{
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  "name": "STATE OF NORTH CAROLINA v. BILLY RICHARD HARRELL",
  "name_abbreviation": "State v. Harrell",
  "decision_date": "1989-12-05",
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    "judges": [
      "Judge BECTON concurs.",
      "Judge PHILLIPS concurs in the result."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. BILLY RICHARD HARRELL"
    ],
    "opinions": [
      {
        "text": "GREENE, Judge.\nThe defendant appeals his conviction of driving while impaired under N.C.G.S. \u00a7 20-138.1, willfully displaying expired license or registration plate on a vehicle under N.C.G.S. \u00a7 20-111(2), and having no financial responsibility in violation of N.C.G.S. \u00a7 20-313. For the offense of driving while impaired, the trial court sentenced the defendant to imprisonment of one year, and for the offenses of displaying an expired license plate and having no financial responsibility, the charges were consolidated for judgment, and the trial court sentenced defendant to two years imprisonment to run consecutively with the initial one year. However, the two-year sentence was suspended pending five years of supervised probation beginning at the end of defendant\u2019s initial year of imprisonment.\nThe State\u2019s evidence tended to show that on 16 November 1987, Highway Patrol Officer Gail Palmer responded to a call of an accident on Old U.S. 52 at approximately 2:55 p.m. At approximately 3:00 p.m. she arrived at the scene and found a vehicle off the right shoulder of the highway in the ditch. Seeing no one around the vehicle, she approached and observed the defendant Billy Richard Harrell \u201csleeping underneath the wheel of the vehicle with his head lying in the right front passenger seat.\u201d Upon awakening, the defendant told Officer Palmer that he had driven the car into the ditch to avoid a deer. The defendant stated that the accident occurred at about 2:40 p.m. that day.\nWhile questioning the defendant in the patrol car, Officer Palmer observed that he appeared impaired. She noted a strong odor of alcohol, slurred speech, and red, bloodshot eyes. After Officer Palmer had arrested the defendant for driving under the influence and restrained him with handcuffs, he then changed his story, saying that he was not the driver of the car and that she had arrested a \u201cghost.\u201d Upon further investigation of the vehicle, Officer Palmer found six Budweiser beer cans in the front of the vehicle, and she noted that the vehicle\u2019s license tag had expired in 1985.\nAfter Officer Palmer read the defendant his Miranda rights, defendant waived those rights, and he told her that he began drinking Budweiser at approximately 1:00 p.m. that day, consuming two beers in Stokes County and one can in Surry County. He stated that he drank his last beer at the intersection of Highway 52 and Cooks School Road, approximately five miles from the location of the accident. When asked if he was under the influence of some substance, he said \u201cIf I said no I\u2019d be a damn liar. If I said yes \u2014 .\u201d At that point, he paused and said \u201cNo.\u201d\nOfficer Palmer\u2019s investigation revealed that the vehicle actually belonged to a woman in Winston-Salem. However, when a wrecker attempted to tow away the vehicle, the defendant demanded that they not tow \u201chis\u201d car.\nOfficer Connie Watson testified that she administered a breath analysis test to the defendant that afternoon at approximately 4:40 p.m. The result of that test was a blood/alcohol concentration of 0.21.\nOfficer Palmer also testified that the defendant later telephoned her at the police station and told her that he had been driving the car that afternoon and that he was an alcoholic. She further testified that she heard him state, at an earlier court appearance, that he had neither insurance nor proper registration for the vehicle.\nThe defendant did not offer any evidence. At the close of the State\u2019s evidence, the defendant moved for dismissal of all charges because of lack of evidence, which motion was denied. Regarding the impaired driving charge, the judge submitted issues to the jury which were answered as follows:\nWe, the jury, unanimously find the defendant, Billy Richard Harrell:\n1. X Guilty of impaired driving.\nOr\n2. _ Not guilty.\nIf you found the defendant, Billy Richard Harrell, guilty of impaired driving, did you unanimously find him guilty because:\nA. _ He was under the influence of an impairing substance.\nOR\nB. _ He consumed , sufficient alcohol that at any relevant time after the driving the defendant had an alcohol concentration of .10 or more grams of alcohol per 210 liters of breath.\nOr\nC. X Both of the above.\nThe issues presented are: I) whether the trial court erred in prohibiting the arresting officer from testifying as to the definitions of the terms \u201coperate\u201d and \u201cdriving while impaired\u201d; II) whether the trial court erred in allowing into evidence hearsay testimony by the arresting officer relating to defendant\u2019s admissions of having driven the vehicle and being an alcoholic; and III) whether the trial court erred in denying the defendant\u2019s motion at the close of the State\u2019s evidence to dismiss the charges on the grounds that there was insufficient evidence to submit the case to the jury on the issues of (A) driving while impaired, (B) displaying a registration number plate on a vehicle knowing it to be expired, and (C) driving an automobile without financial responsibility.