An unpublished opinion of the North Carolina Court of Appeals does not constitute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



                                NO. COA14-22
                       NORTH CAROLINA COURT OF APPEALS
                              Filed:    19 August 2014

STATE OF NORTH CAROLINA

                                              Macon County
      v.
                                              Nos. 12 CRS 51062, 702006

ALFRED MICHAEL SCRUGGS


      Appeal by defendant from judgments entered 24 July 2013 by

Judge Marvin P. Pope in Macon County Superior Court.                     Heard in

the Court of Appeals 4 August 2014.


      Attorney General Roy Cooper, by Special                   Deputy    Attorney
      General Neil Dalton, for the State.

      Jon W. Myers for defendant-appellant.


      ERVIN, Judge.


      Defendant     Alfred    Michael     Scruggs    appeals     from    judgments

sentencing him to active terms of imprisonment based upon his

convictions for driving while subject to an impairing substance

and   driving      while   license     revoked.        On     appeal,    Defendant

contends that the trial court erred by denying his motions to

dismiss the driving while subject to an impairing substance and

driving    while    license     revoked    charges     that    had   been   lodged
                                          -2-
against him for insufficiency of the evidence.                         After careful

consideration      of    Defendant’s      challenges      to    the    trial    court’s

judgments in light of the record and the applicable law, we

conclude    that        the    trial     court’s     judgments        should    remain

undisturbed.

                              I. Factual Background

                               A. Substantive Facts

    At approximately 1:00 a.m. on 18 October 2012, Corporal

Michael    Langley,      Sr.,    of    the   Macon     County    Sheriff’s       Office

responded   to     a    report    that    there    had   been    a     motor    vehicle

accident on West Old Murphy Road in Macon County.                       Upon arriving

at the scene of the accident, Corporal Langley observed a tan

Ford Explorer lying in the middle of the road with the driver’s

side of the vehicle against the pavement.                      As a result of the

fact that Defendant was still in the vehicle, he had to be

extricated through the rear window and tailgate area.                           At the

time of his      removal       from the      wrecked     vehicle, Defendant         was

“wobbly,”    “unstable,”         and     needed    assistance         from    emergency

medical personnel.            After Trooper Brandon Padgett of the North

Carolina State Highway Patrol arrived on the scene, Corporal

Langley    turned      responsibility        for   investigating        the    accident

over to him.
                                             -3-
       At the time that Trooper Padgett located Defendant, he was

standing in an ambulance completing various documents.                                     After

determining        that     the    vehicle    that     had    been      involved       in    the

accident was registered to Defendant, Trooper Padgett returned

to the location at which Defendant was situated and asked him to

step    out   of     the    ambulance.         At    the     time      that    he   left    the

ambulance,      Defendant         was     unsteady     on     his      feet     and    needed

assistance.        As he assisted Defendant, Trooper Padgett detected

a “very strong” odor of alcohol about Defendant’s breath and

person.       When he began interviewing Defendant, Trooper Padgett

asked    Defendant         to    lean    against    his     patrol      vehicle       so    that

Defendant      did         not     fall.       According          to    Trooper       Padgett,

Defendant was “very unsteady,” “[h]is speech was very slurred

and mumble-ish,” his “eyes were very glassy and droopy,” and he

“kept his head down.”

       At the time that he spoke with Defendant, Trooper Padgett

asked    Defendant         what    had     happened.         In     response,       Defendant

stated that “‘I’m f[-]ed up,’ and ‘I really f[-]ed up,’ and ‘I

didn’t do anything.’”              After refusing to take a breath test or

perform any field sobriety tests, Defendant told Trooper Padgett

to take him to jail.               However, instead of being transported to

the Macon County Jail, Defendant was                         taken to         the   hospital,
                                                -4-
where Officer Padgett heard him tell medical personnel that he

had consumed “[t]welve beers, no, eight, no, six.”

                                     B. Procedural History

     On       18    October          2012,    citations         charging     Defendant      with

driving       while          subject    to    an     impairing       substance,       reckless

driving, driving while license revoked, and driving a vehicle

containing         an    open     container         of    an    alcoholic     beverage      were

issued.       On 8 May 2013, Defendant was found guilty of driving

while    subject         to     an     impairing         substance    and    driving       while

license revoked.1              Based upon Defendant’s pleas, Judge Monica H.

Leslie entered judgments sentencing Defendant to a term of 24

months imprisonment based upon his conviction for driving while

subject to an impairing substance and to a consecutive term of

60 days imprisonment based upon his conviction for driving while

license revoked.               Defendant noted an appeal from Judge Leslie’s

judgment to the Macon County Superior Court for a trial de novo.

