Appeal by defendant from judgment entered on or about 5 June
2006 by Judge Christopher M. Collier in Superior Court, Davidson
County. Heard in the Court of Appeals 11 April 2007.
Attorney General Roy Cooper by Assistant Attorney General
Christopher W. Brooks for the State.
James M. Bell for defendant-appellant.
STROUD, Judge.
This appeal is taken by defendant from judgment entered on a
jury verdict of guilty to one felony count of habitual impaired
driving. Defendant asks this Court to resolve two questions on
appeal: (1) whether the trial court erred by denying his motion to
suppress evidence obtained during an alleged illegal arrest; and
(2) whether the trial court erred by denying his motion to dismiss
for lack of sufficient evidence at the conclusion of the trial. We
do not consider defendant's argument concerning denial of his
motion to suppress because the written order denying this motion is
absent from the record. We hold that the trial court did not err
by denying defendant's motion to dismiss because the State
presented substantial evidence from which a reasonable person could
conclude that the defendant is guilty of the offense as charged.
BACKGROUND
The Davidson County Grand Jury indicted defendant Michael Lee
Snider on 11 July 2005, for the offense of habitual driving while
impaired. Prior to trial on 2 June 2006, defendant was heard on a
motion to suppress evidence resulting from his arrest on 12 March
2005 in which he alleged that his Fourth Amendment rights were
violated. Following the suppression hearing, Judge Christopher M.
Collier denied defendant's motion to suppress. Defendant was tried
in the Superior Court, Davidson County at the 29 May 2005 Criminal
Session, with Judge Christopher M. Collier presiding.
The State called one witness at trial, Officer Jerrard W.
Hodge of the Lexington Police Department. At about 11:45 p.m. on
12 March 2005, Officer Hodge was on his way to attend to a domestic
disturbance call when he noticed a green Ford Explorer parked in an
odd fashion in the Food Lion parking lot. Because the car was not
parked in a parking space, Officer Hodge decided to get a closer
look at the vehicle. When he approached the vehicle in his patrol
car, it suddenly sped through the parking lot to the front side of
the Food Lion and close to a public street. Officer Hodge saw the
vehicle hit a curb and leave tire marks as it moved across the
parking lot. At this point, Officer Hodge activated his blue
lights, and the vehicle stopped.
Upon stopping the vehicle and exiting his patrol car, Officer
Hodge observed the driver, who appeared to be wearing a baseball
cap, and the passenger switching seats through the back glass of
the vehicle. Instead of going to the driver's side of the vehicle,Officer Hodge approached the passenger side. He testified that
defendant, now seated in the passenger side, was wearing a blue
Houston Astros cap. As he began questioning defendant, Officer
Hodge noticed a strong odor of alcohol on defendant's breath and
that his speech was slurred. Officer Hodge then arrested
defendant.
After transporting defendant to the Lexington Police
Department, Officer Hodge administered field sobriety and
Intoxilyzer 5000 tests on him. Defendant failed two of the field
sobriety tests and was found to have a blood alcohol concentration
of 0.16.
Defendant called one witness at trial, Amy Biaso, who was
defendant's fiancée and the other occupant of the vehicle.
Defendant's evidence tended to show that Biaso was actually driving
the vehicle, not defendant. Biaso testified that when she and
defendant noticed Officer Hodge's blue lights, they attempted to
switch seats but failed. During Biaso's cross-examination by the
State, it was revealed that Biaso never made a written statement
confessing that she was the driver.
On 5 June 2006, the jury found defendant guilty of habitual
impaired driving. Judge Collier sentenced defendant to a minimum
of sixteen months and a maximum of twenty months imprisonment.
Defendant appealed.
MOTION TO SUPPRESS
Defendant first assigns error to the trial court's denial of
his motion to suppress evidence obtained as the result of hisarrest by Officer Hodge. Defendant argues that Officer Hodge did
not have probable cause to carry out the arrest and, therefore, the
arrest violated his Fourth Amendment rights. Because the defendant
has not included in the record on appeal the order denying his
motion to suppress, we do not address this argument.
North Carolina Rule of Appellate Procedure 9(a)(3)(g) provides
that the record on appeal in criminal actions, “shall contain . .
. copies of the verdict and of the judgment, order, or other
determination from which appeal is taken.” N.C. R. App. P.
9(a)(3)(g) (2005). It is the duty of the defendant, who is
appealing from a criminal conviction, to ensure that the record on
appeal is complete.
State v. Berryman, 360 N.C. 209, 216, 624
S.E.2d 350, 356 (2006). Although there is mention of the order in
the transcript, this is not sufficient to substitute for the order
itself.
