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State v. Fincher

Court of Appeals of North Carolina

April 17, 2018


          Heard in the Court of Appeals 6 March 2018.

          Appeal by defendant from judgment entered 2 September 2016 by Judge Alan Z. Thornburg in Buncombe County No. 15 CRS 81500 Superior Court.

          Attorney General Joshua H. Stein, by Assistant Attorney General Tammera S. Hill, for the State.

          Sean P. Vitrano for defendant-appellant.

          BRYANT, Judge.

         Where there was sufficient evidence to withstand defendant's motion to dismiss the charge of DWI and where the trial court did not abuse its discretion in admitting an officer's expert testimony pursuant to Rule 702, we find no error in the judgment of the trial court.

         On 10 February 2015, defendant Stacie Michelle Fincher awoke around 7:30 a.m. and took her prescribed medications for her bipolar disorder-Abilify, Wellbutrin, and Lamictal. She had not slept well the previous evening, and around 2:00 a.m., she had taken a Xanax (alprazolam) to help her fall back to sleep. She had been taking Xanax under her doctor's care for seven years at that point. That morning, she helped her children get ready for school and then drove herself to her surgeon's office for a follow-up appointment for an ankle fusion surgery she had undergone in December 2014. Defendant wore a large immobilization boot on her left leg and foot and still needed crutches to walk.

         At her doctor's appointment, the surgeon manipulated her ankle to check her range of motion, causing her so much pain that she cried. Asked to rate her pain on a scale of one to ten, she rated her pain as a ten. After the appointment, she drove to a pharmacy to have her prescription filled and then drove to a Long John Silver's restaurant in Asheville. While in the drive-thru lane, defendant was involved in a rear-end collision when her foot slipped off the brake and she collided with the vehicle in front of her.

         Asheville Police Department Officers Brad Beddow and Matthew Ryan Craig were dispatched to the scene. Officer Beddow spoke with defendant and noticed that she had red, glassy eyes, slurred speech, and seemed a bit "off." Officer Craig also observed that defendant's eyes were red and glassy and that she had slurred speech. When asked if she had taken any medication, she responded that she was prescribed a "handful of different types of medication, " and had taken Xanax the night before. Officer Craig, who was certified by the National Traffic Highway Safety Administration to give standardized field sobriety tests, including the Horizontal Gaze Nystagmus ("HGN") test, then requested defendant perform some tests to determine whether she was impaired.

         Officer Craig administered the HGN test and observed six out of six clues of impairment. Because of her ankle injury and the boot on her leg, Officer Craig did not have defendant perform any other standardized field sobriety tests, but he did administer a breath test for alcohol which had negative results. Officer Craig determined that defendant was impaired based on her slurred speech, red and glassy eyes, admission to taking central nervous system ("CNS") depressants, and the HGN test results. Defendant was placed under arrest for DWI and transported to the Buncombe County Jail where defendant consented to a blood draw.

         Officer Craig contacted Officer Scott Fry, a certified Drug Recognition Expert ("DRE") and asked for his assistance with defendant. As a DRE, Officer Fry performed a twelve-step evaluation to determine whether defendant was under the influence of drugs and, if so, what category of drugs were in her system. Officer Fry administered various tests and determined that defendant was impaired by a CNS depressant.

         Defendant was found guilty of DWI in Buncombe County District Court on 9 August 2016, and she appealed for a trial de novo in superior court. Defendant was tried during the 31 August 2016 session of Buncombe County Superior Court, the Honorable Alan Z. Thornburg, Judge presiding. At trial, Officer Fry testified that on 10 February 2015, defendant's blood contained measurable amounts of alprazolam (Xanax), hydroxyzine buproprion (Wellbutrin), and lamotrigine (Lamictal). The judge advised the jury that alprazolam is an impairing substance.

         Defendant moved to dismiss at the close of the State's case and again at the close of all the evidence, and the trial court denied both motions. The jury found defendant guilty of DWI, and the trial court sentenced defendant to a twelve-month suspended sentence of thirty days. Defendant filed written notice of appeal.

         On appeal, defendant argues the trial court (I) erred in denying defendant's motion to dismiss; and (II) abused its discretion in admitting expert testimony where the State ...

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