IN THE COURT OF APPEALS OF NORTH CAROLINA
2021-NCCOA-659 No. COA20-556
Filed 7 December 2021
Martin County, No. 14 CRS 824; 14 CRS 51179; 19 CRS 128
STATE OF NORTH CAROLINA
v.
KEITH AARON BUCKLEW, Defendant.
Appeal by Defendant from judgment entered 11 December 2019 by Judge
Leonard L. Wiggins in Martin County Superior Court. Heard in the Court of Appeals
26 May 2021.
Attorney General Joshua H. Stein, by Assistant Attorney General Kathryne E. Hathcock, for the State.
The Robinson Law Firm, P.A., by Leslie S. Robinson, for Defendant-Appellant.
WOOD, Judge.
¶1 Keith Bucklew (“Defendant”) appeals from judgments from the superior court
finding Defendant guilty of assault with a deadly weapon inflicting serious injury,
felony serious injury by a motor vehicle, and driving while impaired. We hold the
trial court committed no error.
I. Background
¶2 The appeal arises from the convictions of Defendant, a retired Marine with
twenty years of service. On November 26, 2014, Defendant was driving himself and STATE V. BUCKLEW
2021-NCCOA-659
Opinion of the Court
his ten year old son in a white Land Rover. An eyewitness reported Defendant was
speeding, drifting within his lane toward the center line, crossing the center line, and
driving erratically and aggressively. Around dusk, Defendant’s Land Rover swerved
into oncoming traffic and hit a white Cadillac Escalade driven by Tina Wasinger
(“Wasinger”), with her two minor sons as passengers, and a Hyundai Sante Fe driven
by Richard Sermon (“Sermon”), with his wife and four children as passengers.
Trooper Mark Peaden (“Trooper Peaden”) of the North Carolina State Highway Patrol
responded to the call. Trooper Peaden observed that Defendant and Wasinger’s
vehicles had heavy front end damage and Sermon’s vehicle appeared to have been
sideswiped. As a result of the collision, Wasinger suffered both significant, long-term,
physical injuries and the loss of her job. At the scene of the accident, Trooper Peaden
observed that there were no apparent skid marks indicating an attempt to stop the
vehicle.
¶3 Trooper Peaden located Defendant at the scene and noted Defendant appeared
impaired; acted loopy, apathetic, and lethargic; had slurred speech; and was very
tired. Due to Defendant’s injuries, Defendant was transported to the hospital.
Defendant had sustained substantial injuries, including a fractured femur and
broken hand.
¶4 At the hospital, Defendant was described as having “droopy eyelids, a blank
stare, slurred speech and [was] lethargic”; but also having a few coherent moments STATE V. BUCKLEW
where he could answer questions. In response to Trooper Peaden’s inquiry about
whether Defendant was taking any medication or drinking alcohol, Defendant
responded he was on oxycodone, valium, and morphine which he reported he last took
at 4:00 o’clock that morning. Trooper Peaden performed an alcosensor breath test on
Defendant which indicated Defendant had not consumed alcohol prior to the collision.
¶5 Trooper Peaden found Defendant to be at-fault in the collision and impaired to
the extent he was unable to appreciate the danger of the collision. Trooper Peaden
placed Defendant under arrest for driving while impaired (“DWI”), notified
Defendant of his rights to a chemical analysis test, and requested Defendant to
submit to a chemical analysis test. Defendant’s blood sample revealed the presence
of oxycodone, diazepam, nordiazepam, and morphine. A urine screen conducted at
the hospital was positive for benzodiazepines, opiates, and tricyclic antidepressants.1
Defendant was transported by helicopter to another hospital to receive a higher level
of care after the blood draw was complete. On November 26, 2014, Defendant was
indicted for assault with a deadly weapon inflicting serious injury, DWI,
misdemeanor child abuse, and felony serious injury by vehicle.
¶6 Defendant filed a pretrial motion to suppress the seizure and analysis of his
1 Benzodiazepines work to sedate or calm a person and includes medication such as
Valium. NAT’L INSTITUTE ON DRUG ABUSE, https://www.drugabuse.gov/drug- topics/opioids/benzodiazepines-opioids, (last visited Oct. 15, 2021). STATE V. BUCKLEW
blood. The trial court denied Defendant’s motion to suppress, explaining that based
upon testimony from Trooper Peaden; the eyewitness’s, a hospital nurse’s,
Defendant’s and Sermon’s statements; the emergent medical care needed by
Defendant; and the results of Defendant’s blood draw, there was sufficient probable
cause to charge Defendant with the offense of DWI and there was sufficient exigent
and articulable basis to conduct a warrantless blood draw for a chemical analysis.
