An unpublished opinion of the North Carolina Court of Appeals does not constitute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
P r o c e d u r e .
NO. COA13-1013
NORTH CAROLINA COURT OF APPEALS
Filed: 1 April 2014
STATE OF NORTH CAROLINA
v. Mecklenburg County
No. 09 CRS 86046
SAM DAVID ANDREWS
Appeal by defendant from judgment entered 28 February 2013
by Judge Sharon Tracey Barrett in Mecklenburg County Superior
Court. Heard in the Court of Appeals 21 January 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General Angel E. Gray, for the State.
Arnold & Smith, PLLC, by Laura M. Cobb, for defendant-
appellant.
HUNTER, Robert C., Judge.
Sam David Andrews (“defendant”) appeals from judgment
sentencing him to 18 months of unsupervised probation after
being convicted of driving while impaired. On appeal, defendant
argues that the trial court erred by: (1) admitting blood
sample evidence without all members of the chain of custody
being present at trial in violation of defendant’s Sixth
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Amendment right of confrontation; (2) allowing defendant's blood
sample results to be introduced as evidence when the State
failed to give defendant notice of his rights under N.C. Gen.
Stat. § 20-16.2; (3) admitting statements into evidence
concerning the blood sample results that constituted
inadmissible hearsay; and (4) denying defendant's motion to
dismiss for insufficiency of the evidence.
After careful review, we find no error.
Background
The evidence presented at trial tended to establish the
following facts: In the early morning of 1 January 2010,
Officer John Reibold of the Charlotte Mecklenburg Police
Department (“CMPD”) reported to a four-car accident at the
intersection of Providence Road and Ardrey Kell Road in
Charlotte, North Carolina. Upon arrival and after speaking with
defendant, Officer Reibold noticed defendant had a strong odor
of alcohol about his breath, glassy eyes, and slurred speech.
Defendant also admitted to Officer Reibold he had consumed five
alcoholic drinks within the past five hours and should not have
been driving that night.
Officer Reibold next inspected defendant’s car and found an
open alcohol container in the passenger area. Officer Reibold
then requested that defendant perform a series of field sobriety
tests, which defendant failed. Before defendant could finish
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the complete series of sobriety tests, the medics approached and
transported defendant to the hospital. Officer Reibold followed
the ambulance to the hospital to continue his investigation.
After arriving at the hospital and locating defendant in
triage, Officer Reibold read defendant his rights to submit to a
chemical analysis and gave defendant a copy of the form to sign.
Defendant was immobilized in a C-Spine collar and did not sign
the form. However, Officer Reibold wrote “unable to sign” on
the form, and defendant gave Officer Reibold verbal consent to
perform a blood draw chemical analysis. Officer Reibold
prepared the blood draw kit and necessary paperwork and watched
as a registered nurse from the hospital obtained two vials of
defendant’s blood. After receiving the vials of defendant’s
blood from the nurse, Officer Reibold labeled both vials and
placed them into a plastic blood kit. Officer Reibold then
sealed the blood kit with blue evidence tape, placed the blood
kit into a cardboard box, labeled the box with the case number,
and sealed the box with red evidence tape.
Next, Officer Reibold issued defendant a citation for DWI
and left defendant in the care of the hospital. After leaving
the hospital, the blood kit remained in Officer Reibold’s
exclusive possession until it was submitted to CMPD property
control later that morning.
On 9 March 2010, Anne Charlesworth, a CMPD Crime Lab
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chemical analyst, received defendant’s blood kit from CMPD
property control for testing. After verifying the
identification numbers and ensuring the blood kit had not been
tampered with, Ms. Charlesworth analyzed the blood inside and
determined the sample of defendant’s blood contained .23 grams
of alcohol per 100 milliliters of blood. Ms. Charlesworth then
resealed the box with labels containing her signature and the
date.
Defendant was charged with DWI and possession of an open
alcohol container in the passenger area of a motor vehicle; the
open container charge was voluntarily dismissed before trial.
Defendant’s trial was held on 26 February 2013, and the jury
convicted defendant of DWI. Defendant was sentenced as a Level
III offender after admitting to one aggravating factor and
sentenced to six months imprisonment. The trial court suspended
the sentence, and defendant was placed on unsupervised probation
for eighteen months. Defendant appealed.
Arguments
I. Admissibility of the Blood Sample Results
Defendant first argues the trial court erred by admitting
blood sample evidence without all members in the chain of
custody having been present during his trial. Specifically,
defendant contends the absence of these individuals in the chain
of custody violated his Sixth Amendment right to confrontation
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as interpreted by the U.S. Supreme Court in Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 174 L. Ed. 2d 314 (2009), and
Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004).
We disagree.
Defendant mistakenly phrases his argument as a
constitutional violation; however, his argument actually
challenges an evidentiary ruling on the chain of custody. A
trial court's decision to admit evidence when the chain of
custody is questioned is reviewed for abuse of discretion.
