An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-1229

                                  Filed: 5 May 2015

STATE OF NORTH CAROLINA
                                             Cabarrus County
              v.
                                             Nos. 13 CRS 50468, 2333
TIMOTHY DON GRAHAM


      Appeal by defendant from judgment entered 18 December 2013 by Judge W.

Erwin Spainhour in Cabarrus County Superior Court. Heard in the Court of Appeals

17 April 2015.



      Attorney General Roy Cooper, by Special Deputy Attorney General Neil Dalton,
      for the State.

      Appellate Defender Staples Hughes, by Assistant Appellate Defender Constance
      E. Widenhouse, for defendant-appellant.


      TYSON, Judge.


      Timothy Don Graham (“Defendant”) appeals from judgment entered after a

jury convicted him of driving while impaired and driving while license revoked. We

find no error in the convictions or the judgment entered thereon.

                                    I. Background

      Defendant was indicted for habitual impaired driving, driving while license

revoked (“DWLR”), and habitual felon status.
                                   STATE V. GRAHAM

                                   Opinion of the Court



      The State’s evidence tended to show the following: On the night of 17 March

2012, the Kannapolis Police Department established a driver’s license and sobriety

checkpoint between two crests on Lane Street, near the parking lot of the Lane Street

Baptist Church. The church parking lot is accessible by two entrances. Officer Seth

Killian (“Officer Killian”) was stationed at the second entrance nearer to the

checkpoint as the “chase car,” apprehending drivers who attempted to avoid the

checkpoint.

      Just before midnight, Officer Killian observed a black sedan followed by a red

pickup truck approaching on Lane Street from his left. Rather than continuing to the

checkpoint, both vehicles turned into the church parking lot at the first entrance.

Officer Killian “gave [the vehicles] a few seconds” to see if they would emerge from

“around the other side of the church.” He then drove “around the back side of the

church” and “immediately saw both” vehicles parked at such a distance that they

“didn’t seem to have any relation” to each other. The black sedan was parked closer

to Officer Killian, while the red truck was “pulled in nose first toward the very back

corner” of the lot. Officer Killian saw that the truck’s driver’s side door was open, and

“[D]efendant was standing just outside . . . approximately 3 to 5 feet away from the

actual driver’s seat” and “less than a foot” from the open door. Defendant then

“walk[ed] pas[t] the hood of the car and on toward the back of the church.” After

instructing the sedan’s two occupants to proceed through the checkpoint, Officer

Killian “immediately drove to the red truck and . . . made contact with the defendant.”


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                                   STATE V. GRAHAM

                                   Opinion of the Court



Officer Killian then observed a passenger, Barbara Hyatt (“Ms. Hyatt”), “sitting in

the middle of the bench seat [of the] truck.” He further noted that the truck was

parked beside a retaining wall, so that the passenger side door “would have been

really close to hitting the wall” if it had been opened.

      As Officer Killian pulled his patrol car behind the truck and parked, Defendant

walked back toward him. Officer Killian asked Defendant why he was “parked in the

back of the parking lot[,]” and Defendant replied, “[m]y truck is having problems or

is having engine problems.” Defendant did not open the truck’s hood, however, or

examine the engine in any way.

      Officer Killian observed no indicia of engine trouble but detected “a strong odor

of alcoholic beverage” on Defendant’s breath. Officer Killian asked Defendant how

much he had to drink. Defendant initially claimed, “I haven’t had anything to drink

today.” When Officer Killian inquired about the smell of alcohol on Defendant’s

breath, he replied, “[w]ell, I had one [beer] today and that’s it.” Officer Killian then

asked for Defendant’s driver’s license. Defendant said that he did not have it with

him, but gave his name and date of birth. Officer Killian consulted the computer in

his patrol car and learned that Defendant’s license was suspended. The red truck

was registered to Defendant’s brother.