The trial court also denied Defendant’s motion for judicial notice of the National
Weather Service’s weather report (“Weather Report”), motions to dismiss, objection
to the lab and chain of custody report, and objection to the analyst’s testimony
regarding Defendant’s blood sample. On December 11, 2019, Defendant was found
guilty of assault with a deadly weapon inflicting serious injury, DWI, and felonious
serious injury by a motor vehicle. On appeal, Defendant contends the trial court erred
by denying Defendant’s motion for judicial notice, motion to suppress the blood draw,
and motion to dismiss, and by admitting, over Defendant’s objection, the lab result
and chain of custody report and analyst’s testimony.
II. Discussion
A. Motion to Suppress Defendant’s Blood Draw
1. Competent Evidence Existed
¶7 We turn first to Defendant’s contention the trial court’s findings of fact in the
order denying Defendant’s motion to suppress the blood draw (the “Denial Order”) STATE V. BUCKLEW
were not supported by competent evidence. We note at the outset the standard of
review for a motion to suppress is not substantial competent evidence, but rather a
lower threshold of competent evidence. State v. Biber, 365 N.C. 162, 167-68, 712
S.E.2d 874, 878 (2011). “In reviewing a trial judge’s ruling on a suppression motion,
we determine only whether the trial court’s findings of fact are supported by
competent evidence, and whether these findings of fact support the [trial] court’s
conclusions of law.” State v. Pulliam, 139 N.C. App. 437, 439-40, 533 S.E.2d 280, 282
(2000) (citation omitted and emphasis added)). The trial court’s findings of fact which
are supported by competent evidence are “conclusive on appeal . . . even if the
evidence is conflicting.” State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826
(2010) (quoting State v. Eason, 336 N.C. 730, 745, 445 S.E.2d 917, 926 (1994)). “[T]he
trial court’s conclusions of law are reviewed de novo and must be legally correct.”
State v. Scruggs, 209 N.C. App. 725, 727, 706 S.E.2d 836, 838 (2011) (citation
omitted).
¶8 Here, the findings of fact in the Denial Order support the conclusion probable
cause and exigent circumstances existed to initiate a warrantless blood draw.
Probable cause is the “facts and circumstances within an officer’s knowledge and of
which he had reasonably trust-worthy information which are sufficient to warrant a
prudent man in believing that the suspect had committed or was committing an
offense.” State v. Williams, 314 N.C. 337, 343, 333 S.E.2d 708, 713 (1985) (citations STATE V. BUCKLEW
omitted). Whether exigent circumstances exist as to justify a warrantless blood draw,
though yet to be precisely defined, depends on the totality of the circumstances.
Missouri v. McNeely, 569 U.S. 141, 156, 133 S. Ct. 1552, 1563, 185 L. Ed. 2d 696, 709
(2013); State v. McCrary, 237 N.C. App. 48, 53, 764 S.E.2d 477, 481 (2014).
¶9 We are not persuaded by Defendant’s argument the Denial Order’s findings of
fact were not supported by competent evidence. The evidence in the record tends to
show the eyewitness reported that Defendant, prior to collision, crossed the center
line, drifted within his lane, and drove aggressively and erratically. Sermon testified
Defendant’s vehicle swerved from oncoming traffic and “almost made like a left turn
directly into [Wasinger’s vehicle] . . . .” Once Trooper Peaden arrived at the scene, he
noted there were no skid marks indicating any attempt to stop. After Defendant was
transported to the hospital due to his injuries, a breath alcosensor test revealed no
presence of alcohol, but Defendant admitted to taking oxycodone, valium, and
morphine that morning. When Trooper Peaden spoke with Defendant at the hospital,
he noticed Defendant had slurred speech, a loopy demeanor, was lethargic and slow
to answer questions. At one point Defendant told Trooper Peaden he did not
remember what happened while, at another point, he told Trooper Peaden he was hit
by a car. Nurse Warren, a nurse at the first hospital to which Defendant was taken,
testified Defendant had a significant injury to his femur, injury to his neck, a
contusion, a fracture, swelling, and enlarged pupils, and that he was falling asleep STATE V. BUCKLEW
between questions.
¶ 10 Based off his observations, Trooper Peaden formed the opinion Defendant had
consumed a “sufficient quantity of impairing substances so that his mental and
physical facilities were appreciably impaired.” However, Trooper Peaden did not
have time to leave the hospital to acquire a search warrant because Defendant was
“very, very badly injured” and the hospital does not administer pain medication until
after a blood draw is performed. Defendant’s injuries, moreover, were so severe as to
warrant air-lifting Defendant to another hospital for a higher level of care after the
blood draw was complete. Based on the evidence presented at trial, there was
competent evidence to support the findings of fact in the Denial Order.
