{ "id": 8523425, "name": "STATE OF NORTH CAROLINA v. DAVID RAY", "name_abbreviation": "State v. Ray", "decision_date": "1981-11-03", "docket_number": "No. 8114SC459", "first_page": "473", "last_page": "475", "citations": [ { "type": "official", "cite": "54 N.C. App. 473" } ], "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": "190 S.E. 2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "15 N.C. App. 391", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550723 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/15/0391-01" ] }, { "cite": "261 S.E. 2d 925", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "299 N.C. 123", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573984, 8573957, 8574022, 8574003, 8573972 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/299/0123-03", "/nc/299/0123-01", "/nc/299/0123-05", "/nc/299/0123-04", "/nc/299/0123-02" ] }, { "cite": "260 S.E. 2d 138", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "43 N.C. App. 695", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554252 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/43/0695-01" ] }, { "cite": "118 S.E. 2d 411", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "254 N.C. 162", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624823 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/254/0162-01" ] }, { "cite": "160 S.E. 2d 76", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "273 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575280 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/273/0348-01" ] }, { "cite": "184 S.E. 2d 851", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "854" } ], "opinion_index": 0 }, { "cite": "280 N.C. 11", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569617 ], "year": 1971, "pin_cites": [ { "page": "16" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0011-01" ] }, { "cite": "223 S.E. 2d 516", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "29 N.C. App. 144", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554603 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc-app/29/0144-01" ] }, { "cite": "208 S.E. 2d 506", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 746", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569924 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0746-01" ] }, { "cite": "160 S.E. 2d 469", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "472" } ], "opinion_index": 0 }, { "cite": "273 N.C. 509", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575701 ], "year": 1968, "pin_cites": [ { "page": "513" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0509-01" ] }, { "cite": "223 S.E. 2d 371", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "375" } ], "opinion_index": 0 }, { "cite": "289 N.C. 522", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570976 ], "year": 1976, "pin_cites": [ { "page": "527" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0522-01" ] } ], "analysis": { "cardinality": 382, "char_count": 5838, "ocr_confidence": 0.804, "pagerank": { "raw": 1.0930561916825253e-07, "percentile": 0.5661158237410753 }, "sha256": "058c657298909f761344dd96e5a4570b24dbf895a7e898ab4cb87ae2a48c122b", "simhash": "1:8b49c67d44eba524", "word_count": 984 }, "last_updated": "2023-07-14T17:12:28.716896+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MORRIS and Judge Arnold concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DAVID RAY" ], "opinions": [ { "text": "BECTON, Judge.\nThe defendant raises two arguments on this appeal: (1) that the trial court should have granted his motion for mistrial based on erroneous and inflammatory remarks in the opening statement by the district attorney; and (2) that the trial court erred in denying his motion for nonsuit. Because we reverse based on the non-suit issue, we do not address the defendant\u2019s first argument.\nA motion for nonsuit \u201crequires the trial court to consider the evidence in the light most favorable to the State, take it as true, and give the State the benefit of every reasonable inference to be drawn therefrom.\u201d State v. Biggs, 289 N.C. 522, 527, 223 S.E. 2d 371, 375 (1976) quoting, State v. Goines, 273 N.C. 509, 513, 160 S.E. 2d 469, 472 (1968); see State v. Bell, 285 N.C. 746, 208 S.E. 2d 506 (1974). This same rule regarding direct evidence is applicable when circumstantial evidence is offered. State v. Abrams, 29 N.C. App. 144, 223 S.E. 2d 516 (1976). However, \u201c[w]hen the facts and circumstances warranted by the evidence do no more than raise a suspicion of guilt, they are insufficient to make out a case and a motion to dismiss should be allowed.\u201d State v. Blizzard, 280 N.C. 11, 16, 184 S.E. 2d 851, 854 (1971).\nG.S. 20438(a) provides that \u201c[i]t is unlawful and punishable as provided in G.S. 20-179 for any person who is under the influence of intoxicating liquor to drive or operate any vehicle upon any highway or any public vehicular area within this State.