     On 17 June 2013, the State filed a notice announcing that

it   intended           to     prove    as    grossly          aggravating       factors    that

Defendant had been convicted of driving while subject to an

impairing      substance          on    two   occasions          within    the    seven    years

prior    to    18       October        2012   and     that      Defendant’s       license    was

revoked as the result of an impaired driving conviction on 18
     1
      The reckless driving and open container                                    charges    were
dismissed at the end of the State’s evidence.
                                       -5-
October 2012.         The charges against Defendant came on for hearing

before the trial court and a jury at the 22 July 2013 criminal

session of the Macon County Superior Court.                  On 24 July 2013,

the jury returned verdicts convicting Defendant of driving while

subject    to    an   impairing   substance    and   driving      while   license

revoked and finding that Defendant “ha[d] two convictions for

impaired driving which occurred within seven (7) years before

the date of this offense” and that “Defendant drove at the time

of the current offense, while [his] drivers license was revoked

under   [N.C.     Gen.    Stat.   §]   20-28   and   the    revocation    was   an

impaired    driving      revocation    under    [N.C.      Gen.   Stat.   §]    20-

28.2(a).”       At the conclusion of the ensuing sentencing hearing,

the trial court determined that Defendant should be sentenced as

an aggravated Level I offender in the case in which he had been

convicted of driving while subject to an impairing substance and

entered judgments sentencing Defendant to a term of 36 months

imprisonment based upon his conviction for driving while subject

to am impairing substance and to a consecutive term of 120 days

imprisonment based upon his conviction for driving while license

revoked.    Defendant noted an appeal to this Court from the trial

court’s judgments.

                        II. Substantive Legal Analysis
                                      -6-
       In his brief, Defendant argues that the trial court erred

by denying his motions to dismiss the driving while subject to

an impairing substance and driving while license revoked charges

that   had     been   lodged   against   him   for   insufficiency   of   the

evidence.      More specifically, Defendant contends that the record

evidence did not suffice to support a determination that he was

operating a motor vehicle on the night of 18 October 2012.                We

do not find Defendant’s argument persuasive.

       “‘Upon defendant’s motion for dismissal, the question for

the Court is whether there is substantial evidence (1) of each

essential element of the offense charged, or of a lesser offense

included therein, and (2) of defendant’s being the perpetrator

of such offense.       If so, the motion is properly denied.’”          State

v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (quoting

State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)),

cert. denied, 531 U.S. 890, 121 S. Ct. 213, 148 L. Ed. 2d 150

(2000).        “In making its determination, the trial court must

consider       all    evidence    admitted,      whether    competent      or

incompetent, in the light most favorable to the State, giving

the    State    the    benefit   of   every    reasonable   inference     and

resolving any contradictions in its favor.”             State v. Rose, 339

N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515

U.S. 1135, 115 S. Ct. 2565, 132 L. Ed. 2d 818 (1995).
                                     -7-
    “The essential elements of [driving while subject to an

impairing substance] are:     (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. Mark, 154 N.C. App. 341, 345, 571 S.E.2d

867, 870 (2002), aff’d, 357 N.C. 242, 580 S.E.2d 693 (2003) (per

curiam) (citing N.C. Gen. Stat. § 20-138.1).              “To convict a

defendant . . . of driving while his license is revoked the

State must prove beyond a reasonable doubt (1) the defendant’s

operation of a motor vehicle (2) on a public highway (3) while

his operator’s license is revoked.”           State v. Richardson, 96

N.C. App. 270, 271, 385 S.E.2d 194, 195 (1989) (citing State v.

Atwood, 290 N.C. 266, 271, 225 S.E.2d 543, 545 (1976)).                 The

State   must   also   prove   that     the   defendant   had   actual    or

constructive knowledge of the revocation of his license.          Id.

    In reliance upon our decision in State v. Ray, 54 N.C. App,

473, 475, 283 S.E.2d 823, 825 (1981) (holding that evidence that

the defendant was observed “‘halfway [in] the front seat’” of a

vehicle did not suffice to support a determination that the

defendant had been driving the vehicle), Defendant claims that

his mere presence in the wrecked vehicle, which is all that he

conceded that the record showed, did not suffice to support a

determination that he had been driving.          We also noted in Ray,
                                            -8-
however, that, even though “other circumstantial evidence . . .

would have bolstered the State’s case,” none was offered.                            Id.

The additional circumstantial evidence lacking in Ray is clearly

present here.

       The record developed at trial in this case demonstrated

that (1) Defendant was found alone in the vehicle; (2) Defendant

could       not   extricate       himself    from    the   vehicle,       allowing    a

reasonable        juror     to     conclude       that,    if    Defendant      needed

assistance to exit the vehicle, any other occupants would have

needed such assistance as well; (3) Defendant made remarks, such

as     “I    really      f[-]ed    up,”     which    could      be   viewed    as    an

incriminating admission that Defendant knew that he had done

something that he should have refrained from doing; and (4) the

vehicle was registered in Defendant’s name.                     In view of the fact

that the evidence contained in this record showed considerably

more    than      that    Defendant    had    been    discovered     in    a   wrecked

vehicle, we have no hesitation in concluding that the record

provided ample justification for a decision that Defendant was

driving the Ford Explorer involved in the accident on the night

in question.             As a result, the trial court did not err by

denying Defendant’s dismissal motions.

                                   III. Conclusion
                                      -9-
    Thus,       for   the   reasons    set   forth   above,    Defendant’s

challenges to the trial court’s judgments lack merit.                   As a

result,   the    trial   court’s   judgments   should,   and   hereby    do,

remain undisturbed.

    NO ERROR.

    Judges ROBERT C. HUNTER and STEPHENS concur.

    Report per Rule 30(e).
