                                  NO. COA14-175
                      NORTH CAROLINA COURT OF APPEALS
                            Filed:   2 December 2014
STATE OF NORTH CAROLINA

                                            Pitt County
    v.
                                            No. 12 CRS 50689

JAMES M. ROBERTS


    Appeal by defendant from judgment entered 27 June 2013 by

Judge Christopher W. Bragg in Pitt County Superior Court.              Heard

in the Court of Appeals 11 August 2014.


    Attorney General Roy Cooper, by Assistant Attorney General
    Derrick C. Mertz, for the State.

    The Robinson Law Firm, P.A., by Leslie S. Robinson, for
    Defendant.


    ERVIN, Judge.


    Defendant James M. Roberts appeals from a judgment entered

based   upon   his   conviction      for   driving   while   subject   to   an

impairing substance.        On appeal, Defendant argues that the trial

court erred by allowing the use of an unconstitutional mandatory

presumption regarding the effect of the results of the chemical

analysis of Defendant’s breath that was admitted into evidence,

allowing the admission of evidence concerning the result of a

chemical   analysis    of   his   breath,    erroneously     instructing    the

jury concerning the extent to which the chemical analyst had
                                            -2-
complied with the applicable regulations and the extent to which

the   time     stamps    shown    on    a    video    introduced         into     evidence

accurately reflected the amount of time that elapsed during the

time that certain events occurred, denying his motion to dismiss

the   charge      that   had   been     lodged     against     him      based    upon    the

State’s failure to prosecute other similarly situated defendants

using    the   presentment        process,        failing    to   intervene        without

objection to preclude the prosecutor from making inappropriate

comments during her final argument, and placing him in jeopardy

twice for the same offense by using the results of a chemical

analysis     of    his   breath    to    establish      both      the    factual        basis

needed to support his guilty plea and as the primary support for

the     aggravating      factor    that      the     jury    found       to     exist     for

sentencing-related        purposes.          After    careful        consideration        of

Defendant’s challenges to the trial court’s judgment in light of

the record and the applicable law, we conclude that the trial

court’s judgment should remain undisturbed.

                               I. Factual Background

                               A. Substantive Facts

      At approximately 8:00 p.m. on 26 January 2012, Defendant

was seen in the parking lot of a Harris Teeter grocery store.

At that time, Defendant was walking in a slow, unsteady manner

and appeared to be having trouble locating his vehicle.                                 After
                                            -3-
making these observations, Robert Aiken approached Defendant for

the purpose of ascertaining if he needed assistance.                                However,

Defendant     failed       to     make      eye     contact      with    or      otherwise

acknowledge       Mr.    Aiken’s     presence.          According       to     Mr.   Aiken,

Defendant was “wasted.”

    After noticing that Defendant had purchased beer, Mr. Aiken

enlisted    the    help     of    another     man      in   an   attempt       to    prevent

Defendant from getting in his car and driving away.                            As this was

occurring, Trooper William Brown of the North Carolina State

Highway Patrol arrived in the parking lot.                         Mr. Aiken flagged

Trooper Brown down and told Trooper Brown what he had observed.

As Mr. Aiken talked with Trooper Brown, Defendant reached his

automobile, placed a bag in the vehicle’s interior, and walked

away.

    After     learning       of    Defendant’s         condition    from       Mr.    Aiken,

Trooper Brown waited to see if Defendant would return to his

vehicle.      About 30 minutes later, Defendant returned to the

parking space in which his automobile was located, entered his

vehicle,    and    began     driving     out      of   the    parking        lot.      While

following     Defendant,          Trooper     Brown     observed        that     Defendant

crossed the fog line twice and ran a red light.                              As a result,

Trooper    Brown        stopped    Defendant’s         vehicle,    placed        Defendant

under     arrest    for      driving        while      subject     to    an      impairing
                                             -4-
substance,        and     transported        Defendant       to     the        Pitt   County

Detention       Center        for    the     purpose     of       chemically          testing

Defendant’s breath for the presence of alcohol.

      After Trooper Brown and Defendant reached the testing room,

Trooper Brown removed Defendant’s handcuffs and asked Defendant

if   he   had     anything      in   his     mouth.      In       response,       Defendant

mentioned “Copenhagen,” raked his finger between his lips and

his teeth, and displayed a tin of Copenhagen chewing tobacco.

Trooper    Brown        did   not,   however,      see   anything         in    Defendant’s

mouth.     Although Defendant wanted to wash his mouth out before

the chemical test of his breath was administered, Trooper Brown

refused to allow Defendant to do so.

      At 9:22 p.m., Trooper Brown advised Defendant of his rights

relating     to     the       testing      process    and     began       the     statutory

observation period, during which he was required to ensure that

Defendant did not put anything in his mouth, regurgitate, vomit,

smoke, eat, or drink.                At 9:33 p.m., Defendant exercised his

right to call someone in an attempt to obtain the presence of a

witness during the testing process.                   Shortly thereafter, Trooper

Brown left the testing room with Defendant for the purpose of

allowing Defendant to use the restroom.                     After Trooper Brown and

Defendant returned to the testing room, Defendant placed his

fingers in his mouth, causing Trooper Brown to place Defendant
                                             -5-
in handcuffs and initiate a new observation period, which began

at 9:52 p.m.

