An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NO. COA09-1500
NORTH CAROLINA COURT OF APPEALS
Filed:
3 August 2010
STATE OF NORTH CAROLINA
v.
Sampson County
Nos. 08 CRS 988;
08 CRS 51035
STANLEY CHESTANG
Appeal by defendant from judgment entered 27 August 2009 by
Judge Russell J. Lanier, Jr. in Sampson County Superior Court.
Heard in the Court of Appeals 26 April 2010.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Jess D. Mekeel, for the State.
Daniel F. Read, for defendant-appellant.
JACKSON, Judge.
Stanley Chestang (“defendant”) appeals from a conviction for
habitual impaired driving.
For the reasons set forth below, we
hold no prejudicial error in part, no error in part, and remand for
correction of a clerical error.
On 22 March 2008, Glynis Campfield (“Campfield”) was in her
vehicle, preparing to leave the Piggly Wiggly store (“Piggly
Wiggly”) in Clinton, North Carolina when she witnessed defendant
weaving while driving his moped through the store’s parking lot.
-2She observed defendant as he attempted to pull into a parking
space, struck a car in the adjacent space, and fell to the ground.
Campfield, a registered nurse, attempted to aid defendant, but he
refused her assistance, insisting that he was fine.
As she leaned
over him, Campfield detected the odor of alcohol on defendant’s
breath and noticed that he appeared disheveled.
It took defendant
three attempts to right his moped successfully.
watched as he staggered into the Piggly Wiggly.
Campfield then
She placed a call
to 911 from her mobile phone, explaining what she had witnessed.
At trial, Campfield testified that, in her opinion, defendant
“seemed intoxicated.”
Police
officers
Mathews
(“Officer
Mathews”)
and
Edwards
(“Officer Edwards”) responded to Campfield’s call. Officer Mathews
located
defendant,
based
on
Campfield’s
description
of
his
appearance and dress, as he staggered out of the store wearing his
moped helmet. Officer Mathews observed that defendant had a strong
odor of alcohol on his breath and red, glassy eyes.
Officer
Mathews questioned defendant, and defendant admitted to drinking
beer that day and to riding his moped.
Alco-Sensor
test
but
did
not
Defendant agreed to take an
comply
with
Officer
Mathews’s
instructions and failed to produce a sufficient sample.
When
Officer Edwards asked to administer standard field sobriety tests,
defendant refused to perform any more tests.
Officer Mathews then
took defendant into custody, placing him in handcuffs and into a
police vehicle for transport to the Sampson County Detention
-3Center. On the walk to the police car, defendant attempted to pull
away from Officer Mathews and cursed at him.
Upon his arrival at the detention center, defendant cursed at
the officers and threatened to kick out the window of the police
car.
Once inside, defendant was taken to the Intoxilyzer room for
the purpose of obtaining a breath sample to determine whether he
was impaired.
Defendant continued to act in a combative and
argumentative manner.
He “snatched away” from the officers and
fell from the chair in which he was placed.
Officer Edwards read
defendant his chemical analysis rights, but defendant refused to
give an Intoxilyzer sample.
Both Officer Mathews and Officer
Edwards testified that they believed defendant was impaired by
alcohol.
On 13 October 2008, a grand jury returned true bills of
indictment
against
defendant
for
resisting,
delaying,
or
obstructing a public officer, failure to give information when
damaging a parked and unattended vehicle, and habitual driving
while impaired.
At the 24 August 2009 Criminal Session of Sampson
County Superior Court, defendant’s case was called for trial.
On
27 August 2009, a jury found defendant guilty of misdemeanor
resist,
delay
or
obstruction
of
habitual driving while impaired.
a
public
officer
and
felony
The charge of failure to give
information when damaging a parked and unattended vehicle was
dismissed at trial. The trial court sentenced defendant as a prior
record level III offender to a prison term of twenty-one to
twenty-six months imprisonment, with credit for time served while
-4awaiting disposition in the case.
Defendant appeals his felony
conviction for habitual driving while impaired.
On appeal, defendant first argues that the trial court erred
in admitting Campfield’s lay opinion that defendant was intoxicated
during the events of 22 March 2008. Defendant, however, has failed
to preserve this argument for appellate review.