      Officer Killian asked Defendant if he would submit to a portable breath test

(“PBT”) for alcohol. Defendant agreed but then twice failed to provide a hard breath

as instructed. Officer Killian requested assistance from Officer Tony Peeler (“Officer


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                                  Opinion of the Court



Peeler”), who was working at the checkpoint. Officer Peeler performed two PBTs on

Defendant, both of which detected alcohol. Between the two tests, Defendant told

Officer Peeler that he was “at the church to meet somebody to do some type of

construction, . . . checking on some type of construction job with the church.” During

the 35 minutes Officer Peeler was at the scene, no one arrived to meet with

Defendant.

      After administering three additional field sobriety tests, Officer Killian

arrested Defendant for driving while impaired (“DWI”). A subsequent blood draw

measured Defendant’s blood alcohol level as .13 grams per 100 milliliters of blood.

      Prior to jury selection, Defendant advised the trial court that he would

stipulate to three prior convictions for impaired driving within the preceding ten

years. See N.C. Gen. Stat. § 20-138.5(a) (2013). Defendant was tried before a jury for

DWI and DWLR, and was found guilty of both offenses. He then pled guilty to having

committed the felony of habitual impaired driving as an habitual felon. The trial

court consolidated Defendant’s two substantive offenses for judgment and sentenced

him as an habitual felon to an active term of 76 to 104 months imprisonment.

Defendant appealed to this Court.

                                      II. Issues

      Defendant argues the trial court erred by denying his motion to dismiss at the

conclusion of the evidence, because the State failed to prove that he was the driver of

the red truck observed by Officer Killian. Defendant asserts he was never seen


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                                  STATE V. GRAHAM

                                  Opinion of the Court



driving the truck or sitting in the driver’s seat, nor was he the truck’s owner. Given

Ms. Hyatt’s presence and location inside the truck when Officer Killian arrived in the

church parking lot, Defendant contends the State’s proof “supported only suspicion

or conjecture that [he] was driving [and] was not sufficient to take the case to the

jury.”

                               III. Standard of Review

             When considering a motion to dismiss for insufficiency of
             the evidence, we consider whether, in the light most
             favorable to the State and with all reasonable inferences
             drawn in the State’s favor, there is enough evidence of each
             essential element of the crime charged to persuade a
             rational juror that the defendant was the perpetrator.

State v. Childress, 367 N.C. 693, 694-95, 766 S.E.2d 328, 330 (2014). The State may

prove that a defendant was driving a vehicle by circumstantial evidence. See State v.

Riddle, 56 N.C. App. 701, 704, 289 S.E.2d 598, 599 (1982).                  Moreover,

“[c]ircumstantial evidence may withstand a motion to dismiss and support a

conviction even when the evidence does not rule out every hypothesis of innocence.”

Childress, 367 N.C. at 696, 766 S.E.2d at 330 (alteration in original) (citation and

internal quotation marks omitted). “A motion to dismiss should be granted, however,

where the facts and circumstances warranted by the evidence do no more than raise

a suspicion of guilt or conjecture” as to the defendant’s identity as the perpetrator.

State v. Turnage, 362 N.C. 491, 494, 666 S.E.2d 753, 755 (2008) (citation and internal

quotation marks omitted).



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                                   STATE V. GRAHAM

                                   Opinion of the Court



                                      IV. Analysis

                              A. Driving A Motor Vehicle

      Driving a motor vehicle is an essential element of both DWI and DWLR. N.C.

Gen. Stat. §§ 20-28, 20-138.1(a)(1) (2013). “[O]ne ‘drives’ within the meaning of G.S.

20-138.1 if he is in actual physical control of a vehicle . . . which has the engine

running.” State v. Fields, 77 N.C. App. 404, 406, 335 S.E.2d 69, 70 (1985).

      Defendant likens his case to State v. Ray. 54 N.C. App. 473, 283 S.E.2d 823

(1981). In Ray, a police officer who responded to an accident call testified that he

observed two parked cars that appeared to have been struck by a third car, which

was occupied by the defendant “halfway in the front seat.” Id. at 473, 475, 283 S.E.2d

at 824-25. This Court held the officer’s testimony, standing alone, was insufficient to

support a jury finding that the defendant drove the vehicle for purposes of N.C. Gen.

