IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-795
Filed: 1 May 2018
Avery County, No. 15 CRS 334
STATE OF NORTH CAROLINA
v.
PAUL DAVID ELDRED, Defendant.
Appeal by Defendant from judgment entered 30 March 2017 by Judge Gary M.
Gavenus in Avery County Superior Court. Heard in the Court of Appeals 25 January
2018.
Attorney General Joshua H. Stein, by Special Deputy Attorney General
Christina S. Hayes, for the State.
Cooley Law Office, by Craig M. Cooley, for Defendant-Appellant.
INMAN, Judge.
One hundred feet of tire impressions veer off a highway, past a scuffed boulder,
and end at a damaged, unoccupied vehicle whose registered owner is found walking
along the same highway disoriented and unsteady on his feet. He admits that he is
“smoked up on meth” and that he wrecked the vehicle “a couple of hours” earlier.
Most anyone would surmise what happened, and might very well be right. But
because the law prohibits imposing criminal liability based on conjecture, gaps in the
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Opinion of the Court
evidence and controlling precedent require that we reverse Defendant’s conviction for
driving while impaired.
Paul Eldred (“Defendant”) appeals from a judgment following a jury verdict
finding him guilty of driving while impaired (“DWI”). Defendant argues that the trial
court erred in denying his motion to dismiss because the State failed to present
evidence that his admitted impairment began before or during the time he was
operating his vehicle. After careful review, we agree.
Factual and Procedural History
The State’s evidence at trial tended to show the following:
On 30 October 2015, between 8:20 and 8:30 p.m., law enforcement officers in
Avery County received a radio communication of a reported motor vehicle accident on
Highway 221 north of the intersection with Highway 105. Avery County Sheriff’s
Deputy Timothy Clawson (“Deputy Clawson”) and State Highway Patrol Trooper J.D.
Boone (“Trooper Boone”) found a Jeep Cherokee stopped on the right shoulder of the
highway. The vehicle was facing north, in the same direction as the right lane of
travel, toward Grandfather Mountain. The vehicle’s right side panel was damaged.
Officers observed approximately 100 feet of tire impressions on the grass leading from
the highway to the stopped vehicle. The first ten feet of the impressions led from the
highway to a large rock embankment that appeared scuffed. Beyond the
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Opinion of the Court
embankment, the impressions continued to where the vehicle was stopped. No one
was in the vehicle or at the scene.
Deputy Clawson searched for information based on the vehicle’s license plate
and learned that the registered owner was Defendant. He then left the accident scene
and drove on Highway 221 looking for the missing driver. Two or three miles north
of the accident scene, he saw a man walking on the left side of Highway 221 and
stopped to question the man, later identified as Defendant. Deputy Clawson noticed
a mark on Defendant’s forehead and observed that he was twitching and seemed
unsteady on his feet. Asked his name, Defendant replied, “Paul.” Asked what he was
doing walking along the highway, Defendant replied, “I don’t know, I’m too smoked
up on meth.” Deputy Clawson handcuffed Defendant for safety purposes and asked
if he was in pain. Defendant said that he was, and Deputy Clawson called for medical
help.
Deputy Clawson did not ask Defendant how he came to be in pain. Deputy
Clawson did not ask Defendant about his admitted illegal activity or attempt to
determine whether Defendant was impaired by a substance or as a result of the
accident. Deputy Clawson instead focused on Defendant’s medical wellbeing. When
emergency medical personnel arrived, Deputy Clawson removed the handcuffs and
allowed Defendant to leave in an ambulance.
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Opinion of the Court
Trooper Boone traveled from the accident scene to Cannon Hospital, where he
learned Defendant had been taken by ambulance. He found Defendant in a hospital
room at approximately 9:55 p.m. and explained he was investigating the reported
accident. Answering Trooper Boone’s questions, Defendant confirmed that he had
been driving his vehicle and said it had run out of gas. Defendant then said that “he
was hurt bad and was involved in a wreck a couple of hours ago.” Asked if he had
been drinking alcohol, Defendant said no. Asked if he had taken any medications,
Defendant “said he was on meth.” Trooper Boone did not ask Defendant or medical
personnel whether Defendant had been given any pain medication in the ambulance
or in the hospital.
