{ "id": 8300839, "name": "STATE OF NORTH CAROLINA v. LAURA ANN FULLER", "name_abbreviation": "State v. Fuller", "decision_date": "2006-02-21", "docket_number": "No. COA05-289", "first_page": "104", "last_page": "113", "citations": [ { "type": "official", "cite": "176 N.C. App. 104" } ], "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": "N.C. Gen. Stat. \u00a7 138.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(a)(2)" } ], "opinion_index": 0 }, { "cite": "489 S.E.2d 890", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "891" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 391", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11796427 ], "year": 1997, "pin_cites": [ { "page": "393" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0391-01" ] }, { "cite": "561 S.E.2d 528", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "533" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 553", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9130014 ], "year": 2002, "pin_cites": [ { "page": "561" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0553-01" ] }, { "cite": "148 L. Ed. 2d 459", "category": "reporters:federal", "reporter": "L. 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App. 176", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249282 ], "year": 2002, "pin_cites": [ { "page": "178" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0176-01" ] }, { "cite": "323 S.E.2d 339", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "341" } ], "opinion_index": 0 }, { "cite": "312 N.C. 441", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4758398 ], "year": 1984, "pin_cites": [ { "page": "445" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0441-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-4.01", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "pin_cites": [ { "page": "(33a)" } ], "opinion_index": 0 }, { "cite": "449 S.E.2d 218", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "220" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 727", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525572 ], "year": 1994, "pin_cites": [ { "page": "730" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0727-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-16.3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "155 L. Ed. 2d 681", "category": "reporters:federal", "reporter": "L. 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Ct.", "year": 1996, "opinion_index": 0 }, { "cite": "517 U.S. 1110", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11756257, 11756327, 11756009, 11756202, 11756683, 11756747, 11756111, 11755921, 11756403, 11756051, 11756532, 11756471, 11756158, 11756607 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/us/517/1110-07", "/us/517/1110-08", "/us/517/1110-02", "/us/517/1110-06", "/us/517/1110-13", "/us/517/1110-14", "/us/517/1110-04", "/us/517/1110-01", "/us/517/1110-09", "/us/517/1110-03", "/us/517/1110-11", "/us/517/1110-10", "/us/517/1110-05", "/us/517/1110-12" ] }, { "cite": "462 S.E.2d 25", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1995, "pin_cites": [ { "page": "36" }, { "page": "35-36" }, { "page": "36" } ], "opinion_index": 0 }, { "cite": "341 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793083 ], "year": 1995, "pin_cites": [ { "page": "383" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0364-01" ] }, { "cite": "372 S.E.2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "527" } ], "opinion_index": 0 }, { "cite": "323 N.C. 279", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2562603 ], "year": 1988, "pin_cites": [ { "page": "285" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0279-01" ] }, { "cite": "547 S.E.2d 818", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 386", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135924, 135628, 135820, 135989 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0386-01", "/nc/353/0386-04", "/nc/353/0386-03", "/nc/353/0386-02" ] }, { "cite": "542 S.E.2d 236", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "241" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 81", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9439554 ], "year": 2001, "pin_cites": [ { "page": "90" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0081-01" ] }, { "cite": "622 S.E.2d 120", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634478 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "124" } ], "opinion_index": 1, "case_paths": [ "/se2d/622/0120-01" ] }, { "cite": "600 S.E.2d 483", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631532 ], "year": 2004, "pin_cites": [ { "page": "490", "parenthetical": "Tyson J. concurring" } ], "opinion_index": 1, "case_paths": [ "/se2d/600/0483-01" ] }, { "cite": "572 S.E.2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2002, "pin_cites": [ { "page": "840", "parenthetical": "citation