An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA 15-345

                                 Filed: 20 October 2015

Madison County, No. 13 CRS 392

STATE OF NORTH CAROLINA

              v.

ROBERT WAYNE HUDGINS


       Appeal by defendant from judgment entered 2 October 2014 by Judge Gary

Gavenus in Madison County Superior Court. Heard in the Court of Appeals 28

September 2015.


       Attorney General Roy Cooper, by Assistant Attorney General David L. Gore III,
       for the State.

       Jeffrey William Gillette for defendant-appellant.


       INMAN, Judge.


       Robert Wayne Hudgins (“Defendant”) appeals from a judgment entered

following his conviction for driving while impaired (“DWI”).             Defendant’s sole

contention on appeal is that the trial court erred by denying his motion to dismiss for

insufficient evidence at the close of evidence. We find no error.

                                      Background
                                 STATE V. HUDGINS

                                  Opinion of the Court



      The evidence presented at trial tends to show that Defendant was involved in

a one-car accident at approximately 9:30 p.m. on the night of 24 September 2013.

Defendant’s car crossed over the center line, went straight through a turn, and

collided with the guardrail. Madison County Deputy Jeff Elkins (“Elkins”) responded

to the scene and found Defendant standing by his vehicle. Elkins engaged Defendant

in conversation and noticed Defendant was “uneasy on his feet,” had slurred speech,

and had a faint odor of alcohol on his breath. Defendant told Elkins that a deer ran

into the path of his car, causing the accident. Elkins did not observe any “swerve

marks on the highway.” When Elkins asked Defendant about the odor of alcohol,

Defendant admitted to drinking wine earlier that day. Within minutes of Elkins’

arrival, Defendant began complaining of back pain and requested an ambulance.

      State Trooper Jeremy Carver (“Carver”) arrived on the scene at approximately

10:30 p.m., just as Defendant was loaded into the ambulance. Before leaving the

accident scene, Elkins informed Carver that he believed Defendant to be impaired.

Carver remained at the accident site for approximately fifteen to twenty-five minutes

before following Defendant to the hospital.

      Carver arrived at the hospital at midnight and found Defendant strapped to a

gurney in the hallway of the crowded emergency room. Carver questioned Defendant

about the accident and observed signs of impairment. Specifically, Carver noted that

Defendant exhibited glassy eyes, slow speech, and a “strong” odor of alcohol.



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                                    Opinion of the Court



Defendant also admitted to Carver that he had previously been drinking. Carver was

unable to administer most of the standard field sobriety tests due to Defendant’s

position on the gurney, but he did attempt to give Defendant the horizontal gaze

nystagmus (“HGN”) test. Carver was unable to complete the HGN due to Defendant’s

inability to focus on the stimulus. Defendant testified that he received a narcotic

painkiller for his pain, prior to Carver’s arrival.

      Carver administered two alka-sensor tests on Defendant at 12:19 a.m. and

12:30 a.m., both of which registered positive for alcohol. Based on his observations,

Carver formed an opinion that Defendant “had consumed a sufficient quantity of an

impairing substance to appreciably impair his mental and physical faculties.” Carver

notified Defendant that he was to be charged with driving while impaired and

informed him of his rights regarding a chemical blood alcohol analysis. Defendant

refused to submit to the blood test and signed the form indicating his refusal.

      On 12 June 2014, Defendant was tried in District Court, where he was found

guilty of DWI. Defendant appealed to Superior Court for a trial de novo. A jury found

Defendant guilty of DWI, and the trial court imposed a Level Four punishment of 120

days in the county jail. Defendant appeals from the judgment.

                                      Discussion

      Defendant raises one issue on appeal, arguing that the trial court erred in

denying his motion to dismiss for insufficient evidence.      Specifically, Defendant



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                                  STATE V. HUDGINS

                                   Opinion of the Court



claims the State’s circumstantial evidence was insufficient to show he was impaired

at the time of the accident. For the following reasons, we disagree.

      “The denial of a motion to dismiss for insufficient evidence is a question of law,

which this court reviews de novo.” State v. Bagley, 183 N.C. App. 514, 523, 644 S.E.2d

615, 621 (2007) (citations omitted). To affirm the trial court’s denial of a motion to

dismiss, we must find there is substantial evidence of each essential element of the

offense charged and of defendant’s identity as the perpetrator. Id. “Substantial

evidence is that amount of relevant evidence necessary to persuade a rational juror

to accept a conclusion.” State v. Scott, 356 N.C. 591, 597, 573 S.E.2d 866, 869 (2002).