Trooper Boone observed that Defendant was twitching, appeared dazed, took
several seconds to form words in response to questions, and shouted his answers to
questions. Defendant said he was “messed up” and unable to perform any sobriety
tests. Defendant did not know the date, the day of the week, or the time. Trooper
Boone formed the opinion that Defendant had consumed a sufficient amount of an
impairing substance to appreciably impair his mental and physical faculties. Trooper
Boone then informed Defendant that he would be charged with driving while
impaired and advised Defendant of his Miranda rights. After Defendant confirmed
that he understood his rights, Trooper Boone asked further questions. Defendant
again said that he had run out of gas while driving from Banner Elk. Defendant said
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Opinion of the Court
he “was just driving” and did not have a destination. Defendant did not recall which
highway he had been on or what city he was in. Trooper Boone did not ask Defendant
when he had last consumed meth, when he became impaired, whether he had
consumed meth prior to or while driving, or what Defendant did between the time of
the accident and the time Deputy Clawson found him walking beside the highway.
Following an order by the trial court granting Defendant’s motion to suppress,
the State presented no evidence of any laboratory test reflecting the presence or
concentration, if any, of any impairing substance in Defendant’s blood or urine.
Analysis
This appeal requires us to examine the boundary between evidence supporting
suspicion and conjecture, which is insufficient to submit a criminal charge to a jury,
and, on the other hand, evidence allowing a reasonable inference of fact, which is
sufficient to support a criminal conviction.
Defendant argues that the State failed to present substantial evidence of an
essential element of DWI—that Defendant was impaired while he was driving.
This Court reviews a trial court’s order denying a defendant’s motion to dismiss
de novo. State v. McKinnon, 306 N.C. 288, 289, 293 S.E.2d 118, 125 (1982). “When
ruling on a defendant’s motion to dismiss, the trial court must determine whether
there is substantial evidence (1) of each essential element of the offense charged, and
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(2) that the defendant is the perpetrator of the offense.” State v. Smith, 186 N.C. App.
57, 62, 650 S.E.2d 29, 33 (2007).
“Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265
S.E.2d 164, 169 (1980). “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).
Driving while impaired is a statutory offense in North Carolina. N.C. Gen.
Stat. § 20-138.1(a) (2015) provides in pertinent part that “[a] person commits the
offense of impaired driving if he drives any vehicle upon any highway, any street, or
any public vehicular area within this State . . . while under the influence of an
impairing substance . . . .” The essential elements of DWI are therefore: “(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. 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 curium) (citing N.C. Gen. Stat. § 20-138.1).
Defendant compares the evidence in this case to that in State v. Hough, 229
N.C. 532, 50 S.E.2d 496 (1948), in which the North Carolina Supreme Court held the
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evidence was insufficient to raise more than a suspicion or conjecture of impairment.
In that case, two officers arrived at the scene of an accident approximately 30 minutes
after it was reported. Id. at 533, 50 S.E.2d at 497. One officer testified his opinion of
the defendant’s intoxication was based on the fact that he smelled something on the
defendant’s breath. Id. at 533, 50 S.E.2d at 497. The other officer testified that it
was his opinion the defendant was intoxicated or under the influence of something.
Id. at 533, 50 S.E.2d at 497. But neither officer could testify with certainty whether
the defendant’s condition was the result of intoxication or the result of the injuries he
sustained in the accident. Id. at 533, 50 S.E.2d at 497. The Court, reversing the trial
court’s denial of the defendant’s motion for judgment as of nonsuit, reasoned that “[i]f
the witnesses who observed the defendant immediately after his accident, were
unable to tell whether or not he was under the influence of an intoxicant or whether
his condition was the result of the injuries he had just sustained, we do not see how
the jury could do so.” Id. at 533, 50 S.E.2d at 497.
The State likens the evidence of this case with the facts of State v. Collins, 247
N.C. 244, 248 100 S.E.2d 489, 491 (1957), in which the North Carolina Supreme Court
distinguished Hough and upheld a conviction for impaired driving. The defendant in
Collins was thrown from his automobile after crossing the center lane and striking
another vehicle. Id. at 246, 100 S.E.2d at 490. The driver of the second vehicle
approached the defendant and asked if he could take the defendant to the doctor. Id.
