{ "id": 8353318, "name": "STATE OF NORTH CAROLINA v. SUSAN DANETTE WOOD", "name_abbreviation": "State v. Wood", "decision_date": "2005-12-06", "docket_number": "No. COA05-703", "first_page": "790", "last_page": "796", "citations": [ { "type": "official", "cite": "174 N.C. App. 790" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "572 S.E.2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "840", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 718", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251970 ], "year": 2002, "pin_cites": [ { "page": "721", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0718-01" ] }, { "cite": "580 S.E.2d 693", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "parenthetical": "\"The opinion of a law enforcement officer . . . has consistently been held sufficient evidence of impairment. . . .\"" } ], "opinion_index": 0 }, { "cite": "357 N.C. 242", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491737 ], "year": 2003, "pin_cites": [ { "parenthetical": "\"The opinion of a law enforcement officer . . . has consistently been held sufficient evidence of impairment. . . .\"" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0242-01" ] }, { "cite": "571 S.E.2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "871" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 341", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250020 ], "year": 2002, "pin_cites": [ { "page": "346" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0341-01" ] }, { "cite": "323 S.E.2d 343", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "349", "parenthetical": "N.C. Gen. Stat. \u00a7 20-138.1 creates one offense that \"may be proved by either or both theories.\"" } ], "opinion_index": 0 }, { "cite": "312 N.C. 432", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4756963 ], "year": 1984, "pin_cites": [ { "page": "440", "parenthetical": "N.C. Gen. Stat. \u00a7 20-138.1 creates one offense that \"may be proved by either or both theories.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0432-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-138.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 2003, "pin_cites": [ { "page": "(a)(1)" } ], "opinion_index": 0 }, { "cite": "261 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "117" } ], "opinion_index": 0 }, { "cite": "299 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573434 ], "year": 1980, "pin_cites": [ { "page": "99" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0095-01" ] }, { "cite": "468 S.E.2d 232", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "237", "parenthetical": "citing State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980)" } ], "opinion_index": 0 }, { "cite": "343 N.C. 29", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798779 ], "year": 1996, "pin_cites": [ { "page": "36", "parenthetical": "citing State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980)" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0029-01" ] }, { "cite": "505 S.E.2d 138", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "141" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 675", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11469961 ], "year": 1998, "pin_cites": [ { "page": "679" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0675-01" ] }, { "cite": "439 S.E.2d 578", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "585" } ], "opinion_index": 0 }, { "cite": "335 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2526577 ], "year": 1994, "pin_cites": [ { "page": "449-50" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0437-01" ] }, { "cite": "393 S.E.2d 811", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "814" } ], "opinion_index": 0 }, { "cite": "327 N.C. 210", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498848 ], "year": 1990, "pin_cites": [ { "page": "215" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0210-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-28", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 20-140", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "552 S.E.2d 650", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "146 N.C. App. 75", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11354213 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc-app/146/0075-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-141.5", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(b)(5)" } ], "opinion_index": 0 }, { "cite": "74 L. Ed. 2d 513", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1982, "opinion_index": 0 }, { "cite": "459 U.S. 1018", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6468801, 6468547, 6469476, 6468711, 6469608, 6469353, 6468967, 6468624, 6468240, 6468465, 6469044, 6468343, 6469144, 6469246 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/us/459/1018-07", "/us/459/1018-04", "/us/459/1018-13", "/us/459/1018-06", "/us/459/1018-14", "/us/459/1018-12", "/us/459/1018-08", "/us/459/1018-05", "/us/459/1018-01", "/us/459/1018-03", "/us/459/1018-09", "/us/459/1018-02", "/us/459/1018-10", "/us/459/1018-11" ] }, { "cite": "676 F.2d 995", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 562145 ], "year": 1982, "pin_cites": [ { "page": "1002" } ], "opinion_index": 0, "case_paths": [ "/f2d/676/0995-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "378", "parenthetical": "quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "660", "parenthetical": "quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] } ], "analysis": { "cardinality": 702, "char_count": 14592, "ocr_confidence": 0.748, "pagerank": { "raw": 5.523435111821743e-07, "percentile": 0.946589164078678 }, "sha256": "4ffbce9d32cf37405cc15240324e91fa037c0ac85684070abe1692c499633e4c", "simhash": "1:a727ac5e960b1f6d", "word_count": 2349 }, "last_updated": "2023-07-14T21:19:44.302822+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McCULLOUGH and ELMORE concurs." ], "parties": [ "STATE OF NORTH CAROLINA v. SUSAN DANETTE WOOD" ], "opinions": [ { "text": "TYSON, Judge.\nSusan Danette Wood (\u201cdefendant\u201d) appeals from judgments entered after a jury found her to be guilty of: (1) felonious fleeing to elude arrest with a motor vehicle; (2) impaired driving; (3) driving with an expired registration; and (4) speeding. We find no error.\nI. Background\nThe State\u2019s evidence tended to show that at approximately 6:45 a.m. on 12 July 2003, defendant was driving a 1986 Mercury vehicle on North Main Street in China Grove, North Carolina. China Grove Police Officer Nicholas J. Villa (\u201cOfficer Villa\u201d) noticed defendant\u2019s vehicle displayed an expired license tag and he followed her in his marked patrol vehicle with its blue lights activated. Defendant drove an additional one-half mile before pulling off the road at 1740 Highway 29 North. Defendant testified that was the nearest point where she could safely pull off the road.\nOfficer Villa approached defendant\u2019s vehicle and asked her to roll down her window so that he could check her driver\u2019s license and registration. Defendant rolled down her window about two inches and informed Officer Villa that her driver\u2019s license and registration were inside her purse, located in the trunk. Officer Villa instructed defendant to retrieve the items from the trunk. Defendant retrieved a Florida driver\u2019s license from her purse but failed to produce the registration card for her vehicle. After checking defendant\u2019s license plate number, Officer Villa learned that the vehicle had an \u201cinsurance stop\u201d on file.\nOfficer Villa informed defendant that upon receiving a report of an \u201cinsurance stop,\u201d an officer must remove the license plate and have the vehicle towed and stored until proper insurance could be verified or obtained. Defendant told Officer Villa that the vehicle was insured and \u201cshe had just paid $20 for the tag and [he] was not going to take her tag.\u201d Officer Villa returned to his patrol vehicle, called a tow truck, and began to write a citation charging defendant with failure to maintain liability insurance and failure to show registration. During this time, Rowan County Sheriff\u2019s Department Lieutenant Sam Towne (\u201cLieutenant Towne\u201d) joined Officer Villa at the scene.\nWhen Officer Villa saw the tow truck approaching at 6:55 a.m., he picked up a screwdriver and walked toward defendant\u2019s vehicle. As Officer Villa bent down to remove the license plate, defendant drove off. Officer Villa and Lieutenant Towne chased defendant in their respective vehicles. During the five mile chase, defendant accelerated to fifty-seven miles per hour in a forty-five miles per hour speed zone. Eventually, defendant hit her brakes, turned off into a driveway area, and started to turn around as if to return onto the highway. Lieutenant Towne positioned his vehicle to block defendant\u2019s entrance back onto the highway. Defendant accelerated and \u201cslammed into [Lieutenant Towne\u2019s] car\u201d causing an estimated $1,830.55 in damage. Officer Villa \u201cboxed in\u201d defendant by positioning his vehicle behind her vehicle.\nOther law enforcement officers arrived and removed defendant from her vehicle. As defendant was removed from her vehicle, Officer Villa testified he noticed a strong odor of alcohol emitting from defendant. A half-empty bottle of vodka was found in defendant\u2019s vehicle. Officer Villa asked defendant if she would submit to a field breathalyser te;st. Defendant refused to answer. Based on defendant\u2019s demeanor and Officer Villa\u2019s past experience, he formed the opinion that defendant\u2019s mental and physical faculties were impaired by alcohol.\nAfter being transported to the Salisbury Police Department, defendant was read her rights, observed for the mandatory waiting period, and at 8:50 a.m. took the Intoxilyzer test. The test registered a 0.07 breath alcohol concentration.\nAt trial on 2 February 2005, Paul Glover (\u201cGlover\u201d), an employee of the Department of Health and Human Services for the Forensic Tests Alcohol Branch, testified that he had performed a retrograde extrapolation which he believed would show defendant\u2019s alcohol concentration at the time of the original stop of defendant\u2019s vehicle to have been 0.10. The State laid no foundation to show the relevancy of this testimony and Glover failed to correlate any factors to be consistent with this defendant or to compare his averages to defendant\u2019s individual specific characteristics.