\u201d \u201cDriver\u201d is defined under G.S. 20-4.01(7) as \u201cthe operator of a vehicle.\u201d G.S. 20-4.01(25) defines \u201coperator\u201d as \u201ca person in actual physical control of a vehicle which is in motion or which has the engine running.\u201d To prosecute successfully under G.S. 20-138, the State must show that the defendant \u201c(1) [drove or operated] a vehicle, (2) upon a highway within the State, (3) while under the influence of intoxicating liquor.\u201d State v. Kellum, 273 N.C. 348, 160 S.E. 2d 76 (1968), citing, State v. Haddock, 254 N.C. 162, 118 S.E. 2d 411 (1961); State v. McLawhorn, 43 N.C. App. 695, 260 S.E. 2d 138 (1979), disc. rev. denied, 299 N.C. 123, 261 S.E. 2d 925 (1980).\nIn the case before us, the evidence presented at trial satisfies the requirement that the defendant was under the influence of intoxicating liquor and that the accident occurred on a public highway. The State has been unsuccessful, however, in proving that the defendant drove or operated the vehicle. The only evidence presented by the State connecting the defendant with the automobile was the Public Safety Officer\u2019s testimony that he observed the defendant \u201chalfway the front seat.\u201d This circumstantial evidence alone is insufficient to support a conclusion that the defendant was the driver. The State offered no evidence that the car had been operated recently or that it was in motion at the time the officer observed the defendant. See State v. Haddock. Nor did the State offer evidence that the motor was running with the defendant sitting under the steering wheel at the time the officer came upon the scene as was the case in State v. Carter, 15 N.C. App. 391, 190 S.E. 2d 241 (1972). It is possible that other circumstantial evidence \u2014 such as testimony that the defendant was seen driving the car at some point immediately prior to the accident or evidence as to the ownership of the automobile \u2014 in addition to the testimony of the officer would have bolstered the State\u2019s case. However, no other such evidence was presented.\nBecause the evidence, taken in a light most favorable to the State, does not establish an essential element of the crime charged, the motion for nonsuit should have been granted. Accordingly, the judgment below is\nReversed.\nChief Judge MORRIS and Judge Arnold concur.", "type": "majority", "author": "BECTON, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Special Deputy Attorney General T. Buie Cos ten, for the State.", "Archbell and Cotter, by James B. Archbell, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DAVID RAY\nNo. 8114SC459\n(Filed 3 November 1981)\nAutomobiles \u00a7 127.3\u2014 driving under the influence \u2014 insufficient evidence of defendant as driver\nThe State\u2019s evidence was insufficient to show that defendant drove or operated a vehicle so as to support his conviction for driving under the influence of intoxicants in violation of G.S. 20-138(a) where the only evidence presented by the State connecting defendant with the vehicle was an officer\u2019s testimony that the vehicle struck two parked cars and that when he arrived on the scene he observed defendant sitting in the vehicle \u201capproximately halfway in the front seat, between the driver and passenger area in the front seat.\u201d\nAPPEAL by defendant from Brewer, Judge. Judgment entered 3 December 1980 in Superior Court, DURHAM County. Heard in the Court of Appeals 19 October 1981.\nThe defendant appeals from a conviction of driving under the influence, second offense, in violation of G.S. 20438(a) for which he was given a six-month jail sentence suspended for twelve months upon compliance with certain conditions. The State\u2019s evidence tended to show that a Durham Public Safety Officer answered an accident call on the night of 12 July 1980. When he arrived at the scene, he found a three-car accident. Two of the cars were unoccupied and parked alongside the curb. The third car was occupied by the defendant and had apparently run into the other cars. The officer observed the defendant sitting \u201capproximately halfway in the front seat, between the driver and passenger area in the front seat.\u201d The officer observed a gash above the defendant\u2019s nose and that the defendant smelled of alcohol. After being taken to the Durham County Hospital where he was treated for his injuries, the defendant was taken to the Magistrate\u2019s office and was given a breathalyzer test. The breathalyzer showed a 0.19 reading. The defendant offered no evidence.\nAttorney General Edmisten, by Special Deputy Attorney General T. Buie Cos ten, for the State.\nArchbell and Cotter, by James B. Archbell, for defendant appellant." }, "file_name": "0473-01", "first_page_order": 501, "last_page_order": 503 }