State v. McGaha ( 2020 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-1108
Filed: 3 November 2020
Henderson County, No. 17CRS50669
STATE OF NORTH CAROLINA
v.
KAYLA SUE MCGAHA
Appeal by Defendant from judgment entered 29 March 2019 by Judge Alan
Thornburg in Henderson County Superior Court. Heard in the Court of Appeals
9 September 2020.
Attorney General Joshua H. Stein, by Associate Attorney General Jarrett W.
McGowan, for the State-Appellee.
Charlotte Gail Blake for Defendant-Appellant.
COLLINS, Judge.
Kayla Sue McGaha (“Defendant”) appeals from judgment entered upon the
trial court’s finding her guilty of impaired driving. Defendant argues that the trial
court erred by denying her motion to suppress evidence, denying her motion to
dismiss for insufficient evidence, and finding one grossly aggravating factor and
accordingly imposing a Level Two sentence. We discern no error.
STATE V. MCGAHA
Opinion of the Court
I. Procedural History
Defendant was arrested on 17 February 2017 and charged with driving while
subject to an impairing substance and operating a motor vehicle with an open alcohol
container. On 31 May 2018, Defendant pled guilty in district court to driving while
impaired. The district court determined the State had proven beyond a reasonable
doubt the grossly aggravating factor that Defendant “has been convicted of a prior
offense involving impaired driving which conviction occurred within seven (7) years
before the date of this offense.” The district court imposed a Level Two sentence.
Defendant noticed appeal to the superior court.
On 2 November 2018, Defendant filed a motion to suppress evidence in
superior court. On 28 March 2019, Defendant pled not guilty to driving while
impaired, waived her right to a jury trial, and requested a bench trial. Following a
colloquy with Defendant, the superior court found Defendant’s waiver to be made
freely, voluntarily, and understandingly, and permitted the matter to be heard by the
bench. The State voluntarily dismissed the open container charge. After hearing
testimony and arguments on the suppression motion, the superior court denied the
motion in open court and entered a corresponding written order on 5 April 2019.
At the close of the trial on 29 March 2019, the superior court found Defendant
guilty of driving while impaired and found the grossly aggravating factor of a prior
impaired driving conviction within seven years of the date of the offense. The
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superior court imposed a Level Two sentence of 12 months in prison, suspended the
sentence, and placed Defendant on 24 months’ supervised probation. The superior
court also ordered Defendant to abstain from consuming alcohol for 90 days, complete
240 hours of community service, and pay court costs. Defendant timely filed notice
of appeal to this Court.
II. Factual Background
The State’s evidence tended to show the following: At around 10:50 p.m. on
17 February 2017, State Trooper Tony Osteen of the North Carolina Highway Patrol
was on preventative patrol travelling in an unmarked patrol car in the left-hand,
eastbound lane of Upward Road, a four-lane road that connects U.S. Highway 176 to
Interstate 26 to Howard Gap Road in Henderson County. Upward Road contains a
grass median between the two lanes going in opposite directions, as well as turn lanes
for accessing roads to the left, which start and stop between the grass median.
Osteen noticed a car approaching from behind, whose driver failed to dim the
car’s bright lights when the car was directly behind Osteen. After pulling over to the
left into one of the turn lanes to let the driver pass, Osteen got back on Upward Road
behind the car and followed it. Osteen noticed that the car was “weaving inside of its
lane” and “going into . . . the right eastbound lane,” and that it “crossed a dotted fog
line,” so he continued to follow it toward the intersection at Interstate 26. Just before
reaching the intersection, the car got over into the leftmost of two turn lanes
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Opinion of the Court
connecting to Interstate 26, then “jerked the wheel back and got into the lane that
[the driver] had just left from and went straight through the intersection.” When
asked, “How would you characterize her driving?” Osteen responded, “It was
definitely something that caught my eyes, somebody that could be impaired, driving
erratic, weaving, unable to drive in a straight line.” When they reached the next set
of turn lanes, Osteen activated his lights and pulled the car over.
When Osteen approached the car to talk with the driver, whom he later
identified as Defendant, he noticed an odor of alcohol coming from inside the car and
asked Defendant to step out. When Defendant stepped out of the car, she staggered
and smelled of alcohol. While Osteen conversed with Defendant to find out who she
was, to obtain her driver’s license, and to discuss why he stopped her, Osteen observed
that she spoke in “slurred and mumbled speech” and had “a moderate odor of alcohol
coming from her breath.” When Osteen gave Defendant an Alco-Sensor test,
Defendant’s first blow into the device produced an error because it contained “too
much moisture and was full of spit.” Trooper Danny Odom, whom Osteen had called
to assist, arrived at the scene and gave Defendant two Alco-Sensor tests using his
portable testing device, which both produced positive results. Osteen arrested
Defendant and took her to the police station, where she refused to take an intoxilyzer
test.
