An unpublished opinion of the North Carolina Court of Appeals does not constitute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


              IN THE COURT OF APPEALS OF NORTH CAROLINA
                                    No. COA14-1056

                                  Filed: 21 April 2015

STATE OF NORTH CAROLINA
                                               Orange County
              v.
                                               No. 11 CRS 51977
NATHANIEL PHILLIPS


      Appeal by defendant from judgment entered 25 April 2014 by Judge R. Stuart

Albright in Orange County Superior Court.           Heard in the Court of Appeals 18

February 2015.



      Attorney General Roy Cooper, by Special Deputy Attorney General Melody R.
      Hairston, for the State.

      Coleman, Gledhill, Hargrave, Merritt & Rainsford, P.C., by James Rainsford,
      for defendant.


      INMAN, Judge.


      Defendant appeals the judgment entered after a jury convicted him of driving

while impaired (“DWI”). Defendant contends that the trial court erred by: (1) failing

to give North Carolina Pattern Jury Instruction 101.35 with regard to the

requirement of jury unanimity; (2) misinstructing the jury on the definition of
                                  STATE V. PHILLIPS

                                  Opinion of the Court



“appreciable”; (3) declining to give to the jury defense counsel’s proposed instruction

on “impairment”; and (4) declining to answer one of the jury’s questions.

      After careful review, we conclude that the trial court did not err.

                      Factual and Procedural Background

      On 4 July 2011, defendant was charged with driving with a revoked license,

DWI, possession of drug paraphernalia, possession of marijuana, and speeding. The

matters came on for trial in Orange County District Court on 20 December 2013.

Judge Lunsford Long found defendant guilty on all charges. For defendant’s DWI

conviction, Judge Long sentenced defendant to a term of 60 days imprisonment but

suspended the sentence and placed defendant on 18 months of supervised probation.

Defendant appealed the DWI conviction for a de novo trial in Superior Court where

the case was tried before a jury, Judge R. Stuart Albright presiding. The evidence

presented at trial tended to establish the following: On 4 July 2011, at approximately

8:00 a.m., State Highway Patrol Trooper Jason Stewart (“Trooper Stewart”) was

parked in his patrol car on an I-40 overpass in Orange County conducting speed

enforcement. Trooper Stewart observed a red Impala traveling eastward toward his

position at what he estimated was 85 miles per hour. Trooper Stewart, using a hand-

held speed detection device, determined that the Impala was traveling 84 miles per

hour in a 65 mile per hour speed limit zone.

      Trooper Stewart initiated a traffic stop. Defendant was driving the Impala

with a female passenger in the front passenger seat. As Trooper Stewart spoke with


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                                          Opinion of the Court



defendant, he detected the odor of marijuana and observed that defendant appeared

nervous, had constricted pupils, and repeatedly rubbed his face. Trooper Stewart

asked defendant to exit the vehicle, conducted a search, and found a small glass pipe

on the driver’s side floorboard and a glass jar in the console containing marijuana.

Defendant admitted that both the pipe and glass jar belonged to him.                          Trooper

Stewart also found a glass jar containing marijuana in a black duffel bag that

defendant claimed belong to him.

        While they were waiting for another state trooper to arrive, defendant

admitted to Trooper Stewart that he had been at a methadone clinic in Greensboro

that morning and had smoked marijuana in the parking lot before leaving. After

conducting standardized field sobriety tests, Trooper Stewart determined that

defendant had consumed a sufficient quantity of some impairing substance other

than alcohol that appreciably impaired his mental and physical faculties.1

        At the close of all the evidence, the trial court held a formal charge conference

on the proposed jury instructions. Judge Albright indicated that he intended to

instruct the jury using N.C.P.I.-Crim. 270.20A on impaired driving and 101.35 as a

concluding instruction which included the requirement of jury unanimity. Neither

party objected.