omitted" } ], "opinion_index": 1 }, { "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": 1, "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": 1 }, { "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": 1, "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": 1 }, { "cite": "154 N.C. App. 341", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250020 ], "year": 2002, "pin_cites": [ { "page": "346" } ], "opinion_index": 1, "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": 1 }, { "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": 1, "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": 2, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 1 }, { "cite": "174 N.C. App. 790", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353318 ], "year": 2005, "pin_cites": [ { "page": "796" } ], "opinion_index": 1, "case_paths": [ "/nc-app/174/0790-01" ] }, { "cite": "165 N.C. App. 750", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9000004 ], "year": 2004, "pin_cites": [ { "page": "759", "parenthetical": "Tyson J. concurring" } ], "opinion_index": 1, "case_paths": [ "/nc-app/165/0750-01" ] } ], "analysis": { "cardinality": 874, "char_count": 23178, "ocr_confidence": 0.741, "pagerank": { "raw": 1.8197820758052787e-07, "percentile": 0.7190567867084142 }, "sha256": "243d1ad292d4204ace93681e843149394005ec3dc96b21745a47f812974e3cdf", "simhash": "1:036b9e3eb48fb4fb", "word_count": 3720 }, "last_updated": "2023-07-14T16:09:49.892129+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge TYSON concurs in results only in separate opinion.", "Judge SMITH concurs." ], "parties": [ "STATE OF NORTH CAROLINA v. LAURA ANN FULLER" ], "opinions": [ { "text": "JACKSON, Judge.\nDefendant, Laura Ann Fuller, appeals from a verdict and judgment entered 8 December 2004 in Alamance Superior Court finding her guilty of Driving While Impaired (\u201cDWI\u201d) and sentencing her to sixty days confinement, which was suspended for twenty months subject to supervised probation.\nAt trial the State\u2019s evidence tended to show that on 27 March 2004 at 7:51 p.m., Corporal Duane Flood (\u201cCorporal Flood\u201d) and Officer Jennifer Brown (\u201cOfficer Brown\u201d), both of the Graham Police Department, responded to a reported hit and run vehicle accident. When the officers arrived at the scene they observed defendant and another woman sitting in a vehicle on the shoulder of the road. Defendant was seated behind the wheel of the vehicle. Officer Brown approached defendant and immediately detected a moderate to strong odor of alcohol and that her speech was slurred. When Officer Brown asked defendant to step out of the vehicle, defendant seemed unsteady on her feet and immediately leaned against the vehicle. Corporal Flood also detected a strong odor of alcohol on defendant\u2019s breath after she exited the vehicle. Corporal Flood observed that defendant\u2019s eyes were red, bloodshot, and glassy and her speech was slurred.\nDefendant claimed that another vehicle, which she could not describe, had crossed the center line and sideswiped her vehicle as she attempted to turn from a side road. Neither officer observed any physical evidence to support defendant\u2019s claim that her vehicle had been sideswiped by another vehicle. There, was no paint transfer on defendant\u2019s vehicle nor any vehicle debris in the roadway where the collision purportedly occurred to indicate she had collided with another vehicle. The only evidence of a collision was the damage to defendant\u2019s vehicle.\nCorporal Flood asked defendant to perform field sobriety tests, but she refused due to a knee injury which she believed would affect her ability to perform the tests. Defendant stated to Corporal Flood that she had been drinking beer prior to the accident. Corporal Flood testified that based upon his observations of defendant, the fact that she was involved in an accident, her statement that she had been drinking beer prior to the accident, and a field Alco-Sensor reading, he arrested defendant for DWI. Defendant objected to Corporal Flood\u2019s reference to the Alco-Sensor test as inadmissible. The trial court sustained the objection and instructed the jury to disregard the statement. The trial court then asked the jurors if they could disregard the statement in their deliberation and all of the jurors indicated that they could. Defendant moved for a mistrial. The motion was denied.