IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-659

No. COA20-556

Filed 7 December 2021

Martin County, No. 14 CRS 824; 14 CRS 51179; 19 CRS 128

STATE OF NORTH CAROLINA

v.

KEITH AARON BUCKLEW, Defendant.

Appeal by Defendant from judgment entered 11 December 2019 by Judge 

Leonard L. Wiggins in Martin County Superior Court. Heard in the Court of Appeals 

26 May 2021.

Attorney General Joshua H. Stein, by Assistant Attorney General Kathryne E. 

Hathcock, for the State.

The Robinson Law Firm, P.A., by Leslie S. Robinson, for Defendant-Appellant.

WOOD, Judge.

¶ 1 Keith Bucklew (“Defendant”) appeals from judgments from the superior court 

finding Defendant guilty of assault with a deadly weapon inflicting serious injury, 

felony serious injury by a motor vehicle, and driving while impaired. We hold the 

trial court committed no error. 

I. Background

¶ 2 The appeal arises from the convictions of Defendant, a retired Marine with 

twenty years of service. On November 26, 2014, Defendant was driving himself and 
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his ten year old son in a white Land Rover. An eyewitness reported Defendant was 

speeding, drifting within his lane toward the center line, crossing the center line, and 

driving erratically and aggressively. Around dusk, Defendant’s Land Rover swerved 

into oncoming traffic and hit a white Cadillac Escalade driven by Tina Wasinger 

(“Wasinger”), with her two minor sons as passengers, and a Hyundai Sante Fe driven 

by Richard Sermon (“Sermon”), with his wife and four children as passengers. 

Trooper Mark Peaden (“Trooper Peaden”) of the North Carolina State Highway Patrol

responded to the call. Trooper Peaden observed that Defendant and Wasinger’s 

vehicles had heavy front end damage and Sermon’s vehicle appeared to have been 

sideswiped. As a result of the collision, Wasinger suffered both significant, long-term,

physical injuries and the loss of her job. At the scene of the accident, Trooper Peaden 

observed that there were no apparent skid marks indicating an attempt to stop the 

vehicle. 

¶ 3 Trooper Peaden located Defendant at the scene and noted Defendant appeared 

impaired; acted loopy, apathetic, and lethargic; had slurred speech; and was very 

tired. Due to Defendant’s injuries, Defendant was transported to the hospital. 

Defendant had sustained substantial injuries, including a fractured femur and 

broken hand. 

¶ 4 At the hospital, Defendant was described as having “droopy eyelids, a blank 

stare, slurred speech and [was] lethargic”; but also having a few coherent moments 
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where he could answer questions. In response to Trooper Peaden’s inquiry about 

whether Defendant was taking any medication or drinking alcohol, Defendant 

responded he was on oxycodone, valium, and morphine which he reported he last took 

at 4:00 o’clock that morning. Trooper Peaden performed an alcosensor breath test on 

Defendant which indicated Defendant had not consumed alcohol prior to the collision. 

¶ 5 Trooper Peaden found Defendant to be at-fault in the collision and impaired to 

the extent he was unable to appreciate the danger of the collision. Trooper Peaden 

placed Defendant under arrest for driving while impaired (“DWI”), notified 

Defendant of his rights to a chemical analysis test, and requested Defendant to 

submit to a chemical analysis test. Defendant’s blood sample revealed the presence 

of oxycodone, diazepam, nordiazepam, and morphine. A urine screen conducted at 

the hospital was positive for benzodiazepines, opiates, and tricyclic antidepressants.1 

Defendant was transported by helicopter to another hospital to receive a higher level 

of care after the blood draw was complete. On November 26, 2014, Defendant was 

indicted for assault with a deadly weapon inflicting serious injury, DWI, 

misdemeanor child abuse, and felony serious injury by vehicle. 

¶ 6 Defendant filed a pretrial motion to suppress the seizure and analysis of his 

 

1 Benzodiazepines work to sedate or calm a person and includes medication such as Valium. 

NAT’L INSTITUTE ON DRUG ABUSE, https://www.drugabuse.gov/drug-topics/opioids/benzodiazepinesopioids, (last visited Oct. 15, 2021).
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blood. The trial court denied Defendant’s motion to suppress, explaining that based 

upon testimony from Trooper Peaden; the eyewitness’s, a hospital nurse’s, 

Defendant’s and Sermon’s statements; the emergent medical care needed by 

Defendant; and the results of Defendant’s blood draw, there was sufficient probable 

cause to charge Defendant with the offense of DWI and there was sufficient exigent 

and articulable basis to conduct a warrantless blood draw for a chemical analysis. 