        After closing arguments, Judge Albright instructed the jury on DWI as follows:



        1   There was no evidence that defendant was under the influence of alcohol at the time of the
stop.

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                                  Opinion of the Court



             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
             highway within this state; and third, that at the time the
             defendant was driving that vehicle the defendant was
             under the influence of an impairing substance. Marijuana
             and methadone are impairing substances.

             The defendant is under the influence of an impairing
             substance when the defendant has taken or 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 such an extent that
             there is an appreciable impairment of either or both of
             these faculties.

The trial court concluded by instructing: “All 12 jurors must agree unanimously. You

may not render a verdict by majority vote.” Neither the State nor defense counsel

objected to the given instructions.

      Less than one hour later, the trial court resumed session after the jury sent

two questions to Judge Albright regarding the instructions. First, the jury requested

a “reading of [sic] law on the third definition, Judge’s instruction[.]” The jury also

asked: “Can we get a definition of ‘appreciable’?” As to the first question, Judge

Albright told the attorneys that he intended to reinstruct the jury using the same

instructions already provided. With regard to a definition of “appreciable,” based on

this Court’s decisions in State v. Parisi, State v. Harrington, and State v. Stokes,

Judge Albright proposed to instruct the jury that “appreciable” means “sufficient to

be recognized and estimated.” Defense counsel objected, arguing that the pattern


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                                     Opinion of the Court



jury instructions do not specifically define “appreciable” nor do this Court’s

definitions of “appreciable” found in Parisi, Harrington, or Stokes relate to jury

instructions.     Furthermore, defense counsel argued that “a slight effect on a

defendant’s faculties is insufficient” to constitute “appreciable impairment.” Judge

Albright then proposed instructing the jury:

                An effect, however slight on the defendant’s faculties, is not
                enough to render him or her impaired. Nor does the fact
                that the defendant smells of drugs, by itself, control. On
                the other hand, the State need not show that the defendant
                is drunk or in this case—well, is drunk—that his or her
                faculties are materially impaired. The effect must be
                appreciable. That is, sufficient to be recognized and
                estimated for a proper finding that the defendant was
                impaired.

The State objected, claiming that the proposed instructions went more to the

standard of proof than to a definition of appreciable. Judge Albright agreed and, after

noting defense counsel’s objection, discussed instructing the jury that the definition

of “appreciable” is either “sufficient to be recognized and estimated” or “capable of

being estimated, weighed, judged of, or recognized perceptible but not a synonym of

substantial,” a definition from Black’s Law Dictionary.           Defense counsel again

objected and requested that Judge Albright instruct using the definition of

“appreciable” in State v. Hairr which noted that a “slight effect on a defendant’s

faculties is insufficient” to constitute “appreciable impairment.” The trial court gave

defense counsel a chance to provide it with any other cases on the issue, which

defendant failed to do, and took a 25-minute recess before calling the jury back in.


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                                   Opinion of the Court



      As to the first jury question, as discussed during the conference, Judge Albright

reinstructed the jury using the DWI pattern jury instructions. As to the second

question, Judge Albright instructed the jury that “appreciable” means “sufficient to

be recognized and estimated.”      The jury was released to resume deliberations.

Approximately one minute later, it sent another note to Judge Albright asking: “What

do we do in case we don’t come to a unanimous decision?” After discussing with the

attorneys outside the jury’s presence how to answer the question, Judge Albright told

jurors to “follow all of my previous instructions” since they had not yet indicated that

they were deadlocked and it was only a “hypothetical question.” Neither attorney

objected.   Judge Albright then released the jury to resume deliberations.        Soon

thereafter, the jury returned a guilty verdict. The trial court sentenced defendant to

12 months imprisonment but suspended his sentence and placed him on 18 months

of supervised probation. Defendant timely appeals.

