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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-1410


Filed: 19 June 2007

v .                         Buncombe County
                            No. 03 CRS 9303

    Appeal by defendant-appellant from order entered 21 February 2006 by Judge Laura Bridges in Buncombe County Superior Court. Heard in the Court of Appeals 4 June 2007.

    Attorney General Roy Cooper, by Special Deputy Attorney General Neil Dalton, for the State.

    Glenn Gerding for defendant-appellant.

    MARTIN, Chief Judge

    Defendant Ronny David Swann appeals from judgments entered upon jury verdicts finding him guilty of habitual driving while impaired and driving while license revoked. The evidence at defendant's trial tended to show that on the evening of 5 June 2003, Ms. Barbara Gurley was at her residence outside Asheville when she heard a car crash nearby. She immediately proceeded to the site of the crash and arrived there within a few seconds of the accident. She observed a van on its side and called 911.
     Chris Redden and Sheila Shelton, two volunteers from the Riceville Fire Department, responded to her call. Ms. Shelton testified that she saw the defendant leave the van through its back doors. He appeared to be unsteady on his feet, and smelled of alcohol. He complained of back and neck pain. He was sufficientlybelligerent that he had to be restrained on the gurney for transportation to the hospital. He told Ms. Shelton that he had not been driving, but had been sleeping at the back of the van.
    Defendant also told Trooper John McMurray, who investigated the accident on behalf of the North Carolina State Highway Patrol, that he had not been driving the van. Trooper McMurray also noted that the defendant smelled of alcohol, and it was his opinion that the defendant's mental and physical faculties were appreciably impaired due to the consumption of alcohol. In 2005, two years after the accident, defendant told Trooper McMurray that defendant's brother had been the driver of the van. The brother had passed away in the intervening period.
    After his arrival at the hospital, defendant was found to have a blood alcohol level of .211. The State introduced evidence of three prior convictions for driving while impaired. The State also introduced evidence showing that defendant's driver license had been revoked prior to the accident. Defendant presented no evidence. His motions to dismiss at the close of State's evidence and at the close of all the evidence were denied.

    Defendant assigns error to the trial court's denial of his motions to dismiss for insufficient evidence because the State failed to produce any evidence that he was driving the vehicle. We cannot agree.
    “When a defendant moves for dismissal, the trial court is to determine whether there is substantial evidence (a) of eachessential element of the offense charged, or of a lesser offense included therein, and (b) of defendant's being the perpetrator of the offense. If so, the motion to dismiss is properly denied.” State v. Bellamy, 172 N.C. App. 649, 656, 617 S.E.2d 81, 87 (2005) (quoting State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651-52 (1982)). “Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995). In ruling on a motion to dismiss, the court must view the evidence in a light most favorable to the State. State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992).
    “To convict a defendant under N.C. Gen. Stat. § 20-28(a) of driving while his license is revoked the State must prove beyond a reasonable doubt that (1) the defendant operated a motor vehicle (2) on a public highway (3) while his operator's license was revoked.” State v. Cruz, 173 N.C. App. 689, 697, 620 S.E.2d 251, 256 (2005) (quoting State v. Richardson, 96 N.C. App. 270, 271, 385 S.E.2d 194, 195 (1989)). Here, the State introduced evidence that defendant's driver's license was in a state of revocation on 5 June 2003. Similarly, to convict a defendant on the charge of habitual driving while impaired, N.C.G.S. § 20-138.5(a) requires that the State prove that the “defendant has driven 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). At trial, defendant stipulated to three priorconvictions for impaired driving. Pursuant to N.C.G.S. § 20-138.1(a):
        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's blood alcohol level was .211, and Trooper McMurray testified as to his opinion that defendant's physical and mental faculties were appreciably impaired.
    Thus, as to both offenses, the issue is whether the State produced sufficient evidence that defendant was the driver of the van. In this case, the State presented evidence that Ms. Gurley arrived at the scene of the accident seconds after it happened and observed the van until emergency crews arrived. No other person was seen leaving the van, either by Ms. Gurley or by the emergency responders who joined her. While this evidence was circumstantial, the State may rely on circumstantial evidence to prove its prima facie case, as “[t]he law makes no distinction between the weight to be given to either direct or circumstantial evidence.” State v. Salters, 137 N.C. App. 553, 557, 528 S.E.2d 386, 390, disc. review denied, 352 N.C. 361, 544 S.E.2d 556 (2000) (quoting State v. Sluka, 107 N.C. App. 200, 204, 419 S.E.2d 200, 203 (1992)). Our Supreme Court has specifically held that “the identity of the driver of an automobile at the time of a collision may beestablished by circumstantial evidence, either alone or in combination with direct evidence.” Helms v. Rea, 282 N.C. 610, 616, 194 S.E.2d 1, 5-6 (1973). In State v. Riddle, 56 N.C. App. 701, 704, 289 S.E.2d 598, 599 (1982), on facts closely parallel to the case at bar, we held that similar circumstantial evidence provided sufficient prima facie evidence of the driver's identity to survive a motion to dismiss. We conclude the same here, and overrule this argument.
    Defendant next argues that his conviction for habitual driving while impaired violates his federal and state constitutional rights to be free from double jeopardy. Defendant acknowledges that this issue has already been decided adversely in State v. Vardiman, 146 N.C. App. 381, 383, 552 S.E.2d 697, 699 (2001), but urges us to overturn Vardiman. One panel of the Court of Appeals may not, however, overrule another panel. In re Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 36 (1989). Therefore, this argument must fail.
    No Error.
Judges TYSON and McCULLOUGH concur.
    Report per Rule 30(e).

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