An unpublished opinion of the North Carolina Court of Appeals does not constitute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 wit h the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA14

- 22 NORTH CAROLINA COURT OF APPEALS Filed: 19 August 2014
STATE OF NORTH CAROLINA

v. Macon County No s . 12 CRS 51062 , 702006
ALFRED MI CHAEL SCRUGGS

Appeal by defendant from judgments entered 24 July 2013 by Judge Marvin P. Pope in Macon County Superior Court. Heard in the Court of Appeals 4 August 2014.
Attorney General Roy Cooper, by Special Deputy Attorney Genera l Neil Dalton, for the State. Jon W. Myers for defendant

- appell ant.

ERVIN , Judge.

Defendant Alfred Mi chael Scrugg s appeals from judgments sentencing him to active terms of imprisonment based upon his convictions fo r driving while subject to an impairing substance and drivin g while license revoked
. On appeal, Defendant contends that the trial court erred by denying his motion s to dismiss the driving while subject to an impairing substance and driving while license revoked charges that had been lodged- 2

-

against him for insufficiency of the evi dence. After careful consideration of Defendant’s challenges to the trial court’s judgment s in light of the record and the applicable law, we conclude that the trial court’s judgments should remain undisturbed. I. Factual Background A. Substantive Facts At approximately 1:00 a.m. on 18 October 2012, Corporal Michael Langle y, Sr. , of the Macon County Sher iff’s Office responded to a report that there had been a motor vehicle accident on West Old Murphy Road in Macon County. Upon arriving at the scene of th e accident, Corporal Langley observed a tan Ford Exp lorer lying in the middle of the road with the driver’s side of the vehicle against the pavement
. As a result of the fact that Defendant was still in the vehicle , he had to be extricated through the rear windo w and tailgate area. At the time of his removal from the wrecked vehicle, Defendant was “wobbly ,” “ unstable , ” and needed assistance from emergency medical personnel. After Trooper Brandon Padgett of the North Carolina St ate Highway Patrol arrived on the scene, Corporal Langley turned responsibility for investigating the accident over to him
.- 3

-

At the time that Trooper Padgett located Defendant, he was standing in an ambulance completing various documents
. After determining that the vehicle that had been involved in the accident was registered to Defendant , Trooper Padgett returned to the location at which Defendant was situated and asked him to step out of the ambulance. At the time that he left the ambulance, Defendant wa s unsteady on his feet and needed assistance. As he assisted Defendant, Trooper Padgett det ected a “very strong” odor of alcohol about D efendant’s breath and
person. When he began interviewing Defendant , Trooper Padgett

as ked Defendant to lean against his patrol vehicle so that Defendant did not fall
. According to Trooper Padgett , Defendant was “very unsteady , ” “[h]is speech was very slurred
and mumble

- ish, ” his “ e yes were very glassy and droopy,” and he

“ kept his head down.” At the time that he spoke with Defendant, Trooper Padgett asked Defendant what had happened. In response, Defendant stated that “‘I’m f [

- ] ed up,’ and ‘I really f [

- ] ed up,’ and ‘I didn ’ t do anything.’” After refusing to take a breath test o r perform any field sobriety tests , Defendant told Trooper Padgett to take him to jail. However, instead of being transported to the Macon County Jail, Defendant was taken to the hospital,- 4
-

where Officer Padgett heard him tell medical personnel that he had consumed “[t]wel ve beers, no, eight , no, six.” B. Procedural History On 1 8 October 2012, citations charging Defendant with driving while subject to an impairing substance, reckless driving, driving while license revoked, and driving a vehicle containing an open container of an alcoholic be verage were issued
. On 8 May 2013, Defendant was found guilty of driving while subject to an impairing substance and driving while license revoked. 1 Based upon Defendant’s pleas, Judge Monica H. Leslie entered judgments sentencing Defendant to a term of 24 months imprisonment based upon his conviction for driving while subject to an impairing substance and to a consecutive term of 60 days imprisonment based upon his conviction for driving while license revoked. Defendant noted an appeal from Judge Leslie ’s judgment to the Macon County Superior Court for a trial de novo
. On 17 June 2013, the State filed a notice announcing that it intended to prove as grossly aggravating factors that Defendant had been convicted of driving while subject to an impairing sub stance on two occasions within the seven years prior to 18 October 2012 and that Defendant’s license was revoked as the result of an impaired driving conviction on 18