The trial court also denied Defendant’s motion for judicial notice of the National 

Weather Service’s weather report (“Weather Report”), motions to dismiss, objection 

to the lab and chain of custody report, and objection to the analyst’s testimony 

regarding Defendant’s blood sample. On December 11, 2019, Defendant was found 

guilty of assault with a deadly weapon inflicting serious injury, DWI, and felonious 

serious injury by a motor vehicle. On appeal, Defendant contends the trial court erred 

by denying Defendant’s motion for judicial notice, motion to suppress the blood draw,

and motion to dismiss, and by admitting, over Defendant’s objection, the lab result

and chain of custody report and analyst’s testimony. 

II. Discussion

A. Motion to Suppress Defendant’s Blood Draw

1. Competent Evidence Existed

¶ 7 We turn first to Defendant’s contention the trial court’s findings of fact in the 

order denying Defendant’s motion to suppress the blood draw (the “Denial Order”) 
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were not supported by competent evidence. We note at the outset the standard of 

review for a motion to suppress is not substantial competent evidence, but rather a 

lower threshold of competent evidence. State v. Biber, 365 N.C. 162, 167-68, 712 

S.E.2d 874, 878 (2011). “In reviewing a trial judge’s ruling on a suppression motion, 

we determine only whether the trial court’s findings of fact are supported by 

competent evidence, and whether these findings of fact support the [trial] court’s 

conclusions of law.” State v. Pulliam, 139 N.C. App. 437, 439-40, 533 S.E.2d 280, 282 

(2000) (citation omitted and emphasis added)). The trial court’s findings of fact which 

are supported by competent evidence are “conclusive on appeal . . . even if the 

evidence is conflicting.” State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 

(2010) (quoting State v. Eason, 336 N.C. 730, 745, 445 S.E.2d 917, 926 (1994)). “[T]he 

trial court’s conclusions of law are reviewed de novo and must be legally correct.” 

State v. Scruggs, 209 N.C. App. 725, 727, 706 S.E.2d 836, 838 (2011) (citation 

omitted).

¶ 8 Here, the findings of fact in the Denial Order support the conclusion probable 

cause and exigent circumstances existed to initiate a warrantless blood draw. 

Probable cause is the “facts and circumstances within an officer’s knowledge and of 

which he had reasonably trust-worthy information which are sufficient to warrant a 

prudent man in believing that the suspect had committed or was committing an 

offense.” State v. Williams, 314 N.C. 337, 343, 333 S.E.2d 708, 713 (1985) (citations 
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omitted). Whether exigent circumstances exist as to justify a warrantless blood draw, 

though yet to be precisely defined, depends on the totality of the circumstances. 

Missouri v. McNeely, 569 U.S. 141, 156, 133 S. Ct. 1552, 1563, 185 L. Ed. 2d 696, 709 

(2013); State v. McCrary, 237 N.C. App. 48, 53, 764 S.E.2d 477, 481 (2014).

¶ 9 We are not persuaded by Defendant’s argument the Denial Order’s findings of 

fact were not supported by competent evidence. The evidence in the record tends to 

show the eyewitness reported that Defendant, prior to collision, crossed the center 

line, drifted within his lane, and drove aggressively and erratically. Sermon testified

Defendant’s vehicle swerved from oncoming traffic and “almost made like a left turn 

directly into [Wasinger’s vehicle] . . . .” Once Trooper Peaden arrived at the scene, he 

noted there were no skid marks indicating any attempt to stop. After Defendant was 

transported to the hospital due to his injuries, a breath alcosensor test revealed no 

presence of alcohol, but Defendant admitted to taking oxycodone, valium, and 

morphine that morning. When Trooper Peaden spoke with Defendant at the hospital, 

he noticed Defendant had slurred speech, a loopy demeanor, was lethargic and slow 

to answer questions. At one point Defendant told Trooper Peaden he did not 

remember what happened while, at another point, he told Trooper Peaden he was hit 

by a car. Nurse Warren, a nurse at the first hospital to which Defendant was taken, 

testified Defendant had a significant injury to his femur, injury to his neck, a 

contusion, a fracture, swelling, and enlarged pupils, and that he was falling asleep 
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between questions. 

¶ 10 Based off his observations, Trooper Peaden formed the opinion Defendant had 

consumed a “sufficient quantity of impairing substances so that his mental and 

physical facilities were appreciably impaired.” However, Trooper Peaden did not

have time to leave the hospital to acquire a search warrant because Defendant was 

“very, very badly injured” and the hospital does not administer pain medication until 

after a blood draw is performed. Defendant’s injuries, moreover, were so severe as to 

warrant air-lifting Defendant to another hospital for a higher level of care after the 

blood draw was complete. Based on the evidence presented at trial, there was

competent evidence to support the findings of fact in the Denial Order.