State v. Campbell, 311 N.C. 386, 388-89, 317 S.E.2d 391, 392
(1984). “A trial court abuses its discretion if its
determination is manifestly unsupported by reason and is so
arbitrary that it could not have been the result of a reasoned
decision.” State v. Cummings, 361 N.C. 438, 447, 648 S.E.2d
788, 794 (2007) (quotation marks omitted).
In all criminal prosecutions “[a] witness’s testimony
against a defendant is . . . inadmissible unless the witness
appears at trial or, if the witness is unavailable, the
defendant had a prior opportunity for cross-examination.”
Melendez-Diaz, 557 U.S. at 309, 174 L. Ed. 2d at 318. The Sixth
Amendment “guarantees a defendant’s right to confront those who
bear testimony against him.” Id. (quotations omitted).
Defendant's argument relies on the holding in Melendez-Diaz
where the United States Supreme Court held it is a violation of
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the defendant’s Sixth Amendment rights for drug analysis results
to be admitted without the chemical analyst being present at
trial or having been cross-examined by the defendant before
trial. Id. at 310, 174 L. Ed. 2d at 319. However, the present
case is easily distinguished from Melendez-Diaz because the
chemical analyst who provided the blood test results, Anne
Charlesworth, was present and was cross-examined during
defendant’s trial. All chain of custody testimony concerning
defendant's blood sample was taken from Anne Charlesworth and
Officer Reibold, and defendant was able to cross-examine both of
them.
Furthermore, the trial court never admitted testimony from
the two members of property control or the blood draw nurse who
were absent during defendant’s trial. As to the necessity of
nonessential links in the chain of custody, the U.S. Supreme
Court specifically noted in Melendez-Diaz that:
Contrary to the dissent suggestion, . . . we
do not hold, and it is not the case, that
anyone whose testimony may be relevant in
establishing the chain of custody,
authenticity of the sample, or accuracy of
the testing device, must appear in person as
part of the prosecution’s case. While the
dissent is correct that ‘[i]t is the
obligation of the prosecution to establish
chain of custody,’. . . this does not mean
that everyone who laid hands on the evidence
must be called.
Melendez-Diaz, 557 U.S. at 311, n.1, 174 L.Ed.2d at 320, n.1.
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(emphasis added). “[G]aps in the chain of custody normally go
to the weight of the evidence rather than its admissibility.”
Id.; see also State v. Fleming, 350 N.C. 109, 131, 512 S.E.2d
720, 736 (1999) (“[a]ny weak links in a chain of custody pertain
only to the weight to be given evidence and not to its
admissibility”); State v. Stevenson, 136 N.C. App. 235, 242, 523
S.E.2d 734, 738 (1999) (admitting evidence “is at the trial
court’s discretion, and any weak links in a chain of custody
relate only to the weight to be given the evidence and not to
its admissibility”). Additionally, this Court has further held
that blood sample evidence, in particular, will be admitted if
the evidence as it is presented can reasonably support a
conclusion that the blood sample analyzed is the same as that
taken from the defendant. State v. Bailey, 76 N.C. App. 610,
614, 334 S.E.2d 266, 269 (1985), overruled on other grounds,
State v. Drdak, 330 N.C. 587, 411 S.E.2d 604 (1992).
Here, Officer Reibold testified at trial that he personally
watched the registered nurse withdraw defendant’s blood,
received the vials of blood directly from the nurse, and sealed
the blood sample in two labeled containers with evidence tape
before personally submitting defendant’s blood sample to CMPD
property control. Officer Reibold also testified generally as
to the secure conditions present at CMPD property control. Anne
Charlesworth then testified that upon receiving the blood sample
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from CMPD property control, she immediately examined the
sample’s identification numbers for accuracy and inspected the
sample for evidence of tampering. Anne Charlesworth later
resealed, signed, and dated the contents of the container after
her testing was complete.
There was ample testimony presented by the two most
important links in the chain of custody for the trial court to
conclude the blood sample was the same as that taken from
defendant and had undergone no material change. Moreover,
defendant has presented no evidence that defendant’s blood
sample had been tampered with or altered in any way. Therefore,
we find the trial court did not abuse its discretion in
admitting the blood test results.
II. Consent to Perform Chemical Analysis
Defendant next contends the results of the blood sample
should not have been introduced at trial because the blood draw
was based on a warrantless, nonconsensual seizure.
Specifically, defendant argues that Officer Reibold did not
notify defendant of his rights as required by N.C. Gen Stat. §
20-16.2. We disagree.
N.C. Gen Stat. § 20-16.2 (2011) provides in pertinent part:
Before any type of chemical analysis is
administered the person charged shall be
taken before a chemical analyst authorized
to administer a test . . . who shall inform
the person orally and also give the person a
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notice in writing . . . .
Officer Reibold testified that after he located defendant
at the hospital, he provided defendant with both an oral and
written presentation of his rights to consent or refuse a
chemical analysis. Officer Reibold also testified that after
notifying defendant of his rights, defendant verbally consented
to the blood sample chemical analysis, but was unable to sign
the written form because he was immobilized in a C-spine collar.
