STATE OF NORTH CAROLINA
v. Gaston County
No. 02 CRS 69747
JOHNNY LEE PARKER
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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