{ "id": 8519454, "name": "STATE OF NORTH CAROLINA v. EDWARD KEN HARRINGTON", "name_abbreviation": "State v. Harrington", "decision_date": "1985-12-03", "docket_number": "No. 853SC301", "first_page": "39", "last_page": "48", "citations": [ { "type": "official", "cite": "78 N.C. App. 39" } ], "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": "235 S.E. 2d 819", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": -1 }, { "cite": "293 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561668 ], "opinion_index": -1, "case_paths": [ "/nc/293/0132-01" ] }, { "cite": "214 S.E. 2d 436", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "287 N.C. 263", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562242, 8562311, 8562285, 8562200, 8562330 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/287/0263-02", "/nc/287/0263-04", "/nc/287/0263-03", "/nc/287/0263-01", "/nc/287/0263-05" ] }, { "cite": "212 S.E. 2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "25 N.C. App. 176", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551872 ], "opinion_index": 0, "case_paths": [ "/nc-app/25/0176-01" ] }, { "cite": "282 S.E. 2d 436", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "parenthetical": "stolen goods offense; defendant not operate motor vehicle between 12:01 a.m. and 5:30 a.m." } ], "opinion_index": 0 }, { "cite": "304 N.C. 180", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565555 ], "year": 1981, "pin_cites": [ { "parenthetical": "stolen goods offense; defendant not operate motor vehicle between 12:01 a.m. and 5:30 a.m." } ], "opinion_index": 0, "case_paths": [ "/nc/304/0180-01" ] }, { "cite": "105 S.Ct. 769", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1985, "opinion_index": 0 }, { "cite": "83 L.Ed. 2d 766", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1985, "opinion_index": 0 }, { "cite": "319 S.E. 2d 284", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 767", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4682529, 4686537, 4683374, 4682478, 4679544 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0767-05", "/nc/311/0767-03", "/nc/311/0767-01", "/nc/311/0767-02", "/nc/311/0767-04" ] }, { "cite": "315 S.E. 2d 492", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "68 N.C. App. 358", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527265 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/68/0358-01" ] }, { "cite": "306 S.E. 2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 214", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4762487 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0214-01" ] }, { "cite": "300 S.E. 2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "697" } ], "opinion_index": 0 }, { "cite": "307 N.C. 584", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565300 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0584-01" ] }, { "cite": "330 S.E. 2d 513", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "75 N.C. App. 299", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525708 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/75/0299-01" ] }, { "cite": "312 S.E. 2d 393", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "parenthetical": "sufficiency of evidence that a killing was especially atrocious discussed" } ], "opinion_index": 0 }, { "cite": "310 N.C. 332", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2398008 ], "year": 1984, "pin_cites": [ { "parenthetical": "sufficiency of evidence that a killing was especially atrocious discussed" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0332-01" ] }, { "cite": "182 S.E. 2d 345", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "parenthetical": "no negligence, negligence, or willful and wanton negligence" } ], "opinion_index": 0 }, { "cite": "279 N.C. 288", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566776 ], "year": 1971, "pin_cites": [ { "parenthetical": "no negligence, negligence, or willful and wanton negligence" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0288-01" ] }, { "cite": "328 S.E. 2d 843", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "BAC of 0.06 did not create presumption that defendant not impaired; conviction, based on opinion of arresting officer, affirmed" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 479", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525047 ], "year": 1985, "pin_cites": [ { "parenthetical": "BAC of 0.06 did not create presumption that defendant not impaired; conviction, based on opinion of arresting officer, affirmed" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0479-01" ] }, { "cite": "323 S.E. 2d 339", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "312 N.C. 441", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4758398 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/312/0441-01" ] }, { "cite": "155 S.E. 2d 165", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "270 N.C. 