An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-1229
Filed: 5 May 2015
STATE OF NORTH CAROLINA
Cabarrus County
v.
Nos. 13 CRS 50468, 2333
TIMOTHY DON GRAHAM
Appeal by defendant from judgment entered 18 December 2013 by Judge W.
Erwin Spainhour in Cabarrus County Superior Court. Heard in the Court of Appeals
17 April 2015.
Attorney General Roy Cooper, by Special Deputy Attorney General Neil Dalton,
for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Constance
E. Widenhouse, for defendant-appellant.
TYSON, Judge.
Timothy Don Graham (“Defendant”) appeals from judgment entered after a
jury convicted him of driving while impaired and driving while license revoked. We
find no error in the convictions or the judgment entered thereon.
I. Background
Defendant was indicted for habitual impaired driving, driving while license
revoked (“DWLR”), and habitual felon status.
STATE V. GRAHAM
Opinion of the Court
The State’s evidence tended to show the following: On the night of 17 March
2012, the Kannapolis Police Department established a driver’s license and sobriety
checkpoint between two crests on Lane Street, near the parking lot of the Lane Street
Baptist Church. The church parking lot is accessible by two entrances. Officer Seth
Killian (“Officer Killian”) was stationed at the second entrance nearer to the
checkpoint as the “chase car,” apprehending drivers who attempted to avoid the
checkpoint.
Just before midnight, Officer Killian observed a black sedan followed by a red
pickup truck approaching on Lane Street from his left. Rather than continuing to the
checkpoint, both vehicles turned into the church parking lot at the first entrance.
Officer Killian “gave [the vehicles] a few seconds” to see if they would emerge from
“around the other side of the church.” He then drove “around the back side of the
church” and “immediately saw both” vehicles parked at such a distance that they
“didn’t seem to have any relation” to each other. The black sedan was parked closer
to Officer Killian, while the red truck was “pulled in nose first toward the very back
corner” of the lot. Officer Killian saw that the truck’s driver’s side door was open, and
“[D]efendant was standing just outside . . . approximately 3 to 5 feet away from the
actual driver’s seat” and “less than a foot” from the open door. Defendant then
“walk[ed] pas[t] the hood of the car and on toward the back of the church.” After
instructing the sedan’s two occupants to proceed through the checkpoint, Officer
Killian “immediately drove to the red truck and . . . made contact with the defendant.”
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STATE V. GRAHAM
Opinion of the Court
Officer Killian then observed a passenger, Barbara Hyatt (“Ms. Hyatt”), “sitting in
the middle of the bench seat [of the] truck.” He further noted that the truck was
parked beside a retaining wall, so that the passenger side door “would have been
really close to hitting the wall” if it had been opened.
As Officer Killian pulled his patrol car behind the truck and parked, Defendant
walked back toward him. Officer Killian asked Defendant why he was “parked in the
back of the parking lot[,]” and Defendant replied, “[m]y truck is having problems or
is having engine problems.” Defendant did not open the truck’s hood, however, or
examine the engine in any way.
Officer Killian observed no indicia of engine trouble but detected “a strong odor
of alcoholic beverage” on Defendant’s breath. Officer Killian asked Defendant how
much he had to drink. Defendant initially claimed, “I haven’t had anything to drink
today.” When Officer Killian inquired about the smell of alcohol on Defendant’s
breath, he replied, “[w]ell, I had one [beer] today and that’s it.” Officer Killian then
asked for Defendant’s driver’s license. Defendant said that he did not have it with
him, but gave his name and date of birth. Officer Killian consulted the computer in
his patrol car and learned that Defendant’s license was suspended. The red truck
was registered to Defendant’s brother.
