in the Court of Appeals 8 March 2017.
by Defendant from judgment entered 2 March 2016 by Judge A.
Graham Shirley in Wake County Superior Court Wake County, No.
14 CRS 214112.
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Christopher W. Brooks, for the State.
Law PLLC, by Jason Christopher Yoder, for
HUNTER, JR., Robert N., Judge.
Leroy Fowler ("Defendant") appeals a jury verdict
convicting him of driving while impaired ("DWI").
On appeal, Defendant contends the trial court erred by: (1)
instructing the jury on a theory of impaired driving
unsupported by the evidence, thus violating Defendant's
constitutional right to a unanimous jury verdict; and (2)
allowing Officer Monroe to testify as an expert witness
regarding the horizontal gaze Nystagmus ("HGN")
test. For the following reasons, we grant Defendant a new
Factual and Procedural Background
June 2014, Officer R. P. Monroe of the Raleigh Police
Department ("RPD") stopped Defendant and arrested
him for DWI. On 24 February 2015, Wake County District Court
Judge James R. Fullwood found Defendant guilty of DWI.
Defendant appealed to superior court for a jury trial,
pursuant to N.C. Gen. Stat. § 15A-1431 (2016).
March 2016, the trial court called Defendant's case for
trial. The evidence at trial tended to show the following.
State first called Officer Monroe. On Thursday, 19 July 2014,
Officer Monroe worked the night shift for the RPD. Aware the
Wake County Sheriff's Office set up a checkpoint on
Gorman Street, Officer Monroe visited the checkpoint to see
if he could assist.
Monroe rode down Avent Ferry Road on his motorcycle. When he
was less than a half a mile from Gorman Street, he came to a
point where Crest Road T-intersects with Avent Ferry Road.
Officer Monroe saw Defendant's truck on Crest Road.
Defendant pulled out in front of Officer Monroe's
motorcycle. Officer Monroe "lock[ed] the bike
up", "ma[d]e an evasive maneuver",
and "dip[ped]" into the right lane to avoid hitting
Defendant's truck. Officer Monroe's motorcycle and
Defendant's truck came within "maybe two or three
feet" of each other. Officer Monroe activated his blue
lights and stopped Defendant for unsafe movement. Defendant
stopped his truck at a stop sign at the intersection of Avent
Ferry Road and Champion Court.
Monroe introduced himself and explained he stopped Defendant
because Defendant almost ran into his motorcycle. Officer
Monroe saw Defendant's red, glassy eyes. He smelled a
"medium" odor of alcohol on Defendant's breath.
Defendant spoke with slurred speech. Officer Monroe asked
Defendant why he pulled out in front of his motorcycle.
Defendant remarked Officer Monroe had enough room and he
"was catching [Officer Monroe's] curiosity."
Monroe asked Defendant if he drank any alcohol that night.
Defendant responded "one to two" servings of
Jägermeister, and he was only driving a short distance.
Officer Monroe asked Defendant to get out of his truck to
participate in a series of field sobriety tests. Defendant
Monroe conducted three field sobriety tests: HGN,
walk-and-turn, and one-leg stand. Officer Monroe first
conducted the HGN test. Officer Monroe turned Defendant away
from traffic, so passing headlights did not affect
Defendant's eyes. He directed Defendant to stand facing
him, with his feet together and hands to the side. Officer
Monroe elevated Defendant's head slightly and held his
finger in front of Defendant. He informed Defendant he was
going to move his finger from left to right and instructed
Defendant to follow his finger with Defendant's eyes.
Defendant stated he understood the instructions, and Officer
Monroe started the test. During the test, Defendant displayed
a lack of "smooth pursuit" in both eyes, which
Officer Monroe considered "two clues." Defendant
ultimately displayed six out of six possible clues, three in
each eye. Based on this test and the odor of alcohol, Officer
Monroe concluded Defendant "had an impairing amount of
alcohol in his system."
Monroe also conducted two "divided attention"
tests. The first test is the walk-and-turn. Officer Monroe
instructed Defendant to place his left foot in front, with
both hands to his sides, and move his right foot heel-to-toe.
Officer Monroe told Defendant to stay in the heel-to-toe
position while he gave Defendant further instructions.
Officer Monroe next instructed Defendant to take nine
heel-to-toe steps while keeping his hands at his sides, and
counting out loud.
failed to follow instructions. Defendant swayed and stepped
out of the starting stance. Officer Monroe instructed
Defendant to return to the starting stance. Defendant then
started the test too soon, stepped out of position, and lost
his balance. Officer Monroe again instructed Defendant to
stand in the starting position, but Defendant stepped out.
The third time Officer Monroe instructed Defendant to get
back in starting position, Defendant told Officer Monroe he
could not do the test. Defendant then told Officer Monroe he
was not going to do the test without his kneepads. Officer
Monroe concluded the test.