¶ 11 In addition to a general challenge to the findings of fact in the Denial Order,
Defendant specifically challenges findings of fact twelve, fourteen, seventeen, and
twenty-three.
a. No Error as to Finding of Fact Number 12
¶ 12 Finding of fact number twelve states, “Stacy Toppin, RN, described the
defendant as alert and able to answer questions. She described his speech as slow
and thick tongued. He was further described as neurologically intact with no visible
head injuries. She described his pupils as appearing pinpoint.” Competent evidence
exists to support fact number twelve through Stacy Toppin’s testimony where she
stated Defendant “had slurred speech at the time, [was a] little thick tongue, [and STATE V. BUCKLEW
had a] little bit of confusion[,]” and his pupils were “pinpoint looking.” On voir dire,
Stacy Toppin explained that Defendant had no apparent head injuries, was stable,
and was able to answer questions. The testimony provided by Stacy Toppin provided
competent evidence to support finding of fact number twelve.
b. No Error as to Findings of Fact Number 14 and 17
¶ 13 Findings of fact fourteen and seventeen state:
(14) [i]n addition to defendant’s statement and disclosures, Trooper Peaden also administered a portable breath test in an effort to rule out the presence of alcohol. Due to the acute nature of the defendant’s injuries, the court finds that it was not appropriate to administer or attempt to administer the Horizontal Gaze Nystagmus, the Walk and Turn or One-legged stand test standard field sobriety tests due to the acute nature of the defendant’s injuries and the dynamic and emergent medical nature of the environs and surroundings of a medical facility.
...
(17) [a]fter stabilizing treatment was administered at Martin General Hospital, the defendant was subsequently transferred to Vidant Greenville for further and more advanced trauma care, which further demonstrated the dynamic and emergent medical care needed by the defendant which further underscores the necessity and exigency for a blood draw.”
¶ 14 At trial, the evidence showed Defendant sustained substantial injuries
including a broken hand and fractured femur. Defendant’s injuries were so severe he
ultimately had to be transported by helicopter to another hospital for more advanced
care. Despite the existence of conflicting evidence which may refute finding of fact STATE V. BUCKLEW
number fourteen, conflicting evidence does not affect a finding of fact which is
supported by competent evidence. Buchanan, 353 N.C. at 336, 543 S.E.2d at 826.
Based on the severity of Defendant’s injuries, findings of fact numbers fourteen and
seventeen were supported by competent evidence.
c. No Error as to Finding of Fact 23
¶ 15 Finding of fact number twenty-three states, “[n]o search warrant was obtained
or necessary based on the facts and totality of the circumstances presented.” The
evidence tends to show Trooper Peaden found probable cause existed Defendant had
committed the offense of DWI based on Defendant’s admission to taking multiple
medications, the lack of skid marks indicating any attempt to stop, eye witness
reports of Defendant’s erratic driving, and Defendant’s lethargic and loopy behavior.
Moreover, per our analysis above, Defendant’s injuries were substantial and required
immediate medical care, including the administration of pain-relieving medication.
Because of the evidence presented, finding of fact number twenty-three is based upon
competent evidence.
2. Warrantless Blood Draw was Justified
¶ 16 Next, Defendant argues the findings of fact do not support the conclusion that
exigent circumstances and probable cause existed to support a warrantless blood test.
Both the Fourth Amendment to the United States Constitution and Article I Section
20 of the North Carolina Constitution protect a person from unreasonable searches STATE V. BUCKLEW
and seizures. U.S. Const. Amend. IV; N.C. Const. art. I, § 20. Blood tests “plainly
constitute searches of persons” and thus are considered seizures under the Fourth
Amendment. Schmerber v. California, 384 U.S. 757, 767, 86 S. Ct. 1826, 1834, 16 L.
Ed. 2d 908, 918 (1996) (internal quotation marks omitted); see also State v. Carter,
322 N.C. 709, 714, 370 S.E.2d 553, 556 (1988) (holding “[t]he withdrawal of a blood
sample from a person is a search subject to protection by article I, section 20 of our
constitution”). A blood test may only be performed after a warrant or valid consent
is obtained or under exigent circumstances with probable cause “unless probable
cause and exigent circumstances exist that would justify a warrantless search.” State
v. Welch, 316 N.C. 578, 585, 342 S.E.2d 789, 793 (1986). See State v. Romano, 369
N.C. 678, 692, 800 S.E.2d 644, 653 (2017).
¶ 17 First we must determine whether probable cause existed. Probable cause is
defined as “a reasonable ground of suspicion, supported by circumstances sufficiently
strong in themselves to warrant a cautious man in believing the accused to be guilty.”
State v. Smith, 222 N.C. App. 253, 255, 729 S.E.2d 120, 123 (2012) (citation omitted).”
