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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA07-595

NORTH CAROLINA COURT OF APPEALS

Filed: 4 December 2007

STATE OF NORTH CAROLINA

    v.                        Iredell County
                            Nos. 05 CRS 059502
DARLENE LACKEY HALL                    05 CRS 059504

    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.

    TYSON, Judge.

    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.

I. Background

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 sobriety tests. Defendant denied that she was argumentative, cursing, or belligerent. At the close of all the evidence, defendant again moved to dismiss the charges against her. Defendant's motion was denied.
     A jury found defendant to be guilty of impaired driving and 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.
II. Issues

    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) (citation omitted). “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).
B. Analysis

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 if based 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.
IV. Entrapment
    Defendant contends the trial court committed plain error by failing to submit the defense of entrapment to the jury. We disagree.
A. Standard of Review

    In order for this Court to grant a new trial on the basis of plain error, “a judge's charge must be so fundamentally flawed that it can be fairly said that the mistake probably had an impact on the defendant's conviction.” State v. Wrenn, 316 N.C. 141, 151-52, 340 S.E.2d 443, 450 (1986).
B. Analysis

        The defense of entrapment consists of two elements: (1) acts of persuasion, trickery or fraud carried out by law enforcement officers or their agents to induce a defendant tocommit a crime, (2) when the criminal design originated in the minds of the government officials, rather than with the innocent defendant, such that the crime is the product of the creative activity of the law enforcement authorities.

State v. Walker, 295 N.C. 510, 513, 246 S.E.2d 748, 749-50 (1978). There must be evidence of both elements in order for the trial court to be required to submit the defense to the jury. Id.
    Defendant presented evidence which tended to show Officer Onley falsely stated to defendant that Parks had requested that she leave his property. Defendant argues the jury could have found that she was tricked or deceived by Officer Onley into driving the vehicle.     Defendant's own testimony rebuts any theory of entrapment. Defendant testified Officer Onley directed her not to drive the vehicle. Defendant testified she drove the vehicle because she had no alternative means for returning home. Based on this testimony, it is not likely that a different verdict would have resulted if the jury instruction regarding entrapment had been given. This assignment of error is overruled.
V. Conclusion

    Sufficient evidence was presented to withstand a motion to dismiss the charges of impaired driving and resisting a public officer. The trial court properly denied defendant's motion to dismiss.
    The trial court did not err failing to submit the defense of entrapment to the jury . Defendant received a fair trial free from errors she preserved, assigned, and argued. Defendant has also failed to show any basis for a new trial under plain error review. We find no error.
    No Error.
    Judges GEER and STEPHENS concur.
    Report per Rule 30(e).

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