     At 10:06 p.m., Trooper Brown and Defendant left the testing

room for the purpose of ascertaining if Defendant’s witness had

arrived.      During that process, Defendant wiped his mouth on his

jacket on two separate occasions.                  Upon returning to the testing

room, Trooper Brown took three samples of Defendant’s breath,

after which he reported that Defendant had a 0.19 blood alcohol

level.

                             B. Procedural History

     On    26   January    2012,       a     citation    charging    Defendant    with

driving while subject to an impairing substance was issued.                          On

13   August     2012,     the     Pitt       County      grand   jury     returned   a

presentment requesting the District Attorney to investigate the

underlying      circumstances          and     submit     a   bill   of    indictment

charging Defendant with driving while subject to an impairing

substance.       On   that      same    date,      the   Pitt    County   grand   jury

returned a bill of indictment charging Defendant with driving

while subject to an impairing substance.

     The charge against Defendant came on for trial at the 24

June 2013 criminal session of the Pitt County Superior Court.

On 25 June 2013, the trial court summarily denied Defendant’s

Motion to Suppress Evidence (Miranda) and denied in part and
                                      -6-
granted in part Defendant’s Motion in Limine and/or Motion to

Prohibit the State From Introducing Any Expert Testimony.                 On 26

June 2013, the trial court denied Defendant’s Motion to Dismiss,

Motion to Suppress Chemical Analysis of Breath, and Motion to

Suppress Evidence (Investigatory Stop & Seizure).1                 After the

trial court announced its rulings with respect to Defendant’s

pre-trial motions, Defendant entered a plea of guilty to driving

while subject to an impairing substance while preserving his

right to seek appellate review of the denial of his pretrial

motions.     After concluding that there was a factual basis for

Defendant’s plea, the trial court accepted his plea of guilty.

     On 26 June 2013, the issue of whether Defendant had a blood

alcohol concentration of 0.15 or more within a relevant time

after driving came on for hearing before the trial court and a

jury.    On 27 June 2013, the jury returned a verdict finding the

existence    of   the   aggravating   factor   delineated     in   N.C.    Gen.

Stat.    §   20-179(d)(1).      At    the   conclusion   of    the      ensuing

sentencing hearing, the trial court determined that Level III

punishment should be imposed and entered a judgment sentencing

Defendant to a term of 90 days imprisonment in the custody of

the Sheriff of Pitt County, suspending Defendant’s sentence, and

placing Defendant on supervised probation for 12 months on the
     1
      The trial court entered           written   orders      denying     these
motions on 13 August 2013.
                                             -7-
condition       that    he    pay   the   court      costs      and   a   $1,000   fine,

surrender his driver’s license and not operate a motor vehicle

until properly licensed to do so, complete 72 hours of community

service within 60 days, abstain from alcohol consumption for a

period of 60 days as verified by a continuous alcohol monitoring

system,    and       comply    with    the    usual      terms    and     conditions   of

probation.2       Defendant noted an appeal to this Court from the

trial court’s judgment.

                         II. Substantive Legal Analysis

            A. Validity of Breath Test Result Presumption

     In    his       first    challenge      to    the    trial   court’s     judgment,

Defendant contends that language added to N.C. Gen. Stat. § 20-

179(d)(1)       in     2007     creates       an    unconstitutional          mandatory

presumption.           More   specifically,        Defendant      contends     that    the

statutory provision to the effect that the result of a chemical

test of a defendant’s breath for the presence of alcohol “shall

be conclusive, and shall not be subject to modification by any

party”    for    purposes      of     determining        that   Defendant’s    sentence

should be enhanced violates his federal and state constitutional

rights not to be deprived of liberty without due process of law

     2
      According to the transcript developed during the trial of
this case, the judgment was entered on 27 June 2013.   However,
the judgment included in the record on appeal is dated 25 June
2013, a clerical error that creates the necessity for us to
remand this case to the trial court for correction.
                                    -8-
and to have the existence of an aggravating factor proven beyond

a reasonable doubt.      N.C. Gen. Stat. § 20-179(d)(1).           We do not

believe that Defendant is entitled to relief from the trial

court’s judgment on the basis of this contention.

    “The    standard     of     review    for     alleged    violations     of

constitutional rights is de novo.”              State v. Graham, 200 N.C.

App. 204, 214, 683 S.E.2d 437, 444 (2009), disc. review denied,

363 N.C. 857, 694 S.E.2d 766-67 (2010); see also Piedmont Triad

Reg’l Water Auth. v. Sumner Hills Inc., 353 N.C. 343, 348, 543

S.E.2d   844,    848   (2001)   (stating    that    “de     novo   review   is

ordinarily appropriate in cases where constitutional rights are

implicated”).    “‘Under a de novo review, the court considers the

matter anew and freely substitutes its own judgment’ for that of

the lower tribunal.”      State v. Williams, 362 N.C. 628, 632-33,

669 S.E.2d 290, 294 (2008) (quoting In re Greens of Pine Glen,

Ltd. P’ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).

    According to N.C. Gen. Stat. § 20-179(d)(1), an aggravated

sentence can be imposed following a defendant’s conviction for

driving while subject to an impairing substance in the event

that there is:

           Gross   impairment    of   the   defendant’s
           faculties   while  driving  or  an   alcohol
           concentration of 0.15 or more within a
           relevant time after driving.   For purposes
           of this subdivision, the results of a
           chemical analysis presented at trial or
                                       -9-
              sentencing shall be sufficient to prove the
              person’s alcohol concentration, shall be
              conclusive, and shall not be subject to
              modification by any party, with or without
              approval by the court.

