{
  "id": 12172549,
  "name": "STATE OF NORTH CAROLINA v. STEPHEN ANTHONY GRANGER, Defendant",
  "name_abbreviation": "State v. Granger",
  "decision_date": "2014-07-15",
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    "judges": [
      "Judge STROUD and Judge HUNTER, JR. concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. STEPHEN ANTHONY GRANGER, Defendant"
    ],
    "opinions": [
      {
        "text": "DILLON, Judge.\nStephen Anthony Granger (\u201cDefendant\u201d) appeals from the judgment entered for driving while impaired following the denial of his motion to suppress. For the foregoing reasons, we affirm the trial court\u2019s order denying Defendant\u2019s motion to suppress.\nI. Background\nIn the early morning hours of 1 May 2012, Defendant was involved in a motor vehicle accident in Wilmington where the vehicle he was operating rear-ended another vehicle. As a result of the accident, he was charged with driving while impaired (\u201cDWI\u201d) and failure to reduce speed.\nOn 25 June 2013, Defendant filed in the superior court a motion to suppress the results from the test of his blood which was drawn shortly after the accident, arguing inter alia that his Sixth Amendment right to confront witnesses had been violated by the State\u2019s failure to prove the chain of custody of his blood sample. On 22 July 2013, Defendant filed a motion to dismiss, arguing that his Fourth Amendment rights had been violated because the blood draw was performed without a warrant.\nOn 21 August 2013, Defendant\u2019s motions were argued before the trial court. Evidence presented by the State tended to show the following: On 1 May 2012, Officer Eric Lippert with the Wilmington Police Department responded to a report of an accident occurring around 2:19 a.m. When he arrived at the scene, Officer Lippert observed Defendant sitting in the driver\u2019s seat alone in his vehicle and Defendant\u2019s vehicle had rear-ended a truck towing an enclosed trailer. Officer Lippert approached Defendant\u2019s vehicle and noticed that Defendant was \u201cin some level of pain, discomfort[,]\u201d and had \u201ca moderate odor of an alcoholic beverage coming from his person.\u201d Defendant was subsequently transported to New Hanover Regional Medical Center by EMS, without Officer Lippert performing any sobriety checks on Defendant.\nOfficer Lippert also traveled to the hospital where he spoke with Defendant. During this encounter, Officer Lippert noticed that Defendant had \u201cbloodshot and glassy eyes[,]\u201d and Defendant kept interrupting him and telling him that \u201cI\u2019ve been drinking[.]\u201d Defendant admitted to Officer Lippert that he had taken \u201cthree shots\u201d between 10 p.m. and 11 p.m. and his last shot was 20 minutes before the accident or approximately 2 a.m. While Defendant was lying in his hospital bed, Officer Lippert gave Defendant two Alcosensor portable breath tests, one at 3:04 a.m. and the other at 3:09 a.m.; both tests were positive for alcohol. Because of Defendant\u2019s condition, Officer Lippert was limited in the type of field sobriety tests he could perform. He administered the horizontal gaze nystagmus test, which Defendant did not pass. He also administered an alphabet test and a counting test, which Defendant passed.\nBased on his investigation, Officer Lippert determined that he had sufficient probable cause to obtain a blood sample from Defendant. At 3:10 a.m., Officer Lippert read Defendant his implied consent rights and waited for a nurse to draw Defendant\u2019s blood for analysis. At 3:50 a.m., a nurse became available, and Officer Lippert made a request to Defendant for a blood draw; however, Defendant refused to give his consent. Officer Lippert testified that he did not get a warrant for the blood draw because, inter alia, he was by himself with Defendant and would have to get another officer to watch Defendant while he drove to the county jail to get the warrant, about 20 minutes away; he was concerned about the dissipation of the alcohol from Defendant\u2019s blood stream, as it had been over an hour since the accident; and he had to get the blood evidence soon as he could not get an accurate blood sample if Defendant were given any medications for his pain or injuries. At 3:51 a.m., Officer Lippert instructed the nurse to draw Defendant\u2019s blood. A test of this blood sampled revealed an alcohol concentration of 0.15, in excess of the legal limit.