STATE OF NORTH CAROLINA v. SHARON DEAN FARABEE

The State presented evidence at trial tending to establish the following facts:

At approximately 7:30 p.m. on 28 January 2012, Trooper Brad Sudduth (“Trooper

Sudduth”) with the North Carolina State Highway Patrol was driving northbound on

U.S. 29/70 in Thomasville, North Carolina. He observed Defendant’s vehicle heading

in the opposite direction and noticed that her passenger-side headlight was not

illuminated. Trooper Sudduth turned his patrol car around and initiated a traffic

stop of Defendant’s vehicle.

He exited his vehicle and walked up to Defendant’s driver-side door. After he

informed Defendant that her passenger-side headlight was out, Defendant informed

him that if he would “tap” the headlight it would turn on. Based on this statement,

Trooper Sudduth tapped the headlight, and while doing so he noticed that

Defendant’s registration tags were expired and made her aware of this fact. She

responded that this was due to the fact that her car would not pass a vehicle

inspection.

During this exchange, Trooper Sudduth observed that Defendant’s speech was

slurred and that she had “red, very red glassy eyes.” He also detected an odor of

alcohol on her breath. Based on his training and experience, he formed the opinion

that she was under the influence of alcohol.

Trooper Sudduth returned to his patrol car in order to perform a computer

check on Defendant’s driver’s license and retrieve his Alco-Sensor device.1 He then

walked back to Defendant’s vehicle and asked her if she had been drinking, which

she denied. He ordered her to step out of her vehicle so that he could perform an

Alco-Sensor test as well as a series of field sobriety tests. After exiting her vehicle,

Defendant was unable to walk to the rear of the car without leaning on it for support.

Trooper Sudduth then attempted to perform an Alco-Sensor test on Defendant.

After several unsuccessful attempts at obtaining a breath sample due to Defendant

not blowing hard enough into the Alco-Sensor device, he was finally able to obtain a

sample, which indicated the presence of alcohol in her system. He then had

Defendant perform a series of field sobriety tests, including a (1) “Horizontal Gaze

Nystagmus” test; (2) “Walk and Turn” test; and (3) “One-leg stand” test. Defendant

failed each of these tests.

Trooper Sudduth placed Defendant under arrest for driving while impaired.

He drove her to the Davidson County Courthouse and took her to the room used for

performing intoximeter tests. After he read Defendant her rights concerning the

intoximeter test, Defendant refused to provide a sample.

Defendant was charged with (1) driving while impaired; (2) driving without

two headlamps; (3) driving without a valid operator’s license; and (4) driving with an

expired vehicle registration. On 8 October 2013, a trial was held in Davidson County

District Court before the Honorable Jimmy Myers. Defendant was found guilty on

all charges and appealed to Davidson County Superior Court for a trial de novo.

Beginning on 6 January 2015, a jury trial was held before the Honorable Anna

Mills Wagoner in Davidson County Superior Court. At the close of the State’s

evidence, Judge Wagoner dismissed the charge of driving without a valid operator’s

license. The jury found Defendant guilty of the remaining charges. The trial court

sentenced Defendant to 60 days imprisonment, suspended the sentence, and placed

Defendant on supervised probation for a period of 18 months. The court also imposed

a fine of $100.00 and entered civil judgments against Defendant in the amount of

$1,100.00 and $550.00, respectively. On 9 January 2015, Defendant filed a notice of

appeal.

Analysis

I. Appellate Jurisdiction

Defendant has filed a petition for writ of certiorari requesting appellate review

of her conviction in the event that her notice of appeal is deemed insufficient to confer

jurisdiction upon this Court. The State notes in its response to the petition that

Defendant’s notice of appeal is not in conformity with Rule 4 of the North Carolina

Rules of Appellate Procedure because while it correctly lists the file numbers of the

cases from which appeal is sought, it fails to (1) designate the judgments from which

the appeal is being taken; and (2) does not include a certificate of service.

“We have . . . deemed a defendant’s notice of appeal sufficient to confer

jurisdiction upon this Court when, despite an error in designating the judgment, the

notice of appeal as a whole indicates the defendant’s intent to appeal from a specific

judgment.” State v. Sitosky, __ N.C. App. __, __, 767 S.E.2d 623, 625 (2014), disc.

review denied, 368 N.C. 237, 767 S.E.2d 847 (2015). While an appellant’s failure to

include a certificate of service with her notice of appeal may serve as grounds for the

dismissal of the appeal, this Court has previously granted certiorari in such cases

where the appellee does not argue that it was misled or prejudiced by the absence of

the certificate of service. See, e.g., Partin v. Dalton Prop. Assoc., 112 N.C. App. 807,

810, 436 S.E.2d 903, 905 (1993) (“We initially note that the record does not contain a

certificate of service of the notice of appeal. Although this is grounds for dismissal of

the appeal, this Court in its discretion will treat the appeal as a petition for

certiorari.” (internal citation omitted)).