See Carroll v. United States, 267 U.S. 132, 161, 45 S. Ct. 280, 288, 69 L. Ed. 543, 555
(1925) (citation omitted). Here, the circumstances provided Trooper Peaden with
reasonable grounds to suspect Defendant had committed the offense of a DWI. Prior
to the accident, an eyewitness placed a 911-call to report to the police Defendant was
driving erratically, Defendant’s vehicle was “weaving about the road[,]” and STATE V. BUCKLEW
Defendant ultimately struck two vehicles. Upon arriving to the scene of the accident,
Trooper Peaden discovered further evidence which indicated Defendant was
responsible for the crash. Trooper Peaden observed vehicle debris were “everywhere”,
three heavily damaged vehicles were present including Defendant’s car, and no brake
skid marks were present to indicate anyone attempted to stop their vehicles prior to
the collision. All three vehicles rested outside of and to the left of Defendant’s lane of
travel. Trooper Peaden did not detect alcohol on Defendant, but Defendant
voluntarily admitted to taking his medications that morning. Defendant held valid
prescriptions for oxycodone, valium, and morphine and voluntarily stated to Trooper
Peaden he had last taken his medications that morning at 4 a.m. Trooper Peaden
described Defendant as lethargic, and having slurred speech, droopy eyelids, and a
blank stare. However, Defendant’s injuries were of such severity that he was
classified as a trauma patient and was rapidly deteriorating. Based on these findings
of fact, the trial court properly concluded probable cause existed to perform a
warrantless blood test. Accordingly, this Court is compelled to hold the trial court
did not err when it determined probable cause existed for Trooper Peaden to form the
opinion that Defendant had committed the offense of DWI so as to justify a
warrantless blood test.
¶ 18 Turning our analysis to whether the findings of fact supported the conclusion
exigent circumstances were present, the underlying question as to whether exigent STATE V. BUCKLEW
circumstances exist is whether “there is a compelling need for official action and no
time to secure a warrant.” Missouri v. McNeely, 569 U.S. 141, 149, 133 S. Ct. 1552,
1559, 185 L. Ed. 2d 696, 705 (2013) (citation omitted). In the case of a DWI, the
reasonableness of a warrantless blood test “must be determined case by case based
on the totality of the circumstances.” Id. at 156, 133 S. Ct. at 1563, 185 L. Ed. 2d at
709 (2013). See State v. Dahlquist, 231 N.C. App. 100, 103, 752 S.E.2d 665, 667
(2013). Though the natural dissipation of a substance within a person’s blood stream
is a factor to consider, it is not a per se exception to the totality of the circumstances
test. McNeely, 569 U.S. at 156, 133 S. Ct. at 1563, 185 L. Ed. 2d at 709. In State v.
Granger, we held a totality of the circumstances illustrated exigent circumstances
when sufficient probable cause had already been established, the officer could not
thoroughly investigate due to the extent of defendant’s injuries, delays in the warrant
application process, and the potential of imminent administration of pain medication.
State v. Granger, 235 N.C. App. 157, 165, 761 S.E.2d 923, 928 (2014).
¶ 19 In this case, like Granger, a totality of the circumstances show exigent
circumstances existed to justify a warrantless blood draw. First, sufficient probable
cause existed to establish Defendant was driving while impaired prior to the
initiation of the blood draw. (R p 53). Next, the officer was not able to thoroughly
question Defendant at the scene of the accident because Defendant was “pinned in
his vehicle” and subsequently taken to the hospital as a trauma patient due to the STATE V. BUCKLEW
extent of Defendant’s injuries. (R p 51, 52). Indeed, Defendant’s own affidavit
confirmed Defendant’s injuries caused “acute blood loss.” (R p 52). Moreover,
Defendant’s “condition was deteriorating” due to his injuries. (R p 52). In light of
these circumstances, the officer did not have the time necessary to acquire a search
warrant due to the extent of Defendant’s injuries and the fact that pain medication
in par with stabilizing treatment was administered immediately after a blood drawn
was taken. (R p 53). Defendant was transferred to another hospital for advanced
trauma care due to the severity of his injuries and his deteriorating medical condition.
(R p 53). Although we question the efficacy of reading Defendant his Notice of Rights
when he was in such critical condition, the totality of the circumstances in the instant
case shows the lack of time to acquire a warrant in light of the compelling need to
perform a blood test on Defendant once the officer formed the opinion that Defendant
had driven while impaired. Thus, we must hold the trial court did not err when
finding sufficient exigent circumstances existed to justify a warrantless blood draw.
B. Judicial Notice of Weather Conditions
¶ 20 Defendant next argues the trial court erred by not taking judicial notice of the
Weather Report. (App Br p 24). We also conclude the trial court did not err by
denying to take judicial notice of the National Weather Station’s weather conditions
on the date of the collision. (App Br p 24). Under N.C. Gen. Stat. § 8C-1 Rule 201(b)
“[a] judicially noticed fact must be one not subject to reasonable dispute in that it is STATE V. BUCKLEW
either (1) generally known within the territorial jurisdiction of the trial court or (2)
capable of accurate and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.” N.C. Gen. Stat. § 8C-1, Rule 201(b) (2021). An
indisputable fact is one that is “so well established as to be a matter of common
knowledge.” In re L.G.A., 277 N.C. App. 46, 2021-NCCOA-137, ¶24 (citation omitted).