\nFollowing testimony, Defendant argued that there was insufficient exigent circumstances to justify the warrantless seizure of the blood evidence. The superior court ruled in open court that Defendant\u2019s Fourth Amendment rights had not been violated because there was sufficient exigent circumstances present, but stated specifically that it was not ruling on the Sixth Amendment \u201cchain of custody\u201d issue.\nOn 22 August 2013, the superior court issued a written order, with findings of fact and conclusions of law, denying \u201cdefendant\u2019s motion to suppress\u201d after concluding that there were sufficient exigent circumstances to justify the warrantless blood draw. On the same day, after preserving his right to appeal the superior court\u2019s denial of his motion to suppress, Defendant pled guilty to DWI. As a condition of the plea, the State dismissed the charge of failure to reduce speed. The superior court sentenced Defendant to a term of 12 months imprisonment; this sentence was suspended and Defendant was placed on supervised probation for 18 months. The Court also ordered Defendant to complete 48 hours of community service and \u201cnot to drive until licensed to do so.\u201d On 22 August 2013, Defendant filed written notice of appeal from this judgment.\nII. Argument\nIn his only issue on appeal, Defendant contends that the trial court erred in denying his motion to suppress certain blood evidence because there were insufficient exigent circumstances to support the warrantless seizure of that evidence in violation of his Fourth Amendment rights.\nA. Preliminary Manner\nThe State, citing State v. Golden, 96 N.C. App. 249, 385 S.E.2d 346 (1989), argues that Defendant waived his right to argue a violation of his Fourth Amendment rights. Specifically, the State contends that none of Defendant\u2019s attempts in superior court to challenge the admission of the blood test based on Fourth Amendment grounds followed N.C. Gen. Stat. \u00a7 15A-977(a) (2012), which requires, in part, that (1) the \u201cmotion to suppress ... be in writing[,]\u201d (2) it \u201cstate the grounds upon which it is made[,]\u201d and (3) it \u201cbe accompanied with an affidavit containing facts supporting the motion.\u201d Id. We disagree.\nSpecifically, the State argues that Defendant\u2019s oral motion to suppress made at the hearing based on the Fourth Amendment was not sufficient to preserve Defendant\u2019s appeal since this motion did not meet the requirement that it be \u201cin writing.\u201d Further, the State argues that Defendant\u2019s written motion to suppress was not sufficient to preserve Defendant\u2019s appeal, since the only ground stated in that motion is based on the Sixth Amendment (chain of custody/confrontation of witnesses) and not the Fourth Amendment (exigent circumstances). Finally, the State argues that Defendant\u2019s written motion to dismiss was not sufficient to preserve Defendant\u2019s appeal because - though that motion stated the Fourth Amendment as the ground for the challenge - it was not accompanied by the required \u201caffidavit containing facts supporting the motion.\u201d See id.\nWe believe that Defendant did satisfy the requirements of N.C. Gen. Stat. \u00a7 15A-977(a). Specifically, as the State concedes, Defendant\u2019s motion to dismiss - which is based on Fourth Amendment grounds \u2014 may be treated as a motion to suppress, pursuant to our decision in Golden, supra. We recognize that, though the motion to dismiss sets forth factual allegations to support the motion, the motion was unverified. However, Defendant\u2019s motion to suppress based on his Sixth Amendment challenge was verified and contains substantially the same factual allegations that are contained in Defendant\u2019s unverified motion to dismiss. Since the factual allegations in the motion to suppress are verified and since these allegations are sufficient to support Defendant\u2019s motion to dismiss, Defendant has satisfied the minimum requirements for a motion to suppress pursuant to N.C. Gen. Stat. \u00a7 15A-977(a). Accordingly, we turn to address Defendant\u2019s substantive arguments regarding the denial of his motion to suppress and exigent circumstances.\nB. Motion to Suppress-Exigent Circumstances\n1. Standard of Review\nThis Court\u2019s review of an appeal from the denial of a defendant\u2019s motion to suppress is limited to determining \u201cwhether competent evidence supports the trial court\u2019s findings of fact and whether the findings of fact support the conclusions of law.\u201d State v. Biber, 365 N.C. 162, 167-68, 712 S.E.2d 874, 878 (2011). When a defendant fails to challenge the trial court\u2019s findings of fact,\nthey are deemed to be supported by competent evidence and are binding on appeal. Conclusions of law are reviewed de novo and are subject to full review. Under a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the lower tribunal.