Monroe asked Defendant if he was willing to do the one-leg
stand test. Defendant agreed. Officer Monroe instructed
Defendant to keep his feet together, put his hands to his
side, and stay in that position. Defendant was then to lift
one foot with his toes pointed to the ground, and keep his
foot parallel with the ground. While looking at his foot,
Defendant would count to three. Next, Defendant should put
his foot down and repeat the lift, as he continued counting
from where he left off.
swayed when Officer Monroe started the test. Defendant also
failed to follow the instructions. Defendant "barely got
his foot off the ground" and failed to look down at his
toes. When Officer Monroe instructed Defendant to lift his
foot six inches off the ground, Defendant told Officer Monroe
he did not know how much six inches was. Officer Monroe
offered to demonstrate the test again. Defendant said he no
longer wanted to do the test.
Monroe told Defendant he would like to take a preliminary
sample of Defendant's breath. He explained this test was
not admissible in court, but rather just a test for positive
or negative of alcohol. Defendant refused.
Monroe arrested Defendant for DWI. After booking Defendant,
Officer Monroe brought Defendant into the DWI testing room.
He presented Defendant with a form for implied consent.
Officer Monroe read Defendant his rights. Defendant signed
the form, acknowledging he understood his rights. Defendant
then placed a call. Officer Monroe did not know if Defendant
called someone to observe the administration of tests.
minutes later, Officer Monroe administered the Intoxilyzer
test. Officer Monroe instructed Defendant on how to correctly
blow into the breathalyzer. However, Defendant stopped
blowing air into the instrument before Officer Monroe told
him to stop. The instrument "shut down" and
displayed "insufficient sample." Officer Monroe
again instructed Defendant on how to correctly blow into the
instrument. Defendant said he had cancer, which prevented him
from properly blowing into the instrument. Defendant then
told Officer Monroe he was not going to blow into the
instrument. Officer Monroe explained to Defendant his
breathing was sufficient, but Defendant prematurely stopped
blowing. Officer Monroe told Defendant if Defendant did not
blow into the instrument, he was "going to refuse
him." "Refusing" constitutes pressing the
refusal button on the instrument, which indicates
Defendant's "willful refusal not to provide a breath
sample on the instrument for the purposes of a DWI
State rested, and Defendant moved to dismiss the case. The
trial court denied Defendant's motion to dismiss.
Defendant did not present any evidence. Defendant renewed his
motion to dismiss, and the trial court denied Defendant's
discussing jury instructions, the State requested "the
.08 instruction." Defendant objected to the .08
instruction, because "there was no evidence to [any]
sort of an actual number of any blood alcohol level . . .
." The trial court decided it would use the .08
instruction and reasoned:
Well, if you argue they haven't shown .08 I'm going
to give that instruction or they haven't shown his blood
alcohol content I will give that instruction because you
can't have it both ways. You can't -- you can't
object to the instruction and argue that they haven't
shown his [blood alcohol content] because there [is] more
than one way to prove the offense.
jury found Defendant guilty of driving while impaired.
Defendant admitted to the existence of two driving while
impaired convictions. Defendant admitted to the aggravating
fact of driving while license revoked due to a DWI
conviction. The trial court sentenced Defendant as an
Aggravated Level One offender and sentenced him to 24 months
imprisonment. Defendant gave timely oral notice of appeal.
Standard of Review
to the trial court's "decisions regarding jury
instructions are reviewed de novo by this
Court." State v. Osorio, 196 N.C.App. 458, 466,
675 S.E.2d 144, 149 (2009) (citations omitted). In a de
novo review, this Court "considers the matter anew
and freely substitutes its own judgment for that of the lower
tribunal." State v. Williams, 362 N.C. 628,
632-33, 669 S.E.2d 290, 294 (2008)(internal quotation marks
and citation omitted).
is well settled that de novo review is ordinarily appropriate
in cases where constitutional rights are implicated."
Piedmont Triad Reg'l Water Auth. v. Sumner Hills,
Inc., 353 N.C. 343, 348, 543 S.E.2d 844, 848 (2001)
(citations omitted). If an error is preserved for review, but
does not arise under the Constitution of the United States,
we review for prejudicial error. N.C. Gen. Stat. §
in regards to Officer Monroe's expert opinion testimony,
the trial court's ruling on expert testimony under Rule
702 is typically reviewed for abuse of discretion. State
v. McGrady, 368 N.C. 880, __, 787 S.E.2d 1, 11 (2016)
(citation omitted). "And 'a trial court may be
reversed for abuse of discretion only upon a showing that its
ruling was manifestly unsupported by reason and could not
have been the result of a reasoned decision.'"
Id. at __, 787 S.E.2d at 11 (quoting State v.
Riddick, 315 N.C. 749, 756, 340 S.E.2d 55, 59 (1986)).
However, "[w]here the [defendant] contends the trial
court's decision is based on an incorrect reading and
interpretation of the rule governing admissibility of expert
testimony, the standard of review on appeal is de
novo." State v. Torrence, __ N.C.App. __,
__, 786 S.E.2d 40, 41 (2016) (quotation marks and citations
review Defendant's contentions in two parts: (A) jury
instructions for impaired driving under N.C. Gen. Stat.
§ 20-138.1 (a)(2); and (B) Officer Monroe's expert
testimony regarding the HGN test.
Jury Instructions ...