NO. COA13-764
NORTH CAROLINA COURT OF APPEALS
Filed: 1 April 2014
STATE OF NORTH CAROLINA
v. Mecklenburg County
No. 09 CRS 259652
JOANNA LEIGH BECK
Appeal by defendant from judgment entered 26 November 2012
by Judge Christopher W. Bragg in Mecklenburg County Superior
Court. Heard in the Court of Appeals 20 November 2013.
Roy Cooper, Attorney General, by Joseph L. Hyde, Assistant
Attorney General, for the State.
Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr.,
for defendant-appellant.
DAVIS, Judge.
Joanna Leigh Beck (“Defendant”) appeals from a judgment
entered upon a jury verdict finding her guilty of driving while
impaired. Defendant’s sole argument on appeal is that the trial
court erred in denying her request for a special jury
instruction regarding the jury’s ability to determine the weight
to be accorded to the results of a chemical analysis. After
careful review, we conclude that Defendant received a fair trial
free from error.
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Factual Background
Defendant was arrested on 12 December 2009 at a checkpoint
and charged with driving while impaired. Defendant was
convicted in Mecklenburg County District Court, and she appealed
to the superior court for a trial de novo.
At trial, the State’s evidence tended to show the
following: On 12 December 2009, at approximately 1:00 a.m.,
Officer Matthew Pressley (“Officer Pressley”) of the Charlotte-
Mecklenburg Police Department was assisting with an impaired
driving checkpoint on Park Road near Archdale Drive. Officer
Pressley approached Defendant’s vehicle and asked for her
license. As he spoke to Defendant, he observed that her eyes
were “glossy and bloodshot” and that there was “a strong odor of
alcoholic beverage about her breath.” Officer Pressley asked
Defendant if she had been drinking that evening, and she
responded that she had consumed two mixed vodka drinks. Officer
Pressley then asked Defendant to step out of her vehicle.
Officer Pressley administered three field sobriety tests:
(1) the horizontal gaze nystagmus test; (2) the walk-and-turn
test; and (3) the one-leg stand test. Based on Defendant’s
performance on these three tests, Officer Pressley believed that
she was impaired. He arrested Defendant and then administered a
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“breath test,” using the Intoxilyzer EC/IR II machine. The
machine registered that Defendant’s breath sample had an alcohol
concentration of .10.
Defendant presented evidence at trial, including expert
testimony from Julian Douglas Scott (“Scott”), who was accepted
by the trial court as an expert witness in the detection of
impaired driving and in the administration of standardized field
sobriety tests. Scott disagreed with several of Officer
Pressley’s conclusions regarding how many signs of impairment
could be gleaned from Defendant’s performance on the tests
Officer Pressley had administered. Scott also opined that
Officer Pressley should have conducted several additional field
sobriety tests before concluding that Defendant was impaired.
At the charge conference, Defendant objected to the use of
the pattern jury instruction for the offense of driving while
impaired and proposed adding one of two alternative special
instructions emphasizing to the jury that it was not compelled
to find that Defendant’s blood alcohol concentration was .08 or
above based on the results of a chemical analysis indicating
that Defendant’s blood alcohol concentration was .08 or above.
The trial court declined to give either of the requested
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instructions and instead used Pattern Instruction 270.20A to
instruct the jury as to the driving while impaired charge.
The jury found Defendant guilty of driving while impaired,
and the trial court entered judgment on the verdict. The trial
court sentenced Defendant to 60 days imprisonment, suspended the
sentence, and placed her on 12 months of unsupervised probation.
Defendant gave timely notice of appeal.
Analysis
Defendant argues that the trial court erred in denying her
request for a special jury instruction because the pattern
instruction used by the trial court misled the jury. We
disagree.
The trial court — using Pattern Jury Instruction 270.20A —
charged the jury in pertinent part as follows:
The defendant has been charged with
impaired driving. For you to find the
defendant guilty of this offense, the State
must prove three things beyond a reasonable
doubt:
First, that the defendant was driving .
. . . a vehicle.
Second, that the defendant was driving
that vehicle upon a street within the state.
And, third, that at the time the
defendant was driving that vehicle, the
defendant: One, was under the influence of
an impairing substance. Alcohol is an
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impairing substance. The defendant is under
the influence of an impairing substance when
the defendant has consumed a sufficient
quantity of that impairing substance to
cause the defendant to lose the normal
control of the defendant’s bodily or mental
faculties or both to an extent that there
has been appreciable impairment of either or
both of these faculties; or, two, had
consumed sufficient alcohol that at any
relevant time after the driving the
defendant had an alcohol concentration of
0.08 or more grams of alcohol per 210 liters
of breath. A relevant time is anytime after
the driving that the driver still has in the
body alcohol consumed before or during the
driving.
The results of a chemical analysis are
deemed sufficient evidence to prove a
person’s alcohol concentration. If you find
from the evidence beyond a reasonable doubt
that on or about the alleged date the
defendant drove a vehicle on a street in
this state and that when doing so the
defendant was under the influence of an
impairing substance or had consumed
sufficient alcohol that at any relevant time
after the driving the defendant had an
alcohol concentration of 0.08 or more, it
would be your duty to return a verdict of
guilty. If you do not so find or have a
reasonable doubt as to one or more of these
things, it would be your duty to return a
verdict of not guilty.
