opinion that defendant was impaired when Wilson was unable to recall the specific details of defendant's performance of the various roadside sobriety tests. Under N.C.R. Evid. 701, "it is a well-settled rule that a layperson may give his opinion as to whether a person is intoxicated so long as that opinion is based on the witness's personal observation." State v. Rich, 351 N.C. 386, 398, 527 S.E.2d 299, 306 (2000).
    Wilson testified that his opinion of defendant's impairment was based on defendant's erratic driving and his inability to perform any of five field sobriety tests following the traffic stop. The officer also detected an odor of alcohol on defendant's breath and was told by defendant that he had consumed several drinks. Wilson's opinion was thus grounded in his firsthand observations of defendant and was admissible as a lay opinion under Rule 701. See, e.g., State v. Speight, 166 N.C. App. 106, 114, 602 S.E.2d 4, 10 (2004) (allowing police officer to express his opinion on the defendant's impairment based upon his observation of the accident scene, his interviews with eyewitnesses about the defendant's driving, and the odor of alcohol on the defendant and in his car), aff'd in part and modified in part on other grounds, 359 N.C. 602, 614 S.E.2d 262 (2005). The officer's inability to recall all the details regarding defendant's performance of the tests was an issue for the jury to consider in assessing the weight and credibility of his testimony.
    Defendant next assigns error to the trial court's denial of his motion to dismiss the charge for insufficient evidence. When considering a motion to dismiss by a defendant, the trial court must determine whether the State presented substantial evidence of every essential element of the crime and that the defendant is theperpetrator. State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255, cert. denied, 537 U.S. 1006, 154 L. Ed. 2d 404, 123 S. Ct. 488 (2002). "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). When considering a motion to dismiss, the court must consider the evidence "in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor." State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818, 115 S. Ct. 2565 (1995).
    The charge of driving while impaired in violation of N.C. Gen. Stat. § 20-138.1 (2005) requires proof that: "(1) Defendant was driving a vehicle; (2) upon any highway, any street, or any public vehicular area within this State; (3) while under the influence of an impairing substance." State v. Mark, 154 N.C. App. 341, 345, 571 S.E.2d 867, 870 (2002), aff'd per curiam, 357 N.C. 242, 580 S.E.2d 693 (2003). Here, the State presented substantial evidence of defendant's guilt of this charge through Wilson's testimony that defendant (1) weaved within and left his lane of traffic while driving on U.S. Highway 70, (2) smelled of alcohol, (3) admitted to consuming several drinks, (4) failed five field sobriety tests, (5) appeared to Wilson to be impaired by alcohol, and (6) refused an Intoxilyzer breath analysis.
    Our courts have consistently concluded that such evidence is sufficient to defeat a motion to dismiss a charge of DWI. "'[T]he[f]act that a motorist has been drinking, when considered in connection with faulty driving . . . or other conduct indicating an impairment of physical or mental faculties, is sufficient prima facie'" evidence of DWI to withstand a motion to dismiss. Rich, 351 N.C. at 398, 527 S.E.2d at 306 (alteration in original) (quoting Atkins v. Moye, 277 N.C. 179, 185, 176 S.E.2d 789, 794 (1970)). Further, "[t]he opinion of a law enforcement officer . . . has consistently been held sufficient evidence of impairment, provided that it is not solely based on the odor of alcohol." Mark, 154 N.C. App. at 346, 571 S.E.2d at 871. Finally, pursuant to N.C. Gen. Stat. § 20-139.1(f)(2005), the refusal to submit to an Intoxilyzer breath analysis is admissible as substantive evidence of a defendant's guilt of the implied consent offense of DWI under N.C. Gen. Stat. § 20-138.1. The State's evidence was thus sufficient to withstand defendant's motion to dismiss.

    No error.
    Chief Judge MARTIN and Judge BRYANT concur.
    Report per Rule 30(e).

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