An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-424
                       NORTH CAROLINA COURT OF APPEALS

                             Filed:      4 November 2014

STATE OF NORTH CAROLINA


      v.                                      Wake County
                                              Nos. 11 CRS 208650; 727961
JOHNNIE JACKSON, III



       Appeal by defendant from judgment entered 22 May 2013 by

Judge Carl R. Fox in Wake County Superior Court.                     Heard in the

Court of Appeals 8 September 2014.


       Attorney General Roy Cooper, by Assistant Attorney General
       John W. Congleton, for the State.

       James N. Freeman, Jr. for defendant.


       McCULLOUGH, Judge.


       Defendant Johnnie Jackson, III, appeals from his conviction

for driving while impaired.              Based on the reasons stated herein,

we hold that defendant received a trial free from prejudicial

and plain error.

                                 I.      Background

       On 15 April 2011, defendant was arrested and charged with

driving     while     impaired     and     driving    while    license     revoked.
                                    -2-
Defendant was also issued a citation for possession of an open

container of an alcoholic beverage.

    Defendant’s trial commenced at the 20 May 2013 session of

Wake County Superior Court, Judge Carl Fox presiding.

    Officer Jeffrey D. Noble of the Raleigh Police Department

testified for the State.        On 15 April 2011 at 3:00 a.m., Officer

Noble was on patrol near the intersection of New Bern Avenue and

Tarboro Road in Raleigh, North Carolina.                Officer Noble was

traveling southbound on Tarboro Road from Eaton Street when he

observed   a   Chevy   pickup   truck   driving     northbound   toward   his

direction without its headlights on.          Officer Noble followed the

truck to the intersection of New Bern Avenue and Tarboro Road

and observed the truck make a right turn at a red light marked

“no right on red.”      Officer Noble activated his blue lights and

attempted to stop the truck.       Officer Noble testified that

           [a]fter activating my blue lights I had no
           response from the driver of that vehicle.
           The vehicle continued at about the thirty-to
           forty-mile-per-hour speed in the 45-mile-
           per-hour zone.   I activated by siren for a
           short time until the vehicle came to a stop
           finally probably about a half mile down the
           road after running an additional red light.

    Another officer was in the same area and assisted Officer

Noble   with   the   traffic    stop.     Officer   Noble   approached    the

driver’s side of the truck and smelled the odors of alcohol and
                                        -3-
marijuana.       Defendant was the driver and there was one passenger

in the vehicle.           Officer Noble asked defendant if he had had

anything to drink and defendant stated that he had consumed two

beers.      Defendant also admitted to smoking marijuana earlier

that day.        Officer Noble observed that defendant’s eyes were

bloodshot and glassy, that his breath smelled of alcohol, and

that his speech was slurred.

       Defendant     was    taken     out   of   his    vehicle,    secured      in

handcuffs, and placed in the back of Officer Noble’s patrol car.

Officer Noble searched defendant’s vehicle and located marijuana

and several open twenty-four (24) ounce cans of beer.                      Officer

Noble also determined that defendant had a suspended driver’s

license.     Defendant was arrested for driving with a suspended

driver’s license and transported to the Wake County jail.

       Officer    Noble    testified    that,    upon    arrival   at   the    Wake

County jail he requested defendant to submit to the horizontal

gaze     nystagmus   test     (“HGN    test”),    a     field   sobriety      test.

Officer Noble stated that in administering the HGN test on a

subject, he was looking for “involuntary jerking of [the] eyes.”

       Officer Noble further testified that when he administered

the HGN test to defendant, that defendant “ha[d] very strong

motions of his eyes as he followed the stimulus in a jerking
                                    -4-
motion” and observed “the nystagmus at maximum deviation in both

of [defendant’s] eyes.       Based on his training and experience, it

was Officer Noble’s opinion that defendant had a high level of

impairment and that defendant “had consumed a sufficient amount

of   alcohol   to   impair    his    faculties,     both   physically   and

mentally.”

     Thereafter, Officer Noble asked defendant if he would be

“willing to submit to a test of his breath on the intoxilyzer

ECR 2 instrument[.]” (“Intoxilyzer”).            Defendant signed a form,

submitted himself to the chemical analysis of his breath, and

registered a result of 0.16.

     On 22 May 2013, a jury found defendant guilty of driving

while license revoked, driving while impaired, and possession of

an open container of alcohol in the passenger area.              Defendant

was sentenced to twenty-four (24) months imprisonment for his

driving while impaired conviction.