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at 246, 100 S.E.2d at 490. The defendant was holding his head as if hurt, but when
the second driver asked if he could take the defendant to a doctor, the defendant said
no. Id. at 246, 100 S.E.2d at 490. The defendant then left the scene. Id. at 246, 100
S.E.2d at 490. The defendant returned to the scene approximately 45 minutes later
and officers observed that he had a strong odor of alcohol on his breath, had urinated
his pants, his speech was incoherent, and he was unable to stand without assistance.
Id. at 246, 100 S.E.2d at 490. Officers noticed no cuts, bruises, or abrasions on the
defendant’s head, and the defendant said he was not hurt. Id. at 246, 100 S.E.2d at
490. The Court, considering the evidence in the light most favorable to the State,
concluded that “the evidence of defendant’s intoxication was not too remote in point
of time, or too speculative, to permit a legitimate inference that the defendant was
under the influence of intoxicating liquor at the time of the collision . . . .” Id. at 248,
100 S.E.2d at 491.
The record here contrasts sharply with the facts in Collins. The State
presented no evidence of when Deputy Clawson encountered Defendant. Trooper
Boone did not encounter Defendant until approximately 9:55 p.m., more than 90
minutes after the accident was reported. Defendant told Trooper Boone that he had
been in a wreck “a couple of hours ago.” That is more than twice as long as the delay
which Collins held was “not too remote in point of time” between when a witness saw
the defendant exiting his vehicle and law enforcement officers encountered him.
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Opinion of the Court
Further, unlike in Collins, the State presented no evidence of how much time elapsed
between the vehicle stopping on the shoulder and the report of an accident being
made. Also, unlike in Collins, the State presented no testimony by any witness who
observed Defendant driving the vehicle at the time of the accident or immediately
before the accident.
Evidence of Defendant’s physical condition also distinguishes this case from
Collins. In Collins, the defendant denied being hurt and declined medical treatment.
Here, by contrast, both Deputy Clawson and Trooper Boone observed an injury on
Defendant’s head, emergency medical personnel transported Defendant to a hospital,
and Defendant said he was “hurt bad.”
The limited evidence in this case is more similar to Hough than to Collins.
Deputy Clawson, who first found Defendant after he had walked two or three miles
beyond his vehicle, did not determine whether Defendant’s condition was caused by
an impairing substance or by the injury that resulted in emergency medical personnel
taking Defendant to the hospital. Trooper Boone, who interviewed Defendant in the
hospital, did not obtain information concerning when or where Defendant had
consumed meth or any other impairing substance. Neither officer even knew when
Defendant’s vehicle had veered off the highway.
The gaps in evidence in this case are also analogous to those in State v. Ray,
54 N.C. App. 473, 283 S.E.2d 823 (1981). In Ray, a law enforcement officer found the
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defendant, who was intoxicated, alone in a disabled vehicle, “halfway [in] the front
seat.” Id. at 474-75, 283 S.E.2d at 825. This Court held that the trial court erred in
denying the defendant’s motion to dismiss a driving while impaired charge because
“[the] circumstantial evidence alone is insufficient to support a conclusion that the
defendant was the driver.” Id. at 475, 283 S.E.2d at 825. This Court noted that the
State presented no evidence that the car “had been operated recently or that it was
in motion at the time the officer observed the defendant . . . [n]or 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 . . . .” Id. at 475, 283 S.E.2d at 825.
Here, unlike in Ray, the State presented evidence that Defendant owned the
vehicle, and Defendant admitted that he had been driving his vehicle and wrecked it
“a couple of hours” earlier. But Defendant did not admit that he had been “smoked
up on meth” or otherwise impaired when he was driving the vehicle. And the State
presented no evidence, direct or circumstantial, to establish that essential element of
the crime of driving while impaired.
“When the facts and circumstances warranted by the evidence do no more than
raise a suspicion of guilt, they are insufficient to make out a case and a motion to
dismiss should be allowed.” State v. Blizzard, 280 N.C. 11, 16, 184 S.E.2d 851, 854
(1971). We are bound to follow our precedent.
Conclusion
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Opinion of the Court
Because the State presented insufficient evidence to establish that Defendant
was impaired while driving, we hold that the trial court erred in denying Defendant’s
motion to dismiss and reverse Defendant’s conviction.
REVERSED.
Judges STROUD and DILLON concur.
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