¶ 11 In addition to a general challenge to the findings of fact in the Denial Order, 

Defendant specifically challenges findings of fact twelve, fourteen, seventeen, and 

twenty-three.

a. No Error as to Finding of Fact Number 12

¶ 12 Finding of fact number twelve states, “Stacy Toppin, RN, described the 

defendant as alert and able to answer questions. She described his speech as slow 

and thick tongued. He was further described as neurologically intact with no visible 

head injuries. She described his pupils as appearing pinpoint.” Competent evidence 

exists to support fact number twelve through Stacy Toppin’s testimony where she 

stated Defendant “had slurred speech at the time, [was a] little thick tongue, [and 
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had a] little bit of confusion[,]” and his pupils were “pinpoint looking.” On voir dire, 

Stacy Toppin explained that Defendant had no apparent head injuries, was stable, 

and was able to answer questions. The testimony provided by Stacy Toppin provided

competent evidence to support finding of fact number twelve.

b. No Error as to Findings of Fact Number 14 and 17

¶ 13 Findings of fact fourteen and seventeen state:

(14) [i]n addition to defendant’s statement and disclosures, 

Trooper Peaden also administered a portable breath test in 

an effort to rule out the presence of alcohol. Due to the 

acute nature of the defendant’s injuries, the court finds 

that it was not appropriate to administer or attempt to 

administer the Horizontal Gaze Nystagmus, the Walk and 

Turn or One-legged stand test standard field sobriety tests 

due to the acute nature of the defendant’s injuries and the 

dynamic and emergent medical nature of the environs and 

surroundings of a medical facility.

. . . 

(17) [a]fter stabilizing treatment was administered at 

Martin General Hospital, the defendant was subsequently 

transferred to Vidant Greenville for further and more 

advanced trauma care, which further demonstrated the 

dynamic and emergent medical care needed by the 

defendant which further underscores the necessity and 

exigency for a blood draw.”

¶ 14 At trial, the evidence showed Defendant sustained substantial injuries 

including a broken hand and fractured femur. Defendant’s injuries were so severe he 

ultimately had to be transported by helicopter to another hospital for more advanced

care. Despite the existence of conflicting evidence which may refute finding of fact 
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number fourteen, conflicting evidence does not affect a finding of fact which is 

supported by competent evidence. Buchanan, 353 N.C. at 336, 543 S.E.2d at 826. 

Based on the severity of Defendant’s injuries, findings of fact numbers fourteen and 

seventeen were supported by competent evidence.

c. No Error as to Finding of Fact 23

¶ 15 Finding of fact number twenty-three states, “[n]o search warrant was obtained 

or necessary based on the facts and totality of the circumstances presented.” The 

evidence tends to show Trooper Peaden found probable cause existed Defendant had 

committed the offense of DWI based on Defendant’s admission to taking multiple 

medications, the lack of skid marks indicating any attempt to stop, eyewitness reports 

of Defendant’s erratic driving, and Defendant’s lethargic and loopy behavior. 

Moreover, per our analysis above, Defendant’s injuries were substantial and required 

immediate medical care, including the administration of pain-relieving medication. 

Because of the evidence presented, finding of fact number twenty-three is based upon 

competent evidence.

2. Warrantless Blood Draw was Justified

¶ 16 Next, Defendant argues the findings of fact do not support the conclusion that 

exigent circumstances and probable cause existed to support a warrantless blood test. 

Both the Fourth Amendment to the United States Constitution and Article I Section 

20 of the North Carolina Constitution protect a person from unreasonable searches 
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and seizures. U.S. Const. Amend. IV; N.C. Const. art. I, § 20. Blood tests “plainly 

constitute searches of persons” and thus are considered seizures under the Fourth 

Amendment. Schmerber v. California, 384 U.S. 757, 767, 86 S. Ct. 1826, 1834, 16 L. 

Ed. 2d 908, 918 (1996) (internal quotation marks omitted); see also State v. Carter, 

322 N.C. 709, 714, 370 S.E.2d 553, 556 (1988) (holding “[t]he withdrawal of a blood 

sample from a person is a search subject to protection by article I, section 20 of our 

constitution”). A blood test may only be performed after a warrant or valid consent 

is obtained or under exigent circumstances with probable cause “unless probable 

cause and exigent circumstances exist that would justify a warrantless search.” State

v. Welch, 316 N.C. 578, 585, 342 S.E.2d 789, 793 (1986). See State v. Romano, 369 

N.C. 678, 692, 800 S.E.2d 644, 653 (2017).

¶ 17 First we must determine whether probable cause existed. Probable cause is 

defined as “a reasonable ground of suspicion, supported by circumstances sufficiently 

strong in themselves to warrant a cautious man in believing the accused to be guilty.” 

State v. Smith, 222 N.C. App. 253, 255, 729 S.E.2d 120, 123 (2012) (citation omitted).” 