Here, the State does not contend that it was misled by Defendant’s flawed

notice of appeal. Therefore, in our discretion, we grant Defendant’s petition for

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certiorari and proceed to consider the merits of her appeal. See State v. Springle, __

N.C. App. __, __, 781 S.E.2d 518, 521 (2016) (“Here, the State concedes that it has

suffered no prejudice as a result of defendant’s defective notice of appeal, which we

interpret to mean that the State was not misled by the defective notice. Therefore,

as defendant’s notice of appeal was defective through no fault of his own, and the

State was not misled as a result thereof, we grant certiorari[.]” (internal citations

and quotation marks omitted)).

II. Limiting Instruction Concerning Alco-Sensor Test

Defendant’s first argument on appeal is that the trial court erred by failing to

provide a limiting instruction in connection with Trooper Sudduth’s testimony that

she tested positive for alcohol on her Alco-Sensor test. Specifically, she contends the

trial court was required to inform the jury that it could not consider this portion of

his testimony as substantive evidence of her impairment. We disagree.

Prior to trial, Defendant filed a motion in limine to “exclude the introduction

of the alco-sensor result as substantive evidence.” At trial, prior to Trooper Sudduth’s

testimony on this subject, the trial court heard arguments on Defendant’s motion

outside of the presence of the jury. The court ultimately ruled that the State could

inquire of Trooper Sudduth whether the result of the Alco-Sensor test was positive

for alcohol, but not as to the actual numerical results of the test. Defendant’s trial

counsel then stated the following: “So is that offered for reasonable grounds to his

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belief that [Defendant] was impaired? Because if it is, I would ask that he be limited

and he not be able to argue that in his final argument.” However, defense counsel

did not specifically request that a limiting instruction actually be given to the jury.

Because Defendant did not specifically request a limiting instruction

concerning Trooper Sudduth’s testimony, we review her argument on this issue only

for plain error. See State v. Demos, 148 N.C. App. 343, 348-49, 559 S.E.2d 17, 21

(“The defendant, having failed to specifically request or tender a limiting instruction

at the time the evidence was admitted, is not entitled to have the trial court’s failure

to give limiting instructions reviewed on appeal. Accordingly, we review only for

plain error.” (internal citation omitted)), cert. denied, 355 N.C. 495, 564 S.E.2d 47

(2002).

For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice — that, after examination of the entire record, the error had a probable impact on the jury’s finding that the defendant was guilty. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affects the fairness, integrity or public reputation of judicial proceedings.

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal citations,

quotation marks, and brackets omitted).

At trial, Trooper Sudduth testified as follows concerning the Alco-Sensor test:

Q. How many times did you, if more than one, how many

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times did you ask [Defendant] to provide a sample?

A. She incorrectly blew into the, barely blew into the AlcoSensor three times.

Q. After the third attempt, what action did you take to try to obtain a sample?

A. I asked for a fourth one.

Q. And did she provide a fourth one or make a fourth attempt?

A. She made a fourth attempt. As soon as I heard air go into the tube, I clicked the button immediately and was able to manually obtain the sample.

Q. And does the Alco-Sensor provide some indication as to whether that chamber then tested positive or negative for the presence of alcohol?

A. It does.

Q. And what, if any, result as to positive or negative did you receive at that time?

A. Positive.

Defendant relies primarily on State v. Fuller, 176 N.C. App. 104, 626 S.E.2d

655 (2006), in support of her assertion that the results of an Alco-Sensor test cannot

be used as substantive evidence of impairment at trial and, therefore, the trial court

erred in failing to give a limiting instruction regarding Trooper Sudduth’s testimony.

In Fuller, the defendant was charged with driving while impaired. At trial, the officer

testified that he had formed the opinion that the defendant was under the influence

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of alcohol based, in part, on the results of an Alco-Sensor test. Id. at 106, 626 S.E.2d

at 656. The defendant objected to the officer’s reference to the Alco-Sensor test, and

the trial court sustained the objection, instructing the jury to disregard the

statement. Id. The defendant then moved for a mistrial, which the trial court denied,

and the defendant appealed. Id. at 106, 626 S.E.2d at 657.

