Appeal by defendant from judgments entered 15 February 2007 by
Judge John L. Holshouser, Jr., in Iredell County Superior Court.
Heard in the Court of Appeals 30 November 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Ashby T. Ray, for the State.
William D. Auman, for defendant-appellant.
Darlene Lackey Hall (defendant) appeals from judgments
entered after a jury found her to be guilty of impaired driving
pursuant to N.C. Gen. Stat. § 20-138.1 and resisting a public
officer pursuant to N.C. Gen. Stat. § 14-223. We find no error.
A. State's Evidence
The State's evidence tended to show that on 29 September 2005,
Statesville Police Officer David Onley (Officer Onley) was
pursuing a suspect on foot when he came upon a vehicle parked in
the driveway of a residence. Defendant was the vehicle's only
occupant. Officer Onley asked defendant whether she had seen an
individual run around to the back of the house. Defendantresponded that she had not seen anyone. Officer Onley noticed that
defendant's speech was slurred.
Officer Onley then knocked on the door of the residence.
Walter Parks (Parks) answered the door and instructed Officer
Onley to ask defendant to leave. Officer Onley returned to
defendant's vehicle and informed her that Parks had requested she
leave his property. Defendant became argumentative. Officer Onley
asked defendant to exit the vehicle and perform a basic stand and
balance field sobriety test. Defendant complied with his request.
Defendant was unable to stand without placing her hand on the
vehicle to maintain her balance. Officer Onley formed the opinion
that defendant was intoxicated and stated she needed to call
someone to come and get her. Officer Onley expressly instructed
defendant not to drive her vehicle out of Park's driveway.
Officer Onley left to assist another officer with the arrest
of one of the suspects he had been pursuing. A few minutes later,
Officer Onley observed defendant driving her vehicle. Officer
Onley initiated a stop and asked defendant to exit the vehicle.
Defendant refused to exit her vehicle and cursed at Officer Onley
and Officer Gentle, who was assisting him. Officers Onley and
Gentle had to physically remove defendant from the vehicle.
Officer Onley testified defendant was extremely intoxicated.
Defendant had a strong odor of alcohol about her person. Defendant
was cursing, yelling and kicking, and her speech was slurred.
Defendant failed the sway sobriety test after she could not
stand stationary with her feet together without swaying or losingher balance. Defendant was unable to stand on one leg without
losing her balance.
At the close of the State's evidence,
defendant moved to dismiss the charges against her. Defendant's
motion was denied.
B. Defendant's Evidence
Parks testified on defendant's behalf and stated he did not
instruct Officer Onley to ask defendant to leave his property.
Defendant testified and admitted she drove the vehicle after having
been instructed not to drive it. Defendant also admitted that she
had been drinking and performed poorly on the field
Defendant denied that she was argumentative, cursing, or
At the close of all the evidence, defendant again
moved to dismiss the charges against her. Defendant's motion was
A jury found defendant to be guilty of impaired driving
resisting a public officer. The trial court entered a suspended
sentence of six months imprisonment for impaired driving and placed
defendant on twenty-four months supervised probation. The trial
court also entered a suspended sentence of sixty days imprisonment
for the resisting a public officer conviction and ordered defendant
to serve fifteen days imprisonment at the local jail on consecutive
weekends. Defendant appeals.
Defendant argues the trial court erred by: (1) denying her
motions to dismiss
and (2) failing to instruct the jury on the
defense of entrapment
III. Motion to Dismiss
Defendant contends the court erred by denying her motions to
dismiss both charges for insufficient evidence. We disagree.
A. Standard of Review
Upon a motion to dismiss, a court considers
the evidence in
the light most favorable to the State and determines whether
substantial evidence exists to establish each element of the
offense charged and to identify the defendant as the perpetrator.
State v. Roseborough, 344 N.C. 121, 126, 472 S.E.2d 763, 766 (1996)
Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion. State v. Smith,
300 N.C. 71, 78-79, 265 S.E.2d 164,
169 (1980) (citation and quotations omitted).
The trial court must
review the evidence
in the light most favorable to the State,
including inferences that may be deduced from the evidence, and
must leave contradictions or discrepancies for the jury to resolve.
State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992).
1. Impaired Driving
A driver commits the offense of impaired driving if one
drives any vehicle upon any highway, any street, or any public
vehicular area within this State while under the influence of an
impairing substance. N.C. Gen. Stat. § 20-138.1(a) (2005). A
driver is under the influence of an impairing substance if one's
physical or mental faculties, or both, [are] appreciably impaired
by an impairing substance. N.C. Gen. Stat. § 20-4.01(48b) (2005). While a showing of a slight effect on
defendant's faculties is insufficient for a
conviction of driving while impaired, State v.
Hairr, 244 N.C. 506, 94 S.E.2d 472 (1956), one
need not be 'drunk' to be found guilty. State
v. Felts, 5 N.C. App. 499, 168 S.E.2d 483
(1969). Rather, a 'noticeable,'' perceptible,'
'obvious,' 'detectable' or 'apparent'
impairment may be sufficient to find
appreciable impairment of mental and/or
physical faculties. State v. Combs, 13 N.C.
App. 195, 185 S.E.2d 8 (1971).
State v. Roach, 145 N.C. App. 159, 163, 548 S.E.2d 841, 844-45
(2001). Evidence sufficient to withstand a motion to dismiss may
consist of an officer's opinion the defendant is impaired
upon the officer's personal observation of the defendant's
exhibition of manifestations of impairment. State v. Gregory, 154
N.C. App. 718, 721, 572 S.E.2d 838, 840 (2002).
Here, Officer Onley testified that in his opinion, defendant
was appreciably impaired by alcohol. Officer Onley based his
opinion upon his observations of manifestations of impairment,
including the odor of alcohol on defendant's person, her slurred
speech, her inability to maintain balance, and her belligerent and
abusive language and conduct.
The State presented sufficient
evidence to withstand defendant's motion to dismiss the charge of
impaired driving. This assignment of error is overruled.
2. Resisting a Public Officer
If any person shall willfully and unlawfully resist, delay or
obstruct a public officer in discharging or attempting to discharge
a duty of his office, he shall be guilty of a Class 2 misdemeanor.
N.C. Gen. Stat. § 14-223 (2005). The conduct prohibited by this
statute is not limited to resisting an arrest but includes anyresistance, delay, or obstruction of an officer in the discharge of
his duties. State v. Lynch, 94 N.C. App. 330, 332, 380 S.E.2d
397, 398 (1989).
Officer Onley testified: (1) defendant refused to exit the
automobile when he stopped it; (2) he and another officer had to
pry defendant's fingers off the steering wheel; and (3) defendant
had to be forcibly removed from the vehicle. The State presented
sufficient evidence to withstand defendant's motion to dismiss the
charge of resisting a public officer.
Based upon Officer Onley's testimony, a jury could find
defendant guilty of both impaired driving and resisting a public
officer. The trial court properly denied defendant's motions to
dismiss. This assignment of error is overruled.