\nId. at 168, 712 S.E.2d at 878 (citations and quotation marks omitted). On appeal, Defendant challenges only portions of finding of fact 41. Therefore, the remaining findings of fact are binding to us on appeal and deemed to be supported by competent evidence. See id. We first turn to Defendant\u2019s challenges to the trial court\u2019s finding of fact 41, arguing that subsections (a) and (c) of this finding are not supported by competent evidence in the record.\n2. The trial court\u2019s finding of fact 41\nFinding of fact 41(a) states\n(a) The first exigent circumstance was the fact that defendant\u2019s percentage alcohol [sic] in the his [sic] blood was dissipating and had been for approximately 1 hour and 32 minutes, from the time of the accident until the time the defendant refused a consensual blood draw. Such dissipation destroys the vital evidence in the case. An additional 40 plus minute delay by traveling to the New Hanover County Jail to seek a magistrate\u2019s signature on a search warrant would allow further dissipation of alcohol and further evidence to be destroyed.\nFirst, Defendant contends that it was not 1 hour and 32 minutes from the accident until he refused a consensual blood draw, as the trial court found, but 1 hour and 32 minutes from the accident until when his blood was actually drawn. Defendant also argues that Officer Lippert arrived at 2:50 a.m. and \u201cwasted\u201d 20 minutes performing field sobriety tests on Defendant and then \u201cwasted\u201d another 40 minutes between Defendant\u2019s refusal and the blood draw, enough time for him to obtain the search warrant and he \u201csimply refused to do so.\u201d We find Defendant\u2019s arguments unpersuasive.\nIt appears that Defendant is challenging the first and last sentences of this finding. As to the first sentence, Officer Lippert testified that the accident occurred at 2:19 a.m. Officer Lippert further testified that at 3:50 a.m., when a nurse finally became available to perform a blood draw, Defendant refused to give his consent to the draw. One minute later, the nurse drew Defendant\u2019s blood at 3:51 a.m. We do not believe that Officer Lippert \u201cwaste [d]\u201d 40 minutes, as Defendant argues, from 3:10 until 3:50 a.m., but he was waiting for a nurse. Therefore, this finding is supported by competent evidence in the record. Defendant\u2019s argument may be based on the implied consent rights form which shows 3:10 a.m. as the time that Defendant refused, but Officer Lippert clarified in his testimony that he gave the form to Defendant at 3:10 a.m. but it was not until a nurse arrived at 3:50 a.m. that Defendant refused to give his consent.\nAs to the last sentence in this finding, Officer Lippert testified that it would have taken 15 or 20 minutes to drive to the county jail to see a magistrate and get a warrant and it would take him some amount of time to fill out the proper search warrant form and did not know how long the process would take. Therefore, the trial court\u2019s finding that there would have been a \u201c40 plus minute delay\u201d is supported by competent evidence.\nWe also find Defendant\u2019s argument that Officer Lippert \u201cwasted\u201d 20 minutes doing field sobriety tests unpersuasive because it is well understood that Officer Lippert would have to have probable cause in order to obtain the contested blood draw evidence. See U.S. Const. Amend. IV. Those sobriety tests would be in furtherance of establishing probable cause. Therefore, Defendant\u2019s arguments are overruled.\nAs to finding of fact 41(c), Defendant contends Officer Lippert\u2019s testimony regarding Defendant needing pain medication was \u201cpurely hypothetical,\u201d and there was no evidence that Defendant needed or was given any pain medication that would interfere with him getting a blood sample. We likewise find these arguments to be without merit.\nOfficer Lippert testified that when he arrived on the scene of the accident Defendant appeared to be \u201cin some level of pain [and] discomfort[],\u201d he was taken out of his vehicle and transported to the hospital on a backboard, and, at the hospital, Defendant complained of foot, ankle, knee, and shoulder pain. Officer Lippert testified that he had seen accident victims receive pain medication before and was concerned that pain medication would prevent him from getting an accurate blood test. He further stated that he would not stop or interfere with a person\u2019s medical treatment. We are not persuaded by Defendant\u2019s argument that no evidence supports finding of fact 41(c) and that Officer Lippert\u2019s concerns were merely \u201chypothetical!.]