On appeal, we held as follows:

During cross-examination, defendant’s attorney questioned Corporal Flood regarding what he relied upon to determine that defendant was appreciably impaired prior to arresting her. Corporal Flood replied that he had relied upon “[a] strong odor of alcohol . . . red glassy eyes, her speech, and then also with the backings of an Alco– Sensor test that was performed.”

North Carolina General Statutes, section 20-16.3(d) (2003) controls the use of alcohol screening results as evidence. Section 20-16.3(d) provides, in relevant part, “[e]xcept as provided in this subsection, the results of an alcohol screening test may not be admitted in evidence in any court or administrative proceeding.” (emphasis added). In the case sub judice, Corporal Flood did not testify regarding the results of the Alco-Sensor test, only that one was administered. The results of an alcohol screening test may be used by an officer to determine if there are reasonable grounds to believe that a driver has committed an implied-consent offense under G.S. 16.2. Accordingly, Corporal Flood’s testimony that he relied on the alcohol screening in making the determination that he had reasonable grounds to arrest defendant for DWI was properly admissible. Additionally, immediately after Corporal Flood’s testimony regarding his reliance on the Alco-Sensor results the trial court instructed the jury to dismiss that statement from their minds and not consider it in deliberations. The trial court then asked the jurors to

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each raise their hand if they could follow the trial court’s instruction. All jurors raised their hand in response. Accordingly, this assignment of error is overruled.

Id. at 109, 626 S.E.2d at 658 (internal citations and quotation marks omitted). In the

present case, Defendant contends the trial court erred in failing to give comparable

instructions to the jury following Trooper Sudduth’s testimony regarding her Alco

Sensor test.

After Fuller was decided, N.C. Gen. Stat. § 20-16.3(d) was amended. See 2006

Sess. Laws 1,178, 1,183-84, ch. 253, §7. Subsection (d) currently reads, in pertinent

part, as follows:

(d) Use of Screening Test Results or Refusal by Officer. — The fact that a driver showed a positive or negative result on an alcohol screening test, but not the actual alcohol concentration result, or a driver’s refusal to submit may be used by a law-enforcement officer, is admissible in a court, or may also be used by an administrative agency in determining if there are reasonable grounds for believing:

(1) That the driver has committed an impliedconsent offense under G.S. 20-16.2; and

(2) That the driver had consumed alcohol and that the driver had in his or her body previously consumed alcohol, but not to prove a particular alcohol concentration. . . .

N.C. Gen. Stat. § 20-16.3(d) (2015) (emphasis added).

This Court applied the amended version of the statute in State v. Townsend,

__ N.C. App. __, 762 S.E.2d 898 (2014). In Townsend, we stated that “[a]lthough the

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results of a defendant’s alco-sensor test are not admissible as substantive evidence,

an officer who arrests a defendant for driving while impaired may testify that a

defendant’s alco-sensor test indicated the presence of alcohol.” Id. at __, 762 S.E.2d at

905 (internal citation omitted and emphasis added). We further explained that the

“actual numerical results” of a defendant’s Alco-Sensor test are inadmissible “as only

a positive or negative result on an alcohol screen test may be admissible in court.”

Id. at __, 762 S.E.2d at 906 (citation and quotation marks omitted).

Therefore, Townsend makes clear that an officer may testify that a defendant’s

Alco-Sensor test was positive for the presence of alcohol. This is precisely what

happened in the present case. Moreover, we note that Trooper Sudduth mentioned

the positive Alco-Sensor result in the course of recounting his narrative of the events

in their entirety that led to Defendant’s arrest. Trooper Sudduth did not testify as to

the actual numerical results of her test.

Defendant has failed to cite any caselaw interpreting the amended version of

N.C. Gen. Stat. § 20-16.3(d) as requiring that the jury be given a limiting instruction

under the circumstances presented here, and we decline to adopt such a requirement.

Therefore, Defendant’s argument on this issue is overruled.

III. Supervised Probation

Defendant next contends that the trial court erred by failing to exercise its

discretion when it placed Defendant on supervised probation. Specifically, Defendant

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argues that the trial court operated under a misapprehension of the law —

mistakenly believing that it was required to order supervised probation based on its

simultaneous imposition of a fine.

Defendant’s argument on this issue is based on the following exchange at trial:

THE COURT: . . . . I’ll put her on supervised probation. When she pays her fines and fees -- do you not want to be put on probation? You have to pay all your money today if not.

