State v. Forney

897 S.E.2d 171

STATE of North Carolina

v.Cory Micah FORNEY

No. COA23-338

Court of Appeals of North Carolina.

Filed January 16, 2024

Appeal by defendant from judgments entered 8 July 2022 by Judge R. Gregory Horne in Buncombe County Superior Court. Heard in the Court of Appeals 14 November 2023. Buncombe County, Nos. 21-CRS-82197-99

Attorney General Joshua H. Stein, by Special Deputy Attorney General J.D. Prather, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Daniel Shatz, for defendant-appellant.

THOMPSON, Judge.

In this appeal from defendant’s conviction on a charge of impaired driving, among other offenses, he argues that the trial court erred in admitting the results of a chemical analysis of defendant’s breath. While we agree that the evidence in question should not have been admitted at trial, we conclude that the error was not prejudicial to defendant. Accordingly, defendant’s conviction on a charge of impaired driving must be upheld.

I. Factual Background and Procedural History

The evidence introduced at defendant’s trial tended to show the following: On 9 March 2021, Officer Samuel DeGrave, of the Asheville Police Department, was on traffic enforcement duty observing a stop sign located in East Asheville. Just after 10:00 p.m., a red Dodge minivan being operated by defendant¹ failed to stop at the stop sign, and DeGrave initiated a traffic stop. At the beginning of their interaction, DeGrave explained the reason for the traffic stop and defendant informed DeGrave that defendant had no driver’s license. DeGrave detected an odor of alcohol emanating from the vehicle and noticed that the odor was stronger when defendant spoke. DeGrave further observed that defendant’s speech was slow and slurred and his eyes were red and glassy; DeGrave’s suspicion that defendant had consumed alcohol was also raised when he saw defendant put a piece of mint gum into his mouth while DeGrave was verifying defendant’s identity and that of the female passenger in the vehicle.

After completing that process, DeGrave returned to the minivan and informed defendant that DeGrave was going to conduct three standardized field sobriety tests, which the officer was certified to perform. He thereafter performed three such tests on defendant. On the horizontal gaze nystagmus (HGN) test—about which DeGrave was allowed to testify as an expert—DeGrave noted six of six possible indications of impairment. DeGrave noted two of eight possible indications of impairment on the walk-and-turn test and three of four indications of impairment on the one-leg-stand test. DeGrave testified that a research study of these results created a 91% likelihood that defendant was appreciably impaired. Based upon his observations and the test results, DeGrave formed the opinion that defendant had consumed a sufficient quantity of alcohol to appreciably impair his faculties and arrested him.

At the Buncombe County Jail, Officer Kenneth Merritt of the Biltmore Forest Police Department, a certified chemical analyst, was called in to perform a breath analysis of defendant using an "EC/IR II Intoximeter." After advising defendant of his implied consent rights, Merritt began a fifteen-minute "observation period" designed to ensure that the individual does not eat food, consume alcohol, regurgitate, or smoke prior to testing, primarily to ensure the presence of no "mouth alcohol" that might affect the accuracy of the blood alcohol reading. Merritt administered a breath test at 12:05 a.m. which resulted in a 0.11 blood alcohol concentration (BAC) reading. When Merritt then noticed that defendant had chewing gum in his mouth, he had defendant spit out the gum and then administered a second breath test at 12:07 a.m., which again resulted in a 0.11 BAC reading.

Defendant was later charged with driving while impaired, driving while impaired with three prior convictions of driving while impaired within 10 years of the date of the offense, driving while license revoked, and failure to stop for a stop sign. The case came on for hearing before Judge Gregory Horne at the 5 July 2022 session of Superior Court, Buncombe County. Defendant filed several pretrial motions, including a motion in limine which sought to exclude the results of the EC/IR II breath testing on the basis that Merritt failed to follow the required observation protocol before administering the second breath test. That motion was denied following an evidentiary hearing. Defendant then pled guilty to the offenses of driving while impaired with three prior convictions of driving while impaired within 10 years of the date of the offense and driving while license revoked, not guilty to driving while impaired, and not responsible for the stop sign violation.

