              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                        No. COA17-497

                               Filed: 7 November 2017

Forsyth County, Nos. 14 CRS 54918, 716209-11

STATE OF NORTH CAROLINA

             v.

ANTHONY JAMES SQUIREWELL II


      Appeal by defendant from judgments entered 15 November 2016 by Judge

Edwin G. Wilson, Jr., in Forsyth County Superior Court. Heard in the Court of

Appeals 3 October 2017.


      Attorney General Joshua H. Stein, by Assistant Attorney General Christine
      Wright, for the State.

      Charlotte Gail Blake for defendant.


      ARROWOOD, Judge.


      Anthony James Squirewell II (“defendant”) appeals from judgments entered

upon his convictions for habitual impaired driving, speeding, possessing an open

container of alcohol in the passenger area of a motor vehicle, resisting a public officer,

and driving while license revoked for impaired driving. For the following reasons, we

find no error in defendant’s trial below.

                                   I.       Background
                                 STATE V. SQUIREWELL

                                   Opinion of the Court



      As a result of a traffic stop just after noon on 20 May 2014, defendant received

North Carolina Uniform Citations for driving while impaired, speeding, providing

false identifying information to the State Highway Patrol, driving while license

revoked, consuming alcohol in the passenger area of a motor vehicle, and resisting a

public officer. On 2 March 2015, a Forsyth County Grand Jury indicted defendant on

charges of habitual impaired driving, speeding, driving while license revoked for

impaired driving, possessing an open container of alcohol in the passenger area of a

motor vehicle, and resisting a public officer.

      Prior to the case coming on for trial, defendant entered a guilty plea to driving

while license revoked for impaired driving. The remaining charges were then tried

before a jury in Forsyth County Superior Court beginning 14 November 2016, the

Honorable Edwin G. Wilson, Jr., Judge presiding. On 15 November 2016, the jury

returned verdicts finding defendant guilty of the remaining charges. The trial court

consolidated the offenses for which the jury convicted defendant and entered

judgment sentencing defendant to a term of 21 to 35 months imprisonment. The trial

court entered a separate judgment sentencing defendant to a consecutive term of 120

days imprisonment for his guilty plea to driving while license revoked for impaired

driving. Defendant timely appealed.

                                   II.    Discussion




                                          -2-
                                STATE V. SQUIREWELL

                                  Opinion of the Court



      Defendant raises the following two issues on appeal: whether the trial court

erred by (1) allowing testimony to be admitted into evidence concerning the results of

the chemical analysis of his breath test; and (2) denying his motion to dismiss the

open container charge.

                         A.    Results of Chemical Analysis

      Defendant first contends the trial court erred in allowing a state trooper to

testify about the results of the chemical analysis of his breath test because the State

failed to provide an adequate foundation for the testimony. The trial court allowed

the testimony into evidence at trial over defendant’s objection.

      N.C. Gen. Stat. § 20-139.1 provides that “a person’s alcohol concentration or

the presence of any other impairing substance in the person’s body as shown by a

chemical analysis is admissible in evidence.” N.C. Gen. Stat. § 20-139.1(a) (2015).

Yet, “[b]ecause so much weight and deference is given to a chemical analysis test, it

is necessary that a proper foundation be laid before admitting evidence as to the

outcome of a chemical analysis test in a driving while impaired case.” State v. Roach,

145 N.C. App. 159, 161-62, 548 S.E.2d 841, 844 (2001).

             A chemical analysis of the breath . . . is admissible in any
             court or administrative hearing or proceeding if it meets
             both of the following requirements:

                (1) It is performed in accordance with the rules of the
                    Department of Health and Human Services.

                (2) The person performing the analysis had, at the time


                                         -3-
                                STATE V. SQUIREWELL

                                  Opinion of the Court



                   of the analysis, a current permit issued by the
                   Department of Health and Human Services
                   authorizing the person to perform a test of the
                   breath using the type of instrument employed.