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569892 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/270/0644-01" ] }, { "cite": "325 S.E. 2d 244", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "\"twilight zone\" of varying degrees of negligence" } ], "opinion_index": 0 }, { "cite": "312 N.C. 710", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4749409 ], "year": 1985, "pin_cites": [ { "parenthetical": "\"twilight zone\" of varying degrees of negligence" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0710-01" ] }, { "cite": "74 S.E. 2d 54", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "194 Va. 615", "category": "reporters:state", "reporter": "Va.", "case_ids": [ 2162466 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/va/194/0615-01" ] }, { "cite": "125 S.E. 2d 899", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "257 N.C. 404", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568113 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/nc/257/0404-01" ] }, { "cite": "247 S.E. 2d 668", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "parenthetical": "\"gross incompetence\"" } ], "opinion_index": 0 }, { "cite": "38 N.C. App. 222", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553073 ], "year": 1978, "pin_cites": [ { "parenthetical": "\"gross incompetence\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/38/0222-01" ] }, { "cite": "168 S.E. 2d 483", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "parenthetical": "new trial on other grounds" } ], "opinion_index": 0 }, { "cite": "5 N.C. App. 499", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551299 ], "year": 1969, "pin_cites": [ { "parenthetical": "new trial on other grounds" } ], "opinion_index": 0, "case_paths": [ "/nc-app/5/0499-01" ] }, { "cite": "134 S.E. 2d 638", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "261 N.C. 332", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573167 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/261/0332-01" ] }, { "cite": "182 S.E. 2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "12 N.C. App. 4", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8546919 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc-app/12/0004-01" ] }, { "cite": "94 S.E. 2d 472", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "244 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219540 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/nc/244/0506-01" ] }, { "cite": "135 S.E. 2d 584", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "261 N.C. 606", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574926 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/261/0606-01" ] }, { "cite": "323 S.E. 2d 343", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "312 N.C. 432", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4756963 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/312/0432-01" ] }, { "cite": "323 S.E. 2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "312 N.C. 421", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4748896 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/312/0421-01" ] }, { "cite": "37 S.E. 2d 688", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1946, "pin_cites": [ { "page": "691" } ], "opinion_index": 0 }, { "cite": "226 N.C. 237", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616840 ], "year": 1946, "pin_cites": [ { "page": "241" } ], "opinion_index": 0, "case_paths": [ "/nc/226/0237-01" ] }, { "cite": "244 S.E. 2d 386", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562180 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0236-01" ] }, { "cite": "296 S.E. 2d 261", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "307 N.C. 79", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560661 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/307/0079-01" ] }, { "cite": "305 S.E. 2d 700", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "parenthetical": "distinguishing proper examination into defendant's efforts to