The North Carolina Rules of Appellate Procedure, Rule 10(b)(1)
provides that
[i]n order to preserve a question for
appellate review, a party must have presented
to the trial court a timely request, objection
or motion, stating the specific grounds for
the ruling the party desired the court to make
if the specific grounds were not apparent from
the context.
N.C. R. App. P. 10(b)(1) (2007).
This Court has held “that a
general objection, if overruled, is ordinarily not effective on
appeal.” State v. Hamilton, 77 N.C. App. 506, 509, 335 S.E.2d 506,
508 (1985), disc. rev. denied, 315 N.C. 593, 341 S.E.2d 33 (1986).
See also State v. Jones, 342 N.C. 523, 535, 467 S.E.2d 12, 20
(1996) (holding general objections are “ordinarily not adequate
unless the evidence, considered as a whole, makes it clear that
there is no purpose to be served from admitting the evidence”);
State v. Faulkner, 180 N.C. App. 499, 512, 638 S.E.2d 18, 28 (2006)
(holding
defense
counsel’s
general
objections
to
lay
opinion
testimony waived his right to raise the issue on appeal).
In the case sub judice, counsel for defendant failed to state
specific
grounds
for
the
objection.
The
following
colloquy
occurred during the relevant portion of Campfield’s testimony:
-5[PROSECUTION]:
Based
upon
your
life
experiences and what you have [sic] observed
that particular day regarding that individual,
did you form an opinion as to whether or not
he was impaired when you observed him?
[DEFENSE COUNSEL]:
[THE COURT]:
Objection.
Overruled.
[THE WITNESS]:
Yes.
[PROSECUTION]: And what was that opinion?
[DEFENSE COUNSEL]:
[THE COURT]:
There
was
no
Objection.
Overruled.
further
explanation
as
to
the
grounds
defendant’s objection or any subsequent objection.
for
For these
reasons, and because defendant has not specifically and distinctly
alleged plain error, we hold that defendant’s general objection
failed to preserve this issue for appeal.
See State v. Parker, 140
N.C. App. 169, 183, 539 S.E.2d 656, 665 (2000).
Next, defendant contends the trial court erred by overruling
his objection to the introduction of Officer Edwards’s testimony
regarding
two
arrest.
On
testimony
was
subsequent
appeal,
encounters
defendant
irrelevant
and
with
claims
unduly
defendant
that
Officer
prejudicial.
after
his
Edwards’s
Although
defendant failed to state specific grounds for his objection at
trial, we believe that defendant’s objection properly was preserved
because
the
specific
ground
upon
which
defendant
objected,
relevance, was apparent from the context of the colloquy. See N.C.
R. App. P. 10(b)(1) (2007) (“In order to preserve a question for
appellate review, a party must have presented to the trial court a
-6timely request, objection or motion, stating the specific grounds
for the ruling the party desired the court to make if the specific
grounds were not apparent from the context.”).
When the State questioned Officer Edwards about his subsequent
encounters with defendant, the following colloquy occurred:
[PROSECUTION]: Since March 22, have you had
any personal interaction with the defendant,
Stanley Chestang?
[DEFENSE COUNSEL]:
[THE WITNESS]:
Yes; I have.
[DEFENSE COUNSEL]:
[PROSECUTION]:
[THE COURT]:
Objection.
Objection.
Your Honor, if I may be heard?
Okay; this would be a good time.
[PROSECUTION]:
If they see a person at
another period of time it helps to know
whether they have altered the opinion or —
[THE COURT]: Well just ask him the question.
You don’t have to go into details.
[PROSECUTION]: How many times have you been
able to observe Mr. Chestang since March 22?
[THE WITNESS]:
Twice.
[PROSECUTION]: Has his demeanor and physical
capabilities, how do they compare, those two
times, to March 22?
[DEFENSE COUNSEL]:
[THE COURT]:
Objection.
Overruled.
[THE WITNESS]: The times I spoke with him, he
was very calm, more respectful. Obviously, I
couldn’t — there was no alcohol detected from
his breath.
He was a lot more pleasant on
those occasions than he was the night we dealt
with him at the Piggly Wiggly.
(Emphasis added).
-7The specific ground for the objection was apparent from the
context, as demonstrated by the prosecutor’s explanation to the
trial court for the State’s desire to examine Officer Edwards
regarding his subsequent encounters with defendant.
