STATE OF NORTH CAROLINA
v. Craven County
Nos. 04 CRS 2329-30
CURTIS LEROY BROADWAY
Attorney General Roy Cooper, by Special Counsel Isaac T.
Avery, III, for the State.
William D. Spence for defendant-appellant.
MARTIN, Chief Judge.
Defendant, Curtis Leroy Broadway, was arrested for driving
while impaired (“DWI”) in violation of N.C. Gen. Stat. § 20-138.1
and driving while license revoked in violation of N.C. Gen. Stat.
§ 20-28. He was convicted of both charges in district court and,
upon appeal to superior court was found guilty by a jury of the
charges. The trial court consolidated the driving while license
revoked conviction with the DWI conviction and imposed a Level One
punishment for the DWI conviction. Defendant appeals.
The State's evidence at trial tended to show the following:
On 5 March 2004, at approximately 5:40 p.m., a truck belonging to
defendant was driven into Hazel Willis's yard and ultimatelycrashed into her house in Vanceboro, North Carolina. Ms. Willis
testified she was sitting in her living room when she saw the truck
hit a tree in her yard and proceed to hit her house causing her
chimney to collapse onto the truck. She further testified there
was only one person inside the truck and that person had “blood
streaming down from his forehead.” After calling 9-1-1, Ms. Willis
heard someone ask if she had a towel. She grabbed a towel and
proceeded to go outside.
Ms. Willis testified the only person in the truck was sitting
under the steering wheel leaning to his right with one foot still
under the gas pedal. Another man had arrived at the scene and
wiped blood from the face of the person in the truck. Ms. Willis
exclaimed, “Oh my God, that's Curtis.” Defendant is a neighbor of
Ms. Willis whom she had known for thirty or forty years.
State Highway Patrol Trooper Fox, the trooper who investigated
the accident, testified that when he arrived on the scene, a man
who was later identified as defendant, was lying on a stretcher and
was being placed into an ambulance. He testified the driver's side
door of the truck was not open and he could not open it. After
investigating the scene, Trooper Fox went to the hospital where
defendant had been transported. When he arrived at the hospital,
emergency personnel informed him only one person had been admitted
to the hospital as a result of the motor vehicle accident. Trooper
Fox then entered defendant's hospital room where he smelled a
strong odor of alcohol. He noticed defendant had a lot of facial
bruising, burn marks on his face from the deployment of the airbag, and bruising on his chest consistent with bruising that would
be caused by impact with the steering wheel. Based upon his
observations of the damage to the truck and the injuries to
defendant, Trooper Fox determined defendant was the driver of the
truck at the time of the accident and charged defendant with DWI
and driving while his license was revoked.
The State and defendant stipulated the hospital had taken a
sample of defendant's blood for analysis to determine defendant's
alcohol concentration. The hospital uses a serum or plasma blood
test rather than a whole blood test required by the DWI law. The
parties also stipulated that if a research scientist was called as
a witness, he would testify that when the serum/plasma blood test
result is converted to a whole blood test result, it would show
that defendant's alcohol concentration was 0.29. Finally, the
parties stipulated the Division of Motor Vehicles had revoked
defendant's drivers license on 24 May 2003, it was still in a state
of revocation on 5 March 2004, and defendant knew on 5 March 2004,
the date of the offense, that his license was revoked.
Defendant presented evidence in his defense at trial. Bryan
Lee Broadway, defendant's son, testified he saw defendant asleep on
the passenger side of his truck at approximately 4:45 p.m. on 5
March 2004. Defense witness John F. Lewis testified he saw two
people in defendant's truck as it was traveling past his house at
approximately 4:50 or 5:00 p.m. on 5 March 2004. Mr. Lewis could
not, however, see who was in the truck. Defense witness Jerry Lee
Smith testified he saw someone in the passenger seat of defendant'struck at approximately 5:00 or 5:30 p.m. on 5 March 2004. Although
Mr. Smith testified that he saw defendant on the passenger side, he
was unable to identify the driver. He testified that the driver of
the truck had long hair and he had never known defendant to have
long hair.
Finally, defense witness Travis Sanderson testified he noticed
a truck had crashed into a house as he was driving by and he ran up
to the driver's side of the truck. He observed there was only one
person, who was later identified as defendant, in the truck when he
arrived at the scene. Defendant had blood on his face and was
“leaning down in the passenger side of the truck, towards the
steering, the driver's side.” Mr. Sanderson further testified he
was unable to open the driver's side door of the truck and was able
to open the passenger side door only after moving some of the
chimney that was in the way as a result of the accident.
At the close of all evidence, the trial court asked defense
counsel, “[a]nything from the defense at the close of all the
evidence?” Defense counsel replied, “[n]o, sir.” The jury found
defendant guilty of DWI and driving while his license was revoked.
Defendant presents two arguments on appeal. First, defendant
argues the trial court erred in failing to dismiss the charges
against him for insufficiency of the evidence. Second, defendant
argues the trial court erred in imposing a Level One punishment.
