Opinion
No. COA12–378.
2012-11-20
STATE of North Carolina v. Louis Clifton BARBOUR.
Attorney General Roy Cooper, by Assistant Attorney General Tammera S. Hill, for the State. Irving L. Joyner, for Defendant.
Appeal by Defendant from judgment entered 30 November 2011 by Judge W. Osmond Smith in Wake County Superior Court. Heard in the Court of Appeals 25 September 2012. Attorney General Roy Cooper, by Assistant Attorney General Tammera S. Hill, for the State. Irving L. Joyner, for Defendant.
BEASLEY, Judge.
Louis Clifton Barbour (Defendant) appeals from judgment entered on his conviction for felony hit and run and driving while impaired. For the following reasons, we find no error.
On 21 September 2010, Defendant was involved in an automobile crash with another vehicle at the intersection of Highway 42 and Barefoot Road in Fuquay Varina, North Carolina. Defendant was driving his Dodge Hemi pick-up truck with Susan Upchurch and her two-year-old daughter as passengers, with the two-year-old seated in Upchurch's lap in the passenger seat. Defendant and Upchurch had been drinking liquor at Defendant's mother's house prior to the crash, beginning at around 1:00 or 2:00 p.m. They left the house headed to Upchurch's home around 3:00 p.m.
At the stop sign of the intersection of Highway 42 and Barefoot Road, Upchurch told Defendant four times that there was a car coming. Upon the fourth time, Defendant accelerated the truck into the intersection and struck Ms. Demejia's car, which had been traveling on the highway. An eyewitness, Mr. White, who was traveling behind Ms. Demejia's car observed the crash. Mr. White estimated Ms. Demejia's speed as being about 55 miles per hour. Ms. Demejia's car was sent spinning. She was injured, suffering cuts and bruises, and could only be removed from the vehicle using the “jaws of life.” Ms. Demejia's car was a total loss. Defendant's truck incurred damage to the front fender, preventing it from traveling at high speed.
Defendant fled the scene. Mr. White observed the truck slow as if it was going to stop, but then speed away from the scene. Mr. White called 911 to report the accident and followed the truck to get the license plate number. When the truck pulled into a trailer park, Mr. White returned to the scene to offer assistance.
Defendant drove to a friend's house in the trailer park, where he and Upchurch continued to drink. Trooper Scherbekow and Sergeant Starling, after receiving Mr. White's statement, located the truck in the trailer park and found Defendant. Defendant claimed that Upchurch had been driving the truck, but that they had switched seats after the crash. Upchurch provided a statement that Defendant was driving and that “[h]e should not have been driving.” Defendant was arrested. Police twice administered an Intoxilyzer test and Defendant registered 0.25 BAC. Defendant admitted that he had driven a vehicle, had been in an accident, and should not have been driving.
At trial, Defendant presented the testimony of two witnesses. Defendant was convicted of felony hit and run and driving while impaired. After sentencing, Defendant entered notice of appeal.
Defendant argues that the trial court erred by refusing to dismiss the charges against him upon conclusion of the State's evidence and upon conclusion of all evidence. We disagree.
“The denial of a motion to dismiss for insufficient evidence is a question of law, which this Court reviews de novo.” State v.. Bagley, 183 N.C.App. 514, 523, 644 S.E.2d 615, 621 (2007)(internal citations omitted). We “consider the evidence in the light most favorable to the State, take it to be true, and give the State the benefit of every reasonable inference to be drawn therefrom.” State v. Martin, 309 N.C. 465, 480, 308 S.E.2d 277, 286 (1983). Our review examines the evidence to determine “whether substantial evidence exists as to each essential element of the offense charged and of the defendant being the perpetrator of that offense.” State v. Glover, 156 N.C.App. 139, 142, 575 S.E.2d 835, 837 (2003)(citing State v. Barden, 356 N.C. 316, 351, 572 S.E.2d 108, 131 (2002)). “Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” State v. Olson, 330 N.C. 557, 564, 411 S .E.2d 592, 595 (1992). Thus, where a reasonable trier of fact could find each element established beyond a reasonable doubt, we will affirm the trial court's denial. State v. Collins, 335 N.C. 729, 738–39, 440 S.E.2d 559, 564 (1994).