The context
reveals that, when the State offered its explanation that, “[i]f
they [i.e., law enforcement officers] see a person at another
period of time it helps to know whether they have altered the
opinion or —,” the State was explaining to the trial court why the
question was relevant to its case.
Furthermore, the trial court
understood the context as it, in anticipation of the completion of
the
State’s
explanation,
overruled
defendant’s
interjected, “[w]ell just ask him the question.
go into details.”
objection
and
You don’t have to
It was apparent that the State and the trial
court understood that defendant’s objection was based on the ground
of relevance.
Therefore, this issue properly is preserved for
appellate review.
Nonetheless, the trial court’s admission of Officer Edwards’s
statement regarding his subsequent interactions with defendant is
harmless error.
See State v. Bunch, 363 N.C. 841, 845, 689 S.E.2d
866, 869 (2010) (“[A]n error is harmless beyond a reasonable doubt
if it did not contribute to the defendant’s conviction.”) (internal
citation and quotation marks omitted).
In
the
case
sub
judice,
there
was
substantial
evidence
supporting defendant’s conviction for habitual impaired driving.
Defendant, while operating his moped, weaved in his lane, struck a
car and fell to the ground as he attempted to park his moped,
-8smelled of alcohol, staggered as he left the Piggly Wiggly, and
admitted to Officer Mathews that he had consumed beer prior to
riding
his
moped.
After
his
arrest,
defendant
used
language toward and “snatched away” from the officers.
profane
Finally,
defendant had the requisite prior convictions of impaired driving
to be convicted for habitual impaired driving.
Accordingly,
Officer Edwards’s statement did not contribute to defendant’s
conviction and, regardless of relevance, if there was error, it
clearly was harmless.
See id.
Defendant’s next assignment of error claims that the trial
court erred in overruling defendant’s objection to the admission of
evidence relating to defendant’s prior convictions for driving
while
impaired.
On
appeal,
defendant
contests
the
lack
of
identifying information as well as the absence of a judicial
signature on the records.
Again, defendant has failed to preserve
this issue for appellate review.
As we have noted already, a general objection made without
specific grounds generally does not preserve the issue for appeal.
N.C. R. App. P. 10(b)(1) (2007); Hamilton, 77 N.C. App. at 509, 335
S.E.2d at 508.
Here, the following colloquy occurred:
[PROSECUTION]: Your Honor, at this time the
State would move to admit State’s Exhibit
Numbers 2, 3, and 4 into evidence.
[DEFENSE COUNSEL]: And, Judge, we would object
to the introduction of those documents into
evidence.
[THE COURT]: Okay; they
Your objection is noted.
will
be
admitted.
-9However, because defendant failed to offer more than a general
objection to the admission of the State’s evidence and did not
allege plain error, we hold that the issue has not been preserved
for appeal.
Next, defendant argues that the trial court erred by denying
his motion to dismiss for insufficient evidence establishing his
guilt beyond a reasonable doubt.
We disagree.
Denial of a motion to dismiss for insufficient evidence is a
question of law which we review de novo.
See State v. Bagley, 183
N.C. App. 514, 523, 644 S.E.2d 615, 621 (2007).
a
denial
of
defendant’s
determine
that
“‘there
essential
element
of
motion
is
the
to
dismiss,
substantial
offense
In order to uphold
this
evidence
charged
.
.
Court
(1)
.
and
defendant’s being the perpetrator of such offense.’”
of
must
each
(2)
of
State v.
Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002) (quoting State
v.
Powell,
299
N.C.
95,
98,
261
S.E.2d
114,
117
(1980)).
“Substantial evidence is that amount of relevant evidence necessary
to persuade a rational juror to accept a conclusion.”
Id. at 597,
573 S.E.2d at 869 (citing State v. Mann, 355 N.C. 294, 301, 560
S.E.2d 776, 781 (2002)).
A motion to dismiss is properly denied
when, “‘view[ing] the evidence in the light most favorable to the
State,
[and]
giving
the
State
the
benefit
of
all
reasonable
inferences,’” the direct and circumstantial evidence supports “a
reasonable inference of defendant’s guilt.”
Id. at 596–98, 573
S.E.2d at 869–70 (quoting State v. Fritsch, 351 N.C. 373, 378–79,
526 S.E.2d 451, 455 (2000)).
-10Here, defendant was charged with the crime of habitual driving
while impaired.