     Defendant gave notice of appeal in open court.

                             II.    Discussion

     On appeal, defendant argues that (A) the trial court erred

by receiving Officer Noble as an expert in the area of HGN test

administration and interpretation and that (B) the trial court
                                         -5-
committed      plain      error    by    admitting     the    results      of   the

Intoxilyzer.

               A.     Expert Testimony Regarding the HGN Test

      In his first argument on appeal, defendant argues that the

trial court erred by receiving Officer Noble as an expert in the

administration         and   interpretation       of   the   HGN   test     because

Officer Noble did not have sufficient training or experience.

In   addition,       defendant    argues   that    Officer   Noble’s      testimony

failed    to        demonstrate   that     he   had    reliably    applied      the

principles and methods of the HGN test in this case.                    We do not

find defendant’s arguments persuasive.

                 It is well established that trial
            courts must decide preliminary questions
            concerning the qualifications of experts to
            testify or the admissibility of expert
            testimony.    N.C. Gen. Stat. § 8C-1, Rule
            104(a)    (2005).       When    making    such
            determinations, trial courts are not bound
            by the rules of evidence.       Id.   In this
            capacity, trial courts are afforded “wide
            latitude   of   discretion   when   making   a
            determination about the admissibility of
            expert testimony.”    State v. Bullard, 312
            N.C. 129, 140, 322 S.E.2d 370, 376 (1984).
            Given such latitude, it follows that a trial
            court’s ruling on the qualifications of an
            expert or the admissibility of an expert’s
            opinion will not be reversed on appeal
            absent a showing of abuse of discretion.

Hughes v. Webster, 175 N.C. App. 726, 732, 625 S.E.2d 177, 182

(2006).
                                   -6-
    Rule 702 of the North Carolina Rules of Evidence provides

as follows:

           (a)  If   scientific,    technical    or   other
                specialized knowledge will assist the
                trier    of   fact   to    understand   the
                evidence or to determine a fact in
                issue, a witness qualified as an expert
                by     knowledge,    skill,     experience,
                training, or education, may testify
                thereto in the form of an opinion, or
                otherwise, if all of the following
                apply:
                (1) The     testimony    is    based   upon
                      sufficient facts or data.
                (2) The testimony is the product of
                      reliable principles and methods.
                (3) The     witness    has    applied   the
                      principles and methods reliably to
                      the facts of the case.
           (a1) A witness, qualified under subsection
                (a) of this section and with proper
                foundation, may give expert testimony
                solely on the issue of impairment and
                not on the issue of specific alcohol
                concentration level relating to the
                following:
                (1) The results of a Horizontal Gaze
                      Nystagmus (HGN) Test when the test
                      is administered by a person who
                      has      successfully       completed
                      training in HGN.

N.C. Gen. Stat. § 8C-1, Rule 702(a) and (a1)(1) (2013).              “North

Carolina   case   law   requires   only   that   the   expert   be   better

qualified than the jury as to the subject at hand, with the

testimony being ‘helpful’ to the jury.”            State v. Davis, 106
                                        -7-
N.C.    App.    598,   601,    418    S.E.2d       263,     267   (1992)     (citation

omitted).

       The     evidence     demonstrated      that     Officer       Noble    received

training in the administration of the HGN test in 2008, during

basic law enforcement training.               He was given opportunities to

perform the HGN test in controlled environments.

       Officer Noble was tendered as an expert in the HGN test,

defendant objected, and a voir dire was conducted.                      During voir

dire, Officer Noble testified that he completed a total of eight

(8) hours of training, “a full day of lecture,” on the HGN test.

Officer Noble also took an eight (8) hour HGN test refresher

class, amounting to a total of sixteen (16) hours of training on

the    HGN   test.        Officer    Noble   was     also    given    materials   and

“studies that they have conducted on events such as alcohol

impairment on the effect on the eyes as well as brain injuries

and other forms of medical problems that would affect the eyes

and the nystagmus of the eyes.”                He had administered the HGN

test “well over a hundred” times and seen a correlation between

the    eye’s    involuntary    movements      with    recorded       breath    alcohol

concentrations.

       Officer Noble testified that while administering the HGN

test to defendant, defendant “ha[d] very strong motions of his
                                        -8-
eyes as he followed the stimulus in a jerking motion.”                      Officer

Noble also observed “the nystagmus at maximum deviation in both

of [defendant’s] eyes.”        Officer Noble opined that defendant had

a   high   level   of    impairment      and    that    he      “had   consumed    a

sufficient   amount      of   alcohol    to    impair     his      faculties,    both

physically and mentally.”

