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State v. Hoque

Court of Appeals of North Carolina

January 7, 2020

STATE OF NORTH CAROLINA
v.
EHTASHAM M. HOQUE, Defendant.

          Heard in the Court of Appeals 22 August 2019.

          Appeal by Defendant from judgments entered 5 September 2018 by Judge Robert C. Ervin in Cleveland County Superior Court Nos. 18 CRS 50772-74.

          Attorney General Joshua H. Stein, by Assistant Attorneys General Kathryne E. Hathcock and Jonathan E. Evans, for the State-Appellee.

          Arnold & Smith, PLLC, by Paul A. Tharp, for Defendant-Appellant.

          COLLINS, JUDGE.

         Defendant Ehtasham Hoque appeals from judgments entered upon jury verdicts of guilty of driving while impaired and resisting a public officer, and responsible for possessing an open container of alcoholic beverage. Defendant argues that the trial court (1) erred by denying his motion to dismiss; (2) erred by denying his motion to suppress; (3) abused its discretion by admitting certain evidence; and (4) erred in determining that law enforcement officers did not violate his constitutional rights. We discern no error or abuse of discretion.

         I. Procedural History

         On 16 April 2018, Defendant was indicted for driving while impaired ("DWI"), resisting a public officer, and driving a motor vehicle on a highway with an open container of alcoholic beverage after drinking. A trial commenced on 4 September 2018. On the second day of the trial, Defendant filed a motion to suppress the results of a chemical analysis of Defendant's blood and requested special jury instructions on spoliation of evidence, specifically a vodka bottle and body-camera recordings. The trial court denied Defendant's motion to suppress the blood test results, agreed to give a spoliation instruction for the vodka bottle, and refused to give a spoliation instruction for the body-camera recordings. At the close of the State's evidence, Defendant made a motion to dismiss all charges for insufficient evidence. The trial court granted the motion as to misdemeanor possessing an open container after drinking, allowing an infraction charge of possession of an open container to go forward. The trial court denied the motion to dismiss as to the charges of DWI and resisting a public officer. On 5 September 2018, the jury found Defendant guilty of DWI and resisting a public officer, and responsible for possessing an open container.

         The trial court entered judgment upon the jury's verdicts. Defendant timely appealed.

         II. Factual Background

         The State's evidence tended to show the following: At around 6:00 a.m. on 20 February 2018, Officer Joshua Richard of the Shelby Police Department was dispatched in response to a call reporting a stationary car in the middle of Earl Street. Upon his arrival, Richard observed a beige Toyota Prius in the "dead middle of the roadway" with its headlights turned on and the engine running. Richard approached the car and observed a male, later identified as Defendant, "slumped over appearing to be asleep in the driver's seat." Richard did not see any other passengers in the car. When Richard knocked on the driver's side window, Defendant would not speak to him. Richard asked Defendant to roll down his window, but Defendant refused. Richard opened the door, asked Defendant his name, and engaged Defendant in conversation. Richard observed that Defendant was "groggy" and his breath smelled of alcohol.

         While waiting for other officers to arrive, Richard tried to determine Defendant's name. Defendant produced a bank card as his only form of identification. Richard saw an open New Amsterdam vodka bottle in between Defendant's legs. Defendant then "revved his engine very high" and "pressed the gas." After Richard turned the engine off by depressing the keyless push-button, Defendant tried to restart the car several times. Richard realized he had not turned on his chest-mounted body camera, so he activated it at that time.

         Defendant asked if he could pull the car forward and attempted to start the car "a couple more times," despite Richard telling him to stop. Defendant also stated that he was at home; Richard explained to Defendant that he was actually in the middle of the road. Richard observed that Defendant appeared "disheveled" and that his "eyes were very glossy and bloodshot-appearing."

