State v. Hawk , 2014 N.C. App. LEXIS 969 ( 2014 )

NO. COA14-204
NORTH CAROLINA COURT OF APPEALS
Filed: 2 September 2014
STATE OF NORTH CAROLINA
v. Montgomery County
No. 11CRS051364
REGINA ANN HAWK,
Defendant.
Appeal by defendant from Judgment entered on or about 11
July 2013 by Judge Michael E. Beale in Superior Court,
Montgomery County. Heard in the Court of Appeals 12 August
2014.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Carrie D. Randa, for the State.
Cheshire Parker Schneider & Bryan, PLLC, by John Keating
Wiles, for defendant-appellant.
STROUD, Judge.
Regina Hawk (“defendant”) appeals from the judgment entered
after a Montgomery County jury found her guilty of felony death
by motor vehicle and reckless driving. We find no prejudicial
error at defendant’s trial.
I. Background
Defendant was indicted for felony death by motor vehicle
under N.C. Gen. Stat. § 20-141.4(a1) (2011) and reckless driving
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under N.C. Gen. Stat. § 20-140(a) (2011). Defendant pled not
guilty and proceeded to jury trial. At trial, the State’s
evidence tended to show that on the evening of 3 September 2011,
defendant was hanging out with friends and drinking beer. After
picking up her friend Derisa Comer, defendant drove her SUV to
another friend’s house to cook out and drink beer. When she
arrived around 10 p.m., she told Randy East that she had
consumed about three beers.
Defendant drove Mr. East, Cody Bailey, Pam Singleton, and
Ms. Comer to the store to pick up more beer. Around 1:40 a.m. on
4 September, as they were driving along the rural Aunt Queen
Rd., defendant veered off to the side of the road, over-
corrected back to the other side, and then pulled back to the
right side. When she pulled back to the right side, her vehicle
flipped over. Ms. Singleton was sitting in the back seat, but
was not wearing her seatbelt. She was leaning forward to change
the radio when the vehicle flipped. When it flipped, Ms.
Singleton was partially ejected through the passenger side
window. Defendant was stuck in the driver’s seat, but the two
men were unhurt and were able to get out. They left to get help.
Captain Stephen Hurley, with Montgomery County Rescue, was
one of the first to respond to the scene. He checked Ms.
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Singleton for a pulse, but found none. The medical examiner
later concluded that Ms. Singleton died from traumatic brain
injury. Capt. Hurley noticed a strong odor of alcohol coming
from the car and saw some beer cans and a bottle of tequila in
the vicinity. Defendant had suffered massive trauma to her
scalp, so he pulled her out of the vehicle. Once out of the
vehicle, defendant just kept asking for a cigarette. Capt.
Hurley noticed that she was slurring her words and thought that
she seemed intoxicated.
Defendant was transported to Wake Forest Baptist Hospital
for treatment. Dr. Chadwick Miller treated her when she arrived.
He ordered the typical battery of tests for trauma victims,
including a blood ethanol test to check for the presence of
alcohol. He could not say who actually drew the blood for the
test, nor what specifically happened to it on that night, though
he did explain their normal procedure for drawing blood and
sending it to the hospital’s laboratory for testing. The
laboratory used a Beckman Coutler DXC analyzer to test the
blood. Dale Dennard, the Director of Pathology and Clinical
Labs testified to the normal testing procedure employed at the
hospital. But he did not know which of their analysts actually
tested defendant’s blood sample.
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The hospital records introduced at trial reflected that Dr.
Miller had ordered a blood alcohol test as part of a standard
battery of blood tests at 3:22 a.m. The tests returned a result
of 212 milligrams of alcohol per deciliter of blood plasma.
Based in part on this test, and defendant’s behavior at the
hospital, Dr. Miller diagnosed her with alcohol intoxication.
Dr. Miller was “concerned that the patient was exhibiting
behavior consistent with someone who may have a difficult time
making decisions for themselves[.]”
Later on the morning of 4 September, Trooper Jeremy
Anderson interviewed defendant in the hospital. Trooper Anderson
testified that defendant was slow to respond to his questions
and that her speech was slurred. When he asked defendant how
much she had to drink, she responded, “at least a 12-pack.” He
opined that she was intoxicated, though he admitted that he did
not know what medications she had been administered at that
point.
Because the hospital blood test results were from a plasma
sample and given in milligrams per deciliter, the State called
Paul Glover to translate the blood plasma results to a whole
blood alcohol concentration in grams per milliliter. Defendant
objected to Mr. Glover’s testimony because the State had only
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notified him of their intent to call Mr. Glover as an expert two
days before trial. The prosecutor explained that the State did
not know they would have to call Mr. Glover to testify about the
conversion formula until the week prior to trial. Defendant did
not move for a continuance. The trial court denied defendant’s
motion to exclude Mr. Glover’s testimony, though it did delay
his testimony until the following morning to allow defense
counsel time to prepare. Mr. Glover explained how he converted
the test results from the hospital’s blood test to the accepted
legal measure for blood alcohol concentration. He testified that
using the accepted conversion formula results in a blood alcohol
concentration of .17 g per 100 mL of whole blood.
After the close of the State’s evidence, defendant elected
to present evidence and testify on her own behalf.