“Circumstantial evidence may withstand a motion to dismiss and support a conviction

even when the evidence does not rule out every hypothesis of innocence.” Id. at 596,

573 S.E.2d at 869 (internal quotation and citation omitted); see also State v. Fritsch,

351 N.C. 373, 382, 526 S.E.2d 451, 457 (2000) (“The fact that some evidence in the

record supports a contrary inference is not determinative on the motion to dismiss.”).

      In reviewing challenges to the sufficiency of the evidence, “we must view the

evidence in the light most favorable to the State, giving the State the benefit of all

reasonable inferences.” State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992)

(citation omitted). “[C]ontradictions and discrepancies do not warrant dismissal of

the case – they are for the jury to resolve.” Id. (citation and internal quotation marks

omitted). Furthermore, “the defendant’s evidence should be disregarded unless it is



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                                   STATE V. HUDGINS

                                   Opinion of the Court



favorable to the State or it does not conflict with the State’s evidence.” Scott, 356

N.C. at 596, 573 S.E.2d at 869.

      Defendant was charged with DWI, which required the State to prove that

Defendant drove a vehicle upon a highway, street, or public vehicular area while

under the influence of an impairing substance. N.C. Gen. Stat. § 20-138.1(a)(1)

(2013). Prior to trial, Defendant stipulated to driving his vehicle on a street, highway,

or public vehicular area, satisfying the first element of impaired driving. Therefore,

our review is limited to whether the State presented sufficient evidence of

Defendant’s impairment.

      “Before a defendant can be convicted under N.C. Gen. Stat. § 20-138.1(a)(1),

the State must prove beyond a reasonable doubt that defendant had ingested a

sufficient quantity of an impairing substance to cause his faculties to be appreciably

impaired.” State v. Phillips, 127 N.C. App. 391, 393, 489 S.E.2d 890, 891 (1997)

(citation omitted). “An officer’s opinion that a defendant is appreciably impaired is

competent testimony and admissible evidence when it is based on the officer’s

personal observation of an odor of alcohol and of faulty driving or other evidence of

impairment.” State v. Gregory, 154 N.C. App. 718, 721, 572 S.E.2d 838, 840 (2002)

(citation omitted). Other evidence of impairment may include slurred speech, red or

glassy eyes, or staggering or unsteadiness while walking or standing. Id. Further,

“[o]ur Supreme Court has held that ‘the [f]act that a motorist has been drinking, when



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                                  Opinion of the Court



considered in connection with faulty driving . . . or other conduct indicating an

impairment of physical or mental faculties, is sufficient prima facie to show a

violation of G.S. 20-138.’” State v. Coffey, 189 N.C. App. 382, 387, 658 S.E.2d 73, 76

(2008) (quoting Atkins v. Moye, 277 N.C. 179, 185, 176 S.E.2d 789, 794 (1970).

      Our review of the record shows there was sufficient evidence that Defendant

was appreciably impaired at the time of the accident to withstand the motion to

dismiss.   Deputy Elkins found Defendant’s car positioned against the guardrail,

following a crash. Elkins also noted Defendant was “uneasy on his feet,” had slurred

speech, and emitted a faint odor of alcohol. Defendant admitted he had been drinking

earlier in the day. At the hospital, Trooper Carver further observed that Defendant’s

eyes were glassy and red, he had slow and mumbled speech, and a strong odor of

alcohol coming from his breath. Defendant was unable to pass the HGN field sobriety

test and gave two positive alka-sensor results. Based on his observations, Carver

formed an opinion that Defendant “had consumed a sufficient quantity of an

impairing substance to appreciably impair his mental and physical faculties.”

Finally, Defendant’s refusal to submit to a blood alcohol test was also competent

evidence of his impairment under N.C. Gen. Stat. § 20-139.1(f) (2013). See Gregory,

154 N.C. App. at 721, 572 S.E.2d at 840.

                                    Conclusion




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                                 STATE V. HUDGINS

                                 Opinion of the Court



      Viewing the evidence in the light most favorable to the State, we conclude there

was sufficient evidence to support a reasonable inference of Defendant’s guilt.

Accordingly, we hold the trial court properly denied Defendant’s motion to dismiss.



      NO ERROR.

      Judges STROUD and DAVIS concur.

      Recommend Report per Rule 30(e).




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