A trial court has discretion when deciding whether or not to take judicial notice, and
this Court reviews for abuse of discretion. State v. McDougald, 38 N.C. App. 244,
248, 248 S.E.2d 72, 77 (1978). However, a court “cannot take judicial notice of a
disputed question of fact,” Hinkle v. Hartsell, 131 N.C. App. 833, 836, 509 S.E.2d 455,
458 (1998) (citation omitted), and “any subject that is open to reasonable debate is
not appropriate for judicial notice.” In re R.D., 376 N.C. 244, 264, 852 S.E.2d 117,
132 (2020) (citation and internal ellipses omitted).
¶ 21 This Court’s opinion in State v. McDougald describes an applicable example of
when the trial court did not abuse its discretion by denying a defendant’s motion to
take judicial notice. In McDougald, the defendant appealed the trial court’s denial to
take judicial notice of news broadcasts concerning the case. State v. McDougald, 38
N.C. App. 244, 248, 248 S.E.2d 72, 77 (1978). The McDougald Court rejected the
defendant’s assignment of error, writing, “[s]uch facts could have been easily proven
by witnesses ordinarily available. There was no showing of abuse of discretion by the
trial court. Therefore, the trial court did not err in failing to take judicial notice that STATE V. BUCKLEW
the case was the subject of radio and television broadcasts.” Id. McDougald held a
trial court does not abuse its discretion when denying to take judicial notice of a fact
if there exists an opportunity to otherwise prove the fact at trial.
¶ 22 This concept has direct application to the trial court’s decision not to take
judicial notice of the Weather Report in this case. The trial court denied Defendant’s
motion for judicial notice as multiple witnesses testified to the weather conditions on
the date of the collision. Thus the trial court had the right to conclude sufficient
evidence existed from the witnesses’ testimonies to allow the jury to form their own
conclusion on the state of the weather. Following the reasoning in McDougald, the
trial court did not abuse its discretion when it declined to take judicial notice of the
National Weather Service weather conditions report on the date of collision.
¶ 23 Against this conclusion, Defendant argues his motion for judicial notice should
have been granted under N.C. Gen. Stat. § 8C-1, Rule 201(d). Rule 201(d) states “[a]
court shall take judicial notice if requested by a party and supplied with the necessary
information.” § 8C-1, Rule 201(d). The implication, Defendant argues, is that “the
trial court has no discretion when supplied with the information prescribed by Rule
201.” Of course Rule 201(d) is only a portion of Rule 201 as a whole, and thus we
must view section (d) in light of the entirety of Rule 201. See Pilos-Narron v. Narron,
239 N.C. App. 573, 771 S.E.2d. 633 (2015) (viewing the portion of Rule 56(e) quoted
by plaintiff in its entirety). STATE V. BUCKLEW
¶ 24 Section (d) of Rule 201 is predicated upon the two-part test of Rule 201’s
Section (b) which states a judicially noticed fact is one that cannot be reasonably
disputed because it is either 1) general knowledge or 2) “capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be questioned.”
§ 8C-1, Rule 201(b). The issue in contention here is the level of rain fall at the time
of the collision, thus why, not unreasonably, Defendant wanted the trial court to take
judicial notice of the Weather Report. However, the contentious issue, the level of
rainfall fails the first prong of Section (b)’s test because though individuals may know
if it is raining, the precise amount of rain is not a generally known fact. Under the
second prong of the test, sources as used in Section (b) must be “a document of such
indisputable accuracy as [to] justif[y] judicial reliance.” State v. Dancy, 297 N.C. 40,
42, 252 S.E.2d 514, 515 (1979). The amount of rain is generally a fact that is “capable
of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned.” N.C. Gen. Stat. § 8C-1, Rule 201(b) (2021). In State v.
Canaday, this Court held a document of indisputable accuracy “contemplates
material from a primary source in whose hands the gathering of such information
rests.” 110 N.C. App. 763, 766, 431 S.E.2d 500, 501 (1993). Flowing from our
reasoning in Canaday, weather reports from the National Weather Service are a
result of data gathered by the National Weather Service and thus typically are STATE V. BUCKLEW
documents of indisputable accuracy.2 See Bain Enters., LLC v. Mountain States
Mutality Casualty Co., 267 F. Supp. 3d 796, 819 (W.D. Tex. 2016); Kovera v. Envirite
of Ill., Inc., 2015 IL App (1st) 133049, ¶28.