THE DEFENDANT: Ma’am, I don’t have the money. I don’t have a car. My car is broke down so I have no way to get back and forth to no probation. I’m not a person that’s going to be fleeing or trying to evade the law, so I don’t see why I need to be on supervised probation.

THE COURT: Well, if I don’t put you on probation, then you have to pay all your money today, which is going to end up being over $1,000. If you can’t pay it then you have to go to jail. I don’t think you want to do that.

THE DEFENDANT: That’s fine.

THE COURT: She’s found guilty by a jury of her peers to driving while impaired. Two mitigating factors, safe driving record, and her driving was safe and lawful except for the impairment. There are no aggravating or grossly aggravating factors. Level 5 will be the appropriate sentencing level. Let her be confined to the custody of the Sheriff of Davidson County for a period of 60 days. Sentence suspended, placed on supervised probation for 18 months under the following terms and conditions: First, she pay the cost of court and a fine in the amount of $100.00. Second, she is to perform 24 hours of community service work within the first 60 days of her supervised probation. Pay the fee for that community

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service work. That she is to surrender any driver’s license in her possession to the Clerk of Court for transmittal to the Division of Motor Vehicle, and not operate a motor vehicle on the streets or highways of North Carolina until she either has a valid driving privilege -- I’m assuming her suspension is up, is that right, her year suspension? Do you know?

MR. MARTIN: Yes, ma’am.

“When the trial court gives no reason for a ruling that must be discretionary,

we presume on appeal that the court exercised its discretion. However, where the

statements of the trial court show that the trial court did not exercise discretion . . .

the presumption is overcome, and the denial is deemed erroneous.” State v. Starr,

365 N.C. 314, 318, 718 S.E.2d 362, 365 (2011) (internal citations and quotation marks

omitted).

Defendant cites N.C. Gen. Stat. § 15A-1362 for the proposition that a trial court

is not required to order supervised probation when it imposes a fine against a

defendant. N.C. Gen. Stat. § 15A-1362 states, in pertinent part, as follows:

(b) Installment or Delayed Payments. — When a defendant is ordered to pay a fine, the court may provide for the payment to be made within a specified period of time or in specified installments. If no such provision is made a part of the sentence, the fine is payable forthwith.

N.C. Gen. Stat. § 15A-1362(b) (2015).

Defendant argues that “[n]othing in N.C.G.S. § 15A-1362(b), or in the cases

interpreting this statute, mandates the trial court to order supervision when

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imposing fines.” Defendant then states that “[s]ince, as the statutes provide, the trial

court need not impose probation at all in order to impose a fine, it follows that the

trial court need not necessarily impose supervised probation to accompany the

imposition of a fine.”

The fatal flaw in Defendant’s argument is that nothing in the above-quoted

exchange from trial suggests that the trial court operated under a misapprehension

of the law. Instead, it demonstrates that the court simply chose to order supervised

probation while simultaneously imposing a fine against Defendant. It does not — as

Defendant suggests — demonstrate that the trial court believed it was required, as a

matter of law, to do so. Therefore, in the absence of any statements or other evidence

to the contrary, the trial court is presumed to have exercised its discretion in reaching

its decision. See Starr, 365 N.C. at 318, 718 S.E.2d at 365 (“When the trial court gives

no reason for a ruling that must be discretionary, we presume on appeal that the

court exercised its discretion.”).

IV. Civil Judgments

Defendant’s final argument on appeal is that the trial court erred by ordering

her to pay attorneys’ fees without first being afforded an opportunity to be heard on

that issue. We agree.

N.C. Gen. Stat. § 7A-455 permits the trial court to enter a civil judgment

against a convicted indigent defendant in the amount of the fees incurred by the

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defendant’s trial counsel. N.C. Gen. Stat. § 7A-455 (2015); see State v. Jacobs, 172

N.C. App. 220, 235, 616 S.E.2d 306, 316 (2005) (“N.C. Gen. Stat. § 7A-455 (2003)

provides that the trial court may enter a civil judgment against a convicted indigent

defendant for the amount of fees incurred by the defendant’s court-appointed

attorney.”).

