State v. Squirewell ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-497
Filed: 7 November 2017
Forsyth County, Nos. 14 CRS 54918, 716209-11
STATE OF NORTH CAROLINA
v.
ANTHONY JAMES SQUIREWELL II
Appeal by defendant from judgments entered 15 November 2016 by Judge
Edwin G. Wilson, Jr., in Forsyth County Superior Court. Heard in the Court of
Appeals 3 October 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Christine
Wright, for the State.
Charlotte Gail Blake for defendant.
ARROWOOD, Judge.
Anthony James Squirewell II (“defendant”) appeals from judgments entered
upon his convictions for habitual impaired driving, speeding, possessing an open
container of alcohol in the passenger area of a motor vehicle, resisting a public officer,
and driving while license revoked for impaired driving. For the following reasons, we
find no error in defendant’s trial below.
I. Background
STATE V. SQUIREWELL
Opinion of the Court
As a result of a traffic stop just after noon on 20 May 2014, defendant received
North Carolina Uniform Citations for driving while impaired, speeding, providing
false identifying information to the State Highway Patrol, driving while license
revoked, consuming alcohol in the passenger area of a motor vehicle, and resisting a
public officer. On 2 March 2015, a Forsyth County Grand Jury indicted defendant on
charges of habitual impaired driving, speeding, driving while license revoked for
impaired driving, possessing an open container of alcohol in the passenger area of a
motor vehicle, and resisting a public officer.
Prior to the case coming on for trial, defendant entered a guilty plea to driving
while license revoked for impaired driving. The remaining charges were then tried
before a jury in Forsyth County Superior Court beginning 14 November 2016, the
Honorable Edwin G. Wilson, Jr., Judge presiding. On 15 November 2016, the jury
returned verdicts finding defendant guilty of the remaining charges. The trial court
consolidated the offenses for which the jury convicted defendant and entered
judgment sentencing defendant to a term of 21 to 35 months imprisonment. The trial
court entered a separate judgment sentencing defendant to a consecutive term of 120
days imprisonment for his guilty plea to driving while license revoked for impaired
driving. Defendant timely appealed.
II. Discussion
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STATE V. SQUIREWELL
Opinion of the Court
Defendant raises the following two issues on appeal: whether the trial court
erred by (1) allowing testimony to be admitted into evidence concerning the results of
the chemical analysis of his breath test; and (2) denying his motion to dismiss the
open container charge.
A. Results of Chemical Analysis
Defendant first contends the trial court erred in allowing a state trooper to
testify about the results of the chemical analysis of his breath test because the State
failed to provide an adequate foundation for the testimony. The trial court allowed
the testimony into evidence at trial over defendant’s objection.
N.C. Gen. Stat. § 20-139.1 provides that “a person’s alcohol concentration or
the presence of any other impairing substance in the person’s body as shown by a
chemical analysis is admissible in evidence.” N.C. Gen. Stat. § 20-139.1(a) (2015).
Yet, “[b]ecause so much weight and deference is given to a chemical analysis test, it
is necessary that a proper foundation be laid before admitting evidence as to the
outcome of a chemical analysis test in a driving while impaired case.” State v. Roach,
145 N.C. App. 159, 161-62, 548 S.E.2d 841, 844 (2001).
A chemical analysis of the breath . . . is admissible in any
court or administrative hearing or proceeding if it meets
both of the following requirements:
(1) It is performed in accordance with the rules of the
Department of Health and Human Services.
(2) The person performing the analysis had, at the time
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STATE V. SQUIREWELL
Opinion of the Court
of the analysis, a current permit issued by the
Department of Health and Human Services
authorizing the person to perform a test of the
breath using the type of instrument employed.
N.C. Gen. Stat. § 20-139.1(b). “In order to satisfy the second of these requirements,
it is not obligatory that a copy of the necessary permit be introduced into evidence.”
State v. Franks, 87 N.C. App. 265, 267, 360 S.E.2d 473, 474 (1987) (citing State v.
Powell, 10 N.C. App. 726, 179 S.E.2d 785, aff’d, 279 N.C. 608, 184 S.E.2d 243 (1971)).
The second requirement is satisfied
(1) by stipulation between the defendant and the State that
the individual who administers the test holds a valid
permit issued by the Department of Human Resources; or
(2) by offering the permit of the individual who administers
the test into evidence and in the event of conviction from
which an appeal is taken, by bringing forward the exhibit
as a part of the record on appeal; or (3) by presenting any
other evidence which shows that the individual who
administered the test holds a valid permit issued by the
Department of Human Resources.
State v. Mullis, 38 N.C. App. 40, 41, 247 S.E.2d 265, 266 (1978).
In this case, there was no stipulation and the State did not offer a permit into
evidence. The State instead sought to provide a foundation for the results from the
chemical analysis of defendant’s breath test through the following testimony of the
state trooper who performed the chemical analysis:
Q. . . . . Now, are you a certified chemical analyst?
A. Yes, sir.
Q. What is that?
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STATE V. SQUIREWELL
Opinion of the Court
A. That’s a person that has been deemed properly, that’s
done the procedures and has been certified by the
Department of Human Resources to perform chemical
breath analysis.