See Carroll v. United States, 267 U.S. 132, 161, 45 S. Ct. 280, 288, 69 L. Ed. 543, 555 

(1925) (citation omitted). Here, the circumstances provided Trooper Peaden with 

reasonable grounds to suspect Defendant had committed the offense of a DWI. Prior 

to the accident, an eyewitness placed a 911-call to report to the police Defendant was 

driving erratically, Defendant’s vehicle was “weaving about the road[,]” and 
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Defendant ultimately struck two vehicles. Upon arriving to the scene of the accident, 

Trooper Peaden discovered further evidence which indicated Defendant was 

responsible for the crash. Trooper Peaden observed vehicle debris were “everywhere”, 

three heavily damaged vehicles were present including Defendant’s car, and no brake 

skid marks were present to indicate anyone attempted to stop their vehicles prior to 

the collision. All three vehicles rested outside of and to the left of Defendant’s lane of 

travel. Trooper Peaden did not detect alcohol on Defendant, but Defendant 

voluntarily admitted to taking his medications that morning. Defendant held valid 

prescriptions for oxycodone, valium, and morphine and voluntarily stated to Trooper 

Peaden he had last taken his medications that morning at 4 a.m. Trooper Peaden 

described Defendant as lethargic, and having slurred speech, droopy eyelids, and a 

blank stare. However, Defendant’s injuries were of such severity that he was 

classified as a trauma patient and was rapidly deteriorating. Based on these findings 

of fact, the trial court properly concluded probable cause existed to perform a 

warrantless blood test. Accordingly, this Court is compelled to hold the trial court 

did not err when it determined probable cause existed for Trooper Peaden to form the

opinion that Defendant had committed the offense of DWI so as to justify a 

warrantless blood test.

¶ 18 Turning our analysis to whether the findings of fact supported the conclusion 

exigent circumstances were present, the underlying question as to whether exigent 
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circumstances exist is whether “there is a compelling need for official action and no 

time to secure a warrant.” Missouri v. McNeely, 569 U.S. 141, 149, 133 S. Ct. 1552,

1559, 185 L. Ed. 2d 696, 705 (2013) (citation omitted). In the case of a DWI, the 

reasonableness of a warrantless blood test “must be determined case by case based 

on the totality of the circumstances.” Id. at 156, 133 S. Ct. at 1563, 185 L. Ed. 2d at 

709 (2013). See State v. Dahlquist, 231 N.C. App. 100, 103, 752 S.E.2d 665, 667

(2013). Though the natural dissipation of a substance within a person’s blood stream 

is a factor to consider, it is not a per se exception to the totality of the circumstances 

test. McNeely, 569 U.S. at 156, 133 S. Ct. at 1563, 185 L. Ed. 2d at 709. In State v. 

Granger, we held a totality of the circumstances illustrated exigent circumstances 

when sufficient probable cause had already been established, the officer could not 

thoroughly investigate due to the extent of defendant’s injuries, delays in the warrant 

application process, and the potential of imminent administration of pain medication. 

State v. Granger, 235 N.C. App. 157, 165, 761 S.E.2d 923, 928 (2014). 

¶ 19 In this case, like Granger, a totality of the circumstances shows exigent 

circumstances existed to justify a warrantless blood draw. First, sufficient probable 

cause existed to establish Defendant was driving while impaired prior to the 

initiation of the blood draw. Next, the officer was not able to thoroughly question 

Defendant at the scene of the accident because Defendant was “pinned in his vehicle” 

and subsequently taken to the hospital as a trauma patient due to the extent of 
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Defendant’s injuries. Indeed, Defendant’s own affidavit confirmed Defendant’s 

injuries caused “acute blood loss.” Moreover, Defendant’s “condition was 

deteriorating” due to his injuries. In light of these circumstances, the officer did not 

have the time necessary to acquire a search warrant due to the extent of Defendant’s 

injuries and the fact that pain medication in par with stabilizing treatment was 

administered immediately after a blood drawn was taken. Defendant was 

transferred to another hospital for advanced trauma care due to the severity of his 

injuries and his deteriorating medical condition. Although we question the efficacy 

of reading Defendant his Notice of Rights when he was in such critical condition, the 

totality of the circumstances in the instant case shows the lack of time to acquire a 

warrant in light of the compelling need to perform a blood test on Defendant once the 

officer formed the opinion that Defendant had driven while impaired. Thus, we must 

hold the trial court did not err when finding sufficient exigent circumstances existed 

to justify a warrantless blood draw.

B. Judicial Notice of Weather Conditions

¶ 20 Defendant next argues the trial court erred by not taking judicial notice of the 

Weather Report. We also conclude the trial court did not err by denying to take 

judicial notice of the National Weather Station’s weather conditions on the date of 

the collision. Under N.C. Gen. Stat. § 8C-1 Rule 201(b) “[a] judicially noticed fact 

must be one not subject to reasonable dispute in that it is either (1) generally known 
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within the territorial jurisdiction of the trial court or (2) capable of accurate and ready 

determination by resort to sources whose accuracy cannot reasonably be questioned.” 

