                                     NO. COA13-764

                          NORTH CAROLINA COURT OF APPEALS

                                  Filed:    1 April 2014


STATE OF NORTH CAROLINA

     v.                                        Mecklenburg County
                                               No. 09 CRS 259652
JOANNA LEIGH BECK



     Appeal by defendant from judgment entered 26 November 2012

by Judge Christopher W. Bragg in Mecklenburg County Superior

Court.    Heard in the Court of Appeals 20 November 2013.


     Roy Cooper, Attorney General, by Joseph L. Hyde, Assistant
     Attorney General, for the State.

     Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr.,
     for defendant-appellant.


     DAVIS, Judge.


     Joanna       Leigh    Beck    (“Defendant”)    appeals   from   a   judgment

entered upon a jury verdict finding her guilty of driving while

impaired.     Defendant’s sole argument on appeal is that the trial

court     erred    in     denying     her    request   for    a   special    jury

instruction regarding the jury’s ability to determine the weight

to be accorded to the results of a chemical analysis.                       After

careful review, we conclude that Defendant received a fair trial

free from error.
                                             -2-
                                  Factual Background

      Defendant was arrested on 12 December 2009 at a checkpoint

and   charged      with         driving    while     impaired.          Defendant         was

convicted in Mecklenburg County District Court, and she appealed

to the superior court for a trial de novo.

      At    trial,        the     State’s     evidence        tended    to        show    the

following:    On     12    December        2009,    at   approximately       1:00        a.m.,

Officer Matthew Pressley (“Officer Pressley”) of the Charlotte-

Mecklenburg     Police      Department        was    assisting    with       an    impaired

driving checkpoint on Park Road near Archdale Drive.                                Officer

Pressley     approached          Defendant’s        vehicle    and     asked       for     her

license.     As he spoke to Defendant, he observed that her eyes

were “glossy and bloodshot” and that there was “a strong odor of

alcoholic beverage about her breath.”                      Officer Pressley asked

Defendant    if    she      had     been    drinking      that    evening,         and    she

responded that she had consumed two mixed vodka drinks.                             Officer

Pressley then asked Defendant to step out of her vehicle.

      Officer Pressley administered three field sobriety tests:

(1) the horizontal gaze nystagmus test; (2) the walk-and-turn

test; and (3) the one-leg stand test.                         Based on Defendant’s

performance on these three tests, Officer Pressley believed that

she was impaired.          He arrested Defendant and then administered a
                                           -3-
“breath test,”         using the     Intoxilyzer EC/IR II machine.                   The

machine registered that Defendant’s breath sample had an alcohol

concentration of .10.

      Defendant     presented       evidence     at    trial,    including        expert

testimony from Julian Douglas Scott (“Scott”), who was accepted

by the trial court as an expert witness in the detection of

impaired driving and in the administration of standardized field

sobriety      tests.      Scott     disagreed         with   several      of     Officer

Pressley’s conclusions regarding how many signs of impairment

could   be    gleaned     from    Defendant’s      performance       on    the    tests

Officer      Pressley    had     administered.         Scott    also   opined       that

Officer Pressley should have conducted several additional field

sobriety tests before concluding that Defendant was impaired.

      At the charge conference, Defendant objected to the use of

the pattern jury instruction for the offense of driving while

impaired     and   proposed      adding    one   of    two     alternative       special

instructions emphasizing to the jury that it was not compelled

to find that Defendant’s blood alcohol concentration was .08 or

above based on the results of a chemical analysis indicating

that Defendant’s blood alcohol concentration was .08 or above.

The   trial     court    declined     to    give      either    of   the       requested
                                        -4-
instructions    and    instead    used     Pattern    Instruction     270.20A   to

instruct the jury as to the driving while impaired charge.

    The jury found Defendant guilty of driving while impaired,

and the trial court entered judgment on the verdict.                   The trial

court sentenced Defendant to 60 days imprisonment, suspended the

sentence, and placed her on 12 months of unsupervised probation.