The special instructions requested by Defendant would have
informed the jury that (1) the results of the chemical analysis
did not create a presumption that Defendant was impaired or that
Defendant had an alcohol concentration of .08 or greater; (2)
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the jury was permitted to find that Defendant had an alcohol
concentration of .08 or greater based on the results of the
chemical analysis but was not required to do so; and (3) the
jury was allowed to consider the credibility and weight to be
accorded to the results of the chemical analysis.
When a defendant requests a special jury instruction, “the
trial court is not required to give [the] requested instruction
in the exact language of the request. However, when the request
is correct in law and supported by the evidence in the case, the
court must give the instruction in substance.” State v. Monk,
291 N.C. 37, 54, 229 S.E.2d 163, 174 (1976). Thus, in order for
a defendant to establish error, she “must show that the
requested instructions were not given in substance and that
substantial evidence supported the omitted instructions.” State
v. Garvick, 98 N.C. App. 556, 568, 392 S.E.2d 115, 122, aff’d
per curiam, 327 N.C. 627, 398 S.E.2d 330 (1990). The defendant
also bears the burden of showing that the jury was misled or
misinformed by the instructions given. State v. Blizzard, 169
N.C. App. 285, 297, 610 S.E.2d 245, 253 (2005).
In Garvick, the defendant requested a similar instruction
relating to the results of a chemical analysis in connection
with a driving while impaired charge. Garvick, 98 N.C. App. at
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567-68, 392 S.E.2d at 122. The requested instruction stated as
follows: “[N]o legal presumption attaches to the results of a
breathalyzer test. You, members of the jury, are still at
liberty to acquit the defendant if you find that his alcohol
concentration was not proven to be [.08] or more . . . beyond a
reasonable doubt.” Id. at 567, 392 S.E.2d at 122. We concluded
that the language of the pattern jury instruction contained the
defendant’s requested instruction in substance because it
explained to the jury that it must be convinced beyond a
reasonable doubt that the defendant’s alcohol concentration was
above the legal limit. Id. at 568, 392 S.E.2d at 122.
Likewise, in the present case, the trial court’s use of the
pattern jury instruction informed the jury that in order to
return a verdict of guilty, it must be convinced beyond a
reasonable doubt that Defendant’s alcohol concentration was .08
or more. This instruction informed the jury, in substance, that
it was not compelled to return a guilty verdict based simply on
the chemical analysis results showing a .10 alcohol
concentration.
Furthermore, as Defendant acknowledges, this Court has
already determined that the language in the pattern jury
instruction stating that the “results of a chemical analysis are
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deemed sufficient evidence to prove a person’s alcohol
concentration” does not create an impermissible mandatory
presumption. State v. Narron, 193 N.C. App. 76, 85, 666 S.E.2d
860, 866 (2008), disc. review denied, 363 N.C. 135, 674 S.E.2d
140, cert. denied, 558 U.S. 818, 175 L.Ed.2d 26 (2009). Rather,
as we explained in Narron, this quoted language — which is used
in both the driving while impaired statute (N.C. Gen. Stat. §
20-138.1) and the pattern jury instruction — “simply authorizes
the jury to find that the report is what it purports to be — the
results of a chemical analysis showing the defendant’s alcohol
concentration.” Id. at 84, 666 S.E.2d at 866.
Defendant argues that this language in the trial court’s
instructions likely misled the jury and caused it to erroneously
believe that “it could not consider [the] positive evidence of
[Defendant’s] non-impairment in deciding whether the results of
the chemical analysis were credible and what weight to give it.”
Accordingly, she argues, the requested instruction was necessary
to inform the jury that it had the ability to conclude that the
results of the chemical analysis were not credible.
However, Defendant’s argument ignores the fact that the
trial court expressly instructed the jury that (1) it was the
“sole judge[] of the weight to be given [to] any evidence”; (2)
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it was the jury’s “duty to decide from [the] evidence what the
facts are”; (3) the jury “should weigh all the evidence in the
case”; and (4) the jury “should consider all of the evidence.”
These instructions informed the jury that it possessed the
authority to determine the weight of any evidence offered to
show that Defendant was — or was not — impaired. See State v.
Nicholson, 355 N.C. 1, 60, 558 S.E.2d 109, 148, cert. denied,
537 U.S. 845, 154 L.Ed.2d 71 (2002) (“We presume that jurors pay
close attention to the particular language of the judge’s
instructions in a criminal case and that they undertake to
understand, comprehend, and follow the instructions as given.”
(citation and internal quotation marks omitted)); State v.
Holden, 346 N.C. 404, 438-39, 488 S.E.2d 514, 533 (1997) (“In
determining the propriety of the trial judge’s charge to the
jury, the reviewing court must consider the instructions in
their entirety, and not in detached fragments.” (citation,
quotation marks, and brackets omitted)), cert. denied, 522 U.S.
1126, 140 L.Ed.2d 132 (1998).
We therefore conclude that the trial court did not err in
declining to give either of the special instructions requested
by Defendant. Accordingly, Defendant’s argument is overruled.
Conclusion
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For the reasons stated above, we conclude that Defendant
received a fair trial free from error.
NO ERROR.
Judges ELMORE and McCULLOUGH concur.