in the Court of Appeals 6 March 2018.
by defendant from judgment entered 2 September 2016 by Judge
Alan Z. Thornburg in Buncombe County No. 15 CRS 81500
Attorney General Joshua H. Stein, by Assistant Attorney
General Tammera S. Hill, for the State.
P. Vitrano for defendant-appellant.
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.
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.
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.
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.
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.
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
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
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.
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 ...