The trial court did not, however, include the language to which

Defendant’s      constitutional        challenge     is    directed     in     its

instructions to the jury concerning the extent, if any, to which

the    jury    should   find    that    Defendant’s       sentence    should   be

enhanced pursuant to N.C. Gen. Stat. § 20-179(d)(1).                    Instead,

the trial court instructed the jury that:

              when a defendant denies the existence of an
              aggravating factor, he is not required to
              prove that the aggravating factor does not
              exist.   It is presumed that the aggravating
              factor does not exist. The State must prove
              to you beyond a reasonable doubt that the
              aggravating factor exists.

In addition, the trial court instructed the jury that, although

“the testing procedures and test results are admissible . . .

you are the sole judges of the credibility and weight to be

given to any evidence, and you must determine the importance of

this   evidence    in   light    of    all   other    believable      evidence.”

Finally, the trial court instructed the jury that:

              The defendant having      pled guilty to Driving
              While Impaired, you       must now consider the
              following question:        Do you find from the
              evidence beyond a         reasonable doubt the
              existence  of   the       following   aggravating
              factor?
                                            -10-
             The defendant had an alcohol concentration
             of .15 or more at the time of the offense or
             within a relevant time of the driving
             involved in this offense.

             If you find from the evidence beyond a
             reasonable doubt that the aggravating factor
             exists, then you will write “yes” in the
             space after the aggravating factor on the
             verdict sheet.     If you have found the
             existence of the aggravating factor and have
             written “yes” in the space after the
             aggravating factor, then you will also
             answer Issue One “yes” and write “yes” in
             the space after Issue One on the verdict
             sheet.

As a result, instead of instructing the jury in accordance with

the   portion      of    N.C.       Gen.    Stat.    §    20-179(d)(1)        upon       which

Defendant’s        constitutional           challenge       to   the     trial      court’s

judgment is based, the trial court refrained from incorporating

any       reference      to     the        allegedly      impermissible          mandatory

presumption into its instructions and specifically instructed

the   prosecutor        to    refrain      from    making    any   reference         to   the

challenged language in the presence of the jury.

      A    criminal      defendant         lacks    standing       to    challenge        the

constitutionality        of     a     specific      statutory      provision        in    the

absence of a showing he has suffered, or is likely to suffer, an

injury stemming from the application of the challenged provision

in the case in which he is involved.                        See Messer v. Town of

Chapel     Hill,   346       N.C.   259,    260,    485   S.E.2d       269,   270    (1997)

(stating that “[s]tanding to challenge the constitutionality of
                                          -11-
a legislative enactment exists where the litigant has suffered,

or is likely to suffer, a direct injury as a result of the law’s

enforcement”) (internal quotation marks and citation omitted);

State v. Fredell, 283 N.C. 242, 247, 195 S.E.2d 300, 304 (1973)

(stating that, “[u]niformly, the accused has been permitted to

assert the invalidity of the law only upon a showing that his

rights were adversely affected by the particular feature of the

statute alleged to be in conflict with the Constitution”).                             In

the absence of such a showing, the defendant is precluded from

attacking     the    constitutionality           of     the    relevant        statutory

provision.       See Poore v. Poore, 201 N.C. 791, 792, 161 S.E. 532,

533 (1931) (stating that “[i]t is no part of the function of the

courts, in the exercise of the judicial power vested in them by

the Constitution, to give advisory opinions, or to answer moot

questions,    or    to   maintain    a    legal       bureau    for   those     who   may

chance to be interested, for the time being, in the pursuit of

some academic matter”) (citations omitted).                      Defendant has not

directed our attention to any portion of the record which tends

to suggest that the jury’s decision to find the existence of the

aggravating factor set out in N.C. Gen. Stat. § 20-179(d)(1) was

in   any   way    affected   by     the    statutory       provision       upon   which

Defendant’s       constitutional      argument         rests.         As   a    result,

Defendant lacks the standing necessary to support a challenge to
                                        -12-
the constitutionality of the statutory provision discussed in

his brief and is not, for that reason, entitled to relief from

the trial court’s judgment on the basis of this argument.

             B. Admissibility of the Breath Test Results

     Secondly, Defendant argues that the trial court erred by

failing to suppress the results of the chemical analysis of his

breath     that    Trooper      Brown      performed     following       Defendant’s

arrest.      More     specifically,        Defendant     contends       that,     since

Trooper Brown failed to satisfactorily comply with the statutory

requirement that there be a fifteen minute “observation period”

prior to the administration of the chemical test of Defendant’s

breath mandated by N.C. Gen. Stat. § 20-139.1, the trial court

should    have    granted    his    motion     to    suppress     the    breath    test

results    and    refused    to    allow    the     admission     of    the   chemical

analysis    results      into     evidence.         Defendant’s    argument       lacks

merit.

                             1. Standard of Review

     As this Court has previously recognized, a defendant is

entitled to challenge the denial of a motion to suppress the

result of a chemical test of his breath as having been obtained

in   violation      of   the      applicable      provisions      of    the   General

Statutes by means of a motion to suppress filed pursuant to N.C.