N.C. Gen. Stat. § 20-139.1(b). “In order to satisfy the second of these requirements,

it is not obligatory that a copy of the necessary permit be introduced into evidence.”

State v. Franks, 87 N.C. App. 265, 267, 360 S.E.2d 473, 474 (1987) (citing State v.

Powell, 10 N.C. App. 726, 179 S.E.2d 785, aff’d, 279 N.C. 608, 184 S.E.2d 243 (1971)).

The second requirement is satisfied

             (1) by stipulation between the defendant and the State that
             the individual who administers the test holds a valid
             permit issued by the Department of Human Resources; or
             (2) by offering the permit of the individual who administers
             the test into evidence and in the event of conviction from
             which an appeal is taken, by bringing forward the exhibit
             as a part of the record on appeal; or (3) by presenting any
             other evidence which shows that the individual who
             administered the test holds a valid permit issued by the
             Department of Human Resources.

State v. Mullis, 38 N.C. App. 40, 41, 247 S.E.2d 265, 266 (1978).

      In this case, there was no stipulation and the State did not offer a permit into

evidence. The State instead sought to provide a foundation for the results from the

chemical analysis of defendant’s breath test through the following testimony of the

state trooper who performed the chemical analysis:

             Q. . . . . Now, are you a certified chemical analyst?

             A. Yes, sir.

             Q. What is that?

                                         -4-
                                STATE V. SQUIREWELL

                                  Opinion of the Court




             A. That’s a person that has been deemed properly, that’s
                done the procedures and has been certified by the
                Department of Human Resources to perform chemical
                breath analysis.

             Q. Using the ECIR2?

             A. Yes, sir.

      Defendant contends this testimony was insufficient to lay a proper foundation

for the trooper’s testimony because there is no indication that the trooper was

certified at the time he administered the chemical analysis test to defendant.

Defendant cites only this Court’s decisions in State v. Franks, 87 N.C. App. 265, 360

S.E.2d 473 (1987), and State v. Roach, 145 N.C. App. 159, 548 S.E.2d 841 (2001). In

both Franks and Roach, this Court granted the defendants new trials because the

State failed to provide an adequate foundation for the admission of breath analysis

results. Upon review, we are not convinced the trial court erred in the present case,

which is easily distinguished from Franks and Roach.

      In Franks, in order to establish the necessary foundation for an officer’s

testimony regarding the results of the defendant’s chemical analysis, the State

elicited testimony from the officer that he had a certificate to operate a particular

breathalyzer test on the day he conducted the chemical analysis on the defendant. 87

N.C. App. at 267, 360 S.E.2d at 474-75. The State then sought to introduce a permit.

Id. at 267, 360 S.E.2d at 475. Because the permit showed that it was not issued until

after the officer administered the test to the defendant, the trial court sustained the

                                         -5-
                                 STATE V. SQUIREWELL

                                   Opinion of the Court



defense’s objection to the admission of the permit. Id. The State then sought to elicit

testimony from the officer to clarify that he did in fact have a permit issued by the

North Carolina Department of Human Resources at the time he conducted the

defendant’s breath analysis. Id. at 268, 360 S.E.2d at 475. The defense again objected

on grounds that the best evidence would be the permit itself. Id. Although the trial

court overruled the defense’s objection, the record did not reflect that the officer ever

answered the State’s question. Id. Thus, this Court held the trial court erred in

admitting the chemical analysis results because the record evidence showed only that

the officer had a certificate to operate the particular breathalyzer instrument at the

relevant time; it did not show who issued the certificate. Id.

