An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-1216


Filed: 16 May 2006


         v.                        Gaston County
                                No. 02 CRS 69747

    Appeal by defendant from judgment entered 13 May 2005 by Judge David S. Cayer in Superior Court, Gaston County. Heard in the Court of Appeals 24 April 2006.

    Attorney General Roy Cooper, by Assistant Attorney General Patricia A. Duffy, for the State.
    Mercedes O. Chut, for defendant-appellant.

    McGEE, Judge.

    A jury found defendant guilty of driving while impaired. The trial court imposed a Level Two punishment of twelve months in prison, suspended, with supervised probation.
    At trial, Officer Jerome Briggs (Officer Briggs) of the Gastonia Police Department testified that he was dispatched to a motor vehicle accident on Interstate 85, just north of the North Chester Street on-ramp in Gastonia, North Carolina, on 2 December 2002. When Officer Briggs arrived at the scene of the accident, he saw two vehicles which had been "heavily damaged" in a collision. Defendant was seated in the driver's seat of one of the vehicles. While speaking to defendant, Officer Briggs noticed that "[h]is speech was very slurred" and detected an odor of alcohol "comingfrom [defendant's] mouth." Officer Briggs asked defendant what happened, and defendant replied that "as he was getting onto the interstate he lost control of his vehicle and it slid out of control and was struck by the other vehicle[.]" Officer Briggs arrested defendant for driving while impaired. After waiving his Miranda rights, defendant told Officer Briggs that he had driven the vehicle from Kings Mountain, that he had consumed two forty- ounce beers, and that he was under the influence of alcohol. Defendant also confirmed that he was driving at the time of the accident. Officer Briggs, a licensed chemical analyst, administered an Intoxilyzer 5000 breath analysis to defendant, which measured defendant's blood alcohol level as .11. Based on his interactions with defendant, Officer Briggs formed an opinion, independent of the Intoxilyzer results, that defendant was "appreciably impaired in his mental and physical faculties" due to his consumption of alcohol.
    Ludene Yergen (Yergen) testified for defendant, stating that she and defendant were passengers in the vehicle at the time of the accident. She testified that Timmy Adams was driving the vehicle, and that defendant was seated in the front passenger's seat. After the collision, Yergen walked to a nearby gas station and obtained a ride home from defendant's brother, leaving the scene before police arrived. She testified she last saw defendant "back on the passenger side" of the vehicle. On cross-examination, Yergen could not explain why she had not disclosed this information to police, despite having accompanied defendant to some of his court dates;nor could she explain why defendant was behind the wheel when police arrived.
    Defendant argues the trial court erred in denying his motion to dismiss the charge of driving while impaired at the conclusion of the evidence. Although he concedes that the Intoxilyzer result of .11 was sufficient to establish the fact of his impairment under N.C. Gen. Stat. § 20-138.1(a)(2), defendant insists, "[t]he evidence does not prove, however, that [he] was driving the car[.]" We disagree.
    "When considering a motion to dismiss, the trial court is concerned 'only with the sufficiency of the evidence to carry the case to the jury; it is not concerned with the weight of the evidence.'" State v. Jackson, 161 N.C. App. 118, 122, 588 S.E.2d 11, 14-15 (2003) (quoting State v. Lowery, 309 N.C. 763, 766, 309 S.E.2d 232, 236 (1983)). "[T]he credibility of a witness's testimony and the weight to be given that testimony is a matter for the jury, not for the court, to decide." Id. at 122, 588 S.E.2d at 14.
    The State presented sufficient evidence that defendant was driving the vehicle at the time of the collision. Officer Briggs testified that he found defendant seated behind the steering wheel at the accident scene. Defendant admitted to driving the vehicle and explained to Officer Briggs how the accident occurred when defendant "lost control of his vehicle" coming onto the interstate. Defendant also signed a written statement acknowledging that he was operating the vehicle. Defendant's admissions were sufficient towithstand a motion to dismiss on this issue. See State v. Young, 324 N.C. 489, 496-97, 380 S.E.2d 94, 98 (1989) ("conclud[ing] that the . . . statement by the defendant, if believed by the jury, was sufficient to support a verdict convicting [the defendant] of first degree murder"). The conflict between the State's evidence and Yergen's testimony was a question of fact for the jury. See, e.g., Jackson, 161 N.C. App. at 122, 588 S.E.2d at 14-15.
    The record on appeal includes an additional assignment of error not addressed by defendant in his brief. Pursuant to N.C.R. App. P. 28(b)(6), we deem that assignment of error abandoned.
    No error.
    Judges WYNN and HUNTER concur.
    Report per Rule 30(e).

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