N.C. Gen. Stat. § 8C-1, Rule 201(b) (2021). An indisputable fact is one that is “so well 

established as to be a matter of common knowledge.” In re L.G.A., 277 N.C. App. 46,

2021-NCCOA-137, ¶24 (citation omitted). A trial court has discretion when deciding 

whether or not to take judicial notice, and this Court reviews for abuse of discretion. 

State v. McDougald, 38 N.C. App. 244, 248, 248 S.E.2d 72, 77 (1978). However, a

court “cannot take judicial notice of a disputed question of fact,” Hinkle v. Hartsell, 

131 N.C. App. 833, 836, 509 S.E.2d 455, 458 (1998) (citation omitted), and “any 

subject that is open to reasonable debate is not appropriate for judicial notice.” In re

R.D., 376 N.C. 244, 264, 852 S.E.2d 117, 132 (2020) (citation and internal ellipses 

omitted).

¶ 21 This Court’s opinion in State v. McDougald describes an applicable example of 

when the trial court did not abuse its discretion by denying a defendant’s motion to 

take judicial notice. In McDougald, the defendant appealed the trial court’s denial to 

take judicial notice of news broadcasts concerning the case. State v. McDougald, 38 

N.C. App. 244, 248, 248 S.E.2d 72, 77 (1978). The McDougald Court rejected the 

defendant’s assignment of error, writing, “[s]uch facts could have been easily proven 

by witnesses ordinarily available. There was no showing of abuse of discretion by the 

trial court. Therefore, the trial court did not err in failing to take judicial notice that 
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the case was the subject of radio and television broadcasts.” Id. McDougald held a 

trial court does not abuse its discretion when denying to take judicial notice of a fact 

if there exists an opportunity to otherwise prove the fact at trial. 

¶ 22 This concept has direct application to the trial court’s decision not to take 

judicial notice of the Weather Report in this case. The trial court denied Defendant’s 

motion for judicial notice as multiple witnesses testified to the weather conditions on 

the date of the collision. Thus, the trial court had the right to conclude sufficient 

evidence existed from the witnesses’ testimonies to allow the jury to form their own 

conclusion on the state of the weather. Following the reasoning in McDougald, the 

trial court did not abuse its discretion when it declined to take judicial notice of the 

National Weather Service weather conditions report on the date of collision.

¶ 23 Against this conclusion, Defendant argues his motion for judicial notice should 

have been granted under N.C. Gen. Stat. § 8C-1, Rule 201(d). Rule 201(d) states “[a] 

court shall take judicial notice if requested by a party and supplied with the necessary 

information.” § 8C-1, Rule 201(d). The implication, Defendant argues, is that “the 

trial court has no discretion when supplied with the information prescribed by Rule

201.” Of course Rule 201(d) is only a portion of Rule 201 as a whole, and thus we

must view section (d) in light of the entirety of Rule 201. See Pilos-Narron v. Narron,

239 N.C. App. 573, 771 S.E.2d. 633 (2015) (viewing the portion of Rule 56(e) quoted

by plaintiff in its entirety). 
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¶ 24 Section (d) of Rule 201 is predicated upon the two-part test of Rule 201’s 

Section (b) which states a judicially noticed fact is one that cannot be reasonably 

disputed because it is either 1) general knowledge or 2) “capable of accurate and ready 

determination by resort to sources whose accuracy cannot reasonably be questioned.” 

§ 8C-1, Rule 201(b). The issue in contention here is the level of rain fall at the time 

of the collision, thus why, not unreasonably, Defendant wanted the trial court to take 

judicial notice of the Weather Report. However, the contentious issue, the level of 

rainfall fails the first prong of Section (b)’s test because though individuals may know 

if it is raining, the precise amount of rain is not a generally known fact. Under the 

second prong of the test, sources as used in Section (b) must be “a document of such 

indisputable accuracy as [to] justif[y] judicial reliance.” State v. Dancy, 297 N.C. 40,

42, 252 S.E.2d 514, 515 (1979). The amount of rain is generally a fact that is “capable 

of accurate and ready determination by resort to sources whose accuracy cannot 

reasonably be questioned.” N.C. Gen. Stat. § 8C-1, Rule 201(b) (2021). In State v. 

Canaday, this Court held a document of indisputable accuracy “contemplates 

material from a primary source in whose hands the gathering of such information 

rests.” 110 N.C. App. 763, 766, 431 S.E.2d 500, 501 (1993). Flowing from our 

reasoning in Canaday, weather reports from the National Weather Service are a 

result of data gathered by the National Weather Service and thus typically are 
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documents of indisputable accuracy.

2 See Bain Enters., LLC v. Mountain States

Mutality Casualty Co., 267 F. Supp. 3d 796, 819 (W.D. Tex. 2016); Kovera v. Envirite

of Ill., Inc., 2015 IL App (1st) 133049, ¶28. 