II. Blood Test
Defendant argues on appeal that the trial court erred in
admitting evidence of the blood alcohol test performed by the
hospital as part of its treatment of defendant’s injuries. She
contends that because the State failed to show who actually drew
the blood and who actually performed the test, it cannot be
admissible. Even assuming defendant were correct, we hold that
given the overwhelming evidence that defendant had consumed a
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substantial amount of alcohol so as to impair her ability to
drive, any error in admitting the blood test was not
prejudicial.
We review a trial court’s decision to admit evidence over
an objection concerning the chain of custody for an abuse of
discretion. State v. Campbell, 311 N.C. 386, 388-89, 317 S.E.2d
391, 392 (1984). Erroneous admission of evidence only entitles
the defendant to a new trial if she can show that the error was
prejudicial. State v. Alston, 307 N.C. 321, 339, 298 S.E.2d 631,
644 (1983); N.C. Gen. Stat. § 15A-1443(a) (2013). Such an error
is prejudicial “when there is a reasonable possibility that, had
the error in question not been committed, a different result
would have been reached at the trial out of which the appeal
arises.” Alston, 307 N.C. at 339, 298 S.E.2d at 644 (quoting
N.C. Gen. Stat. § 15A-1443(a)).
There are two accepted methods of proving impaired driving:
proof of blood alcohol concentration (BAC) greater than .08 g
per 100 mL of blood (or 210 liters of breath) or evidence that
the defendant had consumed alcohol along with evidence of
impairment. State v. Oliver, 343 N.C. 202, 215, 470 S.E.2d 16,
24 (1996) (holding that DWI is a single offense “which may be
proven in . . . two ways”); State v. Roach, 145 N.C. App. 159,
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163, 548 S.E.2d 841, 844 (2001) (discussing the two methods of
proving impaired driving). So, the State can prove driving while
impaired even absent evidence of defendant’s BAC. State v.
Harrington, 78 N.C. App. 39, 46, 336 S.E.2d 852, 856 (1985)
(observing that “the State may prove DWI where the BAC is
entirely unknown”).
Here, the evidence, even excluding the blood test, showed
that defendant lost control of her vehicle on a country road
after consuming a substantial amount of alcohol and that she was
appreciably impaired. When Trooper Jeremy Anderson interviewed
defendant slightly before 4 a.m., she admitted drinking “at
least a 12-pack.” Testifying on her own behalf, defendant
admitted drinking at least seven or eight beers before 10 p.m.
that evening, though she denied being impaired. Captain Stephen
Hurley, with Montgomery County Rescue, testified that when he
arrived on the scene, he noticed the strong odor of alcohol.
When he spoke with defendant, she just kept asking for a
cigarette, slurring her words. He opined that she seemed
intoxicated. Finally, Dr. Chadwick Miller treated defendant
when she arrived at Wake Forest Baptist Hospital. Largely based
on her behavior at the hospital, Dr. Miller diagnosed defendant
with alcohol intoxication.
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Thus, it is undisputed that defendant drank a large
quantity of beer on the night in question before getting behind
the wheel of her car. One law enforcement and two medical
witnesses opined that she appeared intoxicated after the
collision. Cf. State v. Brown, 87 N.C. App. 13, 20-21, 359
S.E.2d 265, 269 (1987) (holding that “the defendant’s admission
of being ‘intoxicated’ or having ‘consumed too much beer’ at
2:30 a.m.–3:00 a.m. is sufficient evidence from which the jury
could infer that the defendant was impaired between 1:05 a.m.
and 1:52 a.m.”); State v. Vassey, 154 N.C. App. 384, 390, 572
S.E.2d 248, 252 (2002) (noting that the State need only prove
appreciable impairment to sustain an impaired driving
conviction), disc. rev. denied, 356 N.C. 692, 579 S.E.2d 96
(2003).
The only issue raised by defendant in her defense was the
conduct of the other passengers. She and Ms. Comer claimed that
the two men in the car were “picking at” Ms. Singleton, trying
to bite her. They both testified that Ms. Singleton had climbed
into Ms. Comer’s lap in the front passenger seat. Both male
passengers denied that they had been horsing around with Ms.
Singleton or that she climbed into the front seat before the
crash. Defendant claimed that Ms. Singleton’s foot was on the
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steering wheel, so when she tried to turn the wheel it would not
budge. According to defendant, when Ms. Singleton’s foot came
off the wheel, she lost control of the vehicle and went off the
road. It is clear from the jury’s verdict that they did not
believe defendant’s evidence.
The question for us is not whether the blood test evidence
might have influenced the jury, but whether there is a
reasonable possibility that, absent such evidence, the jury
would have reached a different verdict. See Alston, 307 N.C. at
339, 298 S.E.2d at 644. Given the evidence here, we conclude
that there is no reasonable possibility that the jury would have
reached a different result had the blood test results been
excluded. Therefore, we hold that defendant has failed to show
that she was prejudiced by the admission of that evidence. See
id.
III. Expert Testimony
Defendant next argues that the trial court erred in
allowing Paul Glover to testify for the State regarding the
conversion of the blood plasma test results used by the hospital
to the legal standard for blood alcohol concentration. The
challenged testimony only related to the blood test evidence.
For the same reasons that admission of the blood test was not
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prejudicial, admission of Mr. Glover’s testimony was not
prejudicial. Therefore, even assuming this testimony was
admitted in error, defendant is not entitled to a new trial. See
id.
IV. Conclusion
For the foregoing reasons, we conclude that defendant has
failed to show that her trial was affected by prejudicial error.
NO PREJUDICIAL ERROR.
Chief Judge MCGEE and Judge BRYANT concur.