An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA 15-469
Filed: 20 October 2015
Wake County, No. 12 CRS 227492
STATE OF NORTH CAROLINA
v.
MICHAEL PAUL DAMATO
Appeal by defendant from judgment entered 24 November 2014 by Judge
James E. Hardin, Jr., in Wake County Superior Court. Heard in the Court of Appeals
28 September 2015.
Attorney General Roy Cooper, by Special Deputy Attorney General E. Burke Haywood, for the State.
Law Office of Aaron Young, PLLC, by Aaron Young, for defendant-appellant.
INMAN, Judge.
Defendant appeals from a judgment entered upon his conviction of impaired
driving under N.C. Gen. Stat. § 20-138.1 (2013). The trial court imposed a Level Two
punishment sentencing defendant to twelve months in the custody of the Division of
Adult Correction. We hold that defendant received a fair trial free from prejudicial
error. STATE V. DAMATO
Opinion of the Court
The State’s evidence tended to show that defendant operated a dark-colored
Ford Mustang on U.S. Highway 401, a public highway in North Carolina, on the
morning of 8 December 2012. Trooper Kurt Mills of the North Carolina State
Highway Patrol testified that at approximately 2:40 a.m. on 8 December 2012, he
observed defendant’s vehicle straddling the center line of U.S. Highway 401 at a
speed of 70 miles per hour near the Buffaloe Lanes in Wake County. The speed limit
at this location is 55 miles per hour. After watching the vehicle for “roughly 30
seconds[,]” Trooper Mills pulled his marked patrol car onto the highway, activated
his lights and siren, and attempted to conduct a traffic stop. He pursued defendant
for approximately one mile and “had to accelerate to and beyond” 70 miles per hour
in order to catch up to the Mustang. During the pursuit, Trooper Mills saw defendant
“r[u]n off the road across the [right side line] approximately two feet.” Defendant’s
vehicle continued to weave within its lane and crossed over the white fog line by
“inches” on two more occasions before coming to a stop near Simpkins Road.
Trooper Mills parked behind the Mustang and exited his patrol car. As he
approached defendant’s driver’s side window, he touched the rear of the Mustang
with his fingertips, whereupon it began moving forward. Trooper Mills stopped
walking and ordered defendant “to stop the vehicle and put it in park[.]” Defendant
complied and turned off his car’s engine. As Trooper Mills proceeded to defendant’s
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window, he “noticed that there was fresh grass stuck between the tire and the rim on
the left front of the vehicle.”
Advised that he had been speeding, defendant “yelled out” at Trooper Mills
“that he wasn’t speeding” and had been stopped for no reason. Defendant further
stated “that he had wrecked his car a couple of days earlier and it was not driving
correctly[.]” Trooper Mills saw no apparent damage to defendant’s vehicle other than
“the grass in the rim of it.” Engaging defendant through the car window, Trooper
Mills “immediately smelled a strong odor of alcohol coming from the vehicle” and
subsequently “smelled [alcohol] coming from [the defendant’s] breath[.]” Defendant’s
eyes were red and glassy. When asked for his driver’s license, defendant appeared
“unable to control his hands” and “was just kind of fumbling for his license” before he
was able to produce it.
Trooper Mills next asked defendant how much he had to drink. Defendant
denied consuming any alcohol and became “very agitated[,]” clenching his fist and
teeth. Defendant continued to yell at Trooper Mills, refusing to submit to a portable
breath test and refusing a request to step out of his vehicle. Because of defendant’s
increasing anger, Trooper Mills contacted a dispatcher to request a back-up unit. He
then ordered defendant out of the car. Defendant replied, “F*** you, . . . I want to
speak with your supervisor.”
-3- STATE V. DAMATO
Trooper Mills insisted that defendant exit the vehicle. In response, defendant
“lunged to his right and bladed his hands towards the center console, and his hands
went out of sight[.]” Trooper Mills drew his service weapon, pointed it at defendant,
and demanded to see his hands. Defendant became compliant and appeared to calm
down. Trooper Mills holstered his weapon, opened defendant’s car door, and again
ordered him outside. When defendant did not comply, Trooper Mills reached for his
left arm in order to extract him. Defendant lunged and swung at Trooper Mills with
his right fist, saying “F*** you. I’m not getting out of the vehicle[.]” Trooper Mills
deployed his taser in defendant’s left thigh. After being tased, defendant got out of
his car and submitted to arrest. While searching and handcuffing defendant, Trooper
Mills “continued to smell the strong odor of alcohol coming from his breath.”