\nCorporal Flood and Officer Brown transported defendant to the Alamance County Jail where Corporal Flood, who held a permit to administer blood alcohol breath tests on the Intoxilyzer 5000, administered an Intoxilyzer test to defendant with her consent. The Intoxilyzer test was administered at 8:58 p.m. and showed a blood alcohol concentration of 0.07 \u2014 one hour and seven minutes after the officers\u2019 arrival at the accident scene. After being read her Miranda Rights and taking the breath test, defendant told the officers, in response to their questions, that she had begun drinking about 2:30-3:00 p.m. and had consumed about one and a half beers. Defendant further stated that she had stopped drinking about three to four hours before being questioned. Defendant also denied being under the influence of any intoxicants other than the beer she had consumed.\nDefendant pled guilty to DWI in Alamance County District Court and was sentenced on that charge. Defendant then appealed the judgment to the Alamance County Superior Court. On the morning of defendant\u2019s trial in superior court, the State served notice on defendant that it would be calling an expert witness to testify regarding defendant\u2019s probable blood alcohol content at times prior to the breath test. Defendant made a motion to prevent the State from calling the expert, which was denied. The expert testified at trial that defendant\u2019s blood alcohol concentration at the time the officers first came into contact with her was likely 0.08.\nDefendant was convicted of DWI and sentenced to sixty days confinement, which was suspended for twenty months subject to supervised probation. Defendant filed timely notice of appeal.\nOn appeal, defendant assigns as error: (1) the trial court\u2019s denial of her motion to prevent the State from calling its expert witness; (2) the trial court\u2019s denial of her motion for a mistrial following Corporal Flood\u2019s testimony regarding an Aleo-Sensor test; (3) the trial court\u2019s allowing the State\u2019s expert to testify regarding his opinion of defendant\u2019s probable blood alcohol concentration at a particular point in time, over defendant\u2019s objection; (4) the trial court\u2019s allowing a redacted alcohol concentration calculation to be published to the jury; and (5) the trial court\u2019s denial of her motion to dismiss at the close of the evidence.\nDefendant first argues that the trial court erred in denying her motion to prevent the State from presenting its expert witness as she was not notified of the State\u2019s intention to call the expert in sufficient time to allow her to procure a rebuttal witness. Defendant concedes that there are no statutory discovery requirements under the circumstances of this case as defendant had pled guilty to the offense in district court and appealed to superior court. Article 48 of the North Carolina General Statutes, Discovery in the Superior Court, applies only to cases within the Superior Court\u2019s original jurisdiction. N.C. Gen. Stat. \u00a7 15A-901 (2003).\nDefendant contends, however, that the trial court abused its discretion in denying her motion as doing so was fundamentally unfair and highly prejudicial to her. Defendant asserts that, with her blood alcohol reading of .07 at 8:58 p.m. and little other evidence of intoxication, the expert testimony regarding her probable higher blood alcohol content at the time the officers first encountered her was essential for the State to prove her guilt. Defendant cites no persuasive authority in support of her argument.\nThe State contends that all legal requirements were followed and that the trial court did not abuse its discretion in denying defendant\u2019s motion. The State also points out that defendant was on notice that such evidence might be offered as extrapolation evidence has been accepted in this State since 1985. State v. Davis, 142 N.C. App. 81, 90, 542 S.E.2d 236, 241, disc. review denied, 353 N.C. 386, 547 S.E.2d 818 (2001).\nAn abuse of discretion occurs \u201cwhere the court\u2019s ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.\u201d State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988). In light of defendant\u2019s clear understanding of the importance of this evidence to the State\u2019s case against her and its longstanding acceptance in the courts of this state, we cannot conclude that the trial court\u2019s decision to deny defendant\u2019s motion was \u201cmanifestly unsupported by reason ... or so arbitrary that it could not have been the result of a reasoned decision.\u201d Accordingly, this assignment of error is overruled.\nDefendant next argues that the trial court erred by denying her motion for mistrial after Corporal Flood, referred to an Alco-Sensor test during his testimony.\nThe decision to grant a motion for a mistrial is within the discretion of the trial court. State v. McCarver, 341 N.C. 364, 383, 462 S.E.2d 25, 36 (1995), cert. denied, 517 U.S. 1110, 116 S.Ct. 1332, 134 L. Ed. 2d 482 (1996). A mistrial should be declared only if there are serious improprieties making it impossible to reach a fair, impartial verdict. Id. at 383, 462 S.E.2d at 35-36. \u201cJurors are presumed to follow a trial court\u2019s instructions.