avoid criminal investigation from improper examination into details of underlying charge" } ], "opinion_index": 0 }, { "cite": "309 N.C. 186", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4769368 ], "year": 1983, "pin_cites": [ { "parenthetical": "distinguishing proper examination into defendant's efforts to avoid criminal investigation from improper examination into details of underlying charge" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0186-01" ] }, { "cite": "316 S.E. 2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 222", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4684489 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0222-01" ] }, { "cite": "241 S.E. 2d 128", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "35 N.C. App. 198", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548089 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/35/0198-01" ] }, { "cite": "276 S.E. 2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "parenthetical": "collecting cases" } ], "opinion_index": 0 }, { "cite": "302 N.C. 581", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567969 ], "year": 1981, "pin_cites": [ { "parenthetical": "collecting cases" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0581-01" ] }, { "cite": "185 S.E. 2d 174", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1971, "pin_cites": [ { "page": "181" } ], "opinion_index": 0 }, { "cite": "279 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571959 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0663-01" ] }, { "cite": "252 S.E. 2d 772", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "296 N.C. 728", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570231 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0728-01" ] }, { "cite": "235 S.E. 2d 819", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "293 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561668 ], "opinion_index": 0, "case_paths": [ "/nc/293/0132-01" ] } ], "analysis": { "cardinality": 981, "char_count": 18935, "ocr_confidence": 0.829, "pagerank": { "raw": 4.4687416201164595e-07, "percentile": 0.9219800073286126 }, "sha256": "cc0df2cbb02662a56080ac340c1a0685ca4bdda538c98b085f431bb6cbb4bc0d", "simhash": "1:05036428163d26de", "word_count": 3097 }, "last_updated": "2023-07-14T22:39:04.225821+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WHICHARD and COZORT concur." ], "parties": [ "STATE OF NORTH CAROLINA v. EDWARD KEN HARRINGTON" ], "opinions": [ { "text": "EAGLES, Judge.\nDefendant brings forward three assignments of error, one relating to questions asked at trial regarding prior convictions and two relating to punishment, challenging (1) the trial court\u2019s finding in aggravation that defendant was \u201cgrossly impaired\u201d and (2) a condition of probation. We find no error.\nI\nState Trooper Davis saw defendant drive by at 1:00 a.m. and began following him, originally because he saw a \u201cstate-owned\u201d license plate on defendant\u2019s car. Davis followed defendant about one-quarter mile, observing him come to an abrupt stop, make a wide left turn, and weave between two southbound lanes. Davis stopped defendant. Davis noticed that defendant had a strong odor of alcohol about him, his eyes were red and watery, and he walked unsteadily. Defendant failed all four field sobiety tests, and had a blood alcohol concentration (BAC) of .14 when tested approximately forty minutes later. Davis testified that defendant told him he had had four or five mixed drinks within four hours of the stop, and admitted being under the influence. Defendant testified that he had only drunk one beer but had taken a heavy dose of cough medicine to combat a cold, and denied making the admissions to Davis. Upon a jury verdict of guilty of DWI, judgment imposing a sentence of 72 hours active imprisonment, six months imprisonment suspended for five years on conditions of probation, and $1,300 in costs and fines was entered.\nII\nDefendant testified at trial. On cross examination the prosecutor asked him about his prior convictions:\nQ. What have you been convicted of, Mr. Harrington?\nA. Speeding. Careless and reckless driving and a misdemeanor larceny.\nQ. When were you convicted of careless and reckless driving?\nMr. Miller [Defense Counsel]: Objection.\nTHE COURT: Sustained.\nQ. What court were you convicted in?\nMr. Miller: Objection.\nTHE COURT: Sustained.\nQ. Do you recall what car you were driving?\nMr. Miller: Objection.