Defendant remained non-cooperative and “very agitated” while being
processed at the jail. Trooper Mills took defendant to the “intox room” and requested
that he submit to an intoxilyzer test. Defendant was advised of his rights related to
chemical analysis but refused to sign the notice of rights form. Defendant asked to
contact a lawyer and made a telephone call with a deputy’s phone. He remained
agitated in the intox room, “talking out loud [and] punching the seat in an aggravated
rage.” On three occasions, defendant asked Trooper Mills what had happened to his
phone, seemingly unable to recall what he had been told. After 30 minutes elapsed
without the arrival of his attorney or witness, defendant refused the intoxilyzer.
-4- STATE V. DAMATO
Discussion
On appeal, defendant claims the trial court erred by denying his motion to
dismiss the charge of impaired driving at the conclusion of the evidence. Specifically,
he argues that “the State did not present substantial evidence that [he] was driving
while impaired” on the morning of 8 December 2012, as required to sustain a
conviction under N.C. Gen. Stat. § 20-138.1(a)(1) (2013). We disagree.
We review the trial court’s denial of a motion to dismiss for insufficient
evidence de novo. State v. Bagley, 183 N.C. App. 514, 523, 644 S.E.2d 615, 621 (2007)
(citations omitted). We must determine whether the State presented substantial
evidence that defendant committed each essential element of the charged offense. Id.
Substantial evidence is “that amount of relevant evidence necessary to persuade a
rational juror to accept a conclusion.” State v. Scott, 356 N.C. 591, 597, 573 S.E. 2d
866, 869 (2002). In ruling on a motion to dismiss, we “view the evidence in the light
most favorable to the State, giving the State the benefit of all reasonable inferences.”
State v. Benson, 331 N.C. 537, 544, 417 S.E. 2d 756, 761 (1992) (citation omitted).
“Before defendant can be convicted under N.C. Gen. Stat. § 20-138.1(a)(1), the
State must prove beyond a reasonable doubt that defendant had ingested a sufficient
quantity of an impairing substance to cause his faculties to be appreciably impaired.”
State v. Phillips, 127 N.C. App.
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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 Procedure.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA 15-469
Filed: 20 October 2015
Wake County, No. 12 CRS 227492
STATE OF NORTH CAROLINA
v.
MICHAEL PAUL DAMATO
Appeal by defendant from judgment entered 24 November 2014 by Judge
James E. Hardin, Jr., in Wake County Superior Court. Heard in the Court of Appeals
28 September 2015.
Attorney General Roy Cooper, by Special Deputy Attorney General E. Burke Haywood, for the State.
Law Office of Aaron Young, PLLC, by Aaron Young, for defendant-appellant.
INMAN, Judge.
Defendant appeals from a judgment entered upon his conviction of impaired
driving under N.C. Gen. Stat. § 20-138.1 (2013). The trial court imposed a Level Two
punishment sentencing defendant to twelve months in the custody of the Division of
Adult Correction. We hold that defendant received a fair trial free from prejudicial
error. STATE V. DAMATO
Opinion of the Court
The State’s evidence tended to show that defendant operated a dark-colored
Ford Mustang on U.S. Highway 401, a public highway in North Carolina, on the
morning of 8 December 2012. Trooper Kurt Mills of the North Carolina State
Highway Patrol testified that at approximately 2:40 a.m. on 8 December 2012, he
observed defendant’s vehicle straddling the center line of U.S. Highway 401 at a
speed of 70 miles per hour near the Buffaloe Lanes in Wake County. The speed limit
at this location is 55 miles per hour. After watching the vehicle for “roughly 30
seconds[,]” Trooper Mills pulled his marked patrol car onto the highway, activated
his lights and siren, and attempted to conduct a traffic stop. He pursued defendant
for approximately one mile and “had to accelerate to and beyond” 70 miles per hour
in order to catch up to the Mustang. During the pursuit, Trooper Mills saw defendant
“r[u]n off the road across the [right side line] approximately two feet.” Defendant’s
vehicle continued to weave within its lane and crossed over the white fog line by
“inches” on two more occasions before coming to a stop near Simpkins Road.