\nOn 3 February 2005, the jury returned guilty verdicts for felony speeding to elude arrest, impaired driving, expired registration, and speeding fifty-seven miles per hour in a forty-five miles per hour zone. The trial court entered judgments and imposed an active sentence of six months for the driving while impaired conviction and a suspended term of eight to ten months for the speeding to elude arrest, speeding, and expired registration convictions. Defendant appeals.\nII. Issues\nThe issues on appeal are whether the trial court erred by: (1) failing to properly instruct the jury on the felony fleeing to elude arrest by motor vehicle; and (2) denying defendant\u2019s motion to dismiss the driving while impaired charge.\nIII. Felony Fleeing to Elude Arrest bv Motor Vehicle\nDefendant first contends the trial court failed to properly instruct the jury on the charge of felony fleeing to elude arrest by motor vehicle. Defendant did not object to the trial court\u2019s instructions and asks this Court to review for plain error.\nPlain error arises when the error is \u201c \u2018so basic, so prejudicial, so lacking in its elements that justice cannot have been done[.]\u2019 \u201d State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)).\nHere, the trial court instructed the jury on felony fleeing to elude arrest by motor vehicle as follows:\nThe defendant has been charged with felonious operation of a motor vehicle to elude arrest. For you to find the defendant guilty of this offense, the State must prove four things beyond a reasonable doubt.\nFirst, that the defendant was operating a motor vehicle. Second, that the defendant was operating that motor vehicle on a street, highway or public vehicular area. Third, that the defendant was fleeing or attempting to elude a law enforcement officer who was in the lawful performance of his duties, a law enforcement officer with authority to enforce motor vehicle laws . . . And fourth, that two or more of the following factors were present at the time-reckless driving, [] negligent driving leading to an accident causing property damage in excess of $1,000, or driving while her license were revoked.\nDefendant specifically argues that since \u201creckless driving,\u201d \u201cnegligent driving,\u201d and \u201cdriving with license revoked\u201d were tbe three named aggravating factors that led to her conviction under N.C. Gen. Stat. \u00a7 20-141.5(b)(5), the trial court should have defined those terms for the jury. Defendant fails to cite to any case law or statute which requires the trial court to define those terms during its jury instruction. Furthermore, the trial court properly charged the jury using the language of the pattern jury instruction which stated it had to find at least two of the three aggravating factors set out in the bill of indictment were present in order to convict defendant of felonious speeding to elude arrest. N.C.P.I. Crim. 270.54A; see State v. Woodard, 146 N.C. App. 75, 552 S.E.2d 650 (2001). While defendant was not specifically charged with either reckless driving under N.C. Gen. Stat. \u00a7 20-140 or driving while her license was revoked under N.C. Gen. Stat. \u00a7 20-28, substantial evidence was presented which tended to show defendant had struck Lieutenant Towne\u2019s vehicle and caused more than $1,000.00 in damage. Evidence was presented that tended to show defendant\u2019s driving was erratic, she accelerated to hit Lieutenant Towne\u2019s vehicle, and the jury found her speeding twelve miles over the limit. Defendant has failed to meet her burden under plain error review to warrant a new trial. This assignment of error is overruled.\nIV. Motion to Dismiss\nDefendant also contends the trial court erred in denying her motion to dismiss her driving while impaired conviction based on insufficiency of the evidence. Defendant argues that the State did not present substantial evidence that she was impaired. We disagree.\nA. Standard of Review\nThe standard for ruling on a motion to dismiss \u201cis whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense.\u201d State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). Substantial evidence is relevant evidence which a reasonable mind might accept as adequate to support a conclusion. State v. Patterson, 335 N.C. 437, 449-50, 439 S.E.2d 578, 585 (1994). In ruling on a motion to dismiss, the trial court must consider all of the evidence in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence. State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998). \u201cAny contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal.\u201d State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996) (citing State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980)).\nA 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.