¶ 25 However, this proffered Weather Report from the National Weather Service is
not a document of indisputable accuracy for the purpose of illustrating the amount of
rain on the date of the collision. The Weather Report for the date of the crash does
not state the level of rain that was occurring at the time of the crash. An examination
of the Weather Report reveals the level of rain stopped being reported for the day up
to three hours prior to the collision. The party moving for judicial notice has the
responsibility to “supply [the trial judge] with appropriate data” as the “trial judge is
not required to make an independent search for data of which he may take judicial
notice.” Dancy, 297 N.C. at 42, 252 S.E.2d at 515. Because the proffered weather
report did not contain the necessary data showing the level of rain at the time of the
collision, the Weather Report fails under the second prong of Rule 201(b). The trial
2 Forecast from the National Weather service is the product of observations from scientists “using technology such as radar, satellite and data from an assortment of ground- based and airborne instruments to get a complete picture of current conditions. Forecasters often rely on computer programs to create what’s called an ‘analysis,’ which is simply a graphical representation of current conditions. Once this assessment is complete and the analysis is created, forecasters use a wide variety of numerical models, statistical and conceptual models, and years of local experience to determine how the current conditions will change with time. Numerical modeling is fully ingrained in the forecast process, and our forecasters review the output of these models daily.” NATIONAL WEATHER SERVICE, https://www.weather.gov/about/forecast-process (last visited Sept. 21, 2021). STATE V. BUCKLEW
court was not required under Rule 201(d) to take judicial notice but was free to use
its discretion pursuant to Rule 201(c). Accordingly, we are compelled to hold the trial
court did not abuse its discretion by not taking judicial notice of the Weather Report.
C. Lab and Chain of Custody Report
¶ 26 We next turn to Defendant’s assignment of error to the trial court’s admission
of the lab and chain of custody report (the “Report”) of Defendant’s blood and Evan
Lowery’s (“Lowery”) testimony regarding Defendant’s blood sample. Defendant
argues his right to confrontation and cross-examination were violated because only
Lowery, the State’s independent expert, testified at trial, not the people who actually
conducted the analysis of his blood and urine samples. We disagree and conclude the
trial court did not err in admitting the Report.
¶ 27 First, Lowery’s testimony was properly admitted by the trial court. The United
States Constitution’s Confrontation Clause prohibits expert testimony that is
predicated only on the reports of an analyst who is not testifying. State v. Locklear,
363 N.C. 438, 452-53, 681 S.E.2d 293, 304-05 (2009). An expert’s testimony is
nonetheless admissible “when the expert testifies not just to the results of other
experts’ tests, but to her own technical review of these tests, her own expert opinion
of the accuracy of the non-testifying experts tests, and her own expert opinion based
on a comparison of the original data.” State v. Hartley, 212 N.C. App. 1, 12-13, 710
S.E.2d 385, 396 (2011) (citation and internal quotations omitted). The crucial STATE V. BUCKLEW
question here is whether Lowery’s testimony was merely a recitation of the analysts’
Report or was his independent expert opinion derived from the proper methods.
¶ 28 A review of the record reveals Lowery’s expert testimony was admissible.
Lowery was admitted as an expert in forensic toxicology and utilized his “training,
education, and experience” in conducting his analysis of the data. Though Lowery
received data from the analysis done at the crime lab, Lowery analyzed and reviewed
the data, analyzed Defendant’s blood sample in accordance with the North Carolina
State Crime Laboratory and Department of Health and Human Services, crafted with
his own opinion as to the results of the data, and finally produced the Report utilized
at trial. In other words, the Report introduced at trial was created by Lowery, not
the analysts who did not testify. Although the data used by Lowery originated from
other analysts, the Report was an independent expert opinion analyzed and created
by Lowery, and, accordingly, the trial court did not err in admitting Lowery’s
testimony.
¶ 29 Second, Defendant argues the State failed to establish the chain of custody and
the trial court erred in admitting the chain of custody report. Our Supreme Court
requires a two-prong test to be satisfied prior to the admission of evidence: the “item
offered must be identified as being the same object involved in the incident and it
must be shown that the object has undergone no material change.” State v. Taylor,
332 N.C. 372, 388, 420 S.E.2d 414, 423-24 (1992) (quoting State v. Campbell, 311 N.C. STATE V. BUCKLEW
386, 388, 317 S.E.2d 391, 392 (1984)). The State does not need to establish a detailed
chain of custody unless “the evidence offered is not readily identifiable or is
susceptible to alteration and there is reason to believe that it may have been altered.”
Campbell, 311 N.C. at 389, 317 S.E.2d at 392. Even if the chain of custody does have
points of weakness, this only goes to the “weight to be given the evidence and not to
its admissibility.” Id. (citation omitted).