Gen. Stat. § 15A-974.           State v. Hatley, 190 N.C. App. 639, 642-
                                           -13-
44, 661 S.E.2d 43, 45-46 (2008).                   “Our review of a denial of a

motion to suppress by the trial court is ‘limited to determining

whether    the     trial       judge’s     underlying      findings     of     fact    are

supported     by       competent       evidence,    in    which      event     they    are

conclusively       binding        on    appeal,     and    whether     those     factual

findings in turn support the judge’s ultimate conclusions of

law.’”     State v. Barden, 356 N.C. 316, 340, 572 S.E.2d 108, 125

(2002) (quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d

618, 619 (1982)), cert. denied, 538 U.S. 1040, 123 S. Ct. 2087,

155 L. Ed. 2d 1074 (2003).

                         2. Applicable Legal Principles

    N.C. Gen. Stat. § 20-139.1(b)(1) provides that a chemical

analysis    of     a    defendant’s      breath     is    admissible    if     “[i]t    is

performed in accordance with the rules of the Department of

Health     and     Human        Services.”         According      to    10A     N.C.A.C.

41B.0322(2),       which       governs    testing    performed       using     equipment

designed to analyze a defendant’s breath, the analyst must have

ensured    that        the    applicable     “observation      period    requirements

have been met.”              The applicable regulations define “observation

period” as:

            a period during which a chemical analyst
            observes the person or persons to be tested
            to determine that the person or persons has
            not   ingested  alcohol  or  other  fluids,
            regurgitated, vomited, eaten, or smoked in
            the 15 minutes immediately prior to the
                                   -14-
           collection of a breath specimen.          The
           chemical    analyst   may    observe    while
           conducting the operational procedures in
           using a breath-testing instrument.     Dental
           devices or oral jewelry need not be removed.

10 N.C.A.C. 41B.0101(6).         According to well-established North

Carolina law, the State bears the burden of proving compliance

with the “observation period” requirement set out in N.C. Gen.

Stat. § 20-139.1.     State v. Drdak, 101 N.C. App. 659, 664, 400

S.E.2d 773, 775 (1991), rev’d on other grounds, 330 N.C. 587,

411 S.E.2d 604 (1992); State v. Gray, 28 N.C. App. 506, 507, 221

S.E.2d 765, 765 (1976).          In his brief, Defendant argues that

Trooper Brown violated the “observation period” requirement by

leaving Defendant alone on two occasions, failing to observe

that Defendant had wiped his face or mouth on his jacket twice,

and focusing his attention on unrelated activities, and that

these violations of the “observation period” requirement should

have led to the suppression of Defendant’s breath test results.

We do not find this argument persuasive.

                       3. Evidentiary Analysis

      As an initial matter, Defendant was accompanied by Trooper

Brown on both of the occasions when he left the chemical testing

room.   For that reason, we are unable to find any record support

for Defendant’s contention that Trooper Brown left him alone on

two   occasions   during   the    required   observation   period.   In
                                             -15-
addition, Defendant fails to specify the exact conduct in which

Trooper Brown engaged at the time that he allegedly focused his

attention on irrelevant matters.                      However, Trooper Brown did

acknowledge that there were “split second[s]” when his eyes were

not trained directly on Defendant and that there were times

during which his “attention [was both] on [Defendant] and where

[he    was]    going.”          As    a   result,   Defendant’s      contention         that

Trooper       Brown    failed        to   satisfy   the    observation        requirement

hinges upon the fact that, when Trooper Brown and Defendant left

the    testing        room   at      10:06   p.m.   in    order     to    ascertain      if

Defendant’s witness had arrived, Trooper Brown allowed Defendant

to walk behind him and may have failed to observe that Defendant

wiped his mouth on his jacket on two occasions.

       According to Defendant, the term “to observe” means “to

watch    carefully[,]           especially     with      attention       to   details    or

behavior for the purpose of arriving at a judgment.”                             Merriam-

Webster Dictionary.               Although we agree with Defendant that the

concept of “observation” as outlined in 10A N.C.A.C. 41B.0322(2)

contemplates the maintenance of a careful watch over the subject

to be tested, a proper resolution of Defendant’s challenge to

the trial court’s ruling must necessarily depend on the purpose

for which the observation period requirement was imposed.                          As we

have    already        noted,     the     observation      period    requirement         was
                                     -16-
adopted to ensure that “a chemical analyst observes the person

or persons to be tested to determine that the person or persons

has not ingested alcohol or other fluids, regurgitated, vomited,

eaten, or smoked in the 15 minutes immediately prior to the

collection of a breath specimen.”           10A N.C.A.C. 41B.0101(6).           As

a result, since the analyst is supposed to focus his or her

observations on the extent, if any, to which any event that

might affect the accuracy of the test has occurred, nothing in

the relevant regulatory language requires the analyst to stare

at the person to be tested in an unwavering manner for a fifteen

minute period prior to the administration of the test.3                      Thus,

given   that   the     record     shows    that     Trooper      Brown    observed

Defendant over the course of a period of 21 minutes, during

which   Defendant     did   not   “ingest[]       alcohol   or    other    fluids,

regurgitate[],       vomit[],     eat[],    or     smoke[],”      10A     N.C.A.C.

41B.0101(6), and during which Trooper Brown only lost direct

sight of Defendant for very brief intervals in the course of

attempting to ensure that Defendant’s right to the presence of a

witness was adequately protected, we are unable to conclude that

    3
      Our determination to this effect is reinforced by the fact
that the applicable regulations were amended in 2001 so as to
allow   a   single    officer  to   observe  multiple   subjects
simultaneously.    Should an analyst be required to act in the
manner described in Defendant’s brief, an analyst could never,
as the 2001 amendment allows, properly observe more than one
subject at a time.
                                             -17-
the trial court erred by determining that Trooper Brown failed

to comply with the applicable observation period requirement.

