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State v. Neal

Court of Appeals of North Carolina

September 17, 2019


          Heard in the Court of Appeals 22 May 2019.

          Appeal by Defendant from Judgment entered 8 September 2017 by Judge William H. Coward in Buncombe County, No. 16 CRS 083536 Superior Court.

          Attorney General Joshua H. Stein, by Assistant Attorney General John W. Congleton, for the State.

          Irons & Irons, PA., by Ben G. Irons II, for defendant-appellant.

          HAMPSON, JUDGE.

         Factual and Procedural Background

         Tammy Marie Neal (Defendant) appeals from her conviction for Impaired Driving. The Record tends to show the following:

         On 11 April 2016, Deputy Reggie Ray of the Buncombe County Sheriff's Department (Deputy Ray) was dispatched to investigate an anonymous report concerning a possibly impaired driver. According to Deputy Ray, he received a call from dispatch that an anonymous individual had observed a "small green vehicle in color with a tag number of [042-RCW] on [Interstate] 40 that had almost run a few vehicles off the road . . . [and] that it had ended up in an area known as Sleepy Hollow[.]" The anonymous tipster also reported that the driver of the green vehicle had hit a car in the Sleepy Hollow area and was attempting to leave the scene.

         Upon arriving in the Sleepy Hollow area, Deputy Ray observed a car matching this description and immediately pulled behind the vehicle, while another Deputy approached the front of the vehicle with his patrol car, to block its path. Deputy Ray testified that he did not observe the car violate any traffic laws and stopped it based solely on the report from dispatch. After stopping the car, Deputy Ray observed Defendant was driving the car.

         When Deputy Ray had Defendant step out of her car, Defendant "was very unstable on her feet[, ]" could not stand or walk well, had to grab her car once for support, and also had to hold onto Deputy Ray's vehicle once to avoid falling. Deputy Ray then placed Defendant in the back of his patrol car with the windows down "for her safety, because [he] didn't want her to fall[.]" While another Deputy stayed with Defendant, Deputy Ray began looking for and eventually found the vehicle that Defendant allegedly hit. The owner of the vehicle, who was a friend of Defendant, was standing outside and informed Deputy Ray that she did not want to press charges.

         Subsequently, Andrew Depoyster (Trooper Depoyster), a State Trooper with the North Carolina Highway Patrol, arrived, took over the investigation, and conducted three standardized field sobriety tests (SFST) on Defendant: the walk-and-turn test, the one-leg stand test, and the horizontal gaze nystagmus test (HGN test). Trooper Depoyster testified Defendant "was very uneasy on her feet[; h]ad a hard time standing still[; u]sed her arms for balance[; h]ad a blank stare[; and w]as using [his] vehicle for balance after [he] brought her back to [his car] for the standardized field sobriety testing." He also stated Defendant's "pupils were pinpoint, very small." Trooper Depoyster testified he had to stop all three SFSTs early because Defendant could not follow instructions and showed signs of severe impairment. Defendant admitted she was prescribed and had taken numerous medications, including Ambien, Oxycodone, Restrio, an unnamed restless leg syndrome medication, and Clonazepam. When asked if she had smoked marijuana recently, Defendant replied, "yes." Based on Defendant's responses and her performance on these tests, Trooper Depoyster arrested and charged Defendant with Impaired Driving. Thereafter, Defendant consented to having her blood drawn for a blood report (Blood Report). Trooper Depoyster also created a Driving While Impaired Report (DWIR form), which contained his findings regarding his investigation into Defendant's Impaired-Driving arrest.

         On 18 August 2017, Defendant was tried in Buncombe County District Court and found guilty of Impaired Driving. The trial court sentenced Defendant to a 60-day suspended sentence and placed her on unsupervised probation for 12 months. Thereafter, Defendant appealed her conviction in District Court to Buncombe County Superior Court. Prior to trial in Superior Court, Defendant filed, inter alia, a Motion to Suppress alleging the stop and seizure violated Defendant's constitutional rights and seeking to suppress all evidence obtained as a result of the stop. Specifically, Defendant contended Deputy Ray did not have reasonable suspicion to stop her car. After a hearing in which Deputy Ray testified, the trial court deferred its ruling on Defendant's Motion to Suppress, and the matter proceeded to trial.

         At trial, the State tendered Dawn Sherwood (Sherwood) as an expert witness in toxicology and forensic analysis. Sherwood testified she works as a certifying scientist for NMS Labs, which specializes in toxicology, criminalistics, and DNA analysis, and that she primarily handles blood tests. She also testified that she has a bachelor's degree in biology, approximately 19 years of experience in analyzing blood work, and completed a graduate course in forensic toxicology that discussed various drug classifications. Sherwood stated the Blood Report, which she prepared in her capacity at NMS Labs, showed Defendant's blood contained measurable amounts of the following-Oxazepam, which is a benzodiazepine drug used to treat conditions such as anxiety; Temazepam, another benzodiazepine; Clonazepam, another benzodiazepine; 7-Amino Clonazepam, which is an active metabolite[1] of Clonazepam; Oxycodone Free, an opiate drug commonly used for pain or sedation; 11-Hydroxy Delta-9 THC, an intermediate metabolite of marijuana; Delta-9 Carboxy THC, an inactive metabolite of marijuana; and Delta-9 THC, the principle drug in marijuana.

