State v. Andrews

• Court: Court of Appeals of North Carolina
• Decided: April 1, 2014
• Docket: 13-1013
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate P r o c e d u r e .

NO. COA13-1013 NORTH CAROLINA COURT OF APPEALS

Filed: 1 April 2014

STATE OF NORTH CAROLINA

v. Mecklenburg County No. 09 CRS 86046

SAM DAVID ANDREWS

Appeal by defendant from judgment entered 28 February 2013

by Judge Sharon Tracey Barrett in Mecklenburg County Superior

Court. Heard in the Court of Appeals 21 January 2014.

Attorney General Roy Cooper, by Special Deputy Attorney General Angel E. Gray, for the State.

Arnold & Smith, PLLC, by Laura M. Cobb, for defendant- appellant.

HUNTER, Robert C., Judge.

Sam David Andrews (“defendant”) appeals from judgment

sentencing him to 18 months of unsupervised probation after

being convicted of driving while impaired. On appeal, defendant

argues that the trial court erred by: (1) admitting blood

sample evidence without all members of the chain of custody

being present at trial in violation of defendant’s Sixth -2-

Amendment right of confrontation; (2) allowing defendant's blood

sample results to be introduced as evidence when the State

failed to give defendant notice of his rights under N.C. Gen.

Stat. § 20-16.2; (3) admitting statements into evidence

concerning the blood sample results that constituted

inadmissible hearsay; and (4) denying defendant's motion to

dismiss for insufficiency of the evidence.

After careful review, we find no error.

Background

The evidence presented at trial tended to establish the

following facts: In the early morning of 1 January 2010,

Officer John Reibold of the Charlotte Mecklenburg Police

Department (“CMPD”) reported to a four-car accident at the

intersection of Providence Road and Ardrey Kell Road in

Charlotte, North Carolina. Upon arrival and after speaking with

defendant, Officer Reibold noticed defendant had a strong odor

of alcohol about his breath, glassy eyes, and slurred speech.

Defendant also admitted to Officer Reibold he had consumed five

alcoholic drinks within the past five hours and should not have

been driving that night.

Officer Reibold next inspected defendant’s car and found an

open alcohol container in the passenger area. Officer Reibold

then requested that defendant perform a series of field sobriety

tests, which defendant failed. Before defendant could finish -3-

the complete series of sobriety tests, the medics approached and

transported defendant to the hospital. Officer Reibold followed

the ambulance to the hospital to continue his investigation.

After arriving at the hospital and locating defendant in

triage, Officer Reibold read defendant his rights to submit to a

chemical analysis and gave defendant a copy of the form to sign.

Defendant was immobilized in a C-Spine collar and did not sign

the form. However, Officer Reibold wrote “unable to sign” on

the form, and defendant gave Officer Reibold verbal consent to

perform a blood draw chemical analysis. Officer Reibold

prepared the blood draw kit and necessary paperwork and watched

as a registered nurse from the hospital obtained two vials of

defendant’s blood. After receiving the vials of defendant’s

blood from the nurse, Officer Reibold labeled both vials and

placed them into a plastic blood kit. Officer Reibold then

sealed the blood kit with blue evidence tape, placed the blood

kit into a cardboard box, labeled the box with the case number,

and sealed the box with red evidence tape.

Next, Officer Reibold issued defendant a citation for DWI

and left defendant in the care of the hospital. After leaving

the hospital, the blood kit remained in Officer Reibold’s

exclusive possession until it was submitted to CMPD property

control later that morning.

On 9 March 2010, Anne Charlesworth, a CMPD Crime Lab -4-

chemical analyst, received defendant’s blood kit from CMPD

property control for testing. After verifying the

identification numbers and ensuring the blood kit had not been

tampered with, Ms. Charlesworth analyzed the blood inside and

determined the sample of defendant’s blood contained .23 grams

of alcohol per 100 milliliters of blood. Ms. Charlesworth then

resealed the box with labels containing her signature and the

date.

Defendant was charged with DWI and possession of an open

alcohol container in the passenger area of a motor vehicle; the

open container charge was voluntarily dismissed before trial.

Defendant’s trial was held on 26 February 2013, and the jury

convicted defendant of DWI. Defendant was sentenced as a Level

III offender after admitting to one aggravating factor and

sentenced to six months imprisonment. The trial court suspended

the sentence, and defendant was placed on unsupervised probation

for eighteen months. Defendant appealed.

Arguments

I. Admissibility of the Blood Sample Results

Defendant first argues the trial court erred by admitting

blood sample evidence without all members in the chain of

custody having been present during his trial. Specifically,

defendant contends the absence of these individuals in the chain

of custody violated his Sixth Amendment right to confrontation -5-

as interpreted by the U.S. Supreme Court in Melendez-Diaz v.

Massachusetts, 557 U.S. 305, 174 L. Ed. 2d 314 (2009), and

Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004).

We disagree.