1 The reckless driving and open container charges were dismissed at the end of the State’s evidence.- 5
-

October 2012. The charges against Defendant came on for hearing before the trial court a nd a jury at the 22 July 2013 criminal session of the Macon County Superior Court. On 24 July 2013, the jury returned verdicts convicting Defendant of driving while subject to an impairing substance and driving while license revoked and finding that Defen dant “ha[d] two convictions for impaired driving which occurred within seven (7) years before the date of this offense” and that “Defendant drove at the time of the current offense, while [his] drivers license was revoked under [N.C. Gen. Stat. §] 20

- 28 an d the revocation was an impaired driving revocation under [N.C. Gen. Stat. § ] 20

- 28.2(a).” At the conclusion of the ensuing sentencing hearing, the trial court determined that Defendant should be sentenced as an aggravated Level I offender in the case in which he had been convicted of driving while subject to an impairing substance and entered judgments sentencing Defendant to a term of 36 months imprisonment based upon his conviction for driving while subject to am impairing substance and to a consecutive term of 120 days imprisonment based upon his conviction for driving while license revoked. Defendant noted an appeal to this Court fro m the trial court’s judgments. II. Substantive Legal Analysis- 6

-

In his brief, Defendant argues that the trial court erred by denying his motion s to dismiss the driving while subject to an impairing substance and driving while license revoked charges that had been lodged against him for insufficiency of the evidence. More specifically, Defendant contends that the record evide nce did not suffice to support a determination that he was operating a motor vehicle on the night of 18 October 2012. We do not find Defendant’s argument persuasive. “‘Upon defendant’s motion for dismissal, the question for the Court is whether there is s ubstantial 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. Fritsch , 351 N.C. 373, 378, 526 S.E.2d 451, 455 (quoting
State v. Barnes , 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)), cert. denied , 531 U.S. 890, 121 S. Ct. 213, 148 L. Ed. 2d 150 (2000). “In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.” State v. Rose , 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied , 515 U.S. 1135, 115 S. Ct. 2565, 132 L. Ed. 2d 818 (1995)
.- 7
-

“T he essential elements of [driving while subject to an impairing substance] are: (1) D efendant was driving a vehicle; (2) upon any highway, any street, or any public vehicular area within this State; (3) while under the influence of an impairing substance.” State v. Mark , 154 N.C. App. 341, 345, 571 S.E.2d 867, 870 (2002) , aff’d , 357 N.C. 242, 580 S.E.2d 693 (2003) (per curiam) (citing N.C. Gen. Stat. § 20

- 138.1). “To con vict a def endant . . . of driving while his license is revoked the State must prove beyond a rea sonable doubt (1) the defendant’ s operation of a motor vehicle (2) on a public highway (3) while his operator’s license is revoked.” State v. Richardson , 96 N.C. App. 270, 271, 385 S.E.2d 194, 195 (1989) ( citing State v. Atwood , 290 N.C. 266, 271, 225 S.E.2d 543, 545 (1976)). The State must also prove that the defendant had actual or constructive knowledge of the revocation of his license. Id. In reliance upon our dec ision in State v. Ray , 54 N.C. App, 473, 475, 283 S.E.2d 823, 825 (1981) (holding that evidence that the defendant was observed “‘ halfway [in] the front seat ’ ” of a vehicle did not suffice to support a determination that the defendant had been driving the vehicle), Defendant claims that his mere presence in the wrecked vehicle, which is all that he conceded that the record showed, did not suffice to support a determination that he had been driving. We also noted in Ray ,- 8

-

however, that , even though “other ci rcumstantial evidence
. . . would have bolstered the State’s case ,” none was offered. Id. The additional circumstantial evidence lacking in Ray is clearly present here. The record developed at trial in this case demonstrated that (1) Defendant was found alone in the vehicle; ( 2 ) Defendant could not extricate himself from the vehicle, allowing a reasonable juror to conclude that , if Defendant needed assis tance to exit the vehicle, any other occupants would have needed such assistance as well; (3 ) Defendant made remarks, such as “I really f[

- ]ed up,” which could be viewed as an incriminating admission that Defendant knew that he had done something that he should have refrained from doing ; and ( 4 ) the vehicle was registered in Defendant ’s name. In view of the fact that the evidence contained in this record showed considerably more than that Defendant had been discovered in a wrecked vehicle, we have no hesitation in concluding that the record provided ample justification for a decision that Defenda nt was driving the Ford Explorer involved in the accident on the night in question. As a result, the trial court did not err by denying Defendant’s dismissal motions. III. Conclusion- 9

-

Thus, for the reasons set forth above, Defendant’s challenges to the trial court’s judgments lack merit. As a result, the trial court’s judgments should, and hereby do, remain undisturbed.
NO ERROR . Judges ROBERT C. HUNTER and STEPHENS concur
. Report per Rule 30(e).