\u201d Rather, there was competent evidence in the record to support the trial court\u2019s finding of fact 41(c) and Defendant\u2019s arguments are overruled. We next turn to Defendant\u2019s challenges to the trial court\u2019s conclusions of law.\n3. The trial court\u2019s conclusions of law\nDefendant contends that the trial court\u2019s findings of fact do not support its conclusion of law that sufficient exigent circumstances existed to justify the warrantless collection of his blood sample. Defendant contends that the trial court\u2019s findings of fact do not show that Officer Lippert \u201cfaced an emergency that justified action without a warrant\u201d as required by Missouri v. McNeely, _ U.S. _, 185 L. Ed. 2d 696 (2013), for sufficient exigent circumstances. Defendant concludes that the denial of his motion to suppress should be reversed, the evidence suppressed, and his charges dismissed.\nOur Supreme Court has stated that \u201c [t]he withdrawal of a blood sample from a person is a search subject to fourth amendment protection.\u201d State v. Welch, 316 N.C. 578, 585, 342 S.E.2d 789, 793 (1986) (citation omitted). Therefore, \u201ca search warrant must be procured before a suspect may be required to submit to such a procedure unless probable cause and exigent circumstances exist that would justify a warrantless search.\u201d Id. Defendant raises no argument regarding probable cause for the warrantless blood draw. Thusly, our review is limited to whether there were sufficient exigent circumstances.\nThe United States Supreme Court recently held in Missouri v. McNeely, supra, that the natural dissipation of alcohol in the bloodstream, standing alone, cannot create an exigency in a case of alleged impaired driving sufficient to justify conducting a blood test without a warrant. The inquiry into an exigency is fact-specific and \u201cdemands that we evaluate each case of alleged exigency based \u2018on its own facts and circumstances.\u2019\u201d McNeely, _ U.S. at _, 185 L. Ed. 2d at 705 (citation omitted). It stated that in DWI-type investigations, \u201cwhere police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.\u201d Id. at _, 185 L. Ed. 2d at 707. By way of example, the Court stated that there may be \u201ca situation in which the warrant process will not significantly increase the delay before the blood test is conducted because an officer can take steps to secure a warrant while the suspect is being transported to a medical facility by another officer.\u201d Id. at _, 185 L. Ed. 2d at 708. But the Court also recognized that \u201csome circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test.\u201d Id. at _, 185 L. Ed. 2d at 707. The Court stated that, for example, \u201cexigent circumstances justifying a warrantless blood sample may arise in the regular course of law enforcement due to delays from the warrant application process.\u201d Id. at _, 185 L. Ed. 2d at 709. The Court, in affirming the lower court\u2019s ruling, concluded that\n[i]n short, while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, ... it does not do so categorically. Whether a warrant-less blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.\nId.\nIn State v. Dahlquist, _ N.C. App. _, 750 S.E.2d 580 (2013), appeal dismissed and disc. review denied, _ N.C. _, _S.E.2d _, 2014 N.C. LEXIS 203 (N.C., 2014), we addressed the effect of the U.S. Supreme Court\u2019s holding in McNeely, supra, stating that \u201cthe question for this Court remains whether, considering the totality of the circumstances, the facts of this case gave rise to an exigency sufficient to justify a warrantless search.\u201d Id. at _, 750 S.E.2d at 583.\nIn the present case, we conclude that the trial court\u2019s findings support its conclusion that the totality of the circumstances showed that exigent circumstances justified the warrantless blood draw. Specifically, the trial court found that Officer Lippert had concerns regarding the dissipation of alcohol from Defendant\u2019s blood, as it had been over an hour since the accident when Officer Lippert established sufficient probable cause to make his request for Defendant\u2019s blood. Those findings also state Officer Lippert\u2019s concerns \u201cdue to delays from the warrant application process[.]