      In Roach, the State introduced evidence of appreciable impairment and the

results of a chemical analysis of the defendant’s breath test to support a driving while

impaired charge. 145 N.C. App. at 159-60, 548 S.E.2d at 842-43. The only evidence

in Roach regarding the trooper’s qualifications to conduct the chemical analysis was

the trooper’s testimony that he had trained on the particular breathalyzer device used

for the defendant’s chemical analysis. Id. at 160, 548 S.E.2d at 843. On appeal, the

State admitted that “[the trooper] did not testify at trial that he possessed a permit

issued by the Department of Health and Human Services,” but urged this Court to

“overrule the Franks holding as ‘too narrow and unduly formalistic for today’s

world.’ ” Id. at 161, 548 S.E.2d at 843-44. This Court recognized it could not overrule



                                          -6-
                                 STATE V. SQUIREWELL

                                  Opinion of the Court



Franks, see In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989), and

instead held the trial court erred in allowing results of the chemical analysis into

evidence because the State failed to lay a sufficient foundation. Roach, 145 N.C. App.

at 161-62, 548 S.E.2d at 844.       Furthermore, although there was evidence of

appreciable impairment that also supported the jury verdict in Roach, this Court held

that “[i]t is prejudicial error for the court to allow the arresting officer who

administered a chemical analysis to testify as to the results of that analysis, even

when there was other sufficient evidence in the record to support a guilty verdict.”

Id. at 162, 548 S.E.2d at 844.

      As detailed above, the state trooper in this case testified that he was certified

by the Department of Human Resources to perform chemical breath analysis using

the ECIR2 machine. The trooper further testified that defendant’s breath analysis

was conducted on the ECIR2 machine and that he set up the ECIR2 machine in

preparation for defendant’s test according to the procedures established by the

Department. The trooper then testified further about those specific procedures and

that he followed the procedures in this instance. The trooper stated that the machine

worked properly and produced a result for defendant’s breath test. Although the

trooper did not explicitly state that he had a Department issued permit to conduct

chemical analysis on the day he conducted defendant’s breath test, which is certainly

best practice, we hold the trooper’s testimony that he was certified to conduct



                                         -7-
                                STATE V. SQUIREWELL

                                  Opinion of the Court



chemical analysis by the Department and that he performed the chemical analysis

according to the Department’s procedures was adequate in this case to lay the

necessary foundation for the admission of chemical analysis results. See State v.

Eubanks, 283 N.C. 556, 563, 196 S.E.2d 706, 710-11 (1973) (upholding the admission

of chemical analysis results where the officer testified that he attended breathalyzer

operator’s school, that he had a certificate issued by the North Carolina State Board

of Health to perform chemical analysis of the breath, and that he followed rules and

regulations he received when he was certified on this particular occasion).

                      B.     Possession of an Open Container

      Defendant also contends the trial court erred in denying his motion to dismiss

the open container charge because there was insufficient evidence that the open

container belonged to him.

       “ ‘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, 148 L. Ed. 2d 150 (2000).       “Substantial

evidence is such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980).



                                         -8-
                                 STATE V. SQUIREWELL

                                   Opinion of the Court



“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, 132 L. Ed. 2d 818 (1995).

             Circumstantial evidence may withstand a motion to
             dismiss and support a conviction even when the evidence
             does not rule out every hypothesis of innocence. If the
             evidence presented is circumstantial, the court must
             consider whether a reasonable inference of defendant’s
             guilt may be drawn from the circumstances. Once the court
             decides that a reasonable inference of defendant’s guilt
             may be drawn from the circumstances, then it is for the
             jury to decide whether the facts, taken singly or in
             combination, satisfy [it] beyond a reasonable doubt that the
             defendant is actually guilty.

Fritsch, 351 N.C. at 379, 526 S.E.2d at 455 (citation, quotation marks, and emphasis

omitted). “This Court reviews the trial court’s denial of a motion to dismiss de novo.”

State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007).

      The offense of possessing an open container of alcohol is defined in N.C. Gen.

Stat. § 20-138.7(a1). That section provides that “[n]o person shall possess an alcoholic

beverage other than in the unopened manufacturer’s original container, or consume

an alcoholic beverage, in the passenger area of a motor vehicle while the motor vehicle

is on a highway or the right-of-way of a highway. . . .” N.C. Gen. Stat. § 20-138.7(a1)

(2015).