     Given Officer Noble’s knowledge, experience, training, and

education, he was better qualified than the jury regarding the

administration     and    interpretation       of   the      HGN    test   and    his

testimony on the issue of defendant’s impairment was helpful to

the jury.    Therefore, we reject defendant’s contention that the

trial court abused its discretion by admitting Officer Noble’s

testimony as expert testimony.

     Defendant further contends that Officer Noble’s testimony

failed to demonstrate that he applied the principles and methods

reliably to the facts of the case.             N.C. Gen. Stat. § 8C-1, Rule

702(a)(3).

     Officer Noble testified that the HGN test is categorized as

a standardized field sobriety test, which is governed by the

National Highway Traffic Safety Administration.                      Officer Noble

also testified that in order for an HGN test to be administered

properly, it would require compliance with certain guidelines.
                                      -9-
Officer Noble laid out the steps in the administration of the

HGN   test,   which    included     the   following,    in   pertinent    part:

checking to see if the subject is wearing contacts or glasses;

asking the subject to stand with his feet together, arms by his

side; checking to see if the subject’s pupils are of equal size;

holding a stimulus         several inches       in front of    the subject’s

eyes; asking the subject to follow the stimulus with his eyes

while remaining still;           and moving     the stimulus   from     side to

side.     The next portion of the HGN test is called “eye and

deviation.”       Officer Noble testified that he holds the stimulus

“all the way out as far as they can focus on so all the white in

their eyes disappears, just the blackness of your eye shows here

at the corner of your eyelid[.]”              The third portion of the HGN

test is administered “to see that sustained jerking of the eyes

is    sustained    prior    to    going   all    the   way   out   to   maximum

deviation. There is an estimation of a 45-degree angle.”                  Based

on Officer Noble’s training and experience, his observations of

defendant’s eyes while administering the HGN test indicated that

defendant “had consumed a sufficient amount of alcohol to impair

his faculties, both physically and mentally.”

      Defendant argues that Officer Noble disregarded “multiple

directives from the training manual from failure to determine if
                                    -10-
[defendant] wore eyewear, to the distance of the stimuli from

[defendant] as he conducted the [HGN] test.”                  Defendant also

contends that in determining “at what degrees [Officer Noble]

views nystagmus, an important indicator according to [Officer

Noble], he guesses, rather than employ some sort of instrument

or calculation.”

       Even assuming arguendo that Officer Noble’s testimony was

inadmissible because he violated Rule 702(a)(3), we hold that

defendant cannot demonstrate that admission of the challenged

testimony amounted to prejudicial error.           N.C. Gen. Stat. § 15A-

1443(a) provides that an “error[] relating to rights arising

other   than   under    the   Constitution   of    the    United   States”   is

prejudicial “when there is reasonable possibility that, had the

error in question not been committed, a different result would

have been reached at the trial out of which the appeal arises.”

N.C.    Gen.   Stat.   §   15A-1443(a)   (2013).     In     addition   to    the

disputed testimony, Officer Noble also testified that defendant

was driving his vehicle at 3:00 a.m. without his headlights on,

made an illegal turn, and ran a red light.               Defendant smelled of

alcohol and marijuana, had bloodshot and glassy eyes, and had

slurred speech.        Officer Noble found opened cans of alcohol in

defendant’s vehicle and defendant admitted that he had consumed
                                   -11-
two beers and smoked marijuana earlier that day.               Officer Noble

also testified that defendant voluntarily took an Intoxilyzer

test and the result indicated he had a blood alcohol content of

0.16.    In light of this overwhelming evidence of defendant’s

impairment, we hold that he cannot establish that the admission

of Officer Noble’s testimony regarding the HGN test amounted to

prejudicial error.

    B.     Testimony Regarding the Results of the Intoxilyzer

    In his next argument, defendant contends that the trial

court committed plain error by admitting the results of his

breath   test   using   the   Intoxilyzer    when     the   State   failed    to

establish that Officer Noble had a valid permit to perform the

test.    Defendant      argues   that   no   permit    or   certificate      was

admitted into evidence and that Officer Noble never testified

that he had a current permit issued by the Department of Health

and Human Services (“DHHS”) in violation of N.C. Gen. Stat. 20-

139.1.