         Officers Smith, Kallay, Torres, and Hill arrived on the scene and activated their body cameras. Smith observed Defendant sitting in the driver's seat of the car and engaged Defendant in conversation. Defendant told Smith that "he had just a few sips [of alcohol] just a couple hours ago." Smith smelled a "very strong odor of alcohol" on Defendant's breath and noticed that Defendant's eyes were red and glassy, and that his movements were slow and labored. Smith thought Defendant's movements were labored due to alcohol consumption. Upon Smith's request, Defendant got out of the car for field sobriety testing. Smith performed a horizontal gaze nystagmus test; Defendant failed, showing all six signs of impairment. Defendant also failed a vertical gaze nystagmus test, which led Smith to believe that Defendant was "significantly high."

         While Smith was performing the field sobriety tests, Torres observed that Defendant was "very slow to react" and had "red, glassy eyes" and "slurred speech." Defendant did not understand where he was or what time it was, and he had a hard time answering questions. Torres saw the open alcohol bottle between Defendant's legs.

         Smith asked Defendant to provide a breath sample on the portable alcosensor. Although Defendant initially agreed, he refused 10 to 12 times when asked to give a sample. Defendant repeatedly placed his hands in his pockets, which Smith told him not to do. Because Defendant was making Smith feel concerned for his own safety, Smith grabbed Defendant's right wrist to pull it out of Defendant's pocket and said, "The games are over. We're not going to put our hands back in our pockets anymore." After Defendant refused one last opportunity to provide a breath sample, Smith began to arrest him.

         Because Defendant "tensed up" and "pulled his arms back," Richard and Torres assisted Smith in placing Defendant under arrest. Defendant continued to struggle with the officers, fell down to his knees, and began shouting and crying. Smith and Torres adjusted Defendant's handcuffs, and Defendant stopped shouting and crying. When Smith and Torres tried to place Defendant into the patrol car, Defendant was uncooperative and would not put his legs in the car. Torres grabbed Defendant's legs, placed them inside the car, and shut the door. Torres smelled alcohol on Defendant's breath. Kallay retrieved the vodka bottle and gave it to Smith. Smith poured the liquid out of the bottle in accordance with the police department's common practice and placed the bottle in the patrol car. After Defendant was in the back of the patrol car, Smith turned off his body camera.

         Smith transported Defendant to the Law Enforcement Center annex for a chemical analysis of his breath and explained Defendant's implied consent rights to him. Smith did not have his body camera turned on while at the Law Enforcement Center annex, in violation of his department's policy. Defendant refused to sign the implied rights form and did not request an attorney. Smith gave Defendant one more opportunity to submit a breath sample. Defendant did not put his mouth on the intoxilyzer machine or attempt to blow. After Smith marked Defendant as refusing to provide a breath sample, Smith obtained a search warrant for Defendant's blood from the magistrate.

         Smith transported Defendant to the hospital to have a blood sample taken. At the hospital, Defendant told the nurse that she did not have his permission to take his blood. Hospital staff told Smith that Defendant would need to be held down for the blood draw, because he was refusing to cooperate, despite the search warrant. Smith and Kallay placed Defendant in handcuffs and placed him on his stomach. Because Defendant was "somewhat combative and did not want his blood drawn," two nurses assisted the officers in holding Defendant down, and a nurse was able to draw Defendant's blood.

         Defendant testified that he did not refuse to provide a blood sample but was only asking to see the search warrant. He also testified that a doctor and a nurse were in the hospital room with him when his blood was collected. He said, "They forced me to the table. Not forced. They asked me to lay down." He also testified that unknown persons got on top of him, forced his head into a pillow, and forcibly drew his blood.

         A chemical analysis of Defendant's blood by technicians at the North Carolina State Crime Laboratory revealed a blood alcohol concentration of 0.07 and the presence of the following substances: cannabinoids (specifically the substances tetrahydrocannabinol ("THC") and tetrahydrocannabinol carboxylic acid ("THCA")), amphetamine, and methamphetamine.