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Opinion of the Court
Osteen testified that it was his opinion that Defendant “had consumed a
sufficient amount of impairing substance, which was alcohol, as to appreciably impair
her mental and physical faculties.” Osteen based his opinion on his observations of
Defendant stumbling and staggering when she got out of the car, the moderate odor
of alcohol on her breath, her mumbled and slurred speech, and her erratic driving.
III. Discussion
A. Motion to Suppress Evidence
Defendant first argues that the trial court erred by denying her motion to
suppress evidence. The State argues that Defendant failed to properly preserve the
denial of the suppression motion for appellate review. Defendant’s argument has not
been preserved and thus is not properly before us.
“The law in this State is now well settled that ‘a trial court’s evidentiary ruling
on a pretrial motion [to suppress] is not sufficient to preserve the issue of
admissibility for appeal unless a defendant renews the objection during trial.’” State
v. Hargett, 241 N.C. App. 121, 124, 772 S.E.2d 115, 119 (2015) (quoting State v.
Oglesby, 361 N.C. 550, 554, 648 S.E.2d 819, 821 (2007)). Where a defendant fails to
object when such evidence is offered at trial, appellate review is limited to plain error.
State v. Muhammad, 186 N.C. App. 355, 364, 651 S.E.2d 569, 576 (2007); N.C. R.
App. P. 10(a)(4). Plain error review is only available “when the judicial action
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Opinion of the Court
questioned is specifically and distinctly contended to amount to plain error.” N.C. R.
App. P. 10(a)(4).
In this case, Defendant filed a motion to suppress evidence seized as a result
of the stop, arguing that the officer lacked reasonable suspicion to stop her. After the
trial court denied Defendant’s motion but before the beginning of the trial, the State
asked the trial court, “[S]ince you’ve already heard the evidence up to the stop[,]
[w]ould it be acceptable to apply that to the trial portion here?” Defense counsel
stated he “would have no issue just proceeding from here,” and the trial court
announced it would “incorporate that testimony into the trial testimony and consider
that for purposes of the trial.” Defendant did not object to the trial court’s ruling and
made no objections at trial. Thus, Defendant did not properly preserve the denial of
her motion to suppress for review on appeal. See Hargett, 241 N.C. App. at 124, 772
S.E.2d at 119. Further, because Defendant does not argue plain error on appeal, we
do not review the denial of the motion for plain error. See N.C. R. App. P. 10(a)(4).
Defendant’s argument is dismissed.
B. Motion to Dismiss for Insufficient Evidence
Defendant next argues that the trial court erred by denying her motion to
dismiss based on insufficient evidence of the offense of driving while impaired.
This Court reviews a trial court’s denial of a motion to dismiss for insufficient
evidence de novo. State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007).
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Opinion of the Court
Denial of a motion to dismiss in a criminal trial is proper if there is substantial
evidence of the essential elements of the offense and that the defendant was the
perpetrator. State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (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) (citations omitted). “In reviewing challenges to the sufficiency of the
evidence, we must view the evidence in the light most favorable to the State, giving
the State the benefit of all reasonable inferences.” Fritsch, 351 N.C. at 378-79, 526
S.E.2d at 455 (citation omitted); see State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211,
223 (1994) (appellate court must resolve any contradictions in the State’s favor).
“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 . . . [w]hile
under the influence of an impairing substance . . . .” N.C. Gen. Stat. § 20-138.1(a)(1)
(2019). “The opinion of a law enforcement officer . . . has consistently been held
sufficient evidence of impairment, provided that it is not solely based on the odor of
alcohol.” State v. Mark, 154 N.C. App. 341, 346, 571 S.E.2d 867, 871 (2002) (citations
omitted). Additionally, a defendant’s refusal to submit to an intoxilyzer test is
admissible as substantive evidence of impairment. See N.C. Gen. Stat. § 20-139.1(f)
(2019).
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Here, Osteen testified that he initially saw Defendant’s car “weaving inside of
its lane” and “going into . . . the right eastbound lane,” and that it “crossed a dotted
fog line,” so he continued to follow it toward the intersection at Interstate 26. Just
before reaching the intersection, Defendant’s car got over into the leftmost of two turn
lanes connecting to Interstate 26, then “jerked the wheel back and got into the lane
that [the driver] had just left from and went straight through the intersection.”