Defendant mistakenly phrases his argument as a

constitutional violation; however, his argument actually

challenges an evidentiary ruling on the chain of custody. A

trial court's decision to admit evidence when the chain of

custody is questioned is reviewed for abuse of discretion.

State v. Campbell, 311 N.C. 386, 388-89, 317 S.E.2d 391, 392

(1984). “A trial court abuses its discretion if its

determination is manifestly unsupported by reason and is so

arbitrary that it could not have been the result of a reasoned

decision.” State v. Cummings, 361 N.C. 438, 447, 648 S.E.2d

788, 794 (2007) (quotation marks omitted).

In all criminal prosecutions “[a] witness’s testimony

against a defendant is . . . inadmissible unless the witness

appears at trial or, if the witness is unavailable, the

defendant had a prior opportunity for cross-examination.”

Melendez-Diaz, 557 U.S. at 309, 174 L. Ed. 2d at 318. The Sixth

Amendment “guarantees a defendant’s right to confront those who

bear testimony against him.” Id. (quotations omitted).

Defendant's argument relies on the holding in Melendez-Diaz

where the United States Supreme Court held it is a violation of -6-

the defendant’s Sixth Amendment rights for drug analysis results

to be admitted without the chemical analyst being present at

trial or having been cross-examined by the defendant before

trial. Id. at 310, 174 L. Ed. 2d at 319. However, the present

case is easily distinguished from Melendez-Diaz because the

chemical analyst who provided the blood test results, Anne

Charlesworth, was present and was cross-examined during

defendant’s trial. All chain of custody testimony concerning

defendant's blood sample was taken from Anne Charlesworth and

Officer Reibold, and defendant was able to cross-examine both of

them.

Furthermore, the trial court never admitted testimony from

the two members of property control or the blood draw nurse who

were absent during defendant’s trial. As to the necessity of

nonessential links in the chain of custody, the U.S. Supreme

Court specifically noted in Melendez-Diaz that:

Contrary to the dissent suggestion, . . . we do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case. While the dissent is correct that ‘[i]t is the obligation of the prosecution to establish chain of custody,’. . . this does not mean that everyone who laid hands on the evidence must be called.

Melendez-Diaz, 557 U.S. at 311, n.1, 174 L.Ed.2d at 320, n.1. -7-

(emphasis added). “[G]aps in the chain of custody normally go

to the weight of the evidence rather than its admissibility.”

Id.; see also State v. Fleming, 350 N.C. 109, 131, 512 S.E.2d

720, 736 (1999) (“[a]ny weak links in a chain of custody pertain

only to the weight to be given evidence and not to its

admissibility”); State v. Stevenson, 136 N.C. App. 235, 242, 523

S.E.2d 734, 738 (1999) (admitting evidence “is at the trial

court’s discretion, and any weak links in a chain of custody

relate only to the weight to be given the evidence and not to

its admissibility”). Additionally, this Court has further held

that blood sample evidence, in particular, will be admitted if

the evidence as it is presented can reasonably support a

conclusion that the blood sample analyzed is the same as that

taken from the defendant. State v. Bailey, 76 N.C. App. 610,

614, 334 S.E.2d 266, 269 (1985), overruled on other grounds,

State v. Drdak, 330 N.C. 587, 411 S.E.2d 604 (1992).

Here, Officer Reibold testified at trial that he personally

watched the registered nurse withdraw defendant’s blood,

received the vials of blood directly from the nurse, and sealed

the blood sample in two labeled containers with evidence tape

before personally submitting defendant’s blood sample to CMPD

property control. Officer Reibold also testified generally as

to the secure conditions present at CMPD property control. Anne

Charlesworth then testified that upon receiving the blood sample -8-

from CMPD property control, she immediately examined the

sample’s identification numbers for accuracy and inspected the

sample for evidence of tampering. Anne Charlesworth later

resealed, signed, and dated the contents of the container after

her testing was complete.

There was ample testimony presented by the two most

important links in the chain of custody for the trial court to

conclude the blood sample was the same as that taken from

defendant and had undergone no material change. Moreover,

defendant has presented no evidence that defendant’s blood

sample had been tampered with or altered in any way. Therefore,

we find the trial court did not abuse its discretion in

admitting the blood test results.

II. Consent to Perform Chemical Analysis

Defendant next contends the results of the blood sample

should not have been introduced at trial because the blood draw

was based on a warrantless, nonconsensual seizure.

Specifically, defendant argues that Officer Reibold did not

notify defendant of his rights as required by N.C. Gen Stat. §

20-16.2. We disagree.

N.C. Gen Stat. § 20-16.2 (2011) provides in pertinent part:

Before any type of chemical analysis is administered the person charged shall be taken before a chemical analyst authorized to administer a test . . . who shall inform the person orally and also give the person a -9-

notice in writing . . . .

Officer Reibold testified that after he located defendant

at the hospital, he provided defendant with both an oral and

written presentation of his rights to consent or refuse a

chemical analysis. Officer Reibold also testified that after

notifying defendant of his rights, defendant verbally consented

to the blood sample chemical analysis, but was unable to sign

the written form because he was immobilized in a C-spine collar.