\nI\nThe defendant argues the trial court erred in sustaining the State\u2019s objection to the arresting officer\u2019s testimony as to her opinion of the legal definitions of \u201coperate\u201d and \u201cdrive while impaired.\u201d We disagree. The trial court, not witnesses, must define and explain the law to the jury. See State v. McLean, 74 N.C. App. 224, 227, 328 S.E.2d 451, 453 (1985), appeal dismissed, 316 N.C. 199, 341 S.E.2d 573 (1986); see also State v. Griffin, 288 N.C. 437, 442, 219 S.E.2d 48, 52 (1975), vacated in part, 428 U.S. 904, 49 L.Ed.2d 1210 (1976) (the trial court, and not an expert witness, must define legal terms such as \u201cintent\u201d).\nII\nThe defendant also argues the trial court erred in allowing into evidence the arresting officer\u2019s testimony relating her telephone conversation with the defendant in which the defendant admitted (1) to have been driving the vehicle, and (2) to being an alcoholic. Regarding the first statement, we find the officer\u2019s hearsay testimony clearly related a statement against interest since an element of N.C.G.S. \u00a7 20-138.1 is that the defendant drive the vehicle. North Carolina Rule of Evidence 804(b)(3) allows admission of such evidence so long as \u201ccorroborating circumstances clearly indicate the trustworthiness of the statement.\u201d Here the facts of the defendant\u2019s earlier admission of driving as well as his lone presence slumped behind the wheel of a car corroborated the statement that he was driving the vehicle. See also State v. Nichols, 321 N.C. 616, 631, 365 S.E.2d 561, 570 (1988) (defendant\u2019s admissions are also that of a party opponent under Rule 801(d)(A)).\nRegarding the hearsay testimony of his alcoholism statement, assuming that its admission into evidence might have been erroneous, we find the testimony was not unfairly prejudicial. To prove prejudicial error, an appellant must show to a reasonable possibility that, had the error not been committed, a different result would have been reached at trial. State v. Martin, 322 N.C. 229, 238-39, 367 S.E.2d 618, 623-24 (1988). The defendant\u2019s statement of his alcoholism could only tend to prove that the defendant uses alcohol. The evidence relating to the crime, a .21 reading of a breathalyzer as well as Officer Palmer\u2019s testimony about the defendant\u2019s apparently drunken condition, overwhelmingly proved the defendant was under the influence of alcohol. Thus, no reasonable possibility exists that the absence of the alcoholism testimony would likely have changed the outcome of the trial. In short, the jury was not faced with a close issue as to whether the defendant was under the influence of alcohol.\nIll\nThe defendant also argues the trial court erred in denying his motion to dismiss at the conclusion of the State\u2019s evidence because of the State\u2019s failure to provide sufficient evidence of all the elements of each crime charged. To submit the charge to the jury, the State must have presented \u201cmore than a scintilla of evidence\u201d of each element. State v. Summitt, 301 N.C. 591, 596, 273 S.E.2d 425, 428 (1980), cert. denied, 451 U.S. 970, 68 L.Ed.2d 349 (1981).\n[I]f there be any evidence tending to prove the fact in issue, or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture in regard to it, the case should be submitted to the jury.\n301 N.C. at 597, 273 S.E.2d at 428 (quoting State v. Johnson, 199 N.C. 429, 431, 154 S.E. 730, 731 (1930)).\nA\nN.C.G.S. \u00a7 20-138.1 creates the misdemeanor offense of impaired driving, the elements of which are that the defendant (1) drove any vehicle, (2) on any highway, street or other public vehicular area, and (3) under the influence of an impairing substance, or (4) having an alcohol concentration of at least 0.10 \u201cat any relevant time after the driving.\u201d N.C.G.S. \u00a7 20-138.1 (1983).\nOfficer Gail Palmer testified that at about 3:00 p.m. November 16, 1987, while responding to a call of an accident, she found a vehicle off the right shoulder of Old North Carolina 52 in the ditch. Observing no one around the vehicle, she approached it and saw therein the defendant \u201csitting underneath the wheel of the vehicle with his head lying in the right front passenger seat.\u201d The defendant, who was asleep, awakened and told her he had swerved off the road and into the ditch attempting to avoid a deer. He admitted to being the driver of the vehicle. The defendant stated the accident occurred at about 2:40 p.m. While questioning the defendant, the officer observed that he appeared impaired. She noticed a strong odor of alcohol, slurred speech, and red, bloodshot eyes, and thus she arrested the defendant for driving under the influence. After his arrest, the defendant changed his story and stated that he was not driving the car.\nUpon further investigation of the vehicle, Officer Palmer discovered six Budweiser beers in the front of the car. Officer Palmer further related that the defendant told her he began drinking Budweiser at approximately 1:00 p.m. that day, and he admitted to consuming a couple beers in Stokes County and one in Surry County. He told her that he drank the last beer approximately five miles from where the officer found the defendant in the ditch. When Officer Palmer questioned the defendant as to whether he was under the influence while driving, defendant stated, \u201cIf I said no I\u2019d be a damn liar. If I said yes \u2014 .