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State v. Anderson6/7/2005
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Randy Anderson ("defendant") appeals from judgment entered upon a jury verdict finding him guilty of habitual impaired driving. We find no prejudicial error.
I. Background
In the late morning of 26 February 2003, Farmville Police Officer Macon Moore, Jr. ("Officer Moore") noticed a parked empty sedan. Its license tag was dangling from the bracket. Officer Moore checked and learned the license tag had been issued to a pick-up truck, which was reported stolen. Officer Moore drove to a nearby parking lot to wait and see if anyone approached the car. Officer Moore later returned to the parking lot and the sedan was gone. He began searching for the sedan and spotted it parked infront of a grocery store. Officer Moore parked nearby and waited to see if anyone returned.
Five minutes later, defendant and a female companion approached and entered the sedan. Defendant started the sedan and began pulling out of the parking space. Officer Moore immediately activated his blue lights and stopped the vehicle. He approached the sedan and asked defendant for his driver's license and vehicle registration. As Officer Moore spoke with defendant, he noticed a strong odor of alcohol on defendant's breath and defendant's bloodshot eyes.
Officer Moore asked defendant to exit the sedan and walk to Officer Moore's patrol car. Officer Moore observed defendant stumbling and swaying as he walked. At the patrol car, Officer Moore asked defendant to take an ALCOSENSOR test. Defendant refused. Officer Moore placed defendant under arrest for possession of a stolen license tag and driving while impaired.
Officer Moore transported defendant to the Farmville Police Department. Upon arrival, Officer Moore asked defendant to perform field sobriety tests, including the "arms out" sway, one-leg standing, and finger-to-nose. Defendant performed the one-legged standing test satisfactorily, but performed poorly on the others. Officer Moore then read defendant his Intoxilizer rights. Defendant refused to submit to the test. Officer Moore read defendant his Miranda rights and completed the Alcohol Influence Report with defendant. Throughout completion of the AlcoholInfluence Report, defendant was "insulting and carefree" to Officer Moore.
Defendant was previously convicted on three separate occasions of driving while impaired during the seven year period prior to the date of this offense. The State filed an indictment against defendant for: (1) operating a motor vehicle on a public vehicular area while subject to an impairing substance within seven years of being convicted of this offense on three prior and separate occasions; (2) operating a motor vehicle on a public vehicular area while subject to an impairing substance; and (3) possessing a stolen license plate tag.
Defendant was tried by a jury on 11 February 2004. Defendant did not offer any evidence. At the close of all evidence, the jury returned a verdict of guilty to the charge of "habitual impaired driving." The trial court found defendant's prior record level of V and sentenced defendant to a minimum thirty-four months, maximum forty-one months imprisonment. Defendant appeals.
II. Issues
Defendant argues: (1) the trial court erred in denying his motion to dismiss the charge of habitual impaired driving; and (2) the trial court lacked jurisdiction due to an invalid indictment.
III. Motion to Dis
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