The provisions of N.C. Gen Stat. § 20-16.2 are conformed with

“when the arrestee is given the option to submit or refuse to

submit . . . and his decision is made after having been advised

of his rights in a manner provided by statute.” State v.

Gunter, 111 N.C. App. 621, 626-27, 433 S.E.2d 191, 194 (1993).

Since the only evidence presented at trial showed Officer

Reibold followed the provisions of the statute and defendant

consented to the blood draw, we hold a warrant was not

necessary, and the trial court did not abuse its discretion by

allowing the blood test results into evidence.

III. Admissibility of Hearsay

Defendant next argues that the trial court erred in

admitting Officer Reibold’s and Anne Charlesworth’s out-of-court

hearsay statements to authenticate defendant’s blood sample. We

disagree.

“When preserved by an objection, a trial court’s decision -10-

with regard to the admission of evidence alleged to be hearsay

is reviewed de novo.” State v. Johnson, 209 N.C. App. 682, 692,

706 S.E.2d 790, 797 (2011).

Hearsay is “a statement other than one made by the

declarant while testifying at the trial or hearing, offered into

evidence to prove the truth of the matter asserted.” N.C. Gen.

Stat. § 8C-1, Rule 801 (2011). However, statements offered to

corroborate trial testimony do not constitute hearsay. See

State v. Johnson, 209 N.C. App. 682, 693, 706 S.E.2d 790, 797

(2011) (holding that a witness’s “[written] statement was

properly admitted in corroboration of [the] defendant’s trial

testimony” because it did not constitute hearsay).

Defendant argues that the trial court erred in allowing

Officer Reibold and Anne Charlesworth to testify as to certain

identification information they wrote on defendant’s blood

sample, which was inadmissible hearsay. However, a review of

the transcript reveals Officer Reibold and Anne Charlesworth

testified only to the signatures, dates, and identification

information they personally placed on the blood sample kit and

the general security precautions used by property control.

Thus, Officer Reibold’s and Anne Charlesworth’s out-of-court

identification statements only corroborated their in-court

testimony. See Johnson, 209 N.C. App. at 692, 706 S.E.2d at

797. Accordingly, we find the trial court did not err by -11-

overruling defendant’s hearsay objections at trial or admitting

Officer Reibold’s or Anne Charlesworth’s testimony concerning

the blood sample results.

IV. Motion to Dismiss

Finally, defendant argues the trial court erred when it

denied his motion to dismiss for insufficiency of the evidence.

Specifically, defendant contends the State did not present

sufficient evidence that defendant had been operating a motor

vehicle while impaired. 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) (quotations and citations omitted). A motion to

dismiss is reviewed for “whether the State presented substantial

evidence of each element of the offense and defendant’s being

the perpetrator.” State v. Hernandez, 188 N.C. App. 193, 196,

655 S.E.2d 426, 429 (2008).

Here, defendant was charged with driving while impaired in

violation of N.C. Gen. Stat. § 20–138.1. In order to be

convicted of driving while impaired, the State must prove the

following essential elements: “(1) Defendant was driving a

vehicle; (2) upon any highway, any street, or any public

vehicular area within this State; (3) while under the influence

of an impairing substance.” State v. Tedder, 169 N.C. App. 446, -12-

450, 610 S.E.2d 774, 777 (2005) (quotations omitted).

Defendant first argues the State failed to present

substantial independent evidence he was driving on the date of

the incident. This Court has held a defendant’s admission of

driving, presence at the accident scene, and injuries consistent

with being in an auto accident constitute substantial evidence

of driving. State v. Foye, __ N.C. App. __, __, 725 S.E.2d 73,

78 (2012). The evidence presented at trial showed that

defendant not only admitted he was driving but also that

defendant was present at the scene and had to be transported to

the hospital as a result of the traffic accident. Thus, we

conclude the trial court had substantial evidence defendant was

driving.

Next, Defendant argues the State did not present

substantial evidence of impairment. Evidence that a defendant’s

blood alcohol level was above .08, defendant had an odor of

alcohol about him, and defendant admitted to drinking earlier in

the night constitutes substantial evidence of impairment. State

v. Phillips, 127 N.C. App. 391, 393-94, 489 S.E.2d 890, 892,

(1997). While defendant predicates his contention that he was

not impaired on his previous argument concerning the

admissibility of the blood sample results, as discussed, the

blood sample results were properly admitted into evidence.

Thus, evidence of those results that established that defendant -13-

had a .23 blood-alcohol concentration combined with evidence

that defendant had an open alcohol container in his car, slurred

speech, and an odor of alcohol about him constituted substantial

evidence of impairment.

Therefore, in summary, the State presented substantial

evidence defendant was operating a motor vehicle while impaired,

and the trial court did not err in denying defendant’s motion to

dismiss.

Conclusion

Based on the foregoing reasons, defendant’s trial was free

from error.

NO ERROR.

Judges McGEE and ELMORE concur.

Report per Rule 30(e). -14-