Q. Using the ECIR2?
A. Yes, sir.
Defendant contends this testimony was insufficient to lay a proper foundation
for the trooper’s testimony because there is no indication that the trooper was
certified at the time he administered the chemical analysis test to defendant.
Defendant cites only this Court’s decisions in State v. Franks, 87 N.C. App. 265, 360
S.E.2d 473 (1987), and State v. Roach, 145 N.C. App. 159, 548 S.E.2d 841 (2001). In
both Franks and Roach, this Court granted the defendants new trials because the
State failed to provide an adequate foundation for the admission of breath analysis
results. Upon review, we are not convinced the trial court erred in the present case,
which is easily distinguished from Franks and Roach.
In Franks, in order to establish the necessary foundation for an officer’s
testimony regarding the results of the defendant’s chemical analysis, the State
elicited testimony from the officer that he had a certificate to operate a particular
breathalyzer test on the day he conducted the chemical analysis on the defendant. 87
N.C. App. at 267, 360 S.E.2d at 474-75. The State then sought to introduce a permit.
Id. at 267, 360 S.E.2d at 475. Because the permit showed that it was not issued until
after the officer administered the test to the defendant, the trial court sustained the
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STATE V. SQUIREWELL
Opinion of the Court
defense’s objection to the admission of the permit. Id. The State then sought to elicit
testimony from the officer to clarify that he did in fact have a permit issued by the
North Carolina Department of Human Resources at the time he conducted the
defendant’s breath analysis. Id. at 268, 360 S.E.2d at 475. The defense again objected
on grounds that the best evidence would be the permit itself. Id. Although the trial
court overruled the defense’s objection, the record did not reflect that the officer ever
answered the State’s question. Id. Thus, this Court held the trial court erred in
admitting the chemical analysis results because the record evidence showed only that
the officer had a certificate to operate the particular breathalyzer instrument at the
relevant time; it did not show who issued the certificate. Id.
In Roach, the State introduced evidence of appreciable impairment and the
results of a chemical analysis of the defendant’s breath test to support a driving while
impaired charge. 145 N.C. App. at 159-60, 548 S.E.2d at 842-43. The only evidence
in Roach regarding the trooper’s qualifications to conduct the chemical analysis was
the trooper’s testimony that he had trained on the particular breathalyzer device used
for the defendant’s chemical analysis. Id. at 160, 548 S.E.2d at 843. On appeal, the
State admitted that “[the trooper] did not testify at trial that he possessed a permit
issued by the Department of Health and Human Services,” but urged this Court to
“overrule the Franks holding as ‘too narrow and unduly formalistic for today’s
world.’ ” Id. at 161, 548 S.E.2d at 843-44. This Court recognized it could not overrule
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Opinion of the Court
Franks, see In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989), and
instead held the trial court erred in allowing results of the chemical analysis into
evidence because the State failed to lay a sufficient foundation. Roach, 145 N.C. App.
at 161-62, 548 S.E.2d at 844. Furthermore, although there was evidence of
appreciable impairment that also supported the jury verdict in Roach, this Court held
that “[i]t is prejudicial error for the court to allow the arresting officer who
administered a chemical analysis to testify as to the results of that analysis, even
when there was other sufficient evidence in the record to support a guilty verdict.”
Id. at 162, 548 S.E.2d at 844.
As detailed above, the state trooper in this case testified that he was certified
by the Department of Human Resources to perform chemical breath analysis using
the ECIR2 machine. The trooper further testified that defendant’s breath analysis
was conducted on the ECIR2 machine and that he set up the ECIR2 machine in
preparation for defendant’s test according to the procedures established by the
Department. The trooper then testified further about those specific procedures and
that he followed the procedures in this instance. The trooper stated that the machine
worked properly and produced a result for defendant’s breath test. Although the
trooper did not explicitly state that he had a Department issued permit to conduct
chemical analysis on the day he conducted defendant’s breath test, which is certainly
best practice, we hold the trooper’s testimony that he was certified to conduct
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Opinion of the Court
chemical analysis by the Department and that he performed the chemical analysis
according to the Department’s procedures was adequate in this case to lay the
necessary foundation for the admission of chemical analysis results. See State v.
Eubanks, 283 N.C. 556, 563, 196 S.E.2d 706, 710-11 (1973) (upholding the admission
of chemical analysis results where the officer testified that he attended breathalyzer
operator’s school, that he had a certificate issued by the North Carolina State Board
of Health to perform chemical analysis of the breath, and that he followed rules and
regulations he received when he was certified on this particular occasion).
B. Possession of an Open Container
Defendant also contends the trial court erred in denying his motion to dismiss
the open container charge because there was insufficient evidence that the open
container belonged to him.
