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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-1180

NORTH CAROLINA COURT OF APPEALS

Filed: 19 June 2007

STATE OF NORTH CAROLINA

    v .                         Davidson County
                            No.05CRS005749
MICHAEL LEE SNIDER

    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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