Defendant has failed to preserve his first argument and we decline
to consider it. We must, however, remand the matter for correction
of a clerical error relating to defendant's second argument. Defendant first contends the trial court erred by failing to
dismiss the charges against him at the close of all evidence for
insufficiency of the evidence. We, however, decline to review this
assignment of error because defendant did not make a motion to
dismiss at the close of all evidence. Although N.C. Gen. Stat. §
15A-1446(d)(5) provides that questions of insufficiency of the
evidence may be the subject of appellate review even when no
objection or motion has been made at trial, Appellate Rule 10(b)(3)
provides that “if a defendant fails to move to dismiss the action
. . . at the close of all the evidence, he may not challenge on
appeal the sufficiency of the evidence to prove the crime charged.”
N.C. Gen. Stat. § 15A-1446(d)(5) (2005); N.C.R. App. P. 10(b)(3).
Our Supreme Court has specifically addressed the inconsistency
between the statute and the appellate rule and held that: “[t]o the
extent that N.C.G.S. 15A-1446(d)(5) is inconsistent with N.C.R.
App. P. 10(b)(3), the statute must fail.” State v. Spaugh, 321
N.C. 550, 552, 364 S.E.2d 368, 370 (1988) (citation omitted).
Accordingly, “a defendant who fails to make a motion to dismiss at
the close of all of the evidence may not attack on appeal the
sufficiency of the evidence at trial.” Id.
Recognizing his failure to properly preserve this issue for
appellate review, defendant requests this Court use its authority
under Appellate Rule 2 and suspend the rules to review this issue.
“It is not the role of the appellate courts, however, to create an
appeal for an appellant. . . . [T]he Rules of Appellate Procedure
must be consistently applied; otherwise, the Rules becomemeaningless[.]” Viar v. N.C. Dep't of Transp., 359 N.C. 400, 402,
610 S.E.2d 360, 361, reh'g denied, 359 N.C. 643, 617 S.E.2d 662
(2005). After reviewing the transcript and briefs in this case, we
see no manifest injustice on these facts that persuades us to use
our discretion to hear this matter under Rule 2 of the North
Carolina Rules of Appellate Procedure. Therefore, we decline to
address this assignment of error.
Next, defendant contends the trial court erred in imposing a
Level One punishment. The trial court is authorized to impose one
of five levels of punishment with respect to a defendant convicted
of impaired driving, depending upon the presence of statutorily
enumerated aggravating and mitigating factors set forth in N.C.
Gen. Stat. § 20-179. This statute provides in relevant part:
the judge must first determine whether there
are any grossly aggravating factors in the
case. The judge must impose the Level One
punishment under subsection (g) of this
section if the judge determines that two or
more grossly aggravating factors apply. The
judge must impose the Level Two punishment
under subsection (h) of this section if the
judge determines that only one of the grossly
aggravating factors applies.
N.C. Gen. Stat. § 20-179(c) (2005) (emphasis added).
Here, defendant argues the trial court failed to find two
grossly aggravating factors before imposing a Level One punishment
on him. The transcript of the sentencing hearing indicates the
trial court clearly found two grossly aggravating factors in open
court when it stated: “[t]he Court does find that you [referring to
defendant] have a previous conviction for driving while impaired
within the requisite period, authorizing you to be punished atLevel 1, and then in addition thereto that your driving privileges
were revoked.” See N.C. Gen. Stat. § 20-179(c)(1)(a) and (c)(2).
The “Impaired Driving Determination of Sentencing Factors” AOC
form, however, leaves unchecked the trial court's finding that
defendant had been convicted of a prior offense involving impaired
driving within seven years before the date of the offense at issue.
From the transcript and the Level One punishment imposed by the
judgment, it is clear the trial court intended to have this box
checked. Further, defendant concedes his trial counsel expressly
stated at the sentencing hearing he did not dispute that defendant
should be sentenced at Level One for his DWI conviction based upon
the above two grossly aggravating factors.
Reviewing the record and the transcript, it is clear the trial
court's failure to check the box next to one of the two grossly
aggravating factors on the AOC form was a clerical error. See
State v. Taylor, 156 N.C. App. 172, 177, 576 S.E.2d 114, 117-18
(2003) (defining a clerical error as “an error resulting from a
minor mistake or inadvertence, esp. in writing or copying something
on the record, and not from judicial reasoning or determination”)
(citations and internal quotation marks omitted); see also State v.
Gell, 351 N.C. 192, 218, 524 S.E.2d 332, 349 (determining there was
a clerical error where the findings of aggravating and mitigating
factors on the judgment form were inconsistent with the trial
court's actual findings), cert. denied, 531 U.S. 867, 148 L. Ed. 2d
110 (2000); State v. Thomas, 153 N.C. App. 326, 341, 570 S.E.2d
142, 151 (finding a clerical error existed where the trial court'sactual findings were inconsistent with the AOC form), disc. review
denied, 356 N.C. 624, 575 S.E.2d 759 (2002). Clerical errors are
properly addressed with correction upon remand because of the
importance that the records “speak the truth.” State v. Linemann,
135 N.C. App. 734, 738, 522 S.E.2d 781, 784 (1999) (internal
quotations and citations omitted). Accordingly, we remand this
matter to the trial court for correction of this clerical error on
the “Impaired Driving Determination of Sentencing Factors” form.
No error in appeal. Remand for correction of clerical error.
Judges CALABRIA and JACKSON concur.
Report per Rule 30(e).
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