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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA07-278


Filed: 4 September 2007


         v.                        Dare County
                                No. 05 CRS 52672

    Appeal by Defendant from judgment entered 19 September 2006 by Judge J. Richard Parker in Superior Court, Dare County. Heard in the Court of Appeals 27 August 2007.

    Attorney General Roy Cooper, by Assistant Attorney General Christopher W. Brooks, for the State.

    Michael J. Reece, for Defendant-appellant.

    WYNN, Judge.

    Defendant Joel Gregory Fogleman's appeal arises from a conviction of habitual impaired driving. We find no error.
    The State's evidence at trial tended to show that on 8 September 2005, Police Officer Major Mark Grant encountered Defendant on a moped on a public street. Major Grant stopped Defendant and noticed Defendant had a strong odor of alcohol, red, glassy eyes, and “mushmouthed” speech. Major Grant warned Defendant not to continue driving his moped if he was impaired and so Defendant walked away. A few minutes later, Major Grant saw Defendant driving his moped. Major Grant observed Defendant driving erratically and pulled him over. Defendant's speech wasslurred and he was unable to answer Major Grant's questions. Major Grant arrested Defendant for impaired driving and administered a breathalyzer test. The test registered Defendant's alcohol concentration at 0.14. Defendant admitted drinking liquor, beer, and wine the previous night and up until his encounter with Major Grant. Subsequently, Defendant was charged with driving while impaired.
    At trial, the State arraigned Defendant on the charge of habitual impaired driving. Since Defendant decided to remain silent as it relates to his prior convictions, the State introduced evidence of Defendant's prior convictions. Defendant objected to the admission of a computer printout regarding the Guilford County conviction on the grounds it did not state that the original was destroyed.   (See footnote 1)  The State then offered a letter from the Guilford County Clerk of Superior Court stating the underlying file had been destroyed. The trial court overruled Defendant's objection and allowed the State to introduce its evidence of the three priorconvictions, as well as the letter from the clerk of court. Defendant did not present any evidence.
    At the charge conference, Defendant only requested an instruction regarding Defendant's right not to testify. Following a jury trial, Defendant was convicted of habitual impaired driving and sentenced to a term of twenty months to twenty-four months of imprisonment.
    Defendant appeals contending that the trial court erred by failing to include a jury instruction on the lesser-included offense of impaired driving. We disagree.
    A person may be found guilty 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(a) (2005). The impaired driving statute provides:
        (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 (2005).
    Defendant contends that his objection to one of the prior convictions put the evidence into question and therefore, the jury could rationally have found him guilty of impaired driving rather than habitual impaired driving. We note that Defendant did notrequest a jury instruction on the lesser-included offense of impaired driving, nor did he object to the jury instructions as they were given, beyond renewing his objection to the admission of a certified copy of one of his prior convictions.
    Without a proper objection at trial, we are bound to review Defendant's argument on appeal under the plain error standard. N.C. R. App. P. 10(b)(2) and 10(c)(4). Plain error is error “so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.” State v. Parker, 350 N.C. 411, 427, 516 S.E.2d 106, 118 (1999) (citations omitted), cert. denied, 528 U.S. 1084, 145 L. Ed. 2d 681 (2000). Plain error “does not simply mean obvious or apparent error” but error so fundamental, basic, and prejudicial that justice cannot be done. State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983).
    Defendant cites State v. Whitaker for the principle that a trial court must instruct the jury on all lesser-included offenses which are supported by any evidence. 316 N.C. 515, 342 S.E.2d 514 (1986). Generally, “'a defendant is entitled to have all lesser degrees of offenses supported by the evidence submitted to the jury as possible alternative verdicts.'” State v. Millsaps, 356 N.C. 556, 562, 572 S.E.2d 767, 772 (2002) (quoting State v. Palmer, 293 N.C. 633, 643-44, 239 S.E.2d 406, 413 (1977)). However, “[w]here the State's evidence is positive as to each element of the offense charged and there is no contradictory evidence relating to any element, no instruction on a lesser included offense is required.” Millsaps, 356 N.C. at 562, 572 S.E.2d at 772 (citing State v. Peacock, 313 N.C. 554, 330 S.E.2d 190 (1985)).
    In the instant case, Defendant did not present any evidence to contradict the State's evidence of his three prior convictions. Although Defendant argues his objection to the admission of one of the convictions placed that conviction into question, we note that his objection was overruled. Additionally, Defendant does not challenge the admissibility of the conviction on appeal.
    Accordingly, we hold that the trial court did not commit plain error by not including the lesser-included offense in its instructions to the jury.
    No error.
    Judges BRYANT and ELMORE concur.
    Report per Rule 30(e).

Footnote: 1
    N.C. Gen. Stat. § 8-35.2 in its pertain part states:

        Notwithstanding the provisions of G.S. 15A- 924(d) or 15A-1340.4(e), certified copies of the records contained in the criminal index or similar records maintained manually or by automatic data processing equipment by the clerk of superior court, are admissible as prima facie evidence of any prior convictions of the person named in the records, if the original documents upon which the records are based have been destroyed pursuant to law.

    The statute then lists eleven pieces of information that must be contained in the index.

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