\nN.C. Gen. Stat. \u00a7 20-138.1 (2003). Under section (2) of the statute, the only relevant evidence of this defendant\u2019s alcohol concentration was a breathalyser result of 0.07. Other testimony sufficiently supports the jury\u2019s conviction of defendant under N.C. Gen. Stat. \u00a7 20-138.1(a)(1) of driving \u201c[w]hile under the influence of an impairing substance.\u201d See State v. Coker, 312 N.C. 432, 440, 323 S.E.2d 343, 349 (1984) (N.C. Gen. Stat. \u00a7 20-138.1 creates one offense that \u201cmay be proved by either or both theories.\u201d); see also State v. Mark, 154 N.C. App. 341, 346, 571 S.E.2d 867, 871 (2002), aff\u2019d, 357 N.C. 242, 580 S.E.2d 693 (2003) (\u201cThe opinion of a law enforcement officer . . . has consistently been held sufficient evidence of impairment. . . .\u201d). \u201cAn officer\u2019s opinion that a defendant is appreciably impaired is competent testimony and admissible evidence when it is based on the officer\u2019s personal observation of an odor of alcohol and of faulty driving or other evidence of impairment.\u201d State v. Gregory, 154 N.C. App. 718, 721, 572 S.E.2d 838, 840 (2002) (citation omitted).\nHere, defendant admitted she had consumed alcohol prior to driving, a fact confirmed by the breathalyzer result, and an open half-filled bottle of vodka was found in the passenger area of her vehicle. Officer Villa smelled an odor of alcohol when he approached defendant\u2019s vehicle a second time. Officer Villa also testified that in his opinion defendant\u2019s faculties were appreciably impaired.\nThe jury\u2019s verdict does not reflect which prong of the statute they found defendant had violated. Nothing in the record indicates defendant requested the jury designate on the verdict sheet which prong it found defendant to have violated. As defendant failed to: (1) request separate instructions; (2) object to the trial court\u2019s instructions; (3) assign error to the instructions; or (4) request that the jury determine on the verdict sheet under which prong of the statute they found her guilty or argue plain error, this issue is not reviewable. The trial court properly denied defendant\u2019s motion to dismiss. This assignment of error is overruled.\nV. Conclusion\nThe trial court properly instructed the jury on the charge of felony fleeing to elude arrest by motor vehicle. The trial court did not err in denying defendant\u2019s motion to dismiss the charge of impaired driving. Sufficient evidence was presented which tended to show defendant was driving while impaired. We find no error.\nNo error.\nJudges McCULLOUGH and ELMORE concurs.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Patricia A. Duffy, for the State.", "Richard Croutharmel, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. SUSAN DANETTE WOOD\nNo. COA05-703\n(Filed 6 December 2005)\n1. Motor Vehicles\u2014 felonious fleeing by motor vehicle to elude arrest \u2014 instruction\nThe trial court did not commit plain error by instructing the jury on the charge of felony fleeing by motor vehicle to elude arrest, because: (1) defendant failed to cite to any case law or statute that requires the trial court to define the terms of \u201creckless driving,\u201d \u201cnegligent driving,\u201d and \u201cdriving with license revoked\u201d during its jury instruction; (2) the trial court charged the jury using the language of the pattern jury instruction which stated it had to find at least two of the three aggravating factors set out in the bill of indictment were present in order to convict defendant of felonious speeding to elude arrest; (3) while defendant was not specifically charged with either reckless driving under N.C.G.S. \u00a7 20-140 or driving while her license was revoked under N.C.G.S. \u00a7 20-28, substantial evidence was presented which tended to show defendant had struck an officer\u2019s vehicle and caused more than $1,000 in damage; and (4) evidence was presented that tended to show defendant\u2019s driving was erratic, she accelerated to hit an officer\u2019s vehicle, and the jury found her speeding twelve miles per hour over the limit.\n2. Motor Vehicles\u2014 driving while impaired \u2014 motion to dismiss \u2014 sufficiency of evidence\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of impaired driving, because: (1) defendant admitted she had consumed alcohol prior to driving, a fact confirmed by the breathalyzer result and an open half-filled bottle of vodka found in the passenger area of her vehicle; (2) an officer smelled an odor of alcohol when he approached defendant\u2019s vehicle a second time and also testified that in his opinion defendant\u2019s faculties were appreciably impaired; and (3) nothing in the record indicated that defendant requested the jury to designate on the verdict sheet which prong of the statute it found defendant to have violated.\nAppeal by defendant from judgments entered 3 February 2005 by Judge Mark E. Klass in Rowan County Superior Court. Heard in the Court of Appeals 2 December 2005.\nAttorney General Roy Cooper, by Assistant Attorney General Patricia A. Duffy, for the State.\nRichard Croutharmel, for defendant-appellant." }, "file_name": "0790-01", "first_page_order": 820, "last_page_order": 826 }