Officer Killian asked Defendant if he would submit to a portable breath test
(“PBT”) for alcohol. Defendant agreed but then twice failed to provide a hard breath
as instructed. Officer Killian requested assistance from Officer Tony Peeler (“Officer
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STATE V. GRAHAM
Opinion of the Court
Peeler”), who was working at the checkpoint. Officer Peeler performed two PBTs on
Defendant, both of which detected alcohol. Between the two tests, Defendant told
Officer Peeler that he was “at the church to meet somebody to do some type of
construction, . . . checking on some type of construction job with the church.” During
the 35 minutes Officer Peeler was at the scene, no one arrived to meet with
Defendant.
After administering three additional field sobriety tests, Officer Killian
arrested Defendant for driving while impaired (“DWI”). A subsequent blood draw
measured Defendant’s blood alcohol level as .13 grams per 100 milliliters of blood.
Prior to jury selection, Defendant advised the trial court that he would
stipulate to three prior convictions for impaired driving within the preceding ten
years. See N.C. Gen. Stat. § 20-138.5(a) (2013). Defendant was tried before a jury for
DWI and DWLR, and was found guilty of both offenses. He then pled guilty to having
committed the felony of habitual impaired driving as an habitual felon. The trial
court consolidated Defendant’s two substantive offenses for judgment and sentenced
him as an habitual felon to an active term of 76 to 104 months imprisonment.
Defendant appealed to this Court.
II. Issues
Defendant argues the trial court erred by denying his motion to dismiss at the
conclusion of the evidence, because the State failed to prove that he was the driver of
the red truck observed by Officer Killian. Defendant asserts he was never seen
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STATE V. GRAHAM
Opinion of the Court
driving the truck or sitting in the driver’s seat, nor was he the truck’s owner. Given
Ms. Hyatt’s presence and location inside the truck when Officer Killian arrived in the
church parking lot, Defendant contends the State’s proof “supported only suspicion
or conjecture that [he] was driving [and] was not sufficient to take the case to the
jury.”
III. Standard of Review
When considering a motion to dismiss for insufficiency of
the evidence, we consider whether, in the light most
favorable to the State and with all reasonable inferences
drawn in the State’s favor, there is enough evidence of each
essential element of the crime charged to persuade a
rational juror that the defendant was the perpetrator.
State v. Childress, 367 N.C. 693, 694-95, 766 S.E.2d 328, 330 (2014). The State may
prove that a defendant was driving a vehicle by circumstantial evidence. See State v.
Riddle, 56 N.C. App. 701, 704, 289 S.E.2d 598, 599 (1982). Moreover,
“[c]ircumstantial evidence may withstand a motion to dismiss and support a
conviction even when the evidence does not rule out every hypothesis of innocence.”
Childress, 367 N.C. at 696, 766 S.E.2d at 330 (alteration in original) (citation and
internal quotation marks omitted). “A motion to dismiss should be granted, however,
where the facts and circumstances warranted by the evidence do no more than raise
a suspicion of guilt or conjecture” as to the defendant’s identity as the perpetrator.
State v. Turnage, 362 N.C. 491, 494, 666 S.E.2d 753, 755 (2008) (citation and internal
quotation marks omitted).
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STATE V. GRAHAM
Opinion of the Court
IV. Analysis
A. Driving A Motor Vehicle
Driving a motor vehicle is an essential element of both DWI and DWLR. N.C.
Gen. Stat. §§ 20-28, 20-138.1(a)(1) (2013). “[O]ne ‘drives’ within the meaning of G.S.
20-138.1 if he is in actual physical control of a vehicle . . . which has the engine
running.” State v. Fields, 77 N.C. App. 404, 406, 335 S.E.2d 69, 70 (1985).
Defendant likens his case to State v. Ray. 54 N.C. App. 473, 283 S.E.2d 823
(1981). In Ray, a police officer who responded to an accident call testified that he
observed two parked cars that appeared to have been struck by a third car, which
was occupied by the defendant “halfway in the front seat.” Id. at 473, 475, 283 S.E.2d
at 824-25. This Court held the officer’s testimony, standing alone, was insufficient to
support a jury finding that the defendant drove the vehicle for purposes of N.C. Gen.