\u201d He then said \u201cNo.\u201d\nOfficer Palmer testified that the defendant later telephoned her at the police station, again admitting that he was driving the vehicle on the day in question.\nFrom the defendant\u2019s admissions, from the direct evidence and from the circumstantial evidence, we find that the trial court had more than a scintilla of evidence on all the elements of the crime of impaired driving, and thus it did not err in sending the charge to the jury. See State v. Carter, 15 N.C. App. 391, 393, 190 S.E.2d 241, 242 (1972) (guilt to the charge of impaired driving may be proven in whole or in part by circumstantial evidence).\nWe note in passing that the verdict form submitted to the jury avoided any possible confusion as to whether some, but not all, of the jurors thought the defendant guilty of impaired driving because of N.C.G.S. \u00a7 20-138.1(a)(l) and some, but not all, because of N.C.G.S. \u00a7 20-138.1(a)(2). The verdict form required the jury to denominate whether they unanimously found defendant guilty because of N.C.G.S. \u00a7 20438.1(a)(1) or N.C.G.S. \u00a7 20438.1(a)(2).\nThe defendant does not question the strength of the evidence of his intoxication. Rather, he argues that the State failed to provide more than a scintilla of evidence that he was driving the vehicle or that he was driving it while intoxicated. The facts that he was found behind the wheel of the vehicle without any other potential driver in sight, and his two admissions of having driven the vehicle are more than sufficient to place the issue of whether he was driving the vehicle before the jury.\nAs to whether he was intoxicated at the time he was driving, we note that he told Officer Palmer that the accident occurred only twenty minutes before she arrived on the scene. In fact, by the defendant\u2019s own admission, he had been drinking for the hour and forty minutes prior to running off the highway and in fact had consumed the last beer only a few minutes prior to running off the road. We also take into account his presence in a ditch. From these circumstances, as well as from his own admissions, a jury had substantial evidence from which to deduce that the defendant was driving a vehicle while impaired in violation of N.C.G.S. \u00a7 20438.1(a)(1).\nIn addition, the State provided sufficient proof of defendant\u2019s violation of N.C.G.S. \u00a7 20438.1(a)(2). Approximately two hours after the defendant drove, the State\u2019s breathalyzer test revealed a 0.21 blood/alcohol concentration. We find this test was administered within a relevant time which is defined as \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.G.S. \u00a7 20-4.01(33a). Since the defendant does not contend he consumed any alcohol after driving, we must assume, as evidently did the jury, that the alcohol measured during the breathalyzer test was consumed before or during the driving.\nB\nWe also find the evidence supported defendant\u2019s conviction of N.C.G.S. \u00a7 20-111(2) (1983) which makes it illegal for any person \u201cto willfully display an expired license on a vehicle knowing the same to be expired.\u201d That the license had expired in 1985 was readily apparent by visual observation thereof, and thus the defendant was on notice of the violation. In addition, Officer Palmer related the defendant\u2019s admission of not having the vehicle properly registered.\nC\nLastly, the defendant argues that he should not have been convicted of operation of a motor vehicle without financial responsibility since N.C.G.S. \u00a7 20-313 (1983) applies only to vehicle owners. We agree. That statute expressly applies to vehicle owners, and it does not mention any other persons who might operate a vehicle. The State failed to adequately prove the defendant owned the vehicle in question. The only evidence tending to prove his ownership was the defendant\u2019s statement to a wrecker crew demanding that they not remove \u201chis\u201d car. Such an \u201cadmission\u201d is certainly insufficient to prove ownership absent \u201csubstantial independent evidence tending to establish its trustworthiness . . . .\u201d State v. Trexler, 316 N.C. 528, 532, 342 S.E.2d 878, 880 (1986) (quoting State v. Parker, 315 N.C. 222, 236, 337 S.E.2d 487, 495 (1985)). The State presented no such corroborating evidence. On the contrary, Officer Palmer testified that her investigation revealed that someone else owned the vehicle. Thus, we find the trial court erred in failing to dismiss the charge of defendant\u2019s violation of N.C.G.S. \u00a7 20-313.\nAccordingly, we find no error in the convictions of driving while impaired and displaying an expired license plate, and we reverse the conviction for no insurance and remand for resentencing.\nNo error \u2014 driving while impaired and displaying expired license or registration plate on a vehicle.\nReversed \u2014 operation of a motor vehicle without financial responsibility.\nRemanded.\nJudge BECTON concurs.\nJudge PHILLIPS concurs in the result.",
        "type": "majority",
        "author": "GREENE, Judge."