Osteen thought that the driver of the car could be impaired due to the driver’s
“erratic” driving, weaving, and being “unable to drive in a straight line.”
After Osteen pulled Defendant over and approached her car, he detected an
odor of alcohol coming from inside the car. When Defendant stepped out of the car,
she staggered and smelled of alcohol. While Osteen conversed with Defendant, he
observed that she spoke in “slurred and mumbled speech” and had “a moderate odor
of alcohol coming from her breath.”
Osteen testified, “It is my opinion [Defendant] had consumed a sufficient
amount of impairing substance, which was alcohol, as to appreciably impair her
mental and physical faculties.” Osteen further testified, “I based that on observing
her stumbling, her staggering a little bit when she got out of the vehicle, moderate
odor of alcohol on her breath, her mumbled and slurred speech, along with erratic
driving.” Because Osteen’s opinion that Defendant was impaired was not based solely
on the odor of alcohol, it was sufficient evidence of impairment. See Mark, 154 N.C.
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App. at 346, 571 S.E.2d at 871. Osteen also testified that Defendant refused to submit
to an intoxilyzer test at the police station, which was admissible evidence of
impairment. See N.C. Gen. Stat. § 20-139.1(f).
Defendant argues that there is conflicting testimony about why she refused to
take the intoxilyzer test at the police station, asserting that she has a heart condition
that caused her to be unable to blow any more after they arrived at the police station.
However, in viewing the evidence in the light most favorable to the State and giving
the State the benefit of all reasonable inferences, see Fritsch, 351 N.C. at 378-79, 526
S.E.2d at 455, we resolve any contradiction in the State’s favor, see Rose, 339 N.C. at
192, 451 S.E.2d at 223.
Viewed in the light most favorable to the State, the evidence was sufficient to
support the conclusion that Defendant was “under the influence of an impairing
substance” at the time of her arrest. N.C. Gen. Stat. § 20-138.1(a)(1). The trial court
properly denied Defendant’s motion to dismiss.
C. Grossly Aggravating Factor
Defendant finally argues that the trial court erred by finding the grossly
aggravating factor of a prior driving while impaired conviction within seven years of
the date of the offense, where the State failed to notify Defendant of its intent to prove
the aggravating factor for sentencing purposes.
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STATE V. MCGAHA
Opinion of the Court
We first address the State’s motion made pursuant to North Carolina Rule of
Appellate Procedure 9(b)(5)(a) to supplement the record, or alternatively pursuant to
Rule 9(b)(5)(b) to remand to the trial court to allow the trial court to correct the record,
with a Notice of Grossly Aggravating and Aggravating Factors (DWI) form the State
alleges was served on Defendant’s attorney on 17 September 2018.
North Carolina Rule of Appellate Procedure 9(b)(5)(a) allows an appellee, in
certain circumstances, to “supplement the record on appeal with any items that could
otherwise have been included pursuant to this Rule 9.” N.C. R. App. P. 9(b)(5)(a). In
addition to an enumerated list of items, Rule 9 provides that the record shall contain
“copies of all other papers filed and statements of all other proceedings had in the
trial courts which are necessary for an understanding of all issues presented on
appeal.” N.C. R. App. P. 9(a)(3)(i). Rule 9(b)(5)(b) states in pertinent part: “On
motion of any party or on its own initiative, the appellate court may order additional
portions of a trial court record or transcript sent up and added to the record on
appeal.”
In this case, the State admits in its motion that the Notice of Grossly
Aggravating and Aggravating Factors (DWI) form “was neither filed nor presented to
the trial court.” Accordingly, the form could not have been included in the record
pursuant to Rule 9 and could not supplement the record on appeal pursuant to Rule
9(b)(5)(a). Additionally, as the proffered form was not part of the trial court’s record
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Opinion of the Court
in this case, it cannot be added to the record on appeal pursuant to Rule 9(b)(5)(b).
We therefore deny the State’s motion and do not consider the proffered form.
“Alleged statutory errors are questions of law and, as such, are reviewed de
novo. Under de novo review, the appellate court considers the matter anew and freely
substitutes its own judgment for that of the lower court.” State v. Hughes, 265 N.C.
App. 80, 81-82, 827 S.E.2d 318, 320 (2019) (citations omitted).