Stat. § 20-138(a):
The only evidence presented by the State connecting the
defendant with the automobile was the Public Safety
Officer’s testimony that he observed the defendant
“halfway [sic] the front seat.” This circumstantial evidence
alone is insufficient to support a conclusion that the
defendant was the driver. The State offered no evidence
that the car had been operated recently or that it was in
motion at the time the officer observed the defendant. Nor
did the State offer evidence that the motor was running
with the defendant sitting under the steering wheel at the
time the officer came upon the scene . . . . It is possible that
other circumstantial evidence – such as testimony that the
defendant was seen driving the car at some point
immediately prior to the accident or evidence as to the
ownership of the automobile – in addition to the testimony
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STATE V. GRAHAM
Opinion of the Court
of the officer would have bolstered the State’s case.
However, no other such evidence was presented.
Id. at 474-75, 283 S.E.2d at 825 (citation omitted) (emphasis supplied).
The circumstantial evidence of Defendant’s identity as the driver of the red
truck is significantly stronger than the limited proffer in Ray. In this case, there is
no question that someone drove the red truck down Lane Street into the church
parking lot, as observed by Officer Killian moments prior to his encounter with
Defendant. Id. at 475, 283 S.E.2d at 825 (“The State offered no evidence that the car
had been operated recently[.]”). Inasmuch as Officer Killian waited just “a few
seconds” before proceeding into the lot, Defendant’s location at the open driver’s side
door is strong evidence that Defendant exited the truck through the door. The fact
that the driver of the truck took action consistent with an attempt to avoid the
sobriety checkpoint, paired with the fact of Defendant’s intoxication, tend to support
the conclusion that Defendant was driving. Defendant’s reference to the vehicle as
“my truck” likewise has some tendency to show an exercise of dominion and control
indicating his status as the driver. Cf. State v. Glaze, 24 N.C. App. 60, 64, 210 S.E.2d
124, 127 (1974) (“The driver of a borrowed car, like the owner of the car, has the power
to control the contents of the car.”).
Defendant’s false and contradictory statements to the responding officers also
constitute circumstantial evidence “tending to show consciousness of guilt.” State v.
Walker, 332 N.C. 520, 537, 422 S.E.2d 716, 726 (1992); see also Riddle, 56 N.C. App.
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STATE V. GRAHAM
Opinion of the Court
at 705, 289 S.E.2d at 600 (noting “discrepancies within defendant's statements and
between defendant's statements and the physical evidence”).
Defendant told Officer Killian the truck was parked in the church parking lot
because of engine trouble. He told Officer Peeler that he had come to the church, at
midnight, to inquire about construction work. Defendant also initially denied having
consumed any alcohol and then insisted that he had just one beer. These are
conflicting claims, which were both belied by his blood alcohol level. Defendant gave,
at best, a misleading response when asked for his driver’s license.
V. Conclusion
We hold that the State’s evidence, though circumstantial, was sufficient to
support a reasonable inference that Defendant was driving the red truck when it was
observed by Officer Killian. See Riddle, 56 N.C. App. at 704-05, 289 S.E.2d at 600;
State v. Dula, 77 N.C. App. 473, 474-75, 335 S.E.2d 203, 204 (1985).
Although the State did not eliminate the possibility that Ms. Hyatt was the
driver, or “prove to a scientific certainty that defendant was the driver of the car[,]”
the State was not required to do so in order to submit the charges to the jury. Dula,
77 N.C. App. at 475, 335 S.E.2d at 204. Ms. Hyatt was not sitting in the driver’s seat
when she was observed by Officer Killian. Other than her presence in the truck, no
additional evidence suggests she had been driving.
Defendant received a fair trial, free from prejudicial errors he preserved,
presented, and argued.
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STATE V. GRAHAM
Opinion of the Court
NO ERROR.
Judges BRYANT and DIETZ concur.
Report per Rule 30(e).
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