¶ 30 In light of these principles, we hold the trial court did not abuse its discretion
by finding the State established an adequate chain of custody. Trooper Peaden
testified after Defendant’s blood was taken by the nurse, the blood was then
transferred to the officer. The blood vial contained a security seal which identifies
Defendant, the person who drew the blood, and the date and time. The subsequent
signatories to the chain of custody revealed Defendant’s blood sample was received
by the State crime lab. Lowery testified to the chain of custody of Defendant’s blood
from the date it was received by the State crime lab until the date the blood was
analyzed. The testimonies from both Trooper Peaden and Lowery satisfy both prongs
required for admission of evidence by our Supreme Court. The security seal upon the
vial and the chain of custody report tend to prove the sample at all times contained
Defendant’s blood and no material change occurred throughout the transfers and
testing of the blood. See Taylor, 332 N.C. at 388, 420 S.E.2d at 423-24. In summation,
the testimony presented effectively established the chain of custody and the trial STATE V. BUCKLEW
court committed no error by admitting the chain of custody report.
¶ 31 Defendant raises questions about the circumstances surrounding his blood
sample in order to undermine the admissibility of the chain of custody report. These
purported points of weakness only go to the “weight to be given the chain of custody
not its admissibility.” Campbell, 311 N.C. at 389, 317 S.E.2d at 392. Under
Campbell, the evidence presented must not only be susceptible to alteration or not
readily identifiable, but also there must be a reason to believe the evidence was
altered. Id. Here, Defendant offered no reason to believe the blood sample was
altered and thus his attempt to present questionable circumstances surrounding the
blood sample fails under Campbell. The conclusion follows that the trial court did
not abuse its discretion by admitting the chain of custody report.
D. Defendant’s Motion to Dismiss
¶ 32 Finally, we look to Defendant’s argument the trial court erred in denying
Defendant’s motion to dismiss first at the close of the State’s evidence and then at the
close of all evidence. We review a motion to dismiss de novo. Locklear v. Cummings,
262 N.C. App. 588, 592, 822 S.E.2d 587, 590 (2018). In a criminal trial, the law is
well settled as follows, “upon defendant's motion for dismissal, the question for the
Court is whether there is substantial evidence (1) of each essential element of the
offense charged, or of a lesser offense included therein, and (2) of defendant’s being
the perpetrator of such offense. If so, the motion is properly denied.” State v. Powell, STATE V. BUCKLEW
299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). A motion to dismiss should be allowed
if the evidence only raises a “suspicion or conjecture as to either the commission of
the offense or the identity of the defendant as the perpetrator of it.” Id. (citations
omitted). Evidence is to be viewed in “the light most favorable to the State” and tested
only to determine if a “reasonable inference of the defendant’s guilt of the crime
charged may be drawn from the evidence.” Id. at 99, 261 S.E.2d. at 117 (citations
omitted and emphasis in original).
¶ 33 Defendant alleges there was no substantial evidence for the offenses of
impaired driving, assault with a deadly weapon inflicting serious injury, and
felonious serious injury by vehicle. First, Defendant was charged with driving while
impaired under N.C. Gen. Stat. § 20-138.1 which provides, in relevant parts, “[a]
person commits the offense of impaired driving if he drives any vehicle upon any
highway, any street, or any public vehicular area within this State . . . [w]hile under
the influence of an impairing substance . . . .” N.C. Gen. Stat. § 20-138.1(a) (2021).
The State showed a white Land Rover was reported to be driving erratically upon a
public road in North Carolina; a crash later occurred caused by the Land Rover; and
when Trooper Peaden arrived at the scene, Defendant was trapped inside the Land
Rover in the driver’s seat. As analyzed above, probable cause existed to charge
Defendant with the offense of DWI based upon eyewitness reports of Defendant’s
erratic driving, the severity of the crash, Defendant’s admission of taking his STATE V. BUCKLEW
medications that morning, Defendant’s impaired behavior, and the result of
Defendant’s blood test. As such, we are obligated to hold substantial evidence exists
to support each element of driving while impaired and that Defendant was the one
who committed the DWI.
¶ 34 Next, Defendant was charged with assault with a deadly weapon inflicting
serious injury to Tina Wasinger pursuant to N.C. Gen. Stat. 14-32(b) which states,
“[a]ny person who assaults another person with a deadly weapon and inflicts serious
injury shall be punished as a Class E felon.” N.C. Gen. Stat. § 14-32(b) (2021). The
elements of a Statute 14-32(b) are “(1) an assault (2) with a deadly weapon (3)
inflicting serious injury (4) not resulting in death.” State v. Aytche, 98 N.C. App. 358,
366, 391 S.E.2d 43, 47 (1990). An assault is “an overt act or attempt, with force or
violence, to do some immediate physical injury to the person of another, which is
sufficient to put a person of reasonable firmness in fear of immediate physical injury.”