         III. Issues Presented

         Defendant presents the following issues on appeal: (1) the trial court erred by denying his motion to dismiss for insufficient evidence of each offense; (2) the trial court erred by denying his motion to suppress the results of the blood test; (3) the trial court abused its discretion by allowing into evidence the vodka bottle that police officers had emptied at the scene of the arrest; and (4) the trial court erred in determining that the officers' "intentional suppression" of body-camera recording evidence did not violate Defendant's constitutional rights.

         IV. Discussion

         A. Motion to Dismiss

         Defendant first argues that the trial court erred by denying his motion to dismiss for insufficient evidence of each charge.

         Upon a motion to dismiss for insufficient evidence, the trial court must determine whether the State presented "substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense." State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). "Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion." State v. Worley, 198 N.C.App. 329, 333, 679 S.E.2d 857, 861 (2009) (internal quotation marks and citation omitted). The trial court must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. State v. Fritsch, 351 N.C. 373, 378-79, 526 S.E.2d 451, 455 (2000). This Court reviews a trial court's denial of a motion to dismiss de novo. State v. Moore, 240 N.C.App. 465, 470, 770 S.E.2d 131, 136 (2015) (citation omitted).

         1. Driving While Impaired

         Defendant argues that the trial court erred by denying his motion to dismiss the DWI charge, because the State failed to present sufficient evidence that Defendant drove a vehicle and was impaired.

         Under N.C. Gen. Stat. § 20-138.1(a):

A person commits the offense of impaired driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this State:
(1) While under the influence of an impairing substance; or
(2) After having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more. The results of a chemical analysis shall be deemed sufficient evidence to prove a person's alcohol concentration; or
(3) With any amount of a Schedule I controlled substance, as listed in [ N.C. Gen. Stat. §] 90-89, or its metabolites in his blood or urine.

N.C. Gen. Stat. § 20-138.1(a) (2018).

         A person "drives" within the meaning of the statute if he is "in actual physical control of a vehicle which is in motion or which has the engine running." N.C. Gen. Stat. § 20-4.01(7) and (25) (2018) (noting that the terms "operator" and "driver" are synonymous). See State v. Fields, 77 N.C.App. 404, 406, 335 S.E.2d 69, 70 (1985) (holding that defendant sitting behind the wheel of a car in the driver's seat with the engine running drove within the meaning of the statute, even though defendant claimed that the car was running only to heat the car). An individual who is asleep behind the wheel of a car with the engine running is in actual physical control of the car, thus driving the car within the meaning of the statute. State v. Mabe, 85 N.C.App. 500, 504, 355 S.E.2d 186, 188 (1987).

         In this case, when Richard responded to a call reporting a stationary vehicle on the road, he found Defendant in the driver's seat of the vehicle with the headlights on and the engine running. Initially, Defendant appeared to be asleep. When Richard was able to engage Defendant in conversation, Defendant asked if he could pull his car forward and repeatedly revved the engine. No other passengers were in the car. When Richard asked Defendant to exit the car, Defendant exited from the driver's side. This evidence was sufficient to establish that Defendant drove the car within the meaning of the statute. See Fields, 77 N.C.App. at 406, 335 S.E.2d at 70; Mabe, 85 N.C.App. at 504, 355 S.E.2d at 188.

         Defendant also argues that the State did not provide sufficient evidence that he was impaired, because his blood alcohol concentration was less than 0.08, and he only failed the horizontal gaze nystagmus test due to a medical problem.

         The acts of driving while under the influence of an impairing substance, driving with a blood alcohol concentration of 0.08, and driving with a controlled substance or its metabolites in one's blood or urine are three "separate, independent[, ] and distinct ways by which one can commit the single offense of [DWI]." State v. Coker, 312 N.C. 432, 440, 323 S.E.2d 343, 349 (1984) (emphasis omitted). The trial court only instructed the jury on the driving while under the influence of an impairing substance prong. Thus, the State need not have presented evidence that Defendant had a blood alcohol concentration of 0.08 or above in order to have presented sufficient evidence of DWI. See id.