\u201d Id. at 384, 462 S.E.2d at 36.\nState v. Prevatte, 356 N.C. 178, 253-54, 570 S.E.2d 440, 482 (2002), cert. denied, 538 U.S. 986, 155 L. Ed. 2d 681 (2003).\nDuring cross-examination, defendant\u2019s attorney questioned Corporal Flood regarding what he relied upon to determine th\u00e1t defendant was appreciably impaired prior to arresting'her. Corporal Flood replied that he had relied upon \u201c[a] strong odor of alcohol. . . red glassy eyes, her speech, and then also with the backings of an Aleo-Sensor test that was performed.\u201d\nNorth Carolina General Statutes, section 20-16.3(d) (2003) controls the use of alcohol screening results as evidence. Section 20-16.3(d) provides, in relevant part, \u201c[e]xcept as provided in this subsection, the results of an alcohol screening test may not be admitted in evidence in any court or administrative proceeding.\u201d (emphasis added). In the case sub judice, Corporal Flood did not testify regarding the results of the Aleo-Sensor test, only that one was administered. The results of an alcohol screening test may be used by an officer to determine if there are reasonable grounds to believe that a \u201cdriver has committed an implied-consent offense under G.S. 16.2.\u201d N.C. Gen. Stat. \u00a7 20-16.3; Moore v. Hodges, 116 N.C. App. 727, 730, 449 S.E.2d 218, 220 (1994). Accordingly, Corporal Flood\u2019s testimony that he relied on the alcohol screening in making the determination that he had reasonable grounds to arrest defendant for DWI was properly admissible. Additionally, immediately after Corporal Flood\u2019s testimony regarding his reliance on the Alco-Sensor results the trial court instructed the jury to dismiss that statement from their minds and not consider it in deliberations. The trial court then asked the jurors to each raise their hand if they could follow the trial court\u2019s instruction. All jurors raised their hand in response. Accordingly, this assignment of error is overruled.\nDefendant next argues that the trial court erred in allowing, over her objection, the State\u2019s expert to offer his opinion as to defendant\u2019s blood alcohol concentration at the time she was first contacted by the officers. Defendant contends that the point in time selected by the expert was arbitrary and did not constitute a \u201crelevant time after driving.\u201d\nNorth Carolina General Statutes, section 20-138.1(a) (2) (2003) provides that \u201c[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 . . . [a]fter having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more.\u201d Defendant apparently contends that the only \u201crelevant times\u201d that may be used in extrapolating a defendant\u2019s blood alcohol content are the time of an accident or the time a defendant is stopped by the police because those are times immediately after the suspect had been operating the vehicle. For purposes of Chapter 20, Motor Vehicles, of the North Carolina General Statutes, the term \u201crelevant time after the driving\u201d refers to \u201c[a]ny time after the driving in which the driver still has in his body alcohol consumed before or during the driving.\u201d N.C. Gen. Stat. \u00a7 20-4.01(33a) (2003). This definition does not limit the meaning of \u201crelevant time\u201d to points immediately following the driving, but specifies \u201cany time after the driving.\u201d See State v. Rose, 312 N.C. 441, 445, 323 S.E.2d 339, 341 (1984).\nDefendant does not dispute the accuracy of the calculations, the validity of the methodology, nor the expert\u2019s qualifications, on appeal. Defendant takes exception only to the point in time utilized. There is absolutely no evidence that defendant consumed any alcoholic beverages between the time of the accident and the arrival of the officers and, consequently, the officers\u2019 arrival time meets the statutory definition of a \u201crelevant time after the driving.\u201d Accordingly, this assignment of error is overruled.\nDefendant next assigns error to the publishing of the State\u2019s expert\u2019s calculation document to the jury over defendant\u2019s objection. In support of this contention, defendant reasserts the same arguments presented in the preceding assignment of error. For the reasons stated supra, this assignment of error is also overruled.\nDefendant\u2019s final assignment of error is that the trial court erred in denying her motion to dismiss for insufficient evidence at the close of all evidence. The standard of review on a motion to dismiss for insufficient evidence is whether the State has offered substantial evidence of each .required element of the offense charged. State v. Williams, 154 N.C. App. 176, 178, 571 S.E.2d 619, 620 (2002). Substantial evidence is relevant evidence which would be sufficient to convince a rational juror to accept a particular conclusion. State v. Frogge, 351 N.C. 576, 584, 528 S.E.2d 893, 899, cert. denied, 531 U.S. 994, 148 L. Ed. 2d 459 (2000). The evidence must be viewed in the light most favorable to the State and the State must be given the benefit of every reasonable inference which may be drawn from the evidence when deciding a motion to dismiss for insufficient evidence. State v. Martinez, 149 N.C. App. 553, 561, 561 S.E.2d 528, 533 (2002).