To prove impaired driving, the State must establish that the defendant drove a vehicle while impaired. A person drives when he or she is “actual physical control of a vehicle which is in motion or which has the engine running.” G.S. 20-4.01(25). Sometimes the State may establish driving through direct evidence. For example, a law enforcement officer or another witness may observe the defendant driving and may testify to that fact. In other cases, a law enforcement officer may encounter the person the officer believes was driving after the driving has concluded, perhaps in or near the car or at some other location. In those cases, the State may seek to establish driving based on circumstantial evidence. The Court of Appeals’ recent opinion in State v. Rouse, 2022-NCCOA-496, __ N.C. App. ___ (July 19, 2022), considers when such circumstantial evidence is sufficient to survive a motion to dismiss.
State v. Rouse. Charles Hewett was in the back yard of his mother’s house in Bolivia, NC when he heard a crash. He ran to the front yard and saw that a pickup truck had crashed nose first into a ditch alongside the road. A man with a bleeding nose was sitting in the driver’s seat. Hewett talked to the man who asked Hewett to help him pull the truck out of the ditch. Hewett declined. Someone called 911. The man then left the scene on foot, walking in a “’wobbly’” manner and eventually appearing to head down a dirt road into the woods. Slip op. at ¶ 3.
Law enforcement officers arrived 10 to 15 minutes after the man left. Hewett described the man and where he had gone, and officers became to search the area. They located Steven Rouse, the man to whom the truck was registered, on the ground behind a bush about a quarter mile from the site of the crash. The truck keys were in Rouse’s pocket. An officer drove Rouse back to the crash site. There, Hewett said he was “‘[a] hundred percent‘” sure Rouse was the man he had seen in the crashed truck. Id. at ¶ 5.
Rouse was convicted of habitual impaired driving based on this incident (a conviction that was itself habitualized under G.S. 14-7.6), and was sentenced to 131 to 170 months imprisonment. Rouse appealed, arguing in part that there was insufficient evidence to show that he was driving the vehicle. The Court of Appeals rejected that claim, concluding that while there was no direct evidence that Rouse drove and crashed his truck, the State presented substantial circumstantial evidence that Rouse was driving. The Court noted that such circumstantial evidence may suffice if it supports a reasonable inference of the defendant’s guilt. The Court concluded that standard was met in this case.
What was the substantial circumstantial evidence? Hewett arrived at the crash immediately after it occurred. He saw Rouse “sitting with a bloody nose in the driver’s seat of his own truck, the front of which rested in a ditch, with no one else nearby except Hewett’s family members who were at the house before the crash.” Slip op. at ¶ 53. One could infer from this that Rouse was driving the truck when it crashed and may have hit his nose on the steering wheel. Rouse asked Hewett to help him get the truck out of the ditch, showing his “continued intent to possess and control his truck and . . . to avoid interaction with law enforcement related to any investigation of the accident.” Id. Officers found Rouse hiding behind a bush in the vicinity of the crash with the keys in his pocket.
In addition, Rouse told someone while he was in jail that the last time he was accused of DWI “’he wasn’t guilty, but this time he probably was; he was going to go to jail for a long time,’” thus evincing overall guilt for the offense, including the element of driving. Slip op. at ¶ 54.
Rouse argued that in other similar cases considered by the appellate courts, the evidence of driving was more substantial. The Court rejected that argument, noting that the question was whether the State’s evidence was sufficient, not whether it was as compelling as the evidence in other cases.
What have the appellate courts said in comparable cases?
In State v. Burris, 253 N.C. App. 525 (2017), the Court deemed the State’s circumstantial evidence of driving to be sufficient when the defendant was found sitting in the driver’s seat of a car registered to him with the engine off while parked by the front door of a hotel rather than in a parking spot and the defendant admitted to driving.
In State v. Clowers, 217 N.C. App. 520 (2011), the Court found sufficient evidence of driving based the following direct and circumstantial evidence: A witness saw a red car being driven erratically, and she followed and observed the car until it stopped and law enforcement officers arrived. The witness did not see anyone get out of the car. The testifying officer arrived as another officer was talking to the defendant, who was sitting in the driver’s seat.
In State v. Dula, 77 N.C. App. 473 (1985), the court found sufficient evidence that the defendant was driving where the driver of another car saw black tire marks on the highway, dust in the air, and a car, with its headlights on, lying on its top in a field near the highway. The driver of the other car stopped at the scene and found the defendant in the overturned car, the doors of which were closed and the windows rolled up. He did not see anyone else in the area. The investigating officer saw tire marks leading from the black marks on the highway across the highway shoulder and into the field where the overturned car was located. The officer could not open the car doors. Testimony from a witness for the defendant that the witness was driving the car and fled the scene did not render the State’s evidence insufficient.
Likewise, in State v. Riddle, 56 N.C. App. 701 (1982), the court found sufficient evidence of driving where the defendant was seen getting out of the car immediately after the collision and no one else was seen in or near the car. The defendant said that his friend had been driving and left the scene of the accident, running through the woods. A witness and law enforcement officers checked the woods and discovered no evidence to support the defendant’s claim.
The defendant in Riddle claimed that the driver of the car left through the driver’s side door, but an investigating law enforcement officer was unable to open that door because of the damage it sustained during the collision. When the wrecker driver arrived, the defendant pulled the keys to the car out of his pocket and handed them to the wrecker driver.
The court reached a different conclusion in State v. Ray, 54 N.C. App. 473 (1981). finding insufficient evidence to support the impaired driving charge where the only evidence that the defendant was driving was that he was sitting “halfway [in] the front seat.” Id. at 475. In Ray, an officer responded to an accident call and saw the defendant seated in a car that had hit two parked cars. There was no evidence that the car had been operated recently or that the motor was running.
Corpus delicti. The Court of Appeals has employed a similar analysis to evaluate whether the rule of corpus delicti (discussed here) renders the State’s evidence insufficient to convict.
In State v. Foye, 220 N.C. App. 37 (2012), the Court considered the following evidence to establish substantial evidence, independent of the defendant’s confession, that the defendant was driving his car when it crashed: An officer heard a car crash and responded to the scene. He found a car registered to the defendant in a ditch. No one was in the car and the keys were not in the ignition. The driver’s side door was jammed closed. There was blood between the driver’s seat and passenger seat, on the steering wheel, and on the back of the passenger seat. Officers found the defendant walking on a road near the accident about 30 minutes later. He had an injury to the left side of his cheek, consistent with the impact of a steering wheel or seatbelt, and blood on his hands.
Rules are the same for DWI cases. The Rouse Court explained that DWI is no different from “any other area of law when it comes to circumstantial evidence sufficing to withstand a motion to dismiss and support a conviction.” Id. at 52. (internal citations omitted). While that certainly is true for the governing legal standard, considering the appellate courts’ application of facts to that standard in the context of impaired driving cases can help litigants evaluate whether circumstantial evidence will clear the sufficiency threshold.