Stat. § 20-138(a):

             The only evidence presented by the State connecting the
             defendant with the automobile was the Public Safety
             Officer’s testimony that he observed the defendant
             “halfway [sic] the front seat.” This circumstantial evidence
             alone is insufficient to support a conclusion that the
             defendant was the driver. The State offered no evidence
             that the car had been operated recently or that it was in
             motion at the time the officer observed the defendant. Nor
             did the State offer evidence that the motor was running
             with the defendant sitting under the steering wheel at the
             time the officer came upon the scene . . . . It is possible that
             other circumstantial evidence – such as testimony that the
             defendant was seen driving the car at some point
             immediately prior to the accident or evidence as to the
             ownership of the automobile – in addition to the testimony


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                                    STATE V. GRAHAM

                                    Opinion of the Court



              of the officer would have bolstered the State’s case.
              However, no other such evidence was presented.

Id. at 474-75, 283 S.E.2d at 825 (citation omitted) (emphasis supplied).

       The circumstantial evidence of Defendant’s identity as the driver of the red

truck is significantly stronger than the limited proffer in Ray. In this case, there is

no question that someone drove the red truck down Lane Street into the church

parking lot, as observed by Officer Killian moments prior to his encounter with

Defendant. Id. at 475, 283 S.E.2d at 825 (“The State offered no evidence that the car

had been operated recently[.]”).     Inasmuch as Officer Killian waited just “a few

seconds” before proceeding into the lot, Defendant’s location at the open driver’s side

door is strong evidence that Defendant exited the truck through the door. The fact

that the driver of the truck took action consistent with an attempt to avoid the

sobriety checkpoint, paired with the fact of Defendant’s intoxication, tend to support

the conclusion that Defendant was driving. Defendant’s reference to the vehicle as

“my truck” likewise has some tendency to show an exercise of dominion and control

indicating his status as the driver. Cf. State v. Glaze, 24 N.C. App. 60, 64, 210 S.E.2d

124, 127 (1974) (“The driver of a borrowed car, like the owner of the car, has the power

to control the contents of the car.”).

       Defendant’s false and contradictory statements to the responding officers also

constitute circumstantial evidence “tending to show consciousness of guilt.” State v.

Walker, 332 N.C. 520, 537, 422 S.E.2d 716, 726 (1992); see also Riddle, 56 N.C. App.



                                            -7-
                                  STATE V. GRAHAM

                                   Opinion of the Court



at 705, 289 S.E.2d at 600 (noting “discrepancies within defendant's statements and

between defendant's statements and the physical evidence”).

      Defendant told Officer Killian the truck was parked in the church parking lot

because of engine trouble. He told Officer Peeler that he had come to the church, at

midnight, to inquire about construction work. Defendant also initially denied having

consumed any alcohol and then insisted that he had just one beer.            These are

conflicting claims, which were both belied by his blood alcohol level. Defendant gave,

at best, a misleading response when asked for his driver’s license.

                                    V. Conclusion

      We hold that the State’s evidence, though circumstantial, was sufficient to

support a reasonable inference that Defendant was driving the red truck when it was

observed by Officer Killian. See Riddle, 56 N.C. App. at 704-05, 289 S.E.2d at 600;

State v. Dula, 77 N.C. App. 473, 474-75, 335 S.E.2d 203, 204 (1985).

      Although the State did not eliminate the possibility that Ms. Hyatt was the

driver, or “prove to a scientific certainty that defendant was the driver of the car[,]”

the State was not required to do so in order to submit the charges to the jury. Dula,

77 N.C. App. at 475, 335 S.E.2d at 204. Ms. Hyatt was not sitting in the driver’s seat

when she was observed by Officer Killian. Other than her presence in the truck, no

additional evidence suggests she had been driving.

      Defendant received a fair trial, free from prejudicial errors he preserved,

presented, and argued.


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                         STATE V. GRAHAM

                         Opinion of the Court



NO ERROR.

Judges BRYANT and DIETZ concur.

Report per Rule 30(e).




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