State v. Jones, 353 N.C. 159, 164, 538 S.E.2d 917, 922 (2000) (citation omitted). A
deadly weapon is “any article, instrument or substance which is likely to produce
death or great bodily harm.” Id. (citation omitted and emphasis in original).
¶ 35 In North Carolina, an automobile “can be a deadly weapon if it is driven in a
reckless or dangerous manner.” Id. One who “operates a motor vehicle in a manner
such that it constitutes a deadly weapon, thereby proximately causing serious injury
to another, may be convicted of AWDWISI provided there is either an actual intent STATE V. BUCKLEW
to inflict injury or culpable or criminal negligence from which such intent may be
implied.” Id. at 164-65, 538 S.E.2d at 922-23. Culpable or criminal negligence is
defined as “such recklessness or carelessness, proximately resulting in injury or
death, as imports a thoughtless disregard of consequences or a heedless indifference
to the safety and rights of others.” Id. at 165, 538 S.E.2d at 923 (quoting State v.
Weston, 273 N.C. 275, 280, 159 S.E.2d 883, 886 (1968)).
¶ 36 Particularly, culpable negligence exists when a safety statute is
unintentionally violated and is “accompanied by recklessness of probable
consequences of a dangerous nature, when tested by the rule of reasonable
[foreseeability], amounting altogether to a thoughtless disregard of consequences or
of a heedless indifference to the safety of others.” Id. (quoting State v. Hancock, 248
N.C. 432, 435, 103 S.E.2d 491, 494 (1958)). A safety statue is one that is “designed
for the protection of human life or limb.” State v. McGill, 314 N.C. 633, 637, 336
S.E.2d 90, 92 (1985) (citation omitted). We note as well, N.C. Gen. Stat. § 20-138.1 is
a safety statute created to protect human life or limb by prohibiting driving impaired.
See Jones, 353 N.C. at 165, 538 S.E.2d at 923.
¶ 37 In the case before us, Defendant assaulted Wasinger by hitting her vehicle with
his vehicle, a white Land Rover. According to eyewitness reports and the lack of skid
marks to indicate an attempt to stop his vehicle, Defendant was driving his vehicle
in an erratic and reckless manner. Thus, Defendant’s vehicle may be considered a STATE V. BUCKLEW
deadly weapon. As a matter of law, Defendant’s culpable negligence was established
when Defendant proceeded to operate a vehicle while under the influence of impairing
substances. Such negligence was further shown by reports of Defendant’s driving
from both Sermon and another eyewitness. Though Wasinger survived the crash, she
suffered serious injury, including weeks in the hospital, two months in a wheelchair,
and extremely restricted movement of her hand and legs. Due to her injuries,
Wasinger lost her job and is now enrolled in disability with Social Security. In sum,
the elements of assault with a deadly weapon inflicting serious injury were satisfied,
and we affirm the judgment of the trial court.
¶ 38 Defendant was also convicted of felony serious injury by motor vehicle under
N.C. Gen. Stat. § 20-141.4(a3) which provides,
A person commits the offense of felony serious injury by vehicle if:
(1) The person unintentionally causes serious injury to another person,
(2) The person was engaged in the offense of impaired driving under G.S. 20-138.1 or G.S. 20-138.2, and
(3) The commission of the offense in subdivision (2) of this subsection is the proximate cause of the serious injury.
N.C. Gen. Stat. § 20-141.4(a3) (2021). Because we have already explained that
substantial evidence exists to illustrate Defendant caused serious injury to Wasinger
due to his driving while impaired, the elements of felony serious injury by motor STATE V. BUCKLEW
vehicle were met. Thus, the trial court did not err in denying Defendant’s motion to
dismiss.
III. Conclusion
¶ 39 As a result of the foregoing analysis, we are compelled to hold there was no
error when the trial court denied Defendant’s motion to suppress the blood draw,
declined to take judicial notice of the Weather Report, admitted the Report and
Lowery’s testimony, and denied Defendant’s motion to dismiss. While we sympathize
with Defendant in that he was operating his vehicle while under the influence of only
prescribed medications and not under the influence of alcohol and was also seriously
injured in the resulting collision, we hold that the Defendant received a fair trial free
from error.
NO ERROR.
Judge DIETZ concurs by separate opinion.
Judge INMAN concurs. No. COA20-556 – State v. Bucklew
DIETZ, Judge, concurring.
¶ 40 I concur in the majority’s judgment but would resolve the suppression issue
solely based on the evidence of impairment establishing probable cause, and the
exigency resulting from the need to draw blood before medical professionals
administered additional medications, without reference to the implied consent laws.
See Mitchell v. Wisconsin, 139 S. Ct. 2525, 2532 (2019).