         "The opinion of a law enforcement officer . . . has consistently been held sufficient evidence of impairment, provided that it is not solely based on the odor of alcohol." State v. Mark, 154 N.C.App. 341, 346, 571 S.E.2d 867, 871 (2002) (citations omitted). Additionally, a defendant's blood alcohol concentration or the presence of any other impairing substance in the defendant's body, as shown by a chemical analysis, and a defendant's refusal to submit to an intoxilyzer test are admissible as substantive evidence of impairment. See N.C. Gen. Stat. § 20-139.1(a) (2018) (chemical analysis); N.C. Gen. Stat. § 20-139.1(f) (2018) (intoxilyzer refusal). An impairing substance is defined as alcohol, a controlled substance, "any other drug or psychoactive substance capable of impairing a person's physical or mental faculties," or any combination of these substances. N.C. Gen. Stat. § 20-4.01(14a) (2018). Amphetamine, methamphetamine, marijuana, and tetrahydrocannabinols are controlled substances, see N.C. Gen. Stat. §§ 90-89, 90-94 (2018), and are thus impairing substances within the meaning of the statute.

         Here, Richard testified that he found Defendant slumped over and apparently sleeping in the driver's seat. Richard, Smith, and Torres detected a strong odor of alcohol on Defendant's breath and observed that Defendant's speech was slurred and that his eyes were red, watery, glassy, and bloodshot. Richard and Torres saw an alcohol bottle between Defendant's legs. Defendant was confused and disoriented, and he admitted that he had consumed alcohol. Smith observed that Defendant's movements were labored. Smith conducted horizontal and vertical nystagmus tests, which Defendant failed. Smith testified that Defendant mentioned having eye trouble but also displayed erratic behavior, leading Smith to believe that Defendant was impaired. Because the officers' opinions that Defendant was impaired were not based solely on the odor of alcohol, they were sufficient evidence of impairment. See Mark, 154 N.C.App. at 346, 571 S.E.2d at 871.

         Additionally, the State presented a chemical analysis of Defendant's blood, which indicated that it contained alcohol, THC, THCA, amphetamine, and methamphetamine. This was sufficient evidence of impairment. See N.C. Gen. Stat. § 20-139.1(a). Moreover, the State also presented evidence that Defendant refused to submit to an intoxilyzer test, which was also sufficient evidence of impairment. See N.C. Gen. Stat. § 20-139.1(f).

         Viewed in the light most favorable to the State, this evidence was sufficient to support the conclusion that Defendant was "under the influence of an impairing substance" at the time of the arrest. See N.C. Gen. Stat. § 20-138.1(a)(1). Because the State presented sufficient evidence of each element of the DWI offense, the trial court properly denied Defendant's motion to dismiss.

         2. Resisting a Public Officer

         Defendant next argues that the trial court erred by denying his motion to dismiss the charge of resisting a public officer for insufficient evidence. Defendant contends that any negative interactions he had with the police were due to his confusion and pain at the time of his arrest.

         "If any person shall willfully and unlawfully resist, delay or obstruct a public officer in discharging or attempting to discharge a duty of his office, he shall be guilty of" the offense of resisting a public officer. N.C. Gen. Stat. § 14-223 (2018). "The conduct proscribed under [ N.C. Gen. Stat. §] 14-223 is not limited to resisting an arrest but includes any resistance, delay, or obstruction of an officer in the discharge of his duties." State v. Lynch, 94 N.C.App. 330, 332, 380 S.E.2d 397, 398 (1989) (holding that defendant resisted officers by "continu[ing] to struggle after the officers apprehended him" for the purpose of identifying him). See also State v. Burton, 108 N.C.App. 219, 225, 423 S.E.2d 484, 488 (1992) (explaining that obstruction may be direct or indirect opposition or resistance to an officer lawfully discharging his duty, and holding that defendant resisted officers when he spoke in a "loud and hostile manner" while standing beside an officer's patrol car, because defendant's behavior ...


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