Trooper Mills parked behind the Mustang and exited his patrol car. As he
approached defendant’s driver’s side window, he touched the rear of the Mustang
with his fingertips, whereupon it began moving forward. Trooper Mills stopped
walking and ordered defendant “to stop the vehicle and put it in park[.]” Defendant
complied and turned off his car’s engine. As Trooper Mills proceeded to defendant’s
-2- STATE V. DAMATO
window, he “noticed that there was fresh grass stuck between the tire and the rim on
the left front of the vehicle.”
Advised that he had been speeding, defendant “yelled out” at Trooper Mills
“that he wasn’t speeding” and had been stopped for no reason. Defendant further
stated “that he had wrecked his car a couple of days earlier and it was not driving
correctly[.]” Trooper Mills saw no apparent damage to defendant’s vehicle other than
“the grass in the rim of it.” Engaging defendant through the car window, Trooper
Mills “immediately smelled a strong odor of alcohol coming from the vehicle” and
subsequently “smelled [alcohol] coming from [the defendant’s] breath[.]” Defendant’s
eyes were red and glassy. When asked for his driver’s license, defendant appeared
“unable to control his hands” and “was just kind of fumbling for his license” before he
was able to produce it.
Trooper Mills next asked defendant how much he had to drink. Defendant
denied consuming any alcohol and became “very agitated[,]” clenching his fist and
teeth. Defendant continued to yell at Trooper Mills, refusing to submit to a portable
breath test and refusing a request to step out of his vehicle. Because of defendant’s
increasing anger, Trooper Mills contacted a dispatcher to request a back-up unit. He
then ordered defendant out of the car. Defendant replied, “F*** you, . . . I want to
speak with your supervisor.”
-3- STATE V. DAMATO
Trooper Mills insisted that defendant exit the vehicle. In response, defendant
“lunged to his right and bladed his hands towards the center console, and his hands
went out of sight[.]” Trooper Mills drew his service weapon, pointed it at defendant,
and demanded to see his hands. Defendant became compliant and appeared to calm
down. Trooper Mills holstered his weapon, opened defendant’s car door, and again
ordered him outside. When defendant did not comply, Trooper Mills reached for his
left arm in order to extract him. Defendant lunged and swung at Trooper Mills with
his right fist, saying “F*** you. I’m not getting out of the vehicle[.]” Trooper Mills
deployed his taser in defendant’s left thigh. After being tased, defendant got out of
his car and submitted to arrest. While searching and handcuffing defendant, Trooper
Mills “continued to smell the strong odor of alcohol coming from his breath.”
Defendant remained non-cooperative and “very agitated” while being
processed at the jail. Trooper Mills took defendant to the “intox room” and requested
that he submit to an intoxilyzer test. Defendant was advised of his rights related to
chemical analysis but refused to sign the notice of rights form. Defendant asked to
contact a lawyer and made a telephone call with a deputy’s phone. He remained
agitated in the intox room, “talking out loud [and] punching the seat in an aggravated
rage.” On three occasions, defendant asked Trooper Mills what had happened to his
phone, seemingly unable to recall what he had been told. After 30 minutes elapsed
without the arrival of his attorney or witness, defendant refused the intoxilyzer.
-4- STATE V. DAMATO
Discussion
On appeal, defendant claims the trial court erred by denying his motion to
dismiss the charge of impaired driving at the conclusion of the evidence. Specifically,
he argues that “the State did not present substantial evidence that [he] was driving
while impaired” on the morning of 8 December 2012, as required to sustain a
conviction under N.C. Gen. Stat. § 20-138.1(a)(1) (2013). We disagree.
We review the trial court’s denial of a motion to dismiss for insufficient
evidence de novo. State v. Bagley, 183 N.C. App. 514, 523, 644 S.E.2d 615, 621 (2007)
(citations omitted). We must determine whether the State presented substantial
evidence that defendant committed each essential element of the charged offense. Id.
Substantial evidence is “that amount of relevant evidence necessary to persuade a
rational juror to accept a conclusion.” State v. Scott, 356 N.C. 591, 597, 573 S.E. 2d
866, 869 (2002). In ruling on a motion to dismiss, we “view the evidence in the light
most favorable to the State, giving the State the benefit of all reasonable inferences.”
