                                   NO. COA14-204

                     NORTH CAROLINA COURT OF APPEALS

                            Filed: 2 September 2014


STATE OF NORTH CAROLINA

       v.                                    Montgomery County
                                             No. 11CRS051364
REGINA ANN HAWK,
     Defendant.


       Appeal by defendant from Judgment entered on or about 11

July    2013   by   Judge    Michael    E.    Beale   in   Superior   Court,

Montgomery County.          Heard in the Court of Appeals 12 August

2014.


       Attorney General Roy A. Cooper, III, by Assistant Attorney
       General Carrie D. Randa, for the State.

       Cheshire Parker Schneider & Bryan, PLLC, by John Keating
       Wiles, for defendant-appellant.


       STROUD, Judge.


       Regina Hawk (“defendant”) appeals from the judgment entered

after a Montgomery County jury found her guilty of felony death

by motor vehicle and reckless driving. We find no prejudicial

error at defendant’s trial.

                              I.     Background

       Defendant was indicted for felony death by motor vehicle

under N.C. Gen. Stat. § 20-141.4(a1) (2011) and reckless driving
                                              -2-
under N.C. Gen. Stat. § 20-140(a) (2011). Defendant pled not

guilty      and    proceeded       to   jury    trial.      At   trial,        the   State’s

evidence tended to show that on the evening of 3 September 2011,

defendant was hanging out with friends and drinking beer. After

picking up her friend Derisa Comer, defendant drove her SUV to

another friend’s house to cook out and drink beer. When she

arrived      around      10   p.m.,     she    told    Randy      East       that    she   had

consumed about three beers.

       Defendant drove Mr. East, Cody Bailey, Pam Singleton, and

Ms. Comer to the store to pick up more beer. Around 1:40 a.m. on

4 September, as they were driving along the rural Aunt Queen

Rd.,    defendant        veered     off   to    the    side      of    the     road,   over-

corrected back to the other side, and then pulled back to the

right side. When she pulled back to the right side, her vehicle

flipped over. Ms. Singleton was sitting in the back seat, but

was not wearing her seatbelt. She was leaning forward to change

the    radio      when    the      vehicle     flipped.     When       it     flipped,      Ms.

Singleton         was    partially      ejected     through      the     passenger         side

window.      Defendant was stuck in the driver’s seat, but the two

men were unhurt and were able to get out. They left to get help.

       Captain Stephen Hurley, with Montgomery County Rescue, was

one    of   the     first     to    respond    to     the   scene.       He    checked     Ms.
                                           -3-
Singleton for a pulse, but found none.                      The medical examiner

later concluded that Ms. Singleton died from traumatic brain

injury. Capt. Hurley noticed a strong odor of alcohol coming

from the car and saw some beer cans and a bottle of tequila in

the   vicinity.       Defendant     had    suffered       massive       trauma    to    her

scalp, so he pulled her out of the vehicle.                         Once out of the

vehicle,   defendant         just   kept    asking    for     a    cigarette.       Capt.

Hurley noticed that she was slurring her words and thought that

she seemed intoxicated.

      Defendant was transported to Wake Forest Baptist Hospital

for treatment. Dr. Chadwick Miller treated her when she arrived.

He ordered the typical battery of tests for trauma victims,

including a blood ethanol test to check for the presence of

alcohol. He could not say who actually drew the blood for the

test, nor what specifically happened to it on that night, though

he did explain their normal                procedure for drawing blood and

sending    it    to    the    hospital’s         laboratory       for    testing.       The

laboratory      used   a   Beckman    Coutler       DXC    analyzer       to     test   the

blood.     Dale Dennard, the Director of Pathology and Clinical

Labs testified to the normal testing procedure employed at the

hospital. But he did not know which of their analysts actually

tested defendant’s blood sample.
                                      -4-
      The hospital records introduced at trial reflected that Dr.