      }
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    "attorneys": [
      "Lacy H. Thornburg, Attorney General, by Hal F. Askins, Associate Attorney General, for the State.",
      "Ricky Bowman for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. BILLY RICHARD HARRELL\nNo. 8917SC308\n(Filed 5 December 1989)\n1. Automobiles and Other Vehicles \u00a7 126.1 (NCI3d| \u2014 driving while impaired \u2014testimony of arresting officer \u2014definition of operate and driving while impaired \u2014 no error\nThe trial court did not err in a prosecution for driving while impaired by sustaining the State\u2019s objection to the arresting officer\u2019s testimony as to her opinion of the legal definition of \u201coperate\u201d and \u201cdrive while impaired.\u201d\nAm Jur 2d, Automobiles and Highway Traffic \u00a7\u00a7 300, 375, 377.\n2. Automobiles and Other Vehicles \u00a7 126.5 (NCI3d)\u2014 driving while impaired \u2014 statement by defendant to officer\nThere was no prejudicial error in a prosecution for driving while impaired in allowing the arresting officer to testify as to a telephone conversation with defendant in which defendant admitted to driving the vehicle and to being an alcoholic. The arresting officer\u2019s hearsay testimony regarding driving the car was clearly a statement against interest and there were corroborating circumstances in defendant\u2019s earlier admission as well as his lone presence slumped behind the wheel of the car. There was no prejudice regarding his alcoholism statement in that the .21 breathalyzer reading and the officer\u2019s testimony about defendant\u2019s apparently drunken condition overwhelmingly proved defendant was under the influence. N.C.G.S. \u00a7 20-138.1, N.C.G.S. \u00a7 8C-1, Rule 804(b)(3).\nAm Jur 2d, Automobiles and Highway Traffic \u00a7\u00a7 300, 375, 377.\n3. Automobiles and Other Vehicles \u00a7 127.2 (NCI3d)\u2014 driving while impaired \u2014 evidence sufficient\nThere was sufficient evidence of driving while impaired to submit the charge to the jury where defendant argued that the State failed to provide more than a scintilla of evidence that he was driving the vehicle or that he was driving it while intoxicated, but the fact that he was found behind the wheel of the vehicle without any other potential driver in sight and his two admissions of having driven the vehicle were more than sufficient to place the issue of whether he was driving before the jury. The jury had substantial evidence from which to deduce that defendant was intoxicated at the time he was driving in that he told the officer that the accident occurred only twenty minutes before she arrived on the scene, in defendant\u2019s admission that he had been drinking for an hour and forty minutes prior to running off the highway, from his presence in a ditch, and from a breathalyzer test two hours after defendant drove revealing a .21 blood alcohol concentration. N.C.G.S. \u00a7 20438.1(a)(2), \u00a7 20438.1(a)(1), \u00a7 20-4.01(33a).\nAm Jur 2d, Automobiles and Highway Traffic \u00a7\u00a7 300, 375, 377.\n4. Automobiles and Other Vehicles \u00a7 141 (NCI3d) \u2014 willfully displaying expired license plate \u2014 evidence sufficient\nThere was sufficient evidence to support defendant\u2019s conviction under N.C.G.S. \u00a7 20-111(2), which makes it illegal for any person willfully to display an expired license on a vehicle, in that it was readily apparent by visual observation that the license had expired and the officer related defendant\u2019s admission of not having the vehicle properly registered.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7\u00a7 94, 95.\n5. Automobiles and Other Vehicles \u00a7 2.7 (NCI3d)\u2014 operating motor vehicle without financial responsibility \u2014 evidence insufficient\nThe trial court erred by failing to dismiss the charge of operating a motor vehicle without financial responsibility in that the State failed to adequately prove that defendant owned the vehicle in question. N.C.G.S. \u00a7 20-313 expressly applies to vehicle owners and does not mention any other persons who might operate a vehicle.\nAm Jur 2d, Automobile Insurance \u00a7 35.\nOn writ of certiorari to review order entered by Judge William Z. Wood. Order entered 16 June 1988 in Superior Court, SURRY County. Heard in the Court of Appeals 15 November 1989.\nLacy H. Thornburg, Attorney General, by Hal F. Askins, Associate Attorney General, for the State.\nRicky Bowman for defendant-appellant."
  },
  "file_name": "0426-01",
  "first_page_order": 458,
  "last_page_order": 467
}