\nThe elements of the offense of impaired driving are either that the defendant has \u201cingested a sufficient quantity of an impairing substance to cause his faculties to be appreciably impaired,\u201d State v. Phillips, 127 N.C. App. 391, 393, 489 S.E.2d 890, 891 (1997), or that the defendant consumed sufficient alcohol that she has, at any relevant time after the driving, an alcohol concentration of 0.08 or more. N.C. Gen. Stat. \u00a7 138.1(a)(2). The opinion of the State\u2019s expert that defendant\u2019s blood alcohol concentration at the time the officers first made contact with her was .08 is, alone, sufficient to withstand dismissal for insufficient evidence on appeal. Defendant argues that the State\u2019s evidence was insufficient without the expert\u2019s opinion. As we already have held that the expert\u2019s opinion was properly allowed, this argument must fail. This assignment of error is overruled.\nNo error.\nJudge TYSON concurs in results only in separate opinion.\nJudge SMITH concurs.", "type": "majority", "author": "JACKSON, Judge." }, { "text": "TYSON, Judge\nconcurring in the result.\nThe majority\u2019s opinion holds no error occurred in defendant\u2019s conviction of driving while impaired (\u201cDWI\u201d). I concur in the result to sustain defendant\u2019s conviction. I disagree with the majority\u2019s conclusion that the trial court did not err when it allowed State\u2019s witness Paul Glover (\u201cGlover\u201d) to testify that defendant\u2019s blood alcohol level was 0.08 at the time of the accident using an average retrograde extrapolation rate. Glover was never able to identify when Plaintiff drove her vehicle, and he admitted that the time of driving is a critical issue.\nI. Expert Testimony\nDefendant argues \u201cat best, the admission of Mr. Glover\u2019s testimony was highly misleading, prejudicial and confusing.\u201d I agree.\nThe trial court admitted, over defendant\u2019s specific objection, Glover\u2019s testimony that . . . defendant had a 0.08 at the time of the accident. Glover relied on average extrapolation rate, pure hearsay, instead of defendant\u2019s actual elimination rate to reach his conclusions. Glover failed to establish any connection or common attributes to correlate the average extrapolation rate to defendant\u2019s actual rate to establish relevancy.\nState v. Taylor, 165 N.C. App. 750, 759, 600 S.E.2d 483, 490 (2004) (Tyson J. concurring) (internal quotations omitted). In the absence of any testimony that correlated the alcohol elimination rate to defendant\u2019s specific characteristics, this testimony is irrelevant and prejudicial. However, defendant failed to object to either the jury instructions or the verdict sheet and failed to preserve this issue for our review.\nThe judge instructed the jury as follows:\nIf you find from the evidence beyond a reasonable doubt that on or about March 27, 2004, the defendant drove a vehicle on a highway or street in this state, and that when she did so, she was under the influence of an impairing substance, or had consumed sufficient alcohol that at any relevant time after the driving the defendant had an alcohol concentration of .08 or more, it would be your duty to return a verdict of guilt. If do you not so find or if you have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty.\nNow, in the absence of the 12 trial jurors, any objection, corrections, or additions to the charge?\n[Defendant\u2019s attorney]: To the charge, Your Honor?\nCourt: Yes.\n[Defendant\u2019s attorney]: No, no, Your Honor.\nThis Court has stated:\nNothing 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.\nState v. Wood, 174 N.C. App. 790, 796, 622 S.E.2d 120, 124 (2005).\nAlthough Glover\u2019s irrelevant and improper testimony prejudiced defendant, Corporal Duane Flood\u2019s (\u201cCorporal Flood\u201d) and Officer Jennifer Brown\u2019s (\u201cOfficer Brown\u201d) testimony together with defendant\u2019s admission that she had \u201cconsumed alcohol prior to driving, a fact confirmed by the breathalyzer result\u201d were sufficient evidence to prove defendant operated a motor vehicle while she was under the influence of an impairing substance. Id. Corporal Flood testified that he observed a strong odor of alcohol on defendant\u2019s breath, and defendant\u2019s eyes were bloodshot, glassy and red. Officer Brown also observed a strong odor of alcohol and that defendant was not steady on her feet.