Miller had ordered a blood alcohol test as part of a standard

battery of blood tests at 3:22 a.m. The tests returned a result

of 212 milligrams of alcohol per deciliter of blood plasma.

Based in part on this test, and defendant’s behavior at the

hospital, Dr. Miller diagnosed her with alcohol intoxication.

Dr.   Miller   was    “concerned     that       the   patient   was   exhibiting

behavior consistent with someone who may have a difficult time

making decisions for themselves[.]”

      Later    on    the   morning   of     4    September,     Trooper   Jeremy

Anderson interviewed defendant in the hospital. Trooper Anderson

testified that defendant was slow to respond to his questions

and that her speech was slurred.                When he asked defendant how

much she had to drink, she responded, “at least a 12-pack.”                   He

opined that she was intoxicated, though he admitted that he did

not know what medications she had been administered at that

point.

      Because the hospital blood test results were from a plasma

sample and given in milligrams per deciliter, the State called

Paul Glover to translate the blood plasma results to a whole

blood alcohol concentration in grams per milliliter. Defendant

objected to Mr. Glover’s testimony because the State had only
                                    -5-
notified him of their intent to call Mr. Glover as an expert two

days before trial.        The prosecutor explained that the State did

not know they would have to call Mr. Glover to testify about the

conversion formula until the week prior to trial. Defendant did

not move for a continuance. The trial court denied defendant’s

motion to exclude Mr. Glover’s testimony, though it did delay

his   testimony   until    the   following   morning   to   allow   defense

counsel time to prepare. Mr. Glover explained how he converted

the test results from the hospital’s blood test to the accepted

legal measure for blood alcohol concentration. He testified that

using the accepted conversion formula results in a blood alcohol

concentration of .17 g per 100 mL of whole blood.

      After the close of the State’s evidence, defendant elected

to present evidence and testify on her own behalf.

                              II.   Blood Test

      Defendant argues on appeal that the trial court erred in

admitting evidence of the blood alcohol test performed by the

hospital as part of its treatment of defendant’s injuries.              She

contends that because the State failed to show who actually drew

the blood and who actually performed the test, it cannot be

admissible.   Even assuming defendant were correct, we hold that

given the overwhelming evidence that defendant had consumed a
                                   -6-
substantial amount of alcohol so as to impair her ability to

drive,   any   error    in   admitting   the   blood    test   was     not

prejudicial.

      We review a trial court’s decision to admit evidence over

an objection concerning the chain of custody for an abuse of

discretion. State v. Campbell, 311 N.C. 386, 388-89, 317 S.E.2d

391, 392 (1984). Erroneous admission of evidence only entitles

the defendant to a new trial if she can show that the error was

prejudicial. State v. Alston, 307 N.C. 321, 339, 298 S.E.2d 631,

644 (1983); N.C. Gen. Stat. § 15A-1443(a) (2013). Such an error

is prejudicial “when there is a 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.” Alston, 307 N.C. at 339, 298 S.E.2d at 644 (quoting

N.C. Gen. Stat. § 15A-1443(a)).

      There are two accepted methods of proving impaired driving:

proof of blood alcohol concentration (BAC) greater than .08 g

per 100 mL of blood (or 210 liters of breath) or evidence that

the   defendant   had   consumed   alcohol   along   with   evidence   of

impairment. State v. Oliver, 343 N.C. 202, 215, 470 S.E.2d 16,

24 (1996) (holding that DWI is a single offense “which may be

proven in . . . two ways”); State v. Roach, 145 N.C. App. 159,
                                            -7-
163, 548 S.E.2d 841, 844 (2001) (discussing the two methods of

proving impaired driving). So, the State can prove driving while

impaired even absent evidence of defendant’s BAC.                                State v.

Harrington, 78 N.C. App. 39, 46, 336 S.E.2d 852, 856 (1985)

(observing     that    “the    State       may    prove       DWI    where    the    BAC   is

entirely unknown”).