\u201d See McNeely, _ U.S. at _, 185 L. Ed. 2d at 709. Its findings show that Officer Lippert did not have the opportunity to investigate the matter adequately until he arrived at the hospital because of Defendant\u2019s injuries and need for medical care. Even if he had the opportunity to investigate the matter at the accident scene sufficiently to establish probable cause, unlike the example in McNeely, _U.S. at _, 185 L. Ed. 2d at 708, Officer Lippert was investigating the matter by himself and would have had to call and wait for another officer to arrive before he could travel to the magistrate to obtain a search warrant. Its findings show that Officer Lippert\u2019s \u201cknowledge of the approximate probable wait time\u201d and \u201ctime needed to travel[,]\u201d as being over a 40 minute round trip to the magistrate at the county jail. See Dahlquist, _ N.C. App. at _, 750 S.E.2d at 583 (holding that there were sufficient exigent circumstances justifying the warrantless blood draw in part because of the officer\u2019s knowledge of the travel time and delays as a result of the warrant application process). Additionally, Officer Lippert had the added concern of the administration of pain medication to Defendant. Defendant had been in an accident severe enough that he was placed on a backboard for transportation to the hospital and complained of pain in several parts of his body. There was a reasonable chance if Officer Lippert left him unattended to get a search warrant or waited any longer for the blood draw, Defendant would have been administered pain medication by hospital staff as part of his treatment, contaminating his blood sample.\nFor the foregoing reasons, we affirm the trial court\u2019s denial of Defendant\u2019s motion to suppress.\nAFFIRMED\nJudge STROUD and Judge HUNTER, JR. concur.\n. This matter was originally brought in district court where Defendant was convicted of DWI. Defendant appealed that conviction to superior court.\n. Although not initially included in the record on appeal, Defendant made a motion with this Court to amend the record on appeal to include the verification of his motion to suppress. We grant this motion.\n. We note that a defendant can be guilty of impaired driving under N.C. Gen. Stat. \u00a7 20-138.1 not only for having \u201cconsumed sufficient alcohol\u201d but also for being \u201cunder the influence of an impairing substance\u201d or with \u201cany amount of a Schedule I controlled substance, as listed in G.S. 90-89, or its metabolites in his blood or urine.\u201d A blood test for Defendant\u2019s blood alcohol content could also presumably reveal if he was also under the influence of another \u201cimpairing substance\u201d or \u201cSchedule I controlled substance].]\u201d",
        "type": "majority",
        "author": "DILLON, Judge."
      }
    ],
    "attorneys": [
      "Attorney GeneralRoyA. Cooper, III, by Assistant Attorney General Joseph L. Hyde, for the State.",
      "Kerri L. Sigler, for Defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. STEPHEN ANTHONY GRANGER, Defendant\nNo. COA13-1382\nFiled 15 July 2014\n1. Criminal Law\u2014motion to suppress\u2014minimum requirements\nDefendant satisfied the minimum requirements for a motion to suppress driving while impaired blood test results and did not waive his right to argue a violation of his Fourth Amendment rights. Defendant\u2019s motion to dismiss on Fourth Amendment grounds may be treated as a motion to suppress even though it was not verified, because his motion to suppress based on a Sixth Amendment challenge was verified and contained substantially the same factual allegations.\n2. Search and Seizure\u2014warrantless blood draw\u2014exigent circumstances\u2014findings\nIn a driving while impaired prosecution, there was competent evidence in the record to support contested findings about a war-rantless blood draw after an automobile accident. More specifically, the findings involved the length of the delay before the blood draw and the officer\u2019s concerns about defendant\u2019s pain medication.\n3. Search and Seizure\u2014warrantless blood draw\u2014totality of circumstances\u2014conclusion\nThe trial court\u2019s findings in a driving while impaired prosecution supported its conclusion that the totality of the circumstances showed that exigent circumstances justified a warrantless blood draw after a traffic accident.\nAppeal by Defendant from judgments entered 22 August 2013 by Judge William R. Pittman in New Hanover County Superior Court. Heard in the Court of Appeals on 24 April 2014.\nAttorney GeneralRoyA. Cooper, III, by Assistant Attorney General Joseph L. Hyde, for the State.\nKerri L. Sigler, for Defendant-appellant."
  },
  "file_name": "0157-01",
  "first_page_order": 167,
  "last_page_order": 176
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