State v. Smith, COA23-645, ___ N.C. App. ___ (Mar. 5, 2024)

In this Robeson County case, defendant appealed his conviction for driving while impaired (DWI), arguing error in denying his motion to dismiss and ineffective assistance of counsel. The Court of Appeals dismissed defendant’s argument regarding the motion to dismiss, and found no ineffective assistance of counsel.  

In April of 2019, a trooper from the State Highway Patrol arrested defendant after responding to a collision. The trooper observed signs of intoxication and administered field sobriety tests, determining defendant showed signs of intoxication. During the trial at superior court, defendant moved to dismiss the DWI charge for insufficient evidence prior to putting on evidence, but did not renew his motion to dismiss at the close of all evidence. 

The Court of Appeals first established that under Rule of Appellate Procedure 10(a)(3), defendant’s failure to renew his motion after putting on evidence waived his argument regarding denial of the motion to dismiss. The court dismissed that portion of defendant’s appeal, and moved to the ineffective assistance of counsel claim, which was predicated on defense counsel failing to renew the motion to dismiss. 

To show ineffective assistance of counsel, defendant had to satisfy the two-part test from Strickland v. Washington, 466 U.S. 668 (1984), showing deficient performance and that the deficient performance prejudiced defendant. Here, the court explained that “to prevail on an ineffective assistance of counsel claim in which the defendant argues that his counsel failed to renew his motion to dismiss, the defendant must show that there is a reasonable probability that the trial court would have allowed the renewed motion.” Slip Op. at 7. The court did not find that in the current case, as “when viewing the evidence in the light most favorable to the State, there was substantial evidence that Defendant was driving while impaired.” Id. at 9.