                                Standard of Review

      If a defendant objects to an alleged improper jury instruction, on appeal, this

Court must

             consider[] a jury charge contextually and in its entirety.
             The charge will be held to be sufficient if it presents the
             law of the case in such manner as to leave no reasonable
             cause to believe the jury was misled or misinformed. The
             party asserting error bears the burden of showing that the
             jury was misled or that the verdict was affected by an
             omitted instruction. Under such a standard of review, it is
             not enough for the appealing party to show that error
             occurred in the jury instructions; rather, it must be


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                                     Opinion of the Court



             demonstrated that such error was likely, in light of the
             entire charge, to mislead the jury.

State v. Bettis, 206 N.C. App. 721, 727, 698 S.E.2d 507, 511-12 (2010). However,

generally, if the defendant does not object or fails to satisfy N.C. R. App. P. 10(a)(2),

the defendant is limited to a showing of plain error on appeal. State v. Odom, 307

N.C. 655, 661, 300 S.E.2d 375, 378 (1983).

             For error to constitute plain error, a defendant must
             demonstrate that a fundamental error occurred at trial. To
             show that an error was fundamental, 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.

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal citations

and quotation marks omitted).

                                         Analysis

      Defendant first argues that Judge Albright gave an improper jury instruction

on the requirement of jury unanimity. Specifically, defendant contends that the

“alteration of the instruction [on jury unanimity] [that the trial court] had agreed to

give misled the jurors into believing that they must reach a verdict” and,

consequently, “coerced a verdict.”

      On appeal, defendant cites State v. Ross, 322 N.C. 261, 367 S.E.2d 887 (1988),

State v. Paulski, 319 N.C. 562, 356 S.E.2d 319 (1987), and State v. Keel, 333 N.C. 52,

423 S.E.2d 458 (1992), for the proposition that no objection was necessary to preserve

this issue for appeal. Thus, defendant denies that he must show plain error.


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                                      Opinion of the Court



However, the cases defendant relies upon are inapposite and have been distinguished

by our Supreme Court because in each of those cases, unlike this case, the defendant

had requested a specific instruction. State v. Allen, 339 N.C. 545, 553-55, 453 S.E.2d

150, 154-55 (1995), overruled on other grounds by State v. Gaines, 345 N.C. 647, 483

S.E.2d 396 (1997). The Allen Court explained:

               Rule 10(b)(2)2 of the North Carolina Rules of Appellate
               Procedure mandates the procedure for preserving jury
               instruction questions for appeal. It states:

               A party may not assign as error any portion of the jury
               charge or omission therefrom unless he objects thereto
               before the jury retires to consider its verdict, stating
               distinctly that to which he objects and the grounds of his
               objection; provided, that opportunity was given to the party
               to make the objection out of the hearing of the jury, and, on
               request of any party, out of the presence of the jury.

Id. at 553, 453 S.E.2d at 154-55. The Allen Court then discussed in

detail the procedural facts of Ross, Paluski, and Keel and noted as

follows:

               In all of these cases the trial court agreed to give specific,
               requested instructions but then either omitted the
               instruction entirely or gave one which differed from the
               requested instruction. As we previously have stated, “[t]he
               purpose of Rule 10(b)(2) is to encourage the parties to
               inform the trial court of errors in its instructions so that it
               can correct the instructions and cure any potential errors
               before the jury deliberates on the case and thereby
               eliminate the need for a new trial. State v. Odom, 307 N.C.
               655, 660, 300 S.E.2d 375, 378 (1983). . . . When the trial


       2 Under the 2009 amendments to the Rules of Appellate Procedure, the former Rule 10(b)(2)
is now Rule 10(a)(2).

                                               -8-
                                  STATE V. PHILLIPS

                                  Opinion of the Court



             court in those cases failed to give the instruction or gave a
             different instruction from that specifically requested, we
             considered the purpose of Rule 10(b)(2) fulfilled because
             the trial court had the opportunity to instruct in the
             manner the parties perceived as unobjectionable.

