An unpublished opinion of the North Carolina Court of         Appeals does not constitute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



                                     NO. COA13-1013
                             NORTH CAROLINA COURT OF APPEALS

                                   Filed:   1 April 2014

STATE OF NORTH CAROLINA

      v.                                         Mecklenburg County
                                                 No. 09 CRS 86046

SAM DAVID ANDREWS



      Appeal by defendant from judgment entered 28 February 2013

by Judge Sharon Tracey Barrett in Mecklenburg County Superior

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


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

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


      HUNTER, Robert C., Judge.

      Sam     David      Andrews       (“defendant”)      appeals    from    judgment

sentencing        him    to   18   months   of   unsupervised       probation    after

being convicted of driving while impaired.                      On appeal, defendant

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

sample evidence without all members of the chain of custody

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


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

sample    results         to    be   introduced          as     evidence         when    the    State

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

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

concerning       the           blood        sample           results        that        constituted

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

dismiss for insufficiency of the evidence.

    After careful review, we find no error.

                                            Background

    The evidence presented at trial tended to establish the

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

Officer       John    Reibold          of    the        Charlotte       Mecklenburg            Police

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

intersection         of    Providence          Road          and   Ardrey         Kell    Road    in

Charlotte, North Carolina.                  Upon arrival and after speaking with

defendant, Officer Reibold noticed defendant had a strong odor

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

Defendant also admitted to Officer Reibold he had consumed five

alcoholic drinks within the past five hours and should not have

been driving that night.

    Officer Reibold next inspected defendant’s car and found an

open alcohol container in the passenger area.                                    Officer Reibold

then requested that defendant perform a series of field sobriety

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


the complete series of sobriety tests, the medics approached and

transported defendant to the hospital.             Officer Reibold followed

the ambulance to the hospital to continue his investigation.

      After arriving at the hospital and locating defendant in

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

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

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

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

the form, and defendant gave Officer Reibold verbal consent to

perform    a   blood     draw   chemical      analysis.       Officer    Reibold

prepared the blood draw kit and necessary paperwork and watched

as a registered nurse from the hospital obtained two vials of

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

blood from the nurse, Officer Reibold labeled both vials and

placed them into a plastic blood kit.                 Officer Reibold then

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

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

and sealed the box with red evidence tape.

      Next, Officer Reibold issued defendant a citation for DWI

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

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

exclusive possession until it was submitted to CMPD property

control later that morning.

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


chemical   analyst,      received    defendant’s        blood       kit    from    CMPD

property     control      for     testing.             After        verifying       the

identification numbers and ensuring the blood kit had not been

tampered with, Ms. Charlesworth analyzed the blood inside and

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

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

resealed the box with labels containing her signature and the

date.

      Defendant was charged with DWI and possession of an open

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

open container charge was voluntarily dismissed before trial.

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

convicted defendant of DWI.          Defendant was sentenced as a Level

III   offender   after    admitting       to   one    aggravating         factor    and

sentenced to six months imprisonment.                The trial court suspended

the sentence, and defendant was placed on unsupervised probation

for eighteen months.       Defendant appealed.

                                    Arguments

I.    Admissibility of the Blood Sample Results

      Defendant first argues the trial court erred by admitting

blood   sample   evidence       without    all   members       in    the    chain    of

custody having been present during his trial.                         Specifically,

defendant contends the absence of these individuals in the chain

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


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

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

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

We disagree.

    Defendant               mistakenly        phrases         his         argument           as     a

constitutional              violation;       however,        his         argument       actually

challenges an evidentiary ruling on the chain of custody.                                          A

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

custody   is      questioned          is    reviewed     for       abuse       of   discretion.

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

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

determination          is    manifestly       unsupported          by    reason       and    is    so

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

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

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

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

against a defendant is . . . inadmissible unless the witness

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

defendant        had    a      prior       opportunity       for        cross-examination.”

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

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

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

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

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


the defendant’s Sixth Amendment rights for drug analysis results

to be admitted without the chemical analyst being present at

trial    or   having    been   cross-examined          by    the   defendant   before

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

case    is    easily    distinguished     from    Melendez-Diaz        because    the

chemical      analyst    who   provided    the    blood       test   results,    Anne

Charlesworth,      was     present      and      was        cross-examined     during

defendant’s trial.         All chain of custody testimony concerning

defendant's blood sample was taken from Anne Charlesworth and

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

them.