As a result, Defendant is not entitled to relief from the trial

court’s judgment based upon the denial of his motion to suppress

the results of the chemical analysis of his breath.

                        C. Trial Court’s Instructions

       Thirdly, Defendant argues that the trial court erred by

instructing      the    jury     that       the     trial   court    had     previously

determined that the breath test upon which the State relied had

been performed in accordance with the applicable regulations, so

that    the   test     results    were       admissible,     and    that     the   video

footage of Defendant’s activities in the breath testing room did

not reflect the actual elapsed time because of the manner in

which   the    video    camera    in     question       operated.      According      to

Defendant,      the      challenged               instructions      constituted       an

impermissible        expression        of      opinion      and     lacked     adequate

evidentiary     support.         We     do    not    find   Defendant’s       arguments

persuasive.

              1. Admissibility of the Chemical Test Results

       In his first challenge to the trial court’s instructions,

Defendant argues that the trial court erred by stating that:

              earlier in this case and out of your
              presence[,]   the  Court   heard   evidence
              regarding the chemical analysis testing of
              the Defendant . . . by Trooper Brown.   The
                                       -18-
             Court has concluded that Trooper Brown
             followed the North Carolina Department of
             Health and Human Services regulations and
             standards regarding the chemical analysis of
             the Defendant’s breath and that the testing
             procedures and test results are admissible
             for purposes of this trial.

The trial court delivered the challenged instruction in light of

the State’s objection to the “attack on the chemical analysis”

made in Defendant’s opening argument.                Although the trial court

allowed Defendant’s trial counsel to attack the credibility of

and   the    weight    to    be   given   to   the     chemical     analysis,   it

concluded that an instruction to the effect that the trial court

had deemed the chemical test results to be admissible would be

appropriate in order to eliminate any concern that the jury

might have about the admissibility of the breath test results.

      In his brief, Defendant contends that the trial court’s

instruction violated N.C. Gen. Stat. § 15A-1222, which provides

that “[t]he judge may not express during any stage of the trial,

any opinion in the presence of the jury on any question of fact

to be decided by the jury,” and N.C. Gen. Stat. § 15A-1232,

which provides that, “[i]n instructing the jury, the judge shall

not express an opinion as to whether or not a fact has been

proved      and    shall    not   be   required   to       state,   summarize   or

recapitulate the evidence, or to explain the application of the

law   to     the    evidence.”         Although      the    relevant    statutory
                                 -19-
provisions   prohibit   the   trial   court    from   “express[ing]    any

opinion as to the weight to be given to or credibility of any

competent evidence presented before the jury,” State v. Fleming,

350 N.C. 109, 126, 512 S.E.2d 720, 733 (internal quotation marks

and citation omitted), cert. denied, 528 U.S. 941, 120 S. Ct.

351, 145 L. Ed. 2d 274 (1999), we are not persuaded that the

trial court expressed such an opinion in this instance.          On the

contrary,    the   challenged    portion      of   the   trial   court’s

instruction related to the admissibility of the chemical test,

which is a legal determination to be made by the trial court,

see N.C. Gen. Stat. § 8C-104(a), rather than an issue of fact to

be determined by the jury.       In addition, Defendant’s argument

overlooks the trial court’s subsequent statement that, “[a]s I

have previously instructed you, you are the sole judges of the

credibility and the weight to be given to any evidence and you

must determine the importance of this evidence in light of all

other believable evidence.”     After carefully analyzing the trial

court’s instructions in their entirety, we are unable to see how

the challenged instruction in any way impinged on the jury’s

right to make a determination concerning the credibility of or

the weight to be given to the chemical test results.                  As a

result, we do not believe that the trial court expressed an

opinion about a matter of fact that the jury was required to
                                       -20-
decide in order to determine whether the aggravating factor set

out in N.C. Gen. Stat. § 20-179(d)(1) existed.

                            2. Testing Room Camera

      Secondly, Defendant challenges the appropriateness of the

trial court’s instruction that:

            on the video that you watched concerning
            [Defendant] and Trooper Brown in the Intox
            room in the Pitt County Sheriff’s Detention
            Center, that the numbers on the bottom of
            that indicate the length of the tape. Okay?
            It is not a true or accurate reflection of
            the time.   The reason being is the cameras
            in the Intox room are . . . motion
            activated.   If someone walks into the room,
            the    camera    will    begin   to   record
            automatically.    In fact, it will start and
            record ten seconds before.      When someone
            walks out of the room, ten seconds later the
            camera will stop. It does not—and then when
            someone walks back into the room, whether
            it’s a minute, two minutes, 10 minutes, or
            30 minutes later, the camera will resume
            recording from where it stopped. So it does
            not show accurate reflections of the length
            of the time.    That number on the bottom is
            the total amount of recorded time.

In   challenging     this   instruction,      Defendant     contends     that   the

record   did   not    contain    any      support   for    the   trial    court’s

comments.      Once   again,    we   do    not   find     Defendant’s    argument

persuasive.

      The testing room video was introduced into evidence at the

hearing concerning the existence of the aggravating factor set

out in N.C. Gen. Stat. § 20-179(d)(1) by Defendant, rather than
                                          -21-
by the State.           Admittedly, the State did introduce the testing

room     video     during       the    hearing     held     in     connection       with

Defendant’s       motion    to     suppress      the   test      results,    at    which

counsel for both parties stipulated to the video’s authenticity

and acknowledged that the video did not accurately depict the

amount    of     time    that    actually     transpired         during     the   events

depicted on the resulting footage given that the camera used to

produce the video stopped recording 10 seconds after any persons

in the testing room left and resumed recording when someone re-

entered the room.           As a result, the parties both appeared to

have agreed during an earlier stage of this proceeding that the

durational information shown on the video did not accurately

reflect    the     time     that      actually    elapsed     during      the     events

depicted on the resulting video footage.

