An unpublished opinion of the North Carolina Court of Appeals does not constitute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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                                  Opinion of the Court



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.”




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                                  STATE V. DAMATO

                                  Opinion of the Court



      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.



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                                   Opinion of the Court



                                     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



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                                   Opinion of the Court



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



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                                   STATE V. DAMATO

                                   Opinion of the Court



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




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                                   STATE V. DAMATO

                                   Opinion of the Court



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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