However, North Carolina courts have repeatedly held that where a defendant

is not afforded an opportunity to be heard on this issue prior to the entry of a civil

judgment against her, the judgment must be vacated without prejudice to the State’s

right to subsequently apply for such relief pursuant to N.C. Gen. Stat. § 7A-455. We

discussed this issue in Jacobs as follows:

In State v. Crews, 284 N.C. 427, 201 S.E.2d 840 (1974), our Supreme Court noted that there was no evidence in the record supporting or negating the defendant’s contention that a judgment imposing attorney’s fees was entered without notice or opportunity for him to be heard. Accordingly, the Court vacated the judgment “without prejudice to the State’s right to apply for a judgment in accordance with G.S. 7A-455 after due notice to defendant and a hearing[.]” Id. at 442, 201 S.E.2d at 849-50. Similarly, in State v. Stafford, 45 N.C. App. 297, 300, 262 S.E.2d 695, 697 (1980), this Court vacated a civil judgment imposing attorney’s fees on the defendant where, notwithstanding a signed affidavit of indigency, there was “no indication [in the record] that [the] defendant received any opportunity to be heard on the matter” of attorney’s fees.

Jacobs, 172 N.C. App. at 235, 616 S.E.2d at 316.

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In the present case, the following exchange occurred at trial concerning

attorney’s fees:

THE COURT: [Defendant’s] court appointed attorney fee in the amount of $1,100, if my math is correct, at the $60 rate, to be forwarded for that attorney. The Court will make that a civil judgment against her because of all of her other fines and fees. Last, she be on vigilant behavior, not violate any laws of the State of North Carolina. As to the no registration -- which one was the Class II misdemeanor again?

MR. MARTIN: Registration violation.

THE COURT: I’ll let the registration violation be consolidated with the lamps, to driving without head lamps, and let her pay the cost of court for that. She may have -- I’m going to remit the cost in this one. She’s paying the cost in the driving while impaired. I’m going to remit the cost in this one, so cost remitted. And I think that’s it.

MR. MARTIN: Did we include in the civil judgment for attorney fees, Miss Johnson’s fees? She had to try the matter in District Court also.

THE COURT: That was $550. Another judge signed that judgment so I don’t know --

COURT CLERK: You can either incorporate it into probation and we can submit it as a civil judgment.

THE COURT: It looks like it was $550. Then I have another for $275 --

[Brief Pause]

THE COURT: You’re her third lawyer?

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MR. MICHAEL: Am I?

THE COURT: Did you ever have Timothy Smith?

THE DEFENDANT: No, ma’am.

THE COURT: Oops, this is in the wrong file. But it’s $550 for Miss Johnson. And I’m just going to leave the -- that will also become a civil judgment against her, Miss Johnson’s fee.

MR. MARTIN: Thank you.

THE COURT: Thank you.

MR. MARTIN: That is our business for the day, your Honor. We’ll have probation violations bright and early in the morning.

THE COURT: If you would add, once she’s paid her fines and fees she’ll be transferred to unsupervised, Miss Farabee. Thank you. [Proceedings conclude at 4:16 p.m.]

Thus, the court entered civil judgments against Defendant in the amounts of

$1,100.00 and $550.00, respectively.

On this issue, the present case cannot be meaningfully distinguished from

Jacobs. In both cases, the trial courts — in essence — informed the defendants that

civil penalties were being awarded against them but did not provide them with any

opportunity to be heard on the matter. As we stated in Jacobs,

[t]his exchange clearly demonstrates that defendant was given notice of the trial court’s intention to impose attorney’s fees upon him. However, while the transcript

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reveals that attorney’s fees were discussed following defendant’s conviction, there is no indication in the record that defendant was notified of and given an opportunity to be heard regarding the appointed attorney’s total hours or the total amount of fees imposed.

Jacobs, 172 N.C. App. at 236, 616 S.E.2d at 317.

We then held “in light of the foregoing, we vacate the trial court’s imposition

of attorney’s fees in this matter. On remand, the State may apply for a judgment in

accordance with N.C. Gen. Stat. § 7A-455, provided that defendant is given notice

and an opportunity to be heard regarding the total amount of hours and fees claimed

by the court-appointed attorney.” Id.

Jacobs is somewhat distinguishable factually from the present case given that

there the actual amount of attorneys’ fees to be awarded had yet to be calculated at

the time the trial court entered the civil judgment against the defendant.

Nevertheless, this distinction does not alter the fact that in both cases the trial courts

did not afford the defendants any opportunity to be heard before entering civil

judgments against them.

Therefore, the entry of civil judgments against Defendant constituted error.

Accordingly, we vacate the trial court’s civil judgments without prejudice to the

State’s right to reapply for such relief in conformity with N.C. Gen. Stat. § 7A-455.

For the reasons stated above, we conclude that Defendant received a fair trial

free from error, but we vacate the civil judgments entered against her.