¶ 25 However, this proffered Weather Report from the National Weather Service is 

not a document of indisputable accuracy for the purpose of illustrating the amount of 

rain on the date of the collision. The Weather Report for the date of the crash does 

not state the level of rain that was occurring at the time of the crash. An examination 

of the Weather Report reveals the level of rain stopped being reported for the day up 

to three hours prior to the collision. The party moving for judicial notice has the 

responsibility to “supply [the trial judge] with appropriate data” as the “trial judge is 

not required to make an independent search for data of which he may take judicial 

notice.” Dancy, 297 N.C. at 42, 252 S.E.2d at 515. Because the proffered weather 

report did not contain the necessary data showing the level of rain at the time of the 

collision, the Weather Report fails under the second prong of Rule 201(b). The trial 

 

2 Forecast from the National Weather service is the product of observations from scientists 

“using technology such as radar, satellite and data from an assortment of ground-based and airborne 

instruments to get a complete picture of current conditions. Forecasters often rely on computer 

programs to create what’s called an ‘analysis,’ which is simply a graphical representation of current 

conditions. Once this assessment is complete and the analysis is created, forecasters use a wide variety 

of numerical models, statistical and conceptual models, and years of local experience to determine how 

the current conditions will change with time. Numerical modeling is fully ingrained in the forecast 

process, and our forecasters review the output of these models daily.” NATIONAL WEATHER 

SERVICE, https://www.weather.gov/about/forecast-process (last visited Sept. 21, 2021).
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court was not required under Rule 201(d) to take judicial notice but was free to use 

its discretion pursuant to Rule 201(c). Accordingly, we are compelled to hold the trial 

court did not abuse its discretion by not taking judicial notice of the Weather Report.

C. Lab and Chain of Custody Report

¶ 26 We next turn to Defendant’s assignment of error to the trial court’s admission 

of the lab and chain of custody report (the “Report”) of Defendant’s blood and Evan 

Lowery’s (“Lowery”) testimony regarding Defendant’s blood sample. Defendant 

argues his right to confrontation and cross-examination were violated because only 

Lowery, the State’s independent expert, testified at trial, not the people who actually 

conducted the analysis of his blood and urine samples. We disagree and conclude the 

trial court did not err in admitting the Report. 

¶ 27 First, Lowery’s testimony was properly admitted by the trial court. The United 

States Constitution’s Confrontation Clause prohibits expert testimony that is 

predicated only on the reports of an analyst who is not testifying. State v. Locklear,

363 N.C. 438, 452-53, 681 S.E.2d 293, 304-05 (2009). An expert’s testimony is 

nonetheless admissible “when the expert testifies not just to the results of other 

experts’ tests, but to her own technical review of these tests, her own expert opinion 

of the accuracy of the non-testifying experts’ tests, and her own expert opinion based 

on a comparison of the original data.” State v. Hartley, 212 N.C. App. 1, 12-13, 710

S.E.2d 385, 396 (2011) (citation and internal quotations omitted). The crucial 
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question here is whether Lowery’s testimony was merely a recitation of the analysts’ 

Report or was his independent expert opinion derived from the proper methods.

¶ 28 A review of the record reveals Lowery’s expert testimony was admissible. 

Lowery was admitted as an expert in forensic toxicology and utilized his “training, 

education, and experience” in conducting his analysis of the data. Though Lowery 

received data from the analysis done at the crime lab, Lowery analyzed and reviewed 

the data, analyzed Defendant’s blood sample in accordance with the North Carolina 

State Crime Laboratory and Department of Health and Human Services, crafted with

his own opinion as to the results of the data, and finally produced the Report utilized 

at trial. In other words, the Report introduced at trial was created by Lowery, not 

the analysts who did not testify. Although the data used by Lowery originated from 

other analysts, the Report was an independent expert opinion analyzed and created 

by Lowery, and, accordingly, the trial court did not err in admitting Lowery’s 

testimony.

¶ 29 Second, Defendant argues the State failed to establish the chain of custody and 

the trial court erred in admitting the chain of custody report. Our Supreme Court 

requires a two-prong test to be satisfied prior to the admission of evidence: the “item 

offered must be identified as being the same object involved in the incident and it 

must be shown that the object has undergone no material change.” State v. Taylor,

332 N.C. 372, 388, 420 S.E.2d 414, 423-24 (1992) (quoting State v. Campbell, 311 N.C.
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386, 388, 317 S.E.2d 391, 392 (1984)). The State does not need to establish a detailed 

chain of custody unless “the evidence offered is not readily identifiable or is 

susceptible to alteration and there is reason to believe that it may have been altered.” 

Campbell, 311 N.C. at 389, 317 S.E.2d at 392. Even if the chain of custody does have 

points of weakness, this only goes to the “weight to be given the evidence and not to 

its admissibility.” Id. (citation omitted).

