in the Court of Appeals 22 August 2019.
by Defendant from judgments entered 5 September 2018 by Judge
Robert C. Ervin in Cleveland County Superior Court Nos. 18
Attorney General Joshua H. Stein, by Assistant Attorneys
General Kathryne E. Hathcock and Jonathan E. Evans, for the
& Smith, PLLC, by Paul A. Tharp, for Defendant-Appellant.
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
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.
trial court entered judgment upon the jury's verdicts.
Defendant timely appealed.
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.
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.
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."
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."
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.
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.
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.
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.
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
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
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.
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.
Motion to Dismiss
first argues that the trial court erred by denying his motion
to dismiss for insufficient evidence of each charge.
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).
Driving While Impaired
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
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
(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).
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).
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.
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.
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.
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.
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.
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).
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.
Resisting a Public Officer
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.
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 ...