“ ‘Upon defendant’s motion for dismissal, the question for the Court is whether
there is substantial evidence (1) of each essential element of the offense charged, or
of a lesser offense included therein, and (2) of defendant’s being the perpetrator of
such offense. If so, the motion is properly denied.’ ” State v. Fritsch, 351 N.C. 373,
378, 526 S.E.2d 451, 455 (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914,
918 (1993)), cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000). “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).
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STATE V. SQUIREWELL
Opinion of the Court
“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), cert. denied,
515 U.S. 1135, 132 L. Ed. 2d 818 (1995).
Circumstantial evidence may withstand a motion to
dismiss and support a conviction even when the evidence
does not rule out every hypothesis of innocence. If the
evidence presented is circumstantial, the court must
consider whether a reasonable inference of defendant’s
guilt may be drawn from the circumstances. Once the court
decides that a reasonable inference of defendant’s guilt
may be drawn from the circumstances, then it is for the
jury to decide whether the facts, taken singly or in
combination, satisfy [it] beyond a reasonable doubt that the
defendant is actually guilty.
Fritsch, 351 N.C. at 379, 526 S.E.2d at 455 (citation, quotation marks, and emphasis
omitted). “This Court reviews the trial court’s denial of a motion to dismiss de novo.”
State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007).
The offense of possessing an open container of alcohol is defined in N.C. Gen.
Stat. § 20-138.7(a1). That section provides that “[n]o person shall possess an alcoholic
beverage other than in the unopened manufacturer’s original container, or consume
an alcoholic beverage, in the passenger area of a motor vehicle while the motor vehicle
is on a highway or the right-of-way of a highway. . . .” N.C. Gen. Stat. § 20-138.7(a1)
(2015).
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STATE V. SQUIREWELL
Opinion of the Court
In the present case, the evidence was that there was an open beer can “near
the console area of the vehicle[]” that defendant was driving when he was pulled over.
There were two passengers in the vehicle with defendant, one in the front passenger
seat and one in the back seat. The question on appeal is whether there is evidence
defendant possessed the open beer can.
This Court has explained that
[p]ossession of any item may be actual or constructive.
Actual possession requires that a party have physical or
personal custody of the item. A person has constructive
possession of an item when the item is not in his physical
custody, but he nonetheless has the power and intent to
control its disposition.
State v. Alston, 131 N.C. App. 514, 519, 508 S.E.2d 315, 318 (1998) (citations omitted),
superseded in part on other grounds by statute as stated in State v. Gaither, 161 N.C.
App. 96, 104, 587 S.E.2d 505, 510 (2003), disc. review denied, 358 N.C. 157, 593 S.E.2d
83 (2004). “[C]onstructive possession depends on the totality of the circumstances in
each case. No single factor controls, but ordinarily the questions will be for the jury.”
State v. Butler, 147 N.C. App. 1, 11, 556 S.E.2d 304, 311 (2001), affirmed, 356 N.C.
141, 567 S.E.2d 137 (2002) (quotation marks, citation, and emphasis omitted). “In
car cases, . . . [a]n inference of constructive possession can . . . arise from evidence
which tends to show that a defendant was the custodian of the vehicle where the
[item] was found.” State v. Best, 214 N.C. App. 39, 46-47, 713 S.E.2d 556, 562
(quotation marks and citations omitted), disc. rev. denied, 365 N.C. 361, 718 S.E.2d
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Opinion of the Court
397 (2011). But, “[w]hen . . . the defendant [does] not have exclusive control of the
location where [the item] is found, constructive possession of the [item] may not be
inferred without other incriminating circumstances.” State v. Clark, 159 N.C. App.
520, 525, 583 S.E.2d 680, 683 (2003) (quotation marks and citation omitted).
There was no evidence in this case that defendant ever had actual possession
of the open can of beer. Moreover, because there were two passengers in the vehicle
with defendant, defendant did not have exclusive control of the console area. Thus,
there must be other incriminating circumstances to infer defendant had constructive
possession of the open beer can. Defendant contends there were no such
circumstances in this case. We disagree.
Besides the evidence that there was an open can of beer near the console area
of the vehicle defendant was driving, which was visible to the state trooper upon his
approach to the driver’s side of the vehicle, the evidence also showed that defendant
initially provided the state trooper a false name, defendant’s eyes were red and
glassy, there was a strong odor of alcohol coming from the vehicle, and defendant’s
speech was slurred. The state trooper further testified that he had defendant come
back to his patrol car for further questioning. At that time, the trooper noticed an
odor of alcohol on defendant’s breath and defendant admitted that he had consumed
a beer that morning. In fact, defendant told the trooper “that he had had tequila the
night before and had freshened it up with a beer that morning.”
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STATE V. SQUIREWELL
Opinion of the Court
We hold this evidence, when viewed in the light most favorable to the State,
provided sufficient other incriminating circumstances to support a reasonable
inference that the open container of beer belonged to defendant. Thus, it was proper
for the trial court to deny defendant’s motion to dismiss the open container charge
and allow the jury to determine defendant’s guilt.
III. Conclusion
For the reasons discussed, we hold defendant received a fair trial free of error.
NO ERROR.
Judges BRYANT and MURPHY concur.
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