Pursuant to N.C. Gen. Stat. § 20-179(a1)(1), “[i]f the defendant appeals to
superior court, and the State intends to use one or more aggravating factors under
subsections (c) or (d) of this section, the State must provide the defendant with notice
of its intent.” N.C. Gen. Stat. § 20-179(a1)(1) (2019). Under subsection (c) of this
section, a prior conviction for an offense involving impaired driving is a grossly
aggravating factor if “[t]he conviction occurred within seven years before the date of
the offense for which the defendant is being sentenced.” Id. at § 20-179(c)(1)(a). A
defendant’s right to notice of the State’s intent to prove a prior conviction is a
statutory right, not a constitutional one. State v. Williams, 248 N.C. App. 112, 116-
17, 786 S.E.2d 419, 423-24 (2016). See Blakely v. Washington, 542 U.S. 296, 301
(2004) (“Other than the fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt.” (quoting Apprendi v. New Jersey, 530 U.S.
466, 490 (2000)). Thus, “[a] defendant’s Sixth Amendment right to ‘reasonable notice’
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Opinion of the Court
is not violated ‘where the State provides no prior notice that it seeks an enhanced
sentence based on the fact of prior conviction.’” Williams, 248 N.C. App. at 117, 786
S.E.2d at 423-24 (citation omitted). The statutorily required notice of a prior
conviction under N.C. Gen. Stat. § 20-179(a1)(1) can be waived.1 See, e.g., Hughes,
265 N.C. App. at 81, 84, 827 S.E.2d at 321-22 (where the State failed to provide
defendant notice of its intent to use aggravating factors under N.C. Gen. Stat. § 20-
179(a1)(1), “and the record d[id] not indicate that [d]efendant waived his right to
receive such notice,” the trial court committed prejudicial error by applying the
aggravating factors).
Here, Defendant admitted to her 2012 driving while impaired conviction when
questioned on cross-examination during the trial on the merits. At sentencing, the
State offered, “[Defendant] has had one prior conviction of DWI in the last seven years
making her a Level II for sentencing, we believe.” Defense counsel stipulated that
“Defendant did have the prior DWI,” but asked the court to “take into consideration
everything that you heard today and everything that you heard from [Defendant]
with her condition and everything like that in terms of sentencing.” The court then
announced, “The Court finds that grossly aggravating factor No. 1A, that the
defendant has been convicted of a prior offense involving impaired driving, which
1 Unlike N.C. Gen. Stat. § 15A-1340.16, our felony sentencing statute that contains an
analogous notice provision, N.C. Gen. Stat. § 20-179 does not require admissions to the existence of an
aggravating factor to be consistent with N.C. Gen. Stat. § 15A-1022.1, which requires the trial court
to address the defendant personally regarding an admission.
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Opinion of the Court
conviction occurred within seven years before the date of this offense. Therefore, the
defendant is a Level II for punishment with one grossly aggravating factor present.”
Defendant did not object.
Defendant admitted to her prior conviction, her counsel stipulated to
Defendant’s prior conviction, and at no time during sentencing did Defendant object
to the consideration of her prior conviction as an aggravating factor in determining
her punishment level for sentencing. Defendant’s admission and her counsel’s
stipulation, coupled with Defendant’s failure to object to lack of notice at the
sentencing hearing, operated as a waiver of her statutory right to notice.
Defendant relies upon Hughes, State v. Geisslercrain, 233 N.C. App. 186, 756
S.E.2d 92 (2014), and State v. Reeves, 218 N.C. App. 570, 721 S.E.2d 317 (2012), to
support her argument that Defendant’s sentence should be vacated and remanded for
lack of notice. However, unlike in the present case, the facts in those cases do not
indicate that defendants waived notice by admitting the aggravating factor and
failing to object based on a lack of notice of the State’s intent to use the factor. The
defendant in Hughes specifically objected to the lack of notice, and this Court stated
that the record before it “does not indicate that Defendant waived his right to receive
such notice.” 265 N.C. App. at 81, 84, 827 S.E.2d at 320, 322.
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STATE V. MCGAHA
Opinion of the Court
The trial court did not err by finding the grossly aggravating factor of a prior
driving while impaired conviction within seven years of the date of the offense and
imposing a Level Two sentence. Defendant’s argument is overruled.
IV. Conclusion
The trial court did not err by denying Defendant’s motion to dismiss for
insufficient evidence. The trial court did not err in sentencing Defendant by finding
a grossly aggravating factor based on a prior driving while impaired conviction
because Defendant waived notice.
NO ERROR.
Judges STROUD and MURPHY concur.
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