\nTHE COURT: Sustained.\nQ. Had you been drinking any alcoholic beverages at the time you were arrested on that charge?\nMr. Miller: Objection and motion for mistrial.\nThe COURT: Sustained and denied.\nQ. How many times have you been convicted of speeding?\nMr. MILLER: Objection.\nTHE COURT: Sustained.\nQ. Have you ever been convicted of speeding?\nMr. Miller: Objection.\nTHE COURT: Sustained.\nQ. What else did you say you had been convicted of other than reckless driving and speeding?\nMr. Miller: Objection.\nTHE COURT: Overruled.\nA. Misdemeanor larceny.\nQ. When was that?\nMr. Miller: Objection.\nTHE COURT: Sustained.\nQ. Can you tell us what it was you were convicted of stealing?\nMr. Miller: Objection. Motion for mistrial.\nThe COURT: Sustained. Denied. Let\u2019s move on. Anything further?\nMrs. AYCOCK [Prosecutor]: I don\u2019t think so. That\u2019s all. (Exceptions omitted.)\nDefendant has excepted and assigned error, arguing that the State\u2019s improper questions prejudiced him by innuendo.\nA\nIt is well established that specific acts of bad conduct may be inquired into on cross examination for purposes of impeachment. State v. Purcell, 296 N.C. 728, 252 S.E. 2d 772 (1979); State v. Williams, 279 N.C. 663, 185 S.E. 2d 174 (1971). The Supreme Court has specifically declined to set precise limits for the scope of cross examination for impeachment, requiring only that \u201c(1) the scope thereof is subject to the discretion of the trial judge, and (2) the questions must be asked in good faith.\u201d Id. at 675, 185 S.E. 2d at 181. The abuse of discretion standard is a high one, and ordinarily no abuse occurs unless the prosecutor affirmatively places before the jury his own opinion or makes totally unfounded or overbroad insinuations, see State v. Dawson, 302 N.C. 581, 276 S.E. 2d 348 (1981) (collecting cases), or the court otherwise allows the questioning to \u201cget out of hand.\u201d See State v. Thomas, 35 N.C. App. 198, 241 S.E. 2d 128 (1978). The admission by a defendant of a prior conviction does not preclude further inquiry. The cross-examiner may also ask about the time and place of the conviction and the punishment imposed. State v. Finch, 293 N.C. 132, 235 S.E. 2d 819 (1977).\nB\nIn the instant case, defense counsel objected each time only generally and objected to some questions which were permissible under Finch. The court sustained all defense objections relating to the details of the admitted convictions. Defendant did not volunteer any answers to the questions to which objections were sustained. See State v. Maccia, 311 N.C. 222, 316 S.E. 2d 241 (1984). Of the three unanswered questions urged most strongly as error, responsive answers to the two concerning the type of car and the article(s) stolen could have contained little to prejudice the defendant. The third question, whether defendant had been drinking when arrested for careless and reckless driving, involved misconduct possibly separate from the act of improper driving, see G.S. 20-140, 20-138.1, and could be a proper subject of inquiry. See State v. Atkinson, 309 N.C. 186, 305 S.E. 2d 700 (1983) (distinguishing proper examination into defendant\u2019s efforts to avoid criminal investigation from improper examination into details of underlying charge). On this record, however, we find no abuse of discretion regarding the scope of cross examination, no prejudice to defendant, and no basis for declaring a mistrial.\nC\nDefendant argues that the prosecution acted in bad faith in asking whether he had been drinking when arrested, since the State had his driving record, and since the prosecution did not respond when defense counsel asserted that no alcohol was involved in the prior offense. For defendant to prevail the record must affirmatively show that the prosecution acted in bad faith. Bad faith will not be implied from an otherwise silent record. State v. Dawson, supra, followed State v. Corn, 307 N.C. 79, 296 S.E. 2d 261 (1982). As we noted above, the question appears to have been permissible since we find no evidence of record (as opposed to the bare assertion of defense counsel) that alcohol was not involved in the prior offense. The record does not disclose bad faith. Accordingly, we conclude that defendant was not prejudiced.\nIll\nDefendant next assigns as error that the court erroneously found as a statutory factor in aggravation that defendant was \u201cgrossly impaired.