State v. Petersilie, 334 N.C. 169, 177, 432 S.E.2d 832,
837 (1993). If a necessary part of the record on appeal of a
criminal action has been omitted, the appeal will be dismissed.
State v. Gilliam, 33 N.C. App. 490, 491, 235 S.E.2d 421, 422
(1977).
Defendant refers to a written order containing findings of
fact and conclusions of law from the hearing on the motion in his
brief; however, defendant concedes that the written order is absent
from the record on appeal. Although the trial judge expressed the
need for a written order during the trial, defendant did not
diligently seek to obtain the order or to add it to the record onappeal. Without the order, we cannot rule on the trial court's
denial of defendant's motion to suppress.
For the reasons stated above, defendant's assignment of error
concerning the motion to suppress is dismissed.
MOTION TO DISMISS
Next, defendant assigns error to the trial court's denial of
his motion to dismiss for lack of evidence at the close of trial.
Defendant argues that the State failed to present sufficient
evidence to show that he was in fact driving at the time in
question. Defendant alleges that Biaso was driving the vehicle
instead. We disagree and hold that the State presented substantial
evidence of this element of the offense.
When considering a motion to dismiss for lack of sufficient
evidence, the trial court “must determine 'whether there is
substantial evidence of each essential element of the offense
charged and of the defendant being the perpetrator of the
offense.'”
State v. Garcia, 358 N.C. 382, 412, 597 S.E.2d 724, 746
(2004) (citing
State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920,
925 (1996)),
cert. denied, 543 U.S. 1156, 161 L. Ed. 2d 122 (2005).
The North Carolina Supreme Court has defined “substantial evidence”
as “relevant evidence that a reasonable person might accept as
adequate, or would consider necessary to support a particular
conclusion.”
Id. In reviewing a motion to dismiss for lack of
sufficient evidence, an appellate court evaluates the motion
de
novo.
Leary v. N.C. Forest Products, Inc., 157 N.C. App. 396, 400,
580 S.E.2d 1, 9 (2003). The charge of habitual impaired driving is defined under N.C.
General Statute 20-138.5 as:
(a) A person commits the offense of
habitual impaired driving if he drives while
impaired as defined in G.S. 20-138.1 and has
been convicted of three or more offenses
involving impaired driving as defined in G.S.
20-4.01(24a) within seven years of the date of
this offense.
N.C. Gen. Stat. § 20-138.5 (2005).
In order to sustain a conviction for habitual impaired
driving, the State must also show in the present instance that
defendant drove while impaired pursuant to N.C. Gen. Stat. §
20-138.1, which states:
(a) Offense. - A person commits the
offense of impaired driving if he drives any
vehicle upon any highway, any street, or any
public vehicular area within this State:
(1) While under the influence of an
impairing substance; or
(2) After having consumed
sufficient alcohol that he has,
at any relevant time after the
driving, an alcohol
concentration of 0.08 or more.
N.C. Gen. Stat. § 20-138.1(a) (2005).
Defendant does not dispute that he has three prior convictions
for driving while impaired in Davidson County. Therefore, to
obtain a conviction for habitual impaired driving, the State needed
to prove that defendant (1) drove a vehicle upon a “public
vehicular area” and (2) was impaired at the time in question.
Defendant does not contend that the evidence of his impairment
was insufficient, only that the evidence of his being the driver of
the Ford Explorer was insufficient. Officer Hodge testified thathe saw a suspicious-looking Ford Explorer in the parking lot near
a Food Lion grocery store on the night of 12 March 2005. As
Officer Hodge pulled up to the Explorer to investigate, the driver
of the vehicle sped quickly to the other side of the parking lot
leaving skid marks on the asphalt and hitting a curb. When Officer
Hodge turned on his blue lights to pull over the Explorer, he could
see that the driver of the vehicle was wearing a blue baseball cap.
A picture of defendant taken later that night at the Lexington
Police Department showed that he was wearing a ball cap. Also,
Officer Hodge witnessed defendant and the passenger switch seats
after the vehicle was stopped. This is substantial evidence from
which a reasonable person might accept as adequate to infer that
defendant was driving the vehicle at the time in question.
Although Biaso testified that she was the driver of the car, her
failure to supply this information prior to trial was an
appropriate consideration for the jury when assessing the
credibility of her claim.
We hold that the trial court did not err by denying
defendant's motion to dismiss. This assignment of error is
overruled.
CONCLUSION
For the reasons stated above, we (1) dismiss defendant's
assignment of error to the trial court's denial of defendant's
motion to suppress evidence obtained as a result of his arrest, and
(2) affirm the trial court's denial of his motion to dismiss for
lack of evidence at the conclusion of trial. NO ERROR.
Judges MCCULLOUGH and CALABRIA concur.
Report per Rule 30(e).
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