       Furthermore, the trial court never admitted testimony from

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

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

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

Court specifically noted in Melendez-Diaz that:

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

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


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

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

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

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

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

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

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

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

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

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

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

the    evidence    as   it   is    presented    can   reasonably   support     a

conclusion that the blood sample analyzed is the same as that

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

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

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

       Here, Officer Reibold testified at trial that he personally

watched      the   registered      nurse      withdraw   defendant’s    blood,

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

the blood sample in two labeled containers with evidence tape

before personally submitting defendant’s blood sample to CMPD

property control.        Officer Reibold also testified generally as

to the secure conditions present at CMPD property control.                  Anne

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


from     CMPD    property          control,          she     immediately      examined       the

sample’s identification numbers for accuracy and inspected the

sample    for    evidence          of    tampering.           Anne    Charlesworth         later

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

her testing was complete.

       There     was       ample    testimony          presented        by   the     two    most

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

conclude     the      blood    sample          was    the    same    as    that    taken    from

defendant       and    had    undergone          no    material       change.        Moreover,

defendant       has    presented          no    evidence       that       defendant’s      blood

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

we    find   the      trial       court    did        not    abuse    its    discretion       in

admitting the blood test results.

II.    Consent to Perform Chemical Analysis

       Defendant next contends the results of the blood sample

should not have been introduced at trial because the blood draw

was      based        on      a         warrantless,           nonconsensual          seizure.

Specifically,         defendant         argues        that    Officer      Reibold    did    not

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

20-16.2.       We disagree.

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

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


                 notice in writing . . . .

      Officer Reibold testified that after he located defendant

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

written     presentation           of   his    rights       to       consent    or     refuse    a

chemical analysis.                Officer Reibold also testified that after

notifying defendant of his rights, defendant verbally consented

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

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

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

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

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

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

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

Since      the    only    evidence       presented          at       trial    showed    Officer

Reibold followed the provisions of the statute and defendant

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

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

allowing the blood test results into evidence.

III. Admissibility of Hearsay

      Defendant          next     argues      that        the    trial       court   erred      in

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

hearsay statements to authenticate defendant’s blood sample.                                    We

disagree.

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


with regard to the admission of evidence alleged to be hearsay

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

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

       Hearsay     is     “a     statement          other      than     one      made     by    the

declarant while testifying at the trial or hearing, offered into

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

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

corroborate      trial       testimony         do    not    constitute        hearsay.           See

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

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

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

testimony” because it did not constitute hearsay).

       Defendant argues that the trial court erred in allowing

Officer Reibold and Anne Charlesworth to testify as to certain

identification          information         they       wrote      on    defendant’s            blood

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

the    transcript       reveals       Officer        Reibold      and     Anne    Charlesworth

testified    only       to     the    signatures,           dates,      and    identification

information they personally placed on the blood sample kit and

the    general     security          precautions           used   by    property         control.

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

identification          statements         only       corroborated            their      in-court

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

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


overruling defendant’s hearsay objections at trial or admitting

Officer Reibold’s or Anne Charlesworth’s testimony concerning

the blood sample results.

IV.   Motion to Dismiss

      Finally, defendant argues the trial court erred when it

denied his motion to dismiss for insufficiency of the evidence.

Specifically,          defendant        contends       the    State     did   not     present

sufficient evidence that defendant had been operating a motor

vehicle while impaired.                 We disagree.

      “The    denial          of    a    motion       to   dismiss    for     insufficient

evidence     is    a    question        of   law,     which    this   Court     reviews     de

novo.”     State v. Bagley, 183 N.C. App. 514, 523, 644 S.E.2d 615,

621 (2007)        (quotations and citations omitted).                         A motion to

dismiss is reviewed for “whether the State presented substantial

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

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

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

      Here, defendant was charged with driving while impaired in

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

convicted of driving while impaired, the State must prove the

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

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

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

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


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

      Defendant      first     argues     the    State      failed        to     present

substantial independent evidence he was driving on the date of

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

driving, presence at the accident scene, and injuries consistent

with being in an auto accident constitute substantial evidence

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

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

defendant     not    only    admitted     he    was    driving      but    also     that

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

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

conclude the trial court had substantial evidence defendant was

driving.

      Next,     Defendant      argues      the     State      did     not        present

substantial evidence of impairment.              Evidence that a defendant’s

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

alcohol about him, and defendant admitted to drinking earlier in

the night constitutes substantial evidence of impairment.                          State

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

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

not     impaired     on      his   previous        argument      concerning          the

admissibility of the blood sample results, as discussed, the

blood    sample     results    were     properly      admitted      into       evidence.

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


had   a   .23   blood-alcohol   concentration      combined   with   evidence

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

speech, and an odor of alcohol about him constituted substantial

evidence of impairment.

      Therefore,    in   summary,   the    State    presented   substantial

evidence defendant was operating a motor vehicle while impaired,

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

dismiss.

                                Conclusion

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

from error.



NO ERROR.

Judges McGEE and ELMORE concur.

Report                   per                  Rule                    30(e).
-14-