Defendant gave timely notice of appeal.

                                    Analysis

    Defendant argues that the trial court erred in denying her

request   for   a   special      jury    instruction    because      the   pattern

instruction     used   by   the    trial      court   misled   the    jury.     We

disagree.

    The trial court — using Pattern Jury Instruction 270.20A —

charged the jury in pertinent part as follows:

                 The defendant has been charged with
            impaired driving.    For you to find the
            defendant guilty of this offense, the State
            must prove three things beyond a reasonable
            doubt:

                 First, that the defendant was driving .
            . . . a vehicle.

                 Second, that the defendant was driving
            that vehicle upon a street within the state.

                 And, third, that at the time the
            defendant was driving that vehicle, the
            defendant: One, was under the influence of
            an impairing substance.     Alcohol is an
                              -5-
         impairing substance. The defendant is under
         the influence of an impairing substance when
         the defendant has consumed a sufficient
         quantity of that impairing substance to
         cause the defendant to lose the normal
         control of the defendant’s bodily or mental
         faculties or both to an extent that there
         has been appreciable impairment of either or
         both of these faculties; or, two, had
         consumed sufficient alcohol that at any
         relevant   time   after   the  driving   the
         defendant had an alcohol concentration of
         0.08 or more grams of alcohol per 210 liters
         of breath. A relevant time is anytime after
         the driving that the driver still has in the
         body alcohol consumed before or during the
         driving.

              The results of a chemical analysis are
         deemed   sufficient   evidence  to  prove   a
         person’s alcohol concentration. If you find
         from the evidence beyond a reasonable doubt
         that on or about the alleged date the
         defendant drove a vehicle on a street in
         this state and that when doing so the
         defendant was under the influence of an
         impairing    substance    or   had   consumed
         sufficient alcohol that at any relevant time
         after the driving the defendant had an
         alcohol concentration of 0.08 or more, it
         would be your duty to return a verdict of
         guilty.   If you do not so find or have a
         reasonable doubt as to one or more of these
         things, it would be your duty to return a
         verdict of not guilty.

    The special instructions requested by Defendant would have

informed the jury that (1) the results of the chemical analysis

did not create a presumption that Defendant was impaired or that

Defendant had an alcohol concentration of .08 or greater; (2)
                                   -6-
the jury was permitted to find that Defendant had an alcohol

concentration of .08 or greater based on the results of the

chemical analysis but was not required to do so; and (3) the

jury was allowed to consider the credibility and weight to be

accorded to the results of the chemical analysis.

     When a defendant requests a special jury instruction, “the

trial court is not required to give [the] requested instruction

in the exact language of the request.        However, when the request

is correct in law and supported by the evidence in the case, the

court must give the instruction in substance.”             State v. Monk,

291 N.C. 37, 54, 229 S.E.2d 163, 174 (1976).            Thus, in order for

a   defendant   to   establish    error,   she     “must   show    that     the

requested   instructions   were   not    given    in   substance   and    that

substantial evidence supported the omitted instructions.”                 State

v. Garvick, 98 N.C. App. 556, 568, 392 S.E.2d 115, 122, aff’d

per curiam, 327 N.C. 627, 398 S.E.2d 330 (1990).             The defendant

also bears the burden of showing that the jury was misled or

misinformed by the instructions given. State v. Blizzard, 169

N.C. App. 285, 297, 610 S.E.2d 245, 253 (2005).

     In Garvick, the defendant requested a similar instruction

relating to the results of a chemical analysis in connection

with a driving while impaired charge.            Garvick, 98 N.C. App. at
                                               -7-
567-68, 392 S.E.2d at 122.                 The requested instruction stated as

follows:       “[N]o legal presumption attaches to the results of a

breathalyzer        test.        You,     members      of    the    jury,   are    still    at

liberty to acquit the defendant if you find that his alcohol

concentration was not proven to be [.08] or more . . . beyond a

reasonable doubt.”           Id. at 567, 392 S.E.2d at 122.                  We concluded

that the language of the pattern jury instruction contained the

defendant’s         requested       instruction         in     substance       because      it

explained      to    the    jury        that   it     must    be    convinced      beyond    a

reasonable doubt that the defendant’s alcohol concentration was

above the legal limit.             Id. at 568, 392 S.E.2d at 122.