    N.C. Gen. Stat. § 20-139.1(b) provides that

           The results of a chemical analysis shall be
           deemed   sufficient  evidence  to   prove  a
           person's alcohol concentration.   A chemical
           analysis of the breath administered pursuant
           to the implied-consent law is admissible in
           any court or administrative hearing or
           proceeding if it meets both of the following
           requirements:
                              -12-


         (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 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.

         . . . .

         For purposes of establishing compliance with
         subdivision (b)(2) of this section, the
         court or administrative agency shall take
         judicial notice of the list of permits
         issued   to   the   person  performing   the
         analysis, the type of instrument on which
         the person is authorized to perform tests of
         the breath, and the date the permit was
         issued. . . .

N.C. Gen. Stat. § 20-139.1 (2013) (emphasis added).

    Here, the record shows that Officer Noble testified that he

was issued a permit on 18 March 2011 to operate the Intoxilyzer.

However, Officer Noble did not indicate whether his permit was

issued by DHHS.    He testified that he conducted the test in a

manner which was prescribed by DHHS.    Moreover, the State did

not introduce a permit into evidence and the trial court did not

take judicial notice of a permit issued to Officer Noble.

    Assuming arguendo that the trial court erred by admitting

the results of the Intoxilyzer by failing to comply with the
                                    -13-
requirements of N.C. Gen. Stat. § 20-139.1(b)(2), such error

does not arise to the level of plain error.                      See State v.

Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (stating

that “[f]or error to constitute plain error, a defendant must

demonstrate that a fundamental error occurred at trial . . . a

defendant must establish prejudice that, after examination of

the   entire   record,    the   error   ‘had    a    probable   impact       on   the

jury’s    finding   that    the   defendant         was   guilty’”)        (citation

omitted).

      “The three essential elements of the offense of impaired

driving are (1) driving a vehicle (2) upon any public vehicular

area (3) while under the influence of an impairing substance or

[a]fter having consumed sufficient alcohol that he has, at any

relevant time after the driving, an alcohol concentration of

[0.08] or more.”         State v. Narron, 193 N.C. App. 76, 79, 666

S.E.2d 860, 863 (2008) (citations and quotation marks omitted);

see also N.C. Gen. Stat. § 20-138.1 (2013).                  “Thus, there are

two ways to prove the single offense of impaired driving: (1)

showing     appreciable    impairment;     or       (2)   showing     an    alcohol

concentration of 0.08 or more.”            Narron, 193 N.C. App. at 79,

666 S.E.2d at 863 (citation and quotation marks omitted).

            Although   the   primary  value  of   [this
            challenged testimony] was to establish that
                                      -14-
           defendant’s blood alcohol content was above
           the statutory limit . . . , the State was
           not required to establish that level to
           prove that defendant was driving while
           impaired (DWI).     In fact, the State may
           prove DWI where the [blood alcohol content]
           is entirely unknown or less than [0.08].
           The opinion of a law enforcement officer . .
           . has consistently been held sufficient
           evidence of impairment, provided that it is
           not solely based on the odor of alcohol.

State v. Taylor, 165 N.C. App. 750, 757-78, 600 S.E.2d 483, 489

(2004) (citations and quotation marks omitted).

    In    the    case   sub   judice,   the    evidence    demonstrated    that

Officer Noble observed defendant driving his vehicle on Tarboro

Road at 3:00 a.m. without his headlights on, making a right turn

at a red light marked “no right on red,” running another red

light,   and    driving   a   half   mile    down   the   road   subsequent   to

Officer Noble’s activation of his blue lights.                   Officer Noble

smelled the odors of alcohol and marijuana as he approached

defendant’s vehicle.          In addition, defendant admitted that he

had consumed two beers and           smoked marijuana.           Officer   Noble

testified that defendant’s eyes were bloodshot and glassy, that

his breath smelled of alcohol, and that his speech was slurred.

A search of defendant’s vehicle resulted in the discovery of

several open twenty-four ounce cans of beer.
                                    -15-
      This foregoing evidence was sufficient for a DWI conviction

regardless of the results of the Intoxilyzer.             Therefore, even

if   the   trial   court   erred   by   admitting   the   results   of    the

Intoxilyzer, we hold that any such error did not have a probable

impact on the jury’s finding that defendant was guilty of DWI.

Accordingly, defendant’s argument is overruled.

                             III. Conclusion

      We   hold    that    defendant    received    a   trial   free     from

prejudicial or plain error.

      No prejudicial error; no plain error.

      Judges ERVIN and BELL concur.

      Report per Rule 30(e).
