An unpublished opinion of the North Carolina Court of Appeals does not constitute 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

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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. 
STATE V. HUDGINS

Opinion of the Court

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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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Opinion of the Court

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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 
STATE V. HUDGINS

Opinion of the Court

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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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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
STATE V. HUDGINS

Opinion of the Court

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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).