The other matters proceeded to trial before a jury, and when Merritt was asked to describe the step of the Intoximeter procedure known as the "observation period," he testified that "the observation period is a 15-minute period that I’m looking for regurgitation, or as bad as it sounds, throw up, eating food, consuming alcohol, or smoking cigarettes. It is mainly to detect for mouth alcohol." (Emphasis added.) Merritt also stated that he did not see defendant "put anything in his mouth or … see any signs of him regurgitating or drinking or anything like that." Nevertheless, Merritt testified that after he then collected a first breath sample from defendant, Merritt "was notified that [defendant] had gum in his mouth." Merritt had defendant spit out the gum and collected the second breath sample required under the pertinent procedures two minutes later. Defendant renewed his objection to the admission of the Intoximeter results, and the trial court overruled those objections and allowed the results to be published to the jury.

On cross examination, defendant’s trial counsel discussed the waiting period with Merritt:

Q. And the reason that we need an observation period is to make sure that there’s nothing going on internally for the subject of the test that could skew the results of the test, correct?

A. For the most part, yes, sir. My understanding is to allow for deterioration of mouth alcohol.

Merritt acknowledged that "the reason for the rules and regulations, again, is to assure us of the accuracy and reliability of the results that the [Intoximeter] provides" and also agreed that "for best practices" he should have restarted the observation period after having defendant spit out the gum. However, Merritt repeatedly stated that he did not believe the rules had been violated because they only explicitly ask the analyst "to look for consuming alcohol, smoking, eating, and regurgitating" and do not address chewing gum.

The State then called Daniel Cutler, an employee of the North Carolina Forensic Tests for Alcohol Branch of the Division of Public Health within DHHS, who was then acting as a Drug and Alcohol Impaired Driving Regional Coordinator supervising the affairs of the Forensic Tests for Alcohol Branch within the western 18 counties of the State, and Cutler was admitted as an expert in the EC/IR II breath testing instrument and its procedures without objection. Cutler testified that "[g]um in the mouth will not, and by all indications, looking at the test record, did not affect the results of the breath sample," citing two published studies. Cutler explained that one of those studies indicated that chewing "sugar-free gum, which is a salivary flow promoter" for five minutes led to lower BAC results as compared to the control situation in which no gum was chewed. The first study was conducted using "an Intoxilyzer 5000C," the testing instrument used in North Carolina prior to our State’s adoption of the Intoximeter Model EC/IR II. The second study cited involved testing with "75 different brands of chewing gum" and indicated that one brand of gum, "Trident Splash Strawberry with Kiwi" caused elevated BAC results, but the remaining varieties of gum did not. The testing instruments used in that study were "the Alco-Sensor IV DWF, and Alcotest 7410 GLC."

Dr. Andy Ewans, a forensic toxicologist, testified for the defense as an expert in toxicology and agreed that "in general" gum in a test subject’s mouth would not affect chemical analysis results. He further noted, however, Cutler’s own reference to a study indicating an impact on BAC results from at least some types of gum and also emphasized that regardless, "the protocol established by statute was not followed by Sergeant Merritt."

On 8 July 2022, the jury found defendant guilty of the impaired driving charge and responsible for the stop sign violation. Defendant gave notice of appeal in open court.

II. Analysis

Defendant’s sole contention on appeal is that the trial court committed error in denying his motion to exclude the results of the Intoximeter’s chemical analysis and in over- ruling defendant’s objections to the admission of that evidence when it was introduced at trial; Specifically, defendant argues that after having defendant remove the gum from his mouth, Merritt’s failure to conduct a new observation period rendered the Intoximeter results inadmissible under the relevant provision of the North Carolina General Statutes and related Department of Health and Human Services rules. We agree. However, because defendant has failed to show "a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial," N.C. Gen. Stat. § 15A-1443(a) (2021), we hold that he has not demonstrated prejudice.

A. Error in admission of chemical analysis results

[1, 2] The primary issue before us in this appeal, which appears to be a matter of first impression, is one of statutory and regulatory interpretation. Such questions are reviewed de novo. Sound Rivers Inc. v. N.C. Dep’t of Envtl. Quality, 271 N.C. App. 674, 727, 845 S.E.2d 802, 834 (2020), affirmed in part and disc. review allowed in part, 385 N.C. 1, 891 S.E.2d...