¶ 30 In light of these principles, we hold the trial court did not abuse its discretion 

by finding the State established an adequate chain of custody. Trooper Peaden

testified after Defendant’s blood was taken by the nurse, the blood was then 

transferred to the officer. The blood vial contained a security seal which identifies

Defendant, the person who drew the blood, and the date and time. The subsequent 

signatories to the chain of custody revealed Defendant’s blood sample was received 

by the State crime lab. Lowery testified to the chain of custody of Defendant’s blood

from the date it was received by the State crime lab until the date the blood was 

analyzed. The testimonies from both Trooper Peaden and Lowery satisfy both prongs 

required for admission of evidence by our Supreme Court. The security seal upon the 

vial and the chain of custody report tend to prove the sample at all times contained 

Defendant’s blood and no material change occurred throughout the transfers and 

testing of the blood. See Taylor, 332 N.C. at 388, 420 S.E.2d at 423-24. In summation, 

the testimony presented effectively established the chain of custody and the trial 
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court committed no error by admitting the chain of custody report.

¶ 31 Defendant raises questions about the circumstances surrounding his blood 

sample in order to undermine the admissibility of the chain of custody report. These 

purported points of weakness only go to the “weight to be given the chain of custody 

not its admissibility.” Campbell, 311 N.C. at 389, 317 S.E.2d at 392. Under 

Campbell, the evidence presented must not only be susceptible to alteration or not 

readily identifiable, but also there must be a reason to believe the evidence was 

altered. Id. Here, Defendant offered no reason to believe the blood sample was 

altered and thus his attempt to present questionable circumstances surrounding the 

blood sample fails under Campbell. The conclusion follows that the trial court did 

not abuse its discretion by admitting the chain of custody report.

D. Defendant’s Motion to Dismiss

¶ 32 Finally, we look to Defendant’s argument the trial court erred in denying 

Defendant’s motion to dismiss first at the close of the State’s evidence and then at the 

close of all evidence. We review a motion to dismiss de novo. Locklear v. Cummings,

262 N.C. App. 588, 592, 822 S.E.2d 587, 590 (2018). In a criminal trial, the law is 

well settled as follows, “upon defendant's motion for dismissal, the question for the

Court is whether there is substantial evidence (1) of each essential element of the

offense charged, or of a lesser offense included therein, and (2) of defendant’s being

the perpetrator of such offense. If so, the motion is properly denied.” State v. Powell,
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299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). A motion to dismiss should be allowed 

if the evidence only raises a “suspicion or conjecture as to either the commission of 

the offense or the identity of the defendant as the perpetrator of it.” Id. (citations 

omitted). Evidence is to be viewed in “the light most favorable to the State” and tested 

only to determine if a “reasonable inference of the defendant’s guilt of the crime 

charged may be drawn from the evidence.” Id. at 99, 261 S.E.2d. at 117 (citations 

omitted and emphasis in original). 

¶ 33 Defendant alleges there was no substantial evidence for the offenses of 

impaired driving, assault with a deadly weapon inflicting serious injury, and 

felonious serious injury by vehicle. First, Defendant was charged with driving while 

impaired under N.C. Gen. Stat. § 20-138.1 which provides, in relevant parts, “[a] 

person commits the offense of impaired driving if he drives any vehicle upon any 

highway, any street, or any public vehicular area within this State . . . [w]hile under 

the influence of an impairing substance . . . .” N.C. Gen. Stat. § 20-138.1(a) (2021). 

The State showed a white Land Rover was reported to be driving erratically upon a 

public road in North Carolina; a crash later occurred caused by the Land Rover; and 

when Trooper Peaden arrived at the scene, Defendant was trapped inside the Land 

Rover in the driver’s seat. As analyzed above, probable cause existed to charge 

Defendant with the offense of DWI based upon eyewitness reports of Defendant’s 

erratic driving, the severity of the crash, Defendant’s admission of taking his 
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medications that morning, Defendant’s impaired behavior, and the result of 

Defendant’s blood test. As such, we are obligated to hold substantial evidence exists

to support each element of driving while impaired and that Defendant was the one 

who committed the DWI. 

¶ 34 Next, Defendant was charged with assault with a deadly weapon inflicting 

serious injury to Tina Wasinger pursuant to N.C. Gen. Stat. 14-32(b) which states, 

“[a]ny person who assaults another person with a deadly weapon and inflicts serious 

injury shall be punished as a Class E felon.” N.C. Gen. Stat. § 14-32(b) (2021). The 

elements of a Statute 14-32(b) are “(1) an assault (2) with a deadly weapon (3) 

inflicting serious injury (4) not resulting in death.” State v. Aytche, 98 N.C. App. 358, 

366, 391 S.E.2d 43, 47 (1990). An assault is “an overt act or attempt, with force or 

violence, to do some immediate physical injury to the person of another, which is 

sufficient to put a person of reasonable firmness in fear of immediate physical injury.” 