       In the course of his closing argument, Defendant’s trial

counsel implied that the video accurately depicted the amount of

time covered in the recording.                More specifically, Defendant’s

trial counsel argued that:

               Now here’s what we know for absolute sure if
               you look at the video, look at the time.
               From the time Trooper Brown and [Defendant]
               walk out to go to that bathroom until the
               time that they come back in is 35 seconds—35
               seconds.   So he is gone, walked out, gone
               down to the bathroom down the hallway, done
               all these horrible things he’s described and
               come back, and he’s in the room in about 34—
                                       -22-
            it would be 34 seconds if you look at the
            video.

After    the    State    objected     to    the       argument        being     made   by

Defendant’s      trial    counsel    and    requested         the     trial    court   to

deliver a curative instruction, the trial court told Defendant’s

trial counsel that “You’re saying that these things are true

when I know them not to be true, and you’re saying because the

State didn’t prove that, I can argue that they’re not true or

didn’t offer evidence on that.             And . . . I can’t accept that.”

As a result, the trial court gave the curative instruction about

which Defendant now complains.

      As a general proposition, “one who causes . . . the court

to commit error is not in a position to repudiate his action and

assign it as ground for a new [sentencing hearing].”                            State v.

Payne, 280 N.C. 170, 171, 185 S.E.2d 101, 102 (1971); see also

N.C. Gen. Stat. § 15A-1443(c) (stating that “[a] defendant is

not prejudiced . . . by error resulting from his own conduct”).

In view of the fact that the argument advanced by Defendant’s

trial    counsel      conflicted    with    Defendant’s         earlier       assertions

concerning      the   manner   in   which       the    timing       mechanism    on    the

testing room video equipment operated, we see no error of law in

the     trial   court’s     decision       to    correct        the     record     using

information      to    which   Defendant        had,     in     effect,       previously

stipulated.       As a result, Defendant is not entitled to relief
                                       -23-
from the trial court’s judgment on the basis of the alleged

instructional errors discussed in his brief.

                     D. Prosecution by Presentment

      Fourthly, Defendant argues that the State deprived him of

the   equal   protection    of   the    laws   by    initiating     the   present

proceeding using a presentment instead of prosecuting him in

reliance upon the issuance of a citation.4                  More specifically,

Defendant, who is a licensed attorney, argues that he was denied

his   right   to   equal   protection    of    the   laws   given    that   other

attorneys who had been charged with driving while subject to an

impairing substance had been charged using a citation rather

than the presentment process.             Defendant is not entitled to




      4
      As an aside, we note that, although the argument heading
contained in the relevant portion of his brief makes reference
to a due process violation, Defendant did not advance any
argument in the body of his brief to the effect that he had been
deprived of his liberty without due process of law as the result
of the State’s reliance upon the presentment process. For that
reason, Defendant has abandoned any due process claim that he
might have intended to assert.       N.C. R. App. P. 28(b)(6)
(stating that “[i]ssues not presented in a party’s brief, or in
support of which no reason or argument is stated, will be taken
as abandoned.”); Viar v. North Carolina Dep’t of Transportation,
359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005) (stating that
“[i]t is not the role of the appellate courts . . . to create an
appeal for the appellant”). Thus, the discussion in the text of
this opinion will focus entirely on Defendant’s equal protection
claim.
                                   -24-
relief from the trial court’s judgment on the basis of this

argument.5

     As a result of the fact that, as Defendant acknowledges,

attorneys practicing in Pitt and surrounding counties do not

constitute a suspect class, the challenged governmental conduct

must be upheld if “there is            a    rational relationship between

disparity     of   treatment     and       some   legitimate   governmental

purpose.”      Central   State    University      v.   American   Assoc.   of

University Professors, 526 U.S. 124, 128, 119 S. Ct. 1162, 1163,

143 L. Ed. 2d 227, 231 (1999) (citing Heller v. Doe, 509 U.S.

312, 319-21, 113 S. Ct. 2637, 2639, 125 L. Ed. 2d 257, 266

(1993)).     In other words, in        the present context, “the burden

is on the one attacking the [act] to negate every conceivable

basis which might support it.”             Heller, 509 U.S. at 320, 113 S.

Ct. at 2643, 125 L. Ed. 2d at 271 (internal quotation marks and

citations omitted).      As a result, in order to obtain relief from

the trial court’s judgment on the basis of this claim, Defendant
     5
      Although the State has not addressed this issue in its
brief, we question whether Defendant waived his right to
challenge the denial of his dismissal motion on appeal by
pleading guilty.   State v. White, 213 N.C. App. 181, 183, 711
S.E.2d 862, 864 (2011) (holding that a defendant is entitled to
challenge only a limited number of issues after entering a plea
of guilty, with the denial of a dismissal motion not being
included among them) (citations omitted).    However, given that
the parties have not addressed this issue in their briefs in any
detail and the fact that Defendant’s contention lacks merit as a
substantive matter, we will simply assume, without in any way
deciding, that Defendant’s contention is properly before us.
                                         -25-
must    show   that     there   was     no   rational     basis     for   proceeding

against him utilizing the presentment process rather than using

a citation as the charging instrument.