         The State also tendered Sergeant Ann Fowler (Sgt. Fowler), a drug recognition expert with the Asheville Police Department, as a drug recognition expert (DRE). Sgt. Fowler testified that based on her review of the Blood Report and Trooper Depoyster's DWIR form, her conversation with Trooper Depoyster, and her training and experience, she believed Defendant "was impaired on a central nervous system depressant and also on a narcotic analgesic."

         At the close of the State's evidence, Defendant made a Motion to Dismiss based on insufficient evidence of impairment and her previous Motion to Suppress. The trial court denied the Motion to Dismiss. On 8 September 2017, the jury found Defendant guilty of Impaired Driving. The same day, the trial court sentenced Defendant to a 60-day suspended sentence and placed her on supervised probation for 12 months. The trial court also entered an Order on Defendant's Motion to Suppress (Suppression Order). In its Suppression Order, the trial court made the following Findings of Fact:

1. [Deputy Ray], who was employed by the Buncombe County Sheriff's Office at the time of the arrest, was on duty when he heard over his dispatch radio that an anonymous person had reported by making a cell phone call that a small green Toyota automobile, with a tag # of 042-RCW, was being driven erratically, and was involved in an accident in the area of the Sleepy Hollow Road, and that the driver of the Toyota was leaving the scene of the accident.
2. [Deputy] Ray quickly came upon a small green Toyota automobile, with a tag # of 042-RCW, which was leaving a parking lot of a townhouse development of off [sic] Sleepy Hollow Road.
3. [Deputy] Ray used his car to block the Toyota from leaving, and began his encounter with the Defendant.

         Based on these Findings of Fact, the trial court denied Defendant's Motion to Suppress.[2]

         On 8 September 2017, Defendant timely filed a written Notice of Appeal from this Judgment. Defendant's Notice of Appeal, however, contains two technical errors. First, although the caption properly lists Defendant's name, the body erroneously identifies a different person as the party appealing. Second, Defendant's Notice of Appeal specifies that Defendant is appealing the "Judgments entered on September 8, 2017," even though Defendant appeals from a single Judgment. Out of an abundance of caution, Defendant filed a Petition for Writ of Certiorari with this Court in order to preserve her right of appellate review. Although we do not believe these technical errors render her Notice of Appeal defective, "[t]o the extent that [these] error[s] cast[] any doubt on our jurisdiction, we exercise our discretion and grant certiorari to review [Defendant's] claims on their merits[.]" Cox v. Steffes, 161 N.C.App. 237, 241, 587 S.E.2d 908, 911 (2003) (citation omitted).


         The dispositive issues on appeal are: (I) whether (A) Finding of Fact 2 of the Suppression Order is supported by competent evidence and (B) the trial court properly concluded Deputy Ray had reasonable suspicion to stop Defendant and (II) whether (A) the trial court erred by permitting Sgt. Fowler to testify concerning the impairing effects of certain drugs found in Defendant's blood and (B) the trial court erred by finding that Sherwood was an expert in "forensic toxicology" and by allowing Sherwood to testify that Delta-9 THC was "active" and "having an effect on [Defendant's] body."


         I. Motion to Suppress

         "Our review of a trial court's denial of a motion to suppress is strictly limited to a determination of whether [the trial court's] findings are supported by competent evidence, and in turn, whether the findings support the trial court's ultimate conclusion." State v. Reynolds, 161 N.C.App. 144, 146-47, 587 S.E.2d 456, 458 (2003) (citation and quotation marks omitted). The trial court's conclusions of law, however, are reviewed de novo. See State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357 (1997) (citation omitted). "In reviewing the denial of a motion to suppress, we examine the evidence introduced at trial in the light most favorable to the State[.]" State v. Moore, 152 N.C.App. 156, 159, 566 S.E.2d 713, 715 (2002) (citations omitted).

         A. Finding of Fact 2

         Finding of Fact 2 reads: "[Deputy] Ray quickly came upon a small green Toyota automobile, with a tag # of 042-RCW, which was leaving a parking lot of a townhouse development of off [sic] Sleepy Hollow Road." Specifically, Defendant "objects to that portion of this finding which indicates that Deputy Ray saw the tag #042-RCW on the car he stopped before he stopped it[.]" Defendant contends Deputy Ray's testimony, both at the suppression hearing and trial, establishes that he did not see Defendant's license plate number until after stopping Defendant.

         During the suppression hearing, when first asked to describe his initial contact with Defendant's vehicle, Deputy Ray stated:

When we got there, we noticed -- one of us came in from James Branch -- Jim's Branch Road. The other one came in from - I think it was the access road. So we came in two different directions. We saw the vehicle in question. I pulled in front, and an officer pulled in the back, and we blocked her in, because they were -- the vehicle was trying to leave. Once I got out of the vehicle and got to the ...

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