State v. Guerrero, ___ N.C. App. ___, 2021-NCCOA-457 (Sept. 7, 2021)

The defendant was arrested for driving while impaired. At the jail, the defendant provided a breath sample, and his alcohol concentration was reported as 0.09. The defendant pled not guilty to impaired driving in district court. Following a bench trial, the judge found the defendant guilty of impaired driving and imposed a Level Five sentence pursuant to G.S. 20-179. The defendant gave notice of appeal in open court.

At trial in superior court, the judge denied the defendant’s request for a special jury instruction and instead delivered the pattern jury instruction for impaired driving. The jury found the defendant guilty of impaired driving. During sentencing, the defendant argued for three statutorily mandated mitigating factors, only one of which the judge ultimately found. The judge imposed a Level Five sentence and sentenced the defendant to 60 days in jail, suspended for 12 months of supervised probation and several special conditions of probation.

(1) On appeal, the defendant first argued that the trial court erred by denying the defendant’s request for a special jury instruction. The defendant claimed that the pattern jury instruction did not allow the jury an adequate opportunity to fully weigh the breath sample evidence. In rejecting this argument, the Court of Appeals held that the trial court’s instruction encompassed the substance of the law requested. The Court further found that the trial judge instructed the jurors that (1) they “are the sole judges of the weight to be given to any evidence”; (2) they “should weigh all the evidence in the case”; (3) they “should consider all the evidence”; and (4) “it is their duty to find the facts and to render a verdict reflecting the truth,” which signaled to the jury that they were free to analyze and weigh the effect of the breath sample evidence along with all the evidence presented during the trial. Slip op. at ¶ 13.

(2) The defendant next argued that the trial court erred by failing to find two statutory mitigating factors and that the error was prejudicial because he received supervised probation as part of his sentence. Under G.S. 20-179, Level Five is the minimum sentencing level that a defendant can statutorily receive for impaired driving, and a defendant may be placed on probation as part of a Level Five sentence. The Court of Appeals determined that the trial judge erred by failing to find one of the mitigating factors. However, the Court concluded that the defendant was not prejudiced because even if the trial judge had found the two additional mitigating factors, the judge could not have sentenced the defendant at a lower sentencing level under the impaired driving statutes.

(3) The defendant’s final argument was that the trial court erred by sentencing the defendant more harshly because the defendant exercised his right to a trial by jury. In rejecting this argument, the Court of Appeals concluded that the defendant’s punishment fit within the statutory limit and the defendant did not overcome the “presumption of regularity” by showing that “the court considered irrelevant and improper matters in determining the severity of the sentence.” Slip op. at ¶ 27. The defendant also argued that the trial judge relied on uncharged criminal conduct not found by the jury because the defendant was asked about his marijuana use. The Court of Appeals declined to consider this argument because the defendant did not assert his Fifth Amendment privilege or object at trial and thus waived the argument for appeal.