\u201d The statutory basis for the finding is G.S. 20-179(d)(l): \u201cGross impairment of the defendant\u2019s faculties while driving or an alcohol concentration of 0.20 or more within a relevant time after the driving.\u201d This language is not explained elsewhere in Chapter 20 nor has it been judicially construed. In construing \u201cgross impairment,\u201d the intent of the legislature controls; we look first to the plain and ordinary meanings of the words, with an eye to previous enactments and decisions construing similar statutes. See generally In re Banks, 295 N.C. 236, 244 S.E. 2d 386 (1978).\nA\n\u201cGross impairment\u201d must be defined with reference to \u201cimpairment.\u201d \u201cImpairment\u201d does not appear to have any special legal meaning, but simply means \u201cweakening, making worse, diminishment.\u201d See Black\u2019s Law Dictionary 677 (5th ed. 1979). Under our former \u201cdriving under the influence\u201d statutes, the test was whether the accused had \u201cdrunk a sufficient quantity of intoxicating beverage or taken a sufficient amount of narcotic drugs, to cause him to lose the normal control of his bodily or mental faculties, or both, to such an extent that there is an appreciable impairment of either or both of these faculties.\u201d State v. Carroll, 226 N.C. 237, 241, 37 S.E. 2d 688, 691 (1946). The new statute, 1983 N.C. Sess. Laws c. 435, s. 24, codified at G.S. 20-138.1, consolidated existing impairment offenses into a single offense with two different methods of proof, but it does not appear to have changed the basic definition of \u201cimpaired.\u201d See State v. Shuping, 312 N.C. 421, 323 S.E. 2d 350 (1984); State v. Coker, 312 N.C. 432, 323 S.E. 2d 343 (1984).\nUnder our statutes, the consumption of alcohol, standing alone, does not render a person impaired. State v. Ellis, 261 N.C. 606, 135 S.E. 2d 584 (1964). An effect, however slight, on the defendant\u2019s faculties, is not enough to render him or her impaired. State v. Hairr, 244 N.C. 506, 94 S.E. 2d 472 (1956). Nor does the fact that defendant smells of alcohol by itself control. State v. Cartwright, 12 N.C. App. 4, 182 S.E. 2d 203 (1971). On the other hand, the State need not show that the defendant is \u201cdrunk,\u201d i.e., that his or her faculties are materially impaired. See State v. Painter, 261 N.C. 332, 134 S.E. 2d 638 (1964). The effect must be appreciable, that is, sufficient to be recognized and estimated, for a proper finding that defendant was impaired. See State v. Felts, 5 N.C. App. 499, 168 S.E. 2d 483 (1969) (new trial on other grounds).\nB\n\u201cGross\u201d is susceptible to a range of meanings: \u201cgreat, culpable, general, absolute\u201d; \u201cout of all measure, . . . flagrant, shameful.\u201d Black\u2019s Law Dictionary 632 (5th ed. 1979). Our courts have defined it as meaning \u201cout-and-out, complete, utter, unmitigated.\u201d In re Faulkner, 38 N.C. App. 222, 247 S.E. 2d 668 (1978) (\u201cgross incompetence\u201d). They have also defined \u201cgross negligence\u201d as ordinary negligence magnified to a high, even shocking, degree, Doss v. Sewell, 257 N.C. 404, 125 S.E. 2d 899 (1962), following Crabtree v. Dingus, 194 Va. 615, 74 S.E. 2d 54 (1953), but have stopped short of equating it with willful or wanton negligence. Doss v. Sewell, supra. See Pleasant v. Johnson, 312 N.C. 710, 325 S.E. 2d 244 (1985) (\u201ctwilight zone\u201d of varying degrees of negligence).\nC\nDefendant urges vigorously that the language of the statutory factor itself suggests that \u201cgross impairment\u201d be considered equivalent to a BAC of 0.20. However, we note that prior to the 1983 amendments the courts consistently rejected the notion that proof of BAC of 0.10 constituted proof of impairment. See, e.g., State v. Cooke, 270 N.C. 644, 155 S.E. 2d 165 (1967). The legislature, by unequivocal enactment, made the blood alcohol content of 0.10 proof of one type of driving while impaired offense. State v. Shuping, supra; State v. Rose, 312 N.C. 441, 323 S.E. 2d 339 (1984). Despite this change, and despite the critical importance of BAC readings in the district courts, the statutory BAC is not a sine qua non of DWI. As before, the State may prove DWI where the BAC is entirely unknown or less than 0.10. State v. Sigmon, 74 N.C. App. 479, 328 S.E. 2d 843 (1985) (BAC of 0.06 did not create presumption that defendant not impaired; conviction, based on opinion of arresting officer, affirmed). While the statutory BAC of 0.20 may provide a \u201cbright line\u201d for determining \u201cgross impairment,\u201d the finding of BAC of 0.20 clearly is not required for the court to make the finding of gross impairment. The fact that defendant in this case showed a BAC of 0.14 therefore did not prevent the court from finding \u201cgross impairment.