       Here, the evidence, even excluding the blood test, showed

that defendant lost control of her vehicle on a country road

after consuming a substantial amount of alcohol and that she was

appreciably impaired. When Trooper Jeremy Anderson interviewed

defendant     slightly    before       4    a.m.,       she   admitted       drinking      “at

least   a    12-pack.”        Testifying         on     her   own    behalf,     defendant

admitted drinking at least seven or eight beers before 10 p.m.

that evening, though she denied being impaired.                            Captain Stephen

Hurley, with Montgomery County Rescue, testified that when he

arrived on the scene, he noticed the strong odor of alcohol.

When    he   spoke    with    defendant,          she    just       kept    asking   for    a

cigarette,     slurring       her   words.        He     opined       that    she    seemed

intoxicated.         Finally,    Dr.       Chadwick      Miller       treated    defendant

when she arrived at Wake Forest Baptist Hospital. Largely based

on her behavior at the hospital, Dr. Miller diagnosed defendant

with alcohol intoxication.
                                       -8-
    Thus,      it   is   undisputed     that      defendant     drank   a     large

quantity of beer on the night in question before getting behind

the wheel of her car.            One law enforcement and two medical

witnesses     opined     that    she   appeared      intoxicated      after    the

collision.    Cf.   State   v.   Brown,      87   N.C.   App.   13,   20-21,    359

S.E.2d 265, 269 (1987) (holding that “the defendant’s admission

of being ‘intoxicated’ or having ‘consumed too much beer’ at

2:30 a.m.–3:00 a.m. is sufficient evidence from which the jury

could infer that the defendant was impaired between 1:05 a.m.

and 1:52 a.m.”); State v. Vassey, 154 N.C. App. 384, 390, 572

S.E.2d 248, 252 (2002) (noting that the State need only prove

appreciable     impairment        to   sustain       an     impaired        driving

conviction),    disc. rev. denied, 356 N.C. 692, 579 S.E.2d 96

(2003).

    The only issue raised by defendant in her defense was the

conduct of the other passengers. She and Ms. Comer claimed that

the two men in the car were “picking at” Ms. Singleton, trying

to bite her. They both testified that Ms. Singleton had climbed

into Ms. Comer’s lap in the front passenger seat. Both male

passengers denied that they had been horsing around with Ms.

Singleton or that she climbed into the front seat before the

crash. Defendant claimed that Ms. Singleton’s foot was on the
                                          -9-
steering wheel, so when she tried to turn the wheel it would not

budge. According to defendant, when Ms. Singleton’s foot came

off the wheel, she lost control of the vehicle and went off the

road. It is clear from the jury’s verdict that they did not

believe defendant’s evidence.

       The question for us is not whether the blood test evidence

might       have    influenced    the     jury,        but    whether   there      is    a

reasonable         possibility    that,    absent       such    evidence,    the     jury

would have reached a different verdict. See Alston, 307 N.C. at

339, 298 S.E.2d at 644. Given the evidence here, we conclude

that there is no reasonable possibility that the jury would have

reached      a     different   result     had    the    blood    test   results      been

excluded. Therefore, we hold that defendant has failed to show

that she was prejudiced by the admission of that evidence. See

id.

                               III. Expert Testimony

       Defendant       next    argues     that    the        trial   court   erred      in

allowing Paul Glover to testify for the State regarding the

conversion of the blood plasma test results used by the hospital

to    the    legal     standard   for     blood    alcohol       concentration.         The

challenged testimony only related to the blood test evidence.

For the same reasons that admission of the blood test was not
                                  -10-
prejudicial,   admission    of    Mr.    Glover’s    testimony   was   not

prejudicial.   Therefore,     even      assuming    this   testimony   was

admitted in error, defendant is not entitled to a new trial. See

id.

                            IV.   Conclusion

      For the foregoing reasons, we conclude that defendant has

failed to show that her trial was affected by prejudicial error.

      NO PREJUDICIAL ERROR.

      Chief Judge MCGEE and Judge BRYANT concur.