Defendant first argues that the evidence presented fails to establish that he consumed any alcohol prior to the crash or that, even if he had, he was impaired by such consumption; the evidence, Defendant argues, showed instead that Defendant drank heavily after the crash and was not given the Intoxilyzer test until several hours after the crash. The offense of driving while impaired has three elements: (1) the defendant was driving; (2) on a public highway or street; and (3) “[w]hile under the influence of an impairing substance ... or ... [a]fter having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more.” N.C. Gen.Stat. § 20–138.1 (2011).
Defendant cites no case law to support his argument. However, in several cases we have found sufficient evidence to overcome a motion to dismiss where there is a gap in time between the accident and when the defendant's blood alcohol level was tested. See, e.g., State v. George, 77 N.C.App. 470, 472–73, 336 S.E.2d 93, 95 (1985)(finding that three hours had passed between the operation of the vehicle and the test went to the credibility of the results, not the admissibility); State v. Oldham, 10 N.C.App. 172, 173, 177 S.E.2d 769, 769–70 (1970) (finding sufficient evidence of impairment where more than two hours passed and there was no evidence of consumption in that time). We agree with the State that this case is analogous to our decision in George.
In George, the defendant had admitted to drinking several beers roughly two hours before being involved in an accident and registered over the legal limit on a breathalyzer test close to four hours after the accident. State v. George, 77 N.C.App. at 471–72, 336 S.E.2d at 94. Thus, that Defendant's blood alcohol level was tested several hours after the crash does not negate the third element of the offense. Rather, such information goes to the weight to be accorded to the breathalyzer results. Id. at 473, 336 S.E.2d at 95.
Our Supreme Court has held “[t]he fact that a motorist has been drinking, when considered in connection with faulty driving such as following an irregular course on the highway or other conduct indicating an impairment of physical or mental faculties, is sufficient prima facie to show a violation of G.S. § 20–138.” State v. Hewitt, 263 N.C. 759, 764, 140 S.E.2d 241, 244 (1965) (citation omitted). Here, Defendant admitted that he had been drinking prior to the crash. He also admitted that he should not have been driving. The State presented evidence from a witness who was in the vehicle with Defendant that Defendant had been drinking prior to driving, was indeed driving, and should not have been driving. Two of the State's witnesses presented evidence that tended to show Defendant failed to stop at a stop sign and/or failed to yield to traffic. Neither of Defendant's witnesses presented evidence to the contrary as the first only spoke with Defendant over the phone and the second had been drinking himself and was unable to assess Defendant's physical state. The only other evidence to contradict the State's eyewitness was character evidence as to the witness's credibility. When viewed in a light most favorable to the State, there is substantial evidence on the record that defendant was drinking prior to driving and was impaired while doing so. Consequently, Defendant's argument is overruled.
Defendant also contends that there was insufficient evidence to establish all of the elements of felony hit and run on the basis that there was no evidence presented that Defendant knew anyone was injured in the accident. However, this argument is without merit. As Defendant himself points out, felony hit and run requires that the defendant knew or should have known that someone was injured. N.C. Gen.Stat. § 20–166(a)(1) (2011). Defendant's argument centers on the fact that there was no evidence he actually knew; such evidence is not required by the statute. It is sufficient that the defendant should have known someone was injured by the crash. Here, an eyewitness testified that the victim's car was traveling at about 55 miles per hour at the time of the accident and was sent spinning on the highway. We find these facts sufficient to establish that Defendant should have known someone was injured.
No Error. Judges McGEE and THIGPEN concur.
Report per Rule 30(e).