      Likewise, in the present case, the trial court’s use of the

pattern jury instruction                 informed      the jury that in order to

return    a    verdict      of    guilty,      it     must    be    convinced      beyond    a

reasonable doubt that Defendant’s alcohol concentration was .08

or more.       This instruction informed the jury, in substance, that

it was not compelled to return a guilty verdict based simply on

the   chemical         analysis           results       showing        a    .10      alcohol

concentration.

      Furthermore,          as    Defendant          acknowledges,      this      Court    has

already       determined         that    the    language       in    the    pattern       jury

instruction stating that the “results of a chemical analysis are
                                    -8-
deemed   sufficient      evidence   to     prove   a    person’s     alcohol

concentration”    does    not   create     an   impermissible       mandatory

presumption.     State v. Narron, 193 N.C. App. 76, 85, 666 S.E.2d

860, 866 (2008), disc. review denied, 363 N.C. 135, 674 S.E.2d

140, cert. denied, 558 U.S. 818, 175 L.Ed.2d 26 (2009).              Rather,

as we explained in Narron, this quoted language — which is used

in both the driving while impaired statute (N.C. Gen. Stat. §

20-138.1) and the pattern jury instruction — “simply authorizes

the jury to find that the report is what it purports to be — the

results of a chemical analysis showing the defendant’s alcohol

concentration.”    Id. at 84, 666 S.E.2d at 866.

    Defendant argues that this language in the trial court’s

instructions likely misled the jury and caused it to erroneously

believe that “it could not consider [the] positive evidence of

[Defendant’s] non-impairment in deciding whether the results of

the chemical analysis were credible and what weight to give it.”

Accordingly, she argues, the requested instruction was necessary

to inform the jury that it had the ability to conclude that the

results of the chemical analysis were not credible.

    However,     Defendant’s    argument   ignores     the   fact   that   the

trial court expressly instructed the jury that (1) it was the

“sole judge[] of the weight to be given [to] any evidence”; (2)
                                        -9-
it was the jury’s “duty to decide from [the] evidence what the

facts are”; (3) the jury “should weigh all the evidence in the

case”; and (4) the jury “should consider all of the evidence.”

    These instructions informed the jury that it possessed the

authority to determine the weight of any evidence offered to

show that Defendant was — or was not — impaired.                     See State v.

Nicholson, 355 N.C. 1, 60, 558 S.E.2d 109, 148, cert. denied,

537 U.S. 845, 154 L.Ed.2d 71 (2002) (“We presume that jurors pay

close   attention     to    the   particular         language   of   the    judge’s

instructions    in    a    criminal    case    and    that   they    undertake     to

understand, comprehend, and follow the instructions as given.”

(citation     and    internal     quotation     marks     omitted));       State   v.

Holden, 346 N.C. 404, 438-39, 488 S.E.2d 514, 533 (1997) (“In

determining the propriety of the trial judge’s charge to the

jury,   the   reviewing     court     must    consider    the   instructions       in

their   entirety,     and   not   in   detached       fragments.”      (citation,

quotation marks, and brackets omitted)), cert. denied, 522 U.S.

1126, 140 L.Ed.2d 132 (1998).

    We therefore conclude that the trial court did not err in

declining to give either of the special instructions requested

by Defendant.       Accordingly, Defendant’s argument is overruled.

                                    Conclusion
                              -10-
    For the reasons stated above, we conclude that Defendant

received a fair trial free from error.

    NO ERROR.

    Judges ELMORE and McCULLOUGH concur.