\nThis Court has stated:\nOther 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'd, 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).\nId.\nII. Conclusion\nDefendant failed to object and preserve any error to the jury\u2019s instructions or to request the jury specifically find which prong of the statute she was guilty of committing. \u201cThe trial court did not err in denying defendant\u2019s motion to dismiss the charge of impaired driving.\u201d Id. I concur in the result reached by the majority\u2019s opinion and vote to sustain defendant\u2019s conviction.", "type": "concurrence", "author": "TYSON, Judge" } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Assistant Attorney General Isaac T Avery, III, for the State.", "James M. Bell, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. LAURA ANN FULLER\nNo. COA05-289\n(Filed 21 February 2006)\n1. Evidence\u2014 denial of motion to prevent expert witness from testifying \u2014 probable blood alcohol content prior to breathalyzer\nThe trial court did not abuse its discretion in a driving while impaired case by denying defendant\u2019s motion to prevent the State from calling its expert witness to testify regarding defendant\u2019s probable blood alcohol content at times prior to. a breathalyzer test, because: (1) defendant was on notice that such evidence might be offered as extrapolation evidence has been accepted in this state since 1985; and (2) in light of defendant\u2019s clear understanding of the importance of this evidence to the State\u2019s case against her and its longstanding acceptance in the courts of this state, it cannot be concluded that the trial court\u2019s decision to deny defendant\u2019s motion was manifestly unsupported by reason or so arbitrary that it could not have been the result of a reasoned decision.\n2. Motor Vehicles\u2014 driving while impaired \u2014 motion for mistrial \u2014 mentioning Alco-Sensor test\nThe trial court did not abuse its discretion in a driving while impaired case by denying defendant\u2019s motion for a mistrial after an officer referred to an Alco-Sensor test during his testimony, because: (1) the officer did not testify regarding the results of the Alco-Sensor test, but only that one was administered; (2) the results of an alcohol screening test may be used by an officer to determine if there are reasonable grounds to believe that a driver has committed an implied consent offense under N.C.G.S. \u00a7 20-16.2; and (3) immediately after the officer\u2019s testimony regarding his reliance on the Alco-Sensor results, the trial court instructed the jury to dismiss that statement from their minds and not consider it in deliberations, and all jurors raised their hands at the trial court\u2019s request to indicate that they could follow the trial court\u2019s instruction.\n3. Evidence\u2014 expert opinion \u2014 blood alcohol concentration at relevant time\nThe trial court did not err in a driving while impaired case by allowing over defendant\u2019s objection the State\u2019s expert to offer his opinion as to defendant\u2019s blood alcohol concentration at the time she was first contacted by the officers, because: (1) for purposes of N.C.G.S. \u00a7 20-4.01(33a), the term relevant time after the driving refers to any time after the driving in which the driver still has in his body alcohol consumed before or during the driving; and (2) there was no evidence that defendant consumed any alcoholic beverages between the time of the accident and the arrival of the officers, and consequently, the officers\u2019 arrival time meets the statutory definition of a relevant time after the driving.\n4. Evidence\u2014 publication of expert calculation document\u2014 relevant time\nThe trial court did not err in, a driving while impaired case by allowing the State to publish its expert\u2019s calculation document to the jury regarding defendant\u2019s blood alcohol concentration at the time she was first contacted by the officers, over defendant\u2019s objection, based on the same reasoning the Court of Appeals has already used in this case regarding the definition of relevant time.\n5. 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 driving while impaired at the close of all evidence, because the opinion of the State\u2019s expert that defendant\u2019s blood alcohol concentration at the time the officers first made contact with her was .08 is, alone, sufficient to withstand dismissal.\nJudge Tyson concurring in the result.\nAppeal by defendant from judgment entered 8 December 2004 by Judge Robert H. Hobgood in Alamance County Superior Court. Heard in the Court of Appeals 2 November 2005.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General Isaac T Avery, III, for the State.\nJames M. Bell, for defendant-appellant." }, "file_name": "0104-01", "first_page_order": 136, "last_page_order": 145 }