State v. Benson, 331 N.C. 537, 544, 417 S.E. 2d 756, 761 (1992) (citation omitted).
“Before defendant can be convicted under N.C. Gen. Stat. § 20-138.1(a)(1), the
State must prove beyond a reasonable doubt that defendant had ingested a sufficient
quantity of an impairing substance to cause his faculties to be appreciably impaired.”
State v. Phillips, 127 N.C. App. 391, 393, 489 S.E.2d 890, 891 (1997) (citation
omitted). “Our Supreme Court has held that ‘the [f]act that a motorist has been
-5- STATE V. DAMATO
drinking, when considered in connection with faulty driving . . . 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. Coffey, 189 N.C. App. 382, 387, 658 S.E.2d
73, 76 (2008) (quoting Atkins v. Moye, 277 N.C. 179, 185, 176 S.E.2d 789, 794 (1970)).
Moreover,
[a]n officer’s opinion that a defendant is appreciably impaired is competent testimony and admissible evidence when it is based on the officer’s personal observation of an odor of alcohol and of faulty driving or other evidence of impairment. The refusal to submit to an intoxilyzer test also is admissible as substantive evidence of guilt on a DWI charge.
State v. Gregory, 154 N.C. App. 718, 721, 572 S.E.2d 838, 840 (2002) (citations
omitted); see also N.C. Gen. Stat. § 20-139.1(f) (2013).
We find substantial evidence of defendant’s impairment in this case. Prior to
executing the vehicle stop, Trooper Mills observed defendant’s car straddling the
highway’s center line while traveling fifteen miles per hour over the speed limit and
then cross the outside white line of its lane of travel three times. Defendant initially
failed to secure his vehicle in a parked position and was belligerent and aggressive
toward Trooper Mills throughout their encounter. Defendant’s breath smelled
strongly of alcohol, his eyes were red and glassy, and he struggled to produce his
driver’s license. Based on the totality of his observations, Trooper Mills formed the
opinion that defendant’s faculties were appreciably impaired by alcohol. Defendant’s
-6- STATE V. DAMATO
refusal to submit to a chemical analysis of his blood alcohol level constitutes
additional evidence of his impairment under N.C. Gen. Stat. § 20-139.1(f). His
argument is overruled.
Defendant also claims the trial court erred by denying his motion for a mistrial
following his outburst in open court in front of the jury. During Trooper Mill’s
testimony, defendant addressed the State’s witness directly by claiming, “You tased
me.” The trial court paused the proceedings and excused the jury from the
courtroom. Before the jury could leave, however, defendant addressed Trooper Mills
as follows: “You tased me for asking for your superior. I ain’t going to keep my mouth
shut. You’re lying.” Defendant continued his protest in the jury’s absence, telling the
trial court, inter alia, “I hope there’s rightful justice here[,]” and “I’m getting blamed
for something I didn’t do.” Although the court denied defendant’s subsequent request
for a mistrial, it instructed jurors upon their return to the courtroom to “please
disregard the actions and demonstrations by the defendant just prior to your
departure a few minutes ago.”
Under N.C. Gen. Stat. § 15A-1061 (2013), the trial court “must declare a
mistrial upon the defendant's motion if there occurs during the trial an error or legal
defect in the proceedings, or conduct inside or outside the courtroom, resulting in
substantial and irreparable prejudice to the defendant’s case.” Id. We review the
-7- STATE V. DAMATO
denial of a defendant’s motion for mistrial only for abuse of discretion. State v.
Maness, 363 N.C. 261, 288, 677 S.E.2d 796, 813 (2009).
We find no abuse of discretion here. “It is well established that arguments for
a mistrial do not carry great weight when the grounds relied upon arise from a
defendant’s own misconduct. . . . [I]f defendant was prejudiced in the eyes of the jury
by his own misconduct, he cannot be heard to complain.” State v. Joiner, __ N.C. App.
__, __, 767 S.E.2d 557, 565 (2014) (citations and internal quotation marks omitted);
see also N.C. Gen. Stat. § 15A-1443(c) (2013). Having provided a timely curative
instruction, the trial court acted well within its discretion to deny defendant’s motion
for a mistrial.
Conclusion
For the foregoing reasons, we conclude that defendant’s trial was free of error.
NO ERROR.
Judges STROUD and DAVIS concur.
Report per Rule 30(e).
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