\u201d\nD\nIt appears then that \u201cgross impairment\u201d is a high level of impairment, higher than that impairment which must be shown to prove the offense of DWI. As demonstrated by the foregoing discussion, where the BAC is below 0.20, we do not draw a bright line which will mark once and for all where \u201cimpairment\u201d ends and \u201cgross impairment\u201d begins. That determination must depend on the facts of each individual case. In other situations where various levels of culpability are presented, the finder of fact ordinarily decides what level the evidence shows. See Brewer v. Harris, 279 N.C. 288, 182 S.E. 2d 345 (1971) (no negligence, negligence, or willful and wanton negligence); State v. Stanley, 310 N.C. 332, 312 S.E. 2d 393 (1984) (sufficiency of evidence that a killing was especially atrocious discussed).\nIf the evidence is sufficient to submit a choice to the finder for its decision, the decision itself is not ordinarily reviewable. See In re Caldwell, 75 N.C. App. 299, 330 S.E. 2d 513 (1985). The burden to prove a factor is by the greater weight of the evidence, G.S. 20-179(o), similar to the preponderance standard used in the Fair Sentencing Act. G.S. 15A-1340.4; State v. Ahearn, 307 N.C. 584, 300 S.E. 2d 689 (1983). The greater weight of the evidence does not mean the number of witnesses or volume of testimony, but involves a reasonable impression from the totality of the evidence and circumstances. Id. at 596, 300 S.E. 2d at 697. Unless the evidence compels the finding of a certain factor, see State v. Jones, 309 N.C. 214, 306 S.E. 2d 451 (1983), the crucial test on appeal is not whether the finder of fact erred in actually making the finding, but whether there was sufficient evidence of the factor before the finder to allow consideration of the factor in the first place.\nE\nWe believe that the evidence in the present case sufficed to allow the court to consider whether defendant was grossly impaired. Officer Davis testified that defendant drove erratically and did not keep his car in its lane of travel. He was obviously unsteady on his feet and slurred his speech, and had difficulty answering routine questions. Defendant could not perform any of the four field sobriety tests satisfactorily. Defendant\u2019s BAC was .14; he admitted to Davis that he was under the influence of alcohol. The evidence showed a person seriously affected by alcohol. We believe the court\u2019s finding was proper. The assignment is overruled.\nIV\nAs a condition of probation, the court required that defendant \u201c[n]ot go upon the premises of any business or private club licensed by the State of North Carolina for the sale or the on premises consumption of alcoholic beverages between 8:00 p.m. and 6:00 a.m. the following day.\u201d Defendant assigns error, arguing that this condition was unduly burdensome and unrelated to his rehabilitation.\nUnder G.S. 15A-1343(b1)(9), formerly G.S. 15A-1343(b)(17), the trial court may in addition to the statutorily described conditions impose \u201cany other conditions . . . reasonably related to [defendant\u2019s] rehabilitation.\u201d The court has substantial discretion in devising conditions under this section. See State v. Rogers, 68 N.C. App. 358, 315 S.E. 2d 492, cert. denied, 311 N.C. 767, 319 S.E. 2d 284 (1984), appeal dismissed, --- U.S. ---, 83 L.Ed. 2d 766, 105 S.Ct. 769 (1985). A variety of conditions have been found \u201creasonably related\u201d under this section. State v. Cooper, 304 N.C. 180, 282 S.E. 2d 436 (1981) (stolen goods offense; defendant not operate motor vehicle between 12:01 a.m. and 5:30 a.m.); State v. Rogers, supra (witness tampering; defendant not practice law); State v. Simpson, 25 N.C. App. 176, 212 S.E. 2d 566 (false pretenses in construction contract; limiting defendant\u2019s construction employment), cert. denied, 287 N.C. 263, 214 S.E. 2d 436 (1975). In none of these cases was the restriction found unduly burdensome.