                                           -9-
                                 STATE V. SQUIREWELL

                                   Opinion of the Court



      In the present case, the evidence was that there was an open beer can “near

the console area of the vehicle[]” that defendant was driving when he was pulled over.

There were two passengers in the vehicle with defendant, one in the front passenger

seat and one in the back seat. The question on appeal is whether there is evidence

defendant possessed the open beer can.

      This Court has explained that

             [p]ossession of any item may be actual or constructive.
             Actual possession requires that a party have physical or
             personal custody of the item. A person has constructive
             possession of an item when the item is not in his physical
             custody, but he nonetheless has the power and intent to
             control its disposition.

State v. Alston, 131 N.C. App. 514, 519, 508 S.E.2d 315, 318 (1998) (citations omitted),

superseded in part on other grounds by statute as stated in State v. Gaither, 161 N.C.

App. 96, 104, 587 S.E.2d 505, 510 (2003), disc. review denied, 358 N.C. 157, 593 S.E.2d

83 (2004). “[C]onstructive possession depends on the totality of the circumstances in

each case. No single factor controls, but ordinarily the questions will be for the jury.”

State v. Butler, 147 N.C. App. 1, 11, 556 S.E.2d 304, 311 (2001), affirmed, 356 N.C.

141, 567 S.E.2d 137 (2002) (quotation marks, citation, and emphasis omitted). “In

car cases, . . . [a]n inference of constructive possession can . . . arise from evidence

which tends to show that a defendant was the custodian of the vehicle where the

[item] was found.” State v. Best, 214 N.C. App. 39, 46-47, 713 S.E.2d 556, 562

(quotation marks and citations omitted), disc. rev. denied, 365 N.C. 361, 718 S.E.2d


                                          - 10 -
                               STATE V. SQUIREWELL

                                 Opinion of the Court



397 (2011). But, “[w]hen . . . the defendant [does] not have exclusive control of the

location where [the item] is found, constructive possession of the [item] may not be

inferred without other incriminating circumstances.” State v. Clark, 159 N.C. App.

520, 525, 583 S.E.2d 680, 683 (2003) (quotation marks and citation omitted).

      There was no evidence in this case that defendant ever had actual possession

of the open can of beer. Moreover, because there were two passengers in the vehicle

with defendant, defendant did not have exclusive control of the console area. Thus,

there must be other incriminating circumstances to infer defendant had constructive

possession of the open beer can.        Defendant contends there were no such

circumstances in this case. We disagree.

      Besides the evidence that there was an open can of beer near the console area

of the vehicle defendant was driving, which was visible to the state trooper upon his

approach to the driver’s side of the vehicle, the evidence also showed that defendant

initially provided the state trooper a false name, defendant’s eyes were red and

glassy, there was a strong odor of alcohol coming from the vehicle, and defendant’s

speech was slurred. The state trooper further testified that he had defendant come

back to his patrol car for further questioning. At that time, the trooper noticed an

odor of alcohol on defendant’s breath and defendant admitted that he had consumed

a beer that morning. In fact, defendant told the trooper “that he had had tequila the

night before and had freshened it up with a beer that morning.”



                                        - 11 -
                                STATE V. SQUIREWELL

                                  Opinion of the Court



      We hold this evidence, when viewed in the light most favorable to the State,

provided sufficient other incriminating circumstances to support a reasonable

inference that the open container of beer belonged to defendant. Thus, it was proper

for the trial court to deny defendant’s motion to dismiss the open container charge

and allow the jury to determine defendant’s guilt.

                                  III.   Conclusion

      For the reasons discussed, we hold defendant received a fair trial free of error.

      NO ERROR.

      Judges BRYANT and MURPHY concur.




                                         - 12 -