       As the record clearly reflects, Defendant is an attorney

who lives and practices in Pitt County and who has had dealings

with the court system and the District Attorney’s Office.                         For

this    reason,    the      district    court     and    superior    court     judges

residing in Pitt County recused themselves from presiding over

Defendant’s     case     and    the    District    Attorney’s       Office   recused

itself from prosecuting the charge that had been lodged against

Defendant.        For    that   reason,      Defendant    was     prosecuted    by   a

special prosecutor and the trial of this case was presided over

by a jurist brought in from a different division.                     As the State

notes, considerations of judicial economy justified the use of

the presentment process, given that proceeding against Defendant

by presentment rather than citation obviated the necessity for

utilizing a special prosecutor and a non-resident trial judge on

two occasions, rather than one.                 As a result, given that the

State    clearly      had   a   rational      basis     for   proceeding     against

Defendant by means of a presentment rather than on the basis of

a citation, Defendant is not entitled to relief from the trial

court’s judgment on the basis of this argument.

                        E. Prosecutor’s Final Argument
                                                 -26-
       Next, Defendant argues that several comments made during

the prosecutor’s final argument were so grossly improper that

the trial court should have intervened in the absence of an

objection        to    preclude       the       making      of    those        comments.        More

specifically, Defendant contends that, as a result of the trial

court’s         failure     to   preclude            the    making        of    these      improper

prosecutorial          arguments,          he    was       deprived       of    his     state   and

federal     constitutional            right          not   to    be   deprived        of    liberty

without     due       process    of    law.            Once      again,    we    conclude       that

Defendant        is   not    entitled           to    relief      from    the    trial      court’s

judgment on the basis of this argument.

       “[A]rguments of counsel are left largely to the control and

discretion of the trial judge,” with counsel being “granted wide

latitude in the argument of hotly contested cases.”                                        State v.

Fullwood, 343 N.C. 725, 740, 472 S.E.2d 883, 891 (1996), cert.

denied, 520 U.S. 1122, 117 S. Ct. 1260, 137 L. Ed. 2d 339

(1997).         As a result of the fact that Defendant only lodged

contemporaneous objections to two of the comments that he now

challenges on appeal and the fact that the trial court sustained

both       of     Defendant’s          objections,6              appellate        “review       [of

Defendant’s        challenges         to    the       prosecutor’s        jury     argument]      is

       6
      Defendant has not contended that he is entitled to any
relief on the basis of the arguments to which the trial court
sustained Defendant’s objection.
                                               -27-
limited to an examination of whether the argument was so grossly

improper      that       the    trial    [court]          abused    [its]      discretion   in

failing to intervene ex mero motu.”                         State v. Gladden, 315 N.C.

398, 417, 340 S.E.2d 673, 685, cert. denied, 479 U.S. 871, 107

S. Ct. 241, 93 L. Ed. 2d 166 (1986).

       In     his     brief,         Defendant           challenges      the     prosecutor’s

reference to Defendant as “an alcoholic”; her statement that

Defendant       “can       tolerate          his     booze”;       her    contention       that

Defendant sought to “make [Trooper Brown] out to be a liar”; her

question      as    to     whether      “it    seem[s]       reasonable        that   [Trooper

Brown] would give up his career, his integrity, his family, his

livelihood just to get that guy”; her contention that Trooper

Brown    “was       fair       and   because        he’s    honest       and    because    he’s

decent,” “he’s telling the truth”; that Trooper Brown “was out

protecting and serving you” and “did not come in this room and

lie about it”; that the “judge has already told you [that the

time shown on the video footage] is not an accurate time”; that

the “[b]reath test is in.                     It’s done.         It’s absolutely done”;

and    that   “the       only    way    you        can    find   [that    the    breath    test

results]      didn’t       happen       is    if     you    pretend.”           Although    the

prosecutor might have been better advised to refrain from making

some    of    the     challenged         comments,          we     do    not    believe    that

Defendant has established that “the [prosecutor’s] argument was
                                     -28-
so   grossly      improper    that   the    trial     [court]   abused    [its]

discretion in failing to intervene ex mero motu.”                 Gladden, 315

N.C. at 417, 340 S.E.2d at 685.

     A number of the prosecutorial comments to which Defendant’s

argument     is   addressed    relate      to    Defendant’s    status   as   an

alcoholic and the extent to which he had developed a tolerance

for alcoholic beverages, neither of which appear to us to be

directly relevant to the issue of whether Defendant had a blood

alcohol level sufficient to trigger application of the relevant

aggravating factor.          In addition, we have already held that,

given the unusual circumstances present in this case, it was not

error for the trial court to instruct the jury that the time

stamp on the video footage that the jury saw at the hearing held

for the purpose of determining whether the aggravating factor

set out in N.C. Gen. Stat. § 20-179.1(d)(1) existed did not

accurately reflect the time that actually elapsed during the

events depicted on that footage.                A considerable number of the

comments upon which Defendant’s contention is based stemmed from

the prosecutor’s efforts to rebut Defendant’s contention that

the jury should conclude that Trooper Brown’s testimony was not

credible.7     Although a number of the comments that the prosecutor

     7
      For example, Defendant’s trial counsel argued to the jury
that “[t]hat should raise you some concerns . . . about Mr.
Brown’s credibility” and stated, “[h]ow’s his balance and
                                    -29-
made in the course of defending Trooper Brown’s credibility may