State v. Jones, 353 N.C. 159, 164, 538 S.E.2d 917, 922 (2000) (citation omitted). A 

deadly weapon is “any article, instrument or substance which is likely to produce 

death or great bodily harm.” Id. (citation omitted and emphasis in original).

¶ 35 In North Carolina, an automobile “can be a deadly weapon if it is driven in a 

reckless or dangerous manner.” Id. One who “operates a motor vehicle in a manner 

such that it constitutes a deadly weapon, thereby proximately causing serious injury 

to another, may be convicted of AWDWISI provided there is either an actual intent 
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to inflict injury or culpable or criminal negligence from which such intent may be 

implied.” Id. at 164-65, 538 S.E.2d at 922-23. Culpable or criminal negligence is 

defined as “such recklessness or carelessness, proximately resulting in injury or 

death, as imports a thoughtless disregard of consequences or a heedless indifference 

to the safety and rights of others.” Id. at 165, 538 S.E.2d at 923 (quoting State v. 

Weston, 273 N.C. 275, 280, 159 S.E.2d 883, 886 (1968)). 

¶ 36 Particularly, culpable negligence exists when a safety statute is 

unintentionally violated and is “accompanied by recklessness of probable 

consequences of a dangerous nature, when tested by the rule of reasonable 

[foreseeability], amounting altogether to a thoughtless disregard of consequences or 

of a heedless indifference to the safety of others.” Id. (quoting State v. Hancock, 248 

N.C. 432, 435, 103 S.E.2d 491, 494 (1958)). A safety statue is one that is “designed 

for the protection of human life or limb.” State v. McGill, 314 N.C. 633, 637, 336 

S.E.2d 90, 92 (1985) (citation omitted). We note as well, N.C. Gen. Stat. § 20-138.1 is 

a safety statute created to protect human life or limb by prohibiting driving impaired. 

See Jones, 353 N.C. at 165, 538 S.E.2d at 923.

¶ 37 In the case before us, Defendant assaulted Wasinger by hitting her vehicle with 

his vehicle, a white Land Rover. According to eyewitness reports and the lack of skid 

marks to indicate an attempt to stop his vehicle, Defendant was driving his vehicle 

in an erratic and reckless manner. Thus, Defendant’s vehicle may be considered a 
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Opinion of the Court

deadly weapon. As a matter of law, Defendant’s culpable negligence was established 

when Defendant proceeded to operate a vehicle while under the influence of impairing 

substances. Such negligence was further shown by reports of Defendant’s driving 

from both Sermon and another eyewitness. Though Wasinger survived the crash, she 

suffered serious injury, including weeks in the hospital, two months in a wheelchair, 

and extremely restricted movement of her hand and legs. Due to her injuries, 

Wasinger lost her job and is now enrolled in disability with Social Security. In sum, 

the elements of assault with a deadly weapon inflicting serious injury were satisfied,

and we affirm the judgment of the trial court.

¶ 38 Defendant was also convicted of felony serious injury by motor vehicle under 

N.C. Gen. Stat. § 20-141.4(a3) which provides,

A person commits the offense of felony serious injury by 

vehicle if: 

(1) The person unintentionally causes serious injury to 

another person, 

(2) The person was engaged in the offense of impaired 

driving under G.S. 20-138.1 or G.S. 20-138.2, and 

(3) The commission of the offense in subdivision (2) of this 

subsection is the proximate cause of the serious injury. 

N.C. Gen. Stat. § 20-141.4(a3) (2021). Because we have already explained that

substantial evidence exists to illustrate Defendant caused serious injury to Wasinger 

due to his driving while impaired, the elements of felony serious injury by motor 
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Opinion of the Court

vehicle were met. Thus, the trial court did not err in denying Defendant’s motion to 

dismiss.

III. Conclusion

¶ 39 As a result of the foregoing analysis, we are compelled to hold there was no 

error when the trial court denied Defendant’s motion to suppress the blood draw, 

declined to take judicial notice of the Weather Report, admitted the Report and 

Lowery’s testimony, and denied Defendant’s motion to dismiss. While we sympathize 

with Defendant in that he was operating his vehicle while under the influence of only 

prescribed medications and not under the influence of alcohol and was also seriously 

injured in the resulting collision, we hold that the Defendant received a fair trial free 

from error.

NO ERROR.

Judge DIETZ concurs by separate opinion.

Judge INMAN concurs.
No. COA20-556 – State v. Bucklew

DIETZ, Judge, concurring.

¶ 40 I concur in the majority’s judgment but would resolve the suppression issue 

solely based on the evidence of impairment establishing probable cause, and the 

exigency resulting from the need to draw blood before medical professionals 

administered additional medications, without reference to the implied consent laws. 

See Mitchell v. Wisconsin, 139 S. Ct. 2525, 2532 (2019).