\nThe contested condition here did not restrict defendant\u2019s livelihood, compare Rogers and Simpson, nor did it prevent him from entering any premises during the day and even purchasing alcohol. Rather it reasonably is aimed at preventing recurrence of the subject misconduct by keeping defendant away from alcohol in public places during the hours when he would most likely be tempted to drink and drive. The loss of some convenience in shopping does not appear unduly oppressive when compared to the restrictions on employment previously approved in the cases cited. The assignment is therefore overruled.\nConclusion\nWe conclude that defendant has not shown any prejudicial error in the trial, that the sentence was within the limits allowed by law for this offense, and that the complained of conditions of probation were reasonably related to defendant\u2019s rehabilitation.\nNo error.\nJudges WHICHARD and COZORT concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "Attorney General Thornburg, by Assistant Attorney General W. Dale Talbert, for the State.", "Appellate Defender Adam Stein, by Assistant Appellate Defender David W. Dorey, for the defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. EDWARD KEN HARRINGTON\nNo. 853SC301\n(Filed 3 December 1985)\n1. Criminal Law \u00a7 89.10\u2014 impeachment oi defendant \u2014 details of admitted convictions \u2014 no entitlement to mistrial\nThe trial court did not err in failing to declare a mistrial when the prosecutor asked defendant numerous questions relating to the details of defendant\u2019s admitted prior convictions where the court sustained all defense objections relating to such details; defendant did not volunteer any answers to the questions to which objections were sustained; some of the questions were permissible under State v. Finch, 293 N.C. 132, 235 S.E. 2d 819; and a question as to whether defendant had been drinking when arrested for careless and reckless driving was a proper subject of inquiry and the record failed to show that it was asked in bad faith.\n2. Automobiles and Other Vehicles \u00a7 130\u2014 DWI \u2014 gross impairment as aggravating factor\nThe finding of a blood alcohol content of 0.20 is not required for the court to make a finding of \u201cgross impairment\u201d as an aggravating factor for driving while impaired pursuant to N.C.G.S. 20-179(d)(l).\n3. Automobiles and Other Vehicles \u00a7 130\u2014 DWI \u2014 determination of gross impairment\nWhere a defendant\u2019s blood alcohol content was below 0.20, the appellate court will not draw a bright line which will mark where \u201cimpairment\u201d ends and \u201cgross impairment\u201d begins. Rather, that determination must depend on the facts of each individual case.\n4. Automobiles and Other Vehicles \u00a7 130\u2014 DWI \u2014 burden of proving aggravating factor\nA factor in aggravation of a conviction for driving while impaired must be proved by the greater weight of the evidence. N.C.G.S. 20-179(o).\n5. Automobiles and Other Vehicles \u00a7 130\u2014 DWI \u2014 finding of gross impairment\u2014 sufficient evidence\nThe trial court did not err in finding as an aggravating factor for driving while impaired that defendant was \u201cgrossly impaired\u201d where there was evidence tending to show that defendant drove erratically and did not keep his car in its lane of travel; defendant was obviously unsteady on his feet, slurred his speech, and had difficulty answering routine questions; defendant could not perform any of the four field sobriety tests satisfactorily; defendant\u2019s blood alcohol content was 0.14; and defendant admitted to the arresting officer that he was under the influence of alcohol.\n6. Criminal Law \u00a7 142.3\u2014 DWI \u2014 validity of condition of probation\nA condition of probation for driving while impaired that defendant not go upon the premises of any business or private club licensed for the sale or on premises consumption of alcoholic beverages between 8:00 p.m. and 6:00 a.m. the following day was not unduly burdensome, was sufficiently related to defendant\u2019s rehabilitation, and thus was valid. N.C.G.S. 15A-1343(bl)(9).\nAPPEAL by defendant from Winberry, Judge. Judgment entered 21 March 1984 in Superior Court, PITT County. Heard in the Court of Appeals 16 October 1985.\nDefendant appeals a conviction of driving while impaired (DWI).\nAttorney General Thornburg, by Assistant Attorney General W. Dale Talbert, for the State.\nAppellate Defender Adam Stein, by Assistant Appellate Defender David W. Dorey, for the defendant-appellant." }, "file_name": "0039-01", "first_page_order": 71, "last_page_order": 80 }