That offense is defined as “driv[ing] while
impaired . . . ha[ving] been convicted of three or more offenses
involving impaired driving . . . within [the preceding] 10 years.”
N.C. Gen. Stat. § 20-138.5(a) (2007). Pursuant to North Carolina’s
impaired driving statute, if a person drives a motor vehicle in a
“public vehicular area” while his “physical or mental faculties, or
both, [are] appreciably impaired by an impairing substance,” he has
committed the offense of driving while impaired.
See N.C. Gen.
Stat. §§ 20-4.01(48b), 20-138.1, 20-138.5(a) (2007).
In
the
sufficiently
offense.
case
sub
judice,
established
the
each
evidence
element
of
admitted
defendant’s
at
trial
charged
Campfield testified that defendant was weaving on his
moped before colliding with a parked vehicle.
Campfield and both
police officers testified to smelling alcohol on defendant and to
his uncoordinated movements.
The officers testified that he acted
belligerently and combatively both in the police vehicle and at the
detention center.
Finally, all three witnesses testified that, in
their opinions, defendant was intoxicated.
was
sufficient
for
a
jury
to
The evidence presented
determine
that
defendant
was
appreciably impaired when he drove his moped to the store on
22 March 2008.
There also was substantial evidence of defendant’s prior
convictions of driving while impaired. The State provided evidence
of defendant’s two convictions in February 2000 and a third in
2002.
These were the convictions listed in the indictment and on
-11the disposition printouts provided by the State.
Furthermore, the
disposition printouts contain defendant’s name and case numbers
matching the sentencing worksheet submitted by the State.
three
convictions
ten-year limit.
together,
these
occurred
within
the
statutorily
These
prescribed
N.C. Gen. Stat. § 20-138.5(a) (2007).
constitute
substantial
evidence
Taken
that
the
convictions belonged to defendant, that they were for impaired
driving
pursuant
to
North
Carolina
General
Statutes,
section
20-138.1, and that they satisfy the statutory requirement for a
charge of habitual driving while impaired.
Accordingly,
the
trial
court
properly
denied
defendant’s
motion to dismiss.
Finally, defendant contends that trial court erred in trying,
convicting, and sentencing him for habitual driving while impaired.
Defendant claims that two of his three convictions should be
counted as a single offense because he was convicted of both during
the same term of court.
We disagree.
This Court reviews the sufficiency of an indictment de novo.
State v. Marshall, 188 N.C. App. 744, 748, 656 S.E.2d 709, 712
(2008).
A defect in an indictment is not considered fatal unless
the indictment “wholly fails to charge some offense . . . or fails
to state some essential and necessary element of the offense of
which the defendant is found guilty.”
State v. Wilson, 128 N.C.
App. 688, 691, 497 S.E.2d 416, 419 (1998) (footnotes omitted).
The indictment lists separate and distinct convictions for
impaired
driving
committed
within
the
ten-year
limit
of
the
-12habitual impaired driving statute.
Two of these convictions were
entered on 3 February 2000, however, the offenses themselves were
committed on distinct dates.
entered on 26 February 2002.
Defendant’s third conviction was
The habitual driving while impaired
statute is satisfied when the offender “has been convicted of three
or more offenses involving impaired driving.”
20-138.5(a) (2007).
N.C. Gen. Stat. §
The rule of lenity advanced by defendant is
inapplicable, and the statute does not contain a requirement of
“separate occurrences.”
See State v. Forrest, 168 N.C. App. 614,
623–24, 609 S.E.2d 241, 247 (2005) (holding misdemeanor assault
statute contains no language requiring prior convictions “either
occur on separate dates or arise from separate incidents.”).
Accordingly, the trial court properly determined that the
defendant had the three prior convictions necessary to charge, try,
and sentence defendant as an habitual impaired driver.
For the foregoing reasons, we hold no prejudicial error in
part and no error in part.
We do note that the date listed on the
judgment and commitment order is 26 August 2009, while the date of
the trial and jury verdicts is 27 August 2009.
It is clear from
the trial transcript that the sentencing took place on 27 August
2009.
We remand to correct the mistake on the judgment and
commitment order.
No prejudicial error in part; No error in part; Remanded for
correction of clerical error.
Chief Judge MARTIN and BEASLEY concur.
Report per Rule 30(e).