             In contrast, here the State made a general request for an
             instruction on aiding and abetting as a theory of guilt of
             first-degree murder. Defense counsel did not object when
             the court decided to give an instruction and did not make a
             specific request as to the form of the instruction. Thus, the
             trial court never was made aware of a specific instruction
             sought by the parties. After the court gave its instructions
             on aiding and abetting, defense counsel again did not
             object. Because defense counsel did not object to the
             instructions the court decided to give, the court never had
             the opportunity to cure any perceived errors in the
             instructions. Under these circumstances, the spirit and
             purpose of Rule 10(b)(2) are not met. We therefore consider
             this question not preserved for appeal.

             Because this question is not preserved for appeal, we may
             review it only for plain error.

Id. at 554, 453 S.E.2d at 155.

      Allen is controlling here. In this case, at the formal charge conference, the

trial court proposed giving pattern jury instruction N.C.P.I.-Crim. 101.35 which

states, in pertinent part: “All twelve of you must agree to your verdict. You cannot

reach a verdict by majority vote.” Judge Albright slightly altered the pattern jury

instruction by instructing: “All 12 jurors must agree unanimously. You may not

render a verdict by majority vote.” However, as in Allen but in contrast to Keel,

Montgomery, and Ross, there is no indication that defendant made any specific

request as to the form of this instruction nor objected when it was given. Although


                                          -9-
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                                   Opinion of the Court



the trial court noted in the formal charge conference that there had been “previous

discussions” in an “informal, off the record charge conference,” defendant has not put

forth any evidence that he either specifically requested a jury unanimity instruction

or made any specific request to the form of the instruction. Consequently, since

defense counsel did not object after Judge Albright gave the slightly altered

instruction, defendant failed to satisfy Appellate Rule 10(a)(2), formerly Rule 10(b)(2)

as discussed above, and must show plain error, State v. McNeil, 350 N.C. 657, 691,

518 S.E.2d 486, 507 (1999).

      Furthermore, since defendant failed to specifically and distinctly allege plain

error in his brief, he waived his right under Appellate Rule 10(a)(4) to have this issue

reviewed for plain error, and we dismiss this argument on appeal. See State v.

Ferebee, 177 N.C. App. 785, 789, 630 S.E.2d 460, 463 (2006); see also State v. Ray, 364

N.C. 272, 278, 697 S.E.2d 319, 322 (2010) (concluding that “the Court of Appeals erred

by reaching the merits of defendant's arguments on this issue” when defendant failed

to argue plain error on appeal).

      Next, defendant contends that the trial court misinstructed the jury on the

definition of “appreciable.” As discussed supra, because defendant objected to the

trial court’s proposed instruction on the definition of “appreciable,” this issue has

been preserved for appeal, and we review to determine whether the “jury was misled

or that the verdict was affected by an omitted instruction.” See Bettis, 206 N.C. App.

at 727, 698 S.E.2d at 511-12.


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                                  STATE V. PHILLIPS

                                   Opinion of the Court



      “When a judge undertakes to define the law, he must state it correctly, and if

he does not, it is prejudicial error sufficient to warrant a new trial.” State v. Hairr,

244 N.C. 506, 509, 94 S.E.2d 472, 474 (1956). In deciding on what definition to

provide the jury, Judge Albright relied this Court’s decision in State v. Harrington,

78 N.C. App. 39, 45, 336 S.E.2d 852, 855 (1985), which defined “appreciable” as

“sufficient to be recognized and estimated, for a proper finding that defendant was

impaired.” In Hairr, our Supreme Court noted that, to sustain a conviction for DWI,

the State must show more than that

             a defendant drove an automobile upon a highway within
             the State when he has drunk a sufficient quantity of
             intoxicating liquor to affect however slightly his mental
             and physical faculties. The State must show that he has
             drunk a sufficient quantity of intoxicating liquor to cause
             him to lose normal control of his bodily or mental faculties,
             or both, to such an extent that there is an appreciable
             impairment of either or both of these faculties.