lack adequate evidentiary support, we are unable to say that the

making   of   those    comments   rendered   the    hearing   fundamentally

unfair   given   the   strength   of   the   evidence   in    favor   of     the

existence of the aggravating factor upon which the State relied.8

Finally, the prosecutor’s suggestion that the jury would have to

“pretend” in order to refrain from accepting the validity of the

breath   test    results    strikes    us    as    nothing    more    than     a

permissible argument that Defendant’s challenge to the validity

coordination? Is it consistent with what Trooper Brown said?
Because I say that’s a credibility issue[.]”
    8
      In support of his challenge to the prosecutor’s defense of
Trooper Brown’s credibility, Defendant cites our decision in
State v. Potter, 69 N.C. App. 199, 202-04, 316 S.E.2d 359, 360-
64, disc. review denied, 312 N.C. 624, 323 S.E.2d 925 (1984), in
which we granted the defendant a new trial based, at least in
part, on the trial court’s failure to sustain Defendant’s
objections to the prosecutor’s repeated suggestion that the
arresting officers risked being prosecuted for perjury, being
fired from their jobs, and losing their retirement benefits if
they were untruthful, and asked the jury to “form some opinion
in your mind as to who has the most to lose by not telling the
truth in this case.” Id. at 202, 316 S.E.2d at 360. Although
the prosecutor in this case did assert that Trooper Brown would
not “give up his career, his integrity, his family, his
livelihood just to get that guy,” Defendant’s trial counsel did
not object to that statement. In addition, the argument made at
Defendant’s hearing did not tend to place any juror “in the
moral dilemma of either convicting the defendant or, in the
alternative, causing the officers to suffer the grievous
penalties suggested by the prosecutor.” Id. at 204, 316 S.E.2d
at 362. As a result, given the absence of an objection to the
challenged prosecutorial argument and the fundamental difference
between the argument at issue in Potter and the argument at
issue in this case, Potter provides no basis for awarding
Defendant any relief.
                                          -30-
of the breath test results had no merit.                   Thus, for all of these

reasons,      we    are   unable     to    conclude       that    the    prosecutor’s

argument was so grossly improper as to have necessitated ex mero

motu intervention by the trial court.                   As a result, Defendant is

not entitled to relief from the trial court’s judgment on the

basis of his challenge to the prosecutor’s jury argument.

                    F. Defendant’s Double Jeopardy Claim

      Finally, Defendant argues that the trial court violated his

right not to be placed in jeopardy twice for the same offense

given that the State used the breath test result to assist in

establishing       the    factual     basis   for       Defendant’s      plea    and   to

support      the   aggravating       factor      used    to    enhance     Defendant’s

punishment.        We do not find Defendant’s argument persuasive.

      “The    constitutional         prohibition        against    double       jeopardy

protects a defendant from additional punishment and successive

prosecution for the same criminal offense.”                       State v. Sparks,

362   N.C.    181,    186,    657    S.E.2d      655,    658-59    (2008)   (internal

quotation marks and citation omitted).                        Put another way, the

double jeopardy clause protects criminal defendants against a

second    prosecution        for    the   same    offense      after     acquittal,     a

second prosecution for the same offense after conviction, and

multiple punishments for the same offense.                        State v. Gardner,

315   N.C.    444,    451,    340    S.E.2d      701,    707     (1986).        Although
                                         -31-
Defendant        appears    to   claim   that    he   has     been    subjected     to

multiple punishments for the same offense, his argument to this

effect      cannot   succeed     given   that,   instead      of     being    punished

twice, he has been subjected to a more severe punishment for an

underlying        substantive    offense    based     upon    the    fact    that   his

blood alcohol level was higher than that needed to support his

conviction for that offense.9              Defendant had not cited any case

in support of his contention that a double jeopardy violation

occurs in the event that the same item of evidence is used once

to prove an element of a substantive offense and a second time

to support the imposition of an enhanced sentence, particularly

when       the   evidence   in   question   is   used    to    support       different

factual determinations in each instance.                As a result, Defendant

is not entitled to relief from the trial court’s judgment on the

basis of the final argument set out in his brief.

                                  III. Conclusion
       9
      According to N.C. Gen. Stat. § 20-138.1(a), a defendant is
guilty of driving while subject to an impairing substance in the
event that he or she is under the influence of an impairing
substance or has an alcohol concentration of at least 0.08 at
any relevant time after driving. According to N.C. Gen. Stat. §
20-179(d), an aggravating factor that can be used to enhance the
sentence to be imposed upon a person convicted of driving while
impaired exists in the event that the defendant had an alcohol
concentration of at least 0.15 within a relevant time after the
driving.    N.C. Gen. Stat. § 20-179(d)(1).    As a result, one
blood alcohol level suffices to support a finding of the
defendant’s guilt of the substantive offense and a different,
and higher, blood alcohol level suffices to support the
enhancement of the defendant’s sentence.
                                   -32-
      Thus, for the reasons set forth above, we conclude that

none of Defendant’s challenges to the trial court’s judgment

have merit.     As a result, the trial court’s judgment should, and

hereby does, remain undisturbed, except that the judgment should

be,   and    hereby   is,   remanded    to     the   trial    court   for   the

correction of a clerical error.

      NO    ERROR.    REMANDED   TO    TRIAL    COURT   FOR    CORRECTION    OF

CLERICAL ERROR.

      Judges Robert C. HUNTER and MCCULLOUGH concur.