The provisions of N.C. Gen Stat. § 20-16.2 are conformed with
“when the arrestee is given the option to submit or refuse to
submit . . . and his decision is made after having been advised
of his rights in a manner provided by statute.” State v.
Gunter, 111 N.C. App. 621, 626-27, 433 S.E.2d 191, 194 (1993).
Since the only evidence presented at trial showed Officer
Reibold followed the provisions of the statute and defendant
consented to the blood draw, we hold a warrant was not
necessary, and the trial court did not abuse its discretion by
allowing the blood test results into evidence.
III. Admissibility of Hearsay
Defendant next argues that the trial court erred in
admitting Officer Reibold’s and Anne Charlesworth’s out-of-court
hearsay statements to authenticate defendant’s blood sample. We
disagree.
“When preserved by an objection, a trial court’s decision
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with regard to the admission of evidence alleged to be hearsay
is reviewed de novo.” State v. Johnson, 209 N.C. App. 682, 692,
706 S.E.2d 790, 797 (2011).
Hearsay is “a statement other than one made by the
declarant while testifying at the trial or hearing, offered into
evidence to prove the truth of the matter asserted.” N.C. Gen.
Stat. § 8C-1, Rule 801 (2011). However, statements offered to
corroborate trial testimony do not constitute hearsay. See
State v. Johnson, 209 N.C. App. 682, 693, 706 S.E.2d 790, 797
(2011) (holding that a witness’s “[written] statement was
properly admitted in corroboration of [the] defendant’s trial
testimony” because it did not constitute hearsay).
Defendant argues that the trial court erred in allowing
Officer Reibold and Anne Charlesworth to testify as to certain
identification information they wrote on defendant’s blood
sample, which was inadmissible hearsay. However, a review of
the transcript reveals Officer Reibold and Anne Charlesworth
testified only to the signatures, dates, and identification
information they personally placed on the blood sample kit and
the general security precautions used by property control.
Thus, Officer Reibold’s and Anne Charlesworth’s out-of-court
identification statements only corroborated their in-court
testimony. See Johnson, 209 N.C. App. at 692, 706 S.E.2d at
797. Accordingly, we find the trial court did not err by
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overruling defendant’s hearsay objections at trial or admitting
Officer Reibold’s or Anne Charlesworth’s testimony concerning
the blood sample results.
IV. Motion to Dismiss
Finally, defendant argues the trial court erred when it
denied his motion to dismiss for insufficiency of the evidence.
Specifically, defendant contends the State did not present
sufficient evidence that defendant had been operating a motor
vehicle while impaired. 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) (quotations and citations omitted). A motion to
dismiss is reviewed for “whether the State presented substantial
evidence of each element of the offense and defendant’s being
the perpetrator.” State v. Hernandez, 188 N.C. App. 193, 196,
655 S.E.2d 426, 429 (2008).
Here, defendant was charged with driving while impaired in
violation of N.C. Gen. Stat. § 20–138.1. In order to be
convicted of driving while impaired, the State must prove the
following essential elements: “(1) Defendant 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. Tedder, 169 N.C. App. 446,
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450, 610 S.E.2d 774, 777 (2005) (quotations omitted).
Defendant first argues the State failed to present
substantial independent evidence he was driving on the date of
the incident. This Court has held a defendant’s admission of
driving, presence at the accident scene, and injuries consistent
with being in an auto accident constitute substantial evidence
of driving. State v. Foye, __ N.C. App. __, __, 725 S.E.2d 73,
78 (2012). The evidence presented at trial showed that
defendant not only admitted he was driving but also that
defendant was present at the scene and had to be transported to
the hospital as a result of the traffic accident. Thus, we
conclude the trial court had substantial evidence defendant was
driving.
Next, Defendant argues the State did not present
substantial evidence of impairment. Evidence that a defendant’s
blood alcohol level was above .08, defendant had an odor of
alcohol about him, and defendant admitted to drinking earlier in
the night constitutes substantial evidence of impairment. State
v. Phillips, 127 N.C. App. 391, 393-94, 489 S.E.2d 890, 892,
(1997). While defendant predicates his contention that he was
not impaired on his previous argument concerning the
admissibility of the blood sample results, as discussed, the
blood sample results were properly admitted into evidence.
Thus, evidence of those results that established that defendant
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had a .23 blood-alcohol concentration combined with evidence
that defendant had an open alcohol container in his car, slurred
speech, and an odor of alcohol about him constituted substantial
evidence of impairment.
Therefore, in summary, the State presented substantial
evidence defendant was operating a motor vehicle while impaired,
and the trial court did not err in denying defendant’s motion to
dismiss.
Conclusion
Based on the foregoing reasons, defendant’s trial was free
from error.
NO ERROR.
Judges McGEE and ELMORE concur.
Report per Rule 30(e).
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