Hairr, 244 N.C. at 510-11, 94 S.E.2d at 475 (internal quotation marks omitted). Hairr

stands for the proposition that “appreciable impairment” means that the effects of

the substance on a defendant’s faculties must be apparent, identifiable, and large

enough to be noticed, i.e., recognizable and able to be estimated.      Because Judge

Albright’s instruction on the definition of “appreciable” corresponds with the

definition found in our caselaw, and thus properly “define[d]” the law, see id.,

defendant is unable to show that the instruction misled the jury. Consequently,

defendant’s argument is without merit.



                                          -11-
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                                   Opinion of the Court



      Next, defendant contends that the trial court erred in refusing to give defense

counsel’s requested clarification that “appreciable impairment” does not include

“slight” effects. Specifically, defendant argues that because a slight effect could still

be “sufficient to be recognized and estimated,” the trial court should have clarified its

definition of “appreciable.”

      “[T]his Court reviews jury instructions contextually and in their entirety.”

State v. Crow, 175 N.C. App. 119, 127, 623 S.E.2d 68, 73 (2005). Here, the trial court’s

instructions on DWI, when read in totality, establish that jurors could not find

defendant guilty without finding that the marijuana and methadone had more than

a slight or negligible impact on defendant’s faculties. Defendant’s mental or bodily

faculties must have been recognizably impaired.           Furthermore, the undisputed

evidence at trial tended to show that defendant admitted to smoking marijuana and

using methadone that morning, both of which constitute impairing substances. As to

defendant’s level of impairment, Trooper Stewart testified that, during the walk and

turn test—one of the standardized field sobriety tests used by law enforcement to

determine whether a person is impaired—defendant failed to do the turn correctly

and then stopped to get his feet back in order. During the one-legged stand test,

defendant put his foot down and swayed while trying to remain balanced. Finally,

during the Romberg Balance test, defendant had a noticeable front-to-back sway and

eyelid tremors, a typical indication of marijuana usage. Overall, Trooper Stewart

testified that defendant appeared to be very nervous, rubbed and scratched his face


                                          -12-
                                  STATE V. PHILLIPS

                                   Opinion of the Court



throughout the encounter, was overeager to cooperate, and had slow speech. Based

on his training and experience, Trooper Stewart testified that defendant had

consumed a sufficient quantity of marijuana and methadone to appreciably impair

his mental and physical faculties. Given our contextual review of the instructions on

“appreciable impairment” in totality, see Crow, 175 N.C. App. at 127, 623 S.E.2d at

73, and the strength of the evidence establishing defendant’s impairment at trial,

defendant is unable to show that the jury was misled by Judge Albright’s refusal to

include the proposed clarification or that the proposed instruction would have had

any effect on the jury’s verdict. See Bettis, 206 N.C. App. at 727, 698 S.E.2d at 511-

12.

      Finally, defendant argues that the trial court erred by declining to answer the

jury’s question asking: “What do we do in case we don’t come to a unanimous

decision?”

      When the trial court indicated that it was going to tell the jury to “[f]ollow all

my previous instructions” because he believed the question was only a “hypothetical”

one at that time, defense counsel did not object or offer any alternative response to

the question. Therefore, defendant has waived appellate review of this issue absent

a showing of plain error. McNeill, 177 N.C. App. at 789, 630 S.E.2d at 463. Because

defendant failed to allege plain error in his brief, as discussed above, we must dismiss

this argument pursuant to Appellate Rule 10(a)(4).

                                     Conclusion


                                          -13-
                                 STATE V. PHILLIPS

                                 Opinion of the Court



      For the foregoing reasons, we conclude that the trial court’s judgment was free

from error.



      NO ERROR.

      Judges ELMORE and GEER concur.

      Report per Rule 30(e).




                                        -14-
