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State v. Bruton4/5/2005
mit to an Intoxilyzer test pursuant to N.C. Gen. Stat. § 20-139.1(f) (2003) (refusal to submit to exam admissible); (2) defendant's demeanor, odor, and appearance; and (3) defendant's erratic driving. With respect to the reckless driving charge, even though the State relied exclusively on Bennett's testimony, defendant did not refute Bennett's account of that driving, which included speeding, abruptly stopping in the middle of the road, failing to stop at three stop signs, and swerving across the center line into the wrong lane of traffic. Given the extent of evidence supporting the jury's verdict, it is not probable that the jury would have returned a different verdict if the evidence of the prior revocation had been excluded. See State v. Smith, 351 N.C. 251, 265, 524 S.E.2d 28, 39 (" efendant has failed to show plain error in light of the overwhelming evidence in the record of defendant's guilt."), cert. denied, 531 U.S. 862, 148 L.Ed. 2d 100, 121 S.Ct. 151 (2000).
Defendant has identified an apparent clerical error on the "Impaired Driving Determination of Sentencing Factors" form accompanying the judgment entered for defendant's DWI in 02 CRS 52880. The judgment correctly reflects the trial court's imposition of a Level Two punishment pursuant to N.C. Gen. Stat. § 20-179(h) (2003), based on the court's finding of the grossly aggravating factor "that at the time of the current offense the defendant's driver's license was in a state of revocation and that the revocation was pursuant to [N.C. Gen. Stat. § 20-28.2(a)(2003)]." Although the "Impaired Driving Determination of Sentencing Factors" form reflects the court's finding of the grossly aggravating factor, it fails to further note the imposition of the corresponding Level Two punishment. It appears that the relevant box on the form was inadvertently left unchecked.
The State concedes this clerical error and concurs with defendant's request that we remand to the trial court for correction. Accordingly, we remand for correction of the sentencing form to reflect the court's imposition of a Level Two punishment. See State v. Brooks, 148 N.C. App. 191, 195, 557 S.E.2d 195, 197-98 (2001) (remanding for correction of clerical error on form for aggravating and mitigating factors), disc. review denied, 355 N.C. 287, 560 S.E.2d 808 (2002).
No error as to judgments; remanded for correction of clerical error.
Judges WYNN and TYSON concur.
Report per Rule 30(e).
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