State v. Vaughn

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-297

Filed 3 December 2024

Pitt County, Nos. 19 CRS 54103, 708510

STATE OF NORTH CAROLINA

v.

MATTHEW STEPHEN VAUGHN, Defendant.

Appeal by Matthew Stephen Vaughn from judgment entered 23 June 2022 by

Judge Marvin K. Blount III in Pitt County Superior Court. Heard in the Court of

Appeals 17 October 2023.

Attorney General Joshua H. Stein, by Assistant Attorney General Steven C.

Wilson, Jr., for the State.

The Robinson Law Firm, P.A., by Attorney Leslie S. Robinson, for the

defendant-appellant.

STADING, Judge.

I. Background

At 3:30 A.M. on 8 June 2019, North Carolina Highway Patrolman Brandon

Cruz (“Trooper Cruz”) observed a vehicle operated by Matthew Stephen Vaughn

(“Defendant”). He was speeding at an estimated sixty miles per hour in a forty-five

mile per hour zone. After confirming the speed at sixty-two miles per hour with his

radar, Trooper Cruz initiated a traffic stop and Defendant pulled over to the side of

the road. Defendant stated that he did not intend to speed. Trooper Cruz smelled an

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odor of alcohol coming from Defendant’s breath and saw that his eyes were red and

glassy. Defendant also told Trooper Cruz that he had consumed an alcoholic drink

“about an hour” before the encounter. Trooper Cruz observed a wristband on

Defendant and learned he was coming from a “nightclub” located “just a couple of

miles” from the stop.

On account of his observations, Trooper Cruz requested that Defendant step

out of the vehicle and walk behind his patrol car for the administration of field

sobriety tests. When walking, Defendant did not display problems with balance or

coordination. The patrol car was equipped with video recording capabilities, but the

location to which Defendant was directed for administration of the tests was not

captured by the camera. As part of his training, Trooper Cruz had completed a

twenty-four-hour course and refresher courses on the administration of standardized

field sobriety tests. He had also participated in “hundreds” of driving while impaired

investigations. Trooper Cruz began with administration of the Horizontal Gaze

Nystagmus (“HGN”) test and then the Vertical Gaze Nystagmus (“VGN”) test. With

respect to the HGN test, Trooper Cruz observed six out of six possible clues present,

though VGN was not present. No other field sobriety tests were administered,

namely the walk and turn and one-leg stand tests, because Trooper Cruz did not feel

“that it [was] safe” to administer those tests in that location.

Next, Trooper Cruz requested that Defendant provide a sample of his breath

on a portable breath test (“PBT”). While waiting to obtain a second breath sample,

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Defendant sat with Trooper Cruz in the patrol car. At this time, Trooper Cruz noted

that Defendant had a blank stare on his face and a strong odor of alcohol on his

breath. Defendant stated that he was not “supposed to be driving that particular

vehicle due to insurance purposes, especially while drinking and driving.” Trooper

Cruz then requested a second breath sample from Defendant. Based on the strong

odor of alcohol, unfocused eyes, admission to drinking, and field sobriety tests results,

Trooper Cruz arrested Defendant for suspected impaired driving. Trooper Cruz then

read Defendant his Miranda rights. Defendant also received a citation for speeding.

Following his arrest, Defendant was transported to the Pitt County Detention Center

where he provided a sample of his breath on the Intoxilyzer EC/IR II which showed

an alcohol concentration in excess of the legal limit.

The State called Defendant’s case for trial in Pitt County Superior Court on 14

June 2022. Pretrial, Defendant moved to suppress evidence of the HGN test and PBT

on the grounds that they were improperly administered. Defendant also argued that

he exercised his Miranda rights, and therefore, video-captured conversation between

him and Trooper Cruz occurring after and contemporaneously with the invocation of

these rights is inadmissible. After seeing the State’s video exhibit, the trial court

denied the motion to suppress with respect to the HGN test. However, the trial court

gave a limiting instruction to the jury for the administration of the first PBT and

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excluded all evidence of the second PBT.1

At trial, the State offered the testimony of Trooper Cruz and admitted a video

of the stop; Defendant cross-examined the trooper and offered into evidence the

National Highway Traffic and Safety Administration DWI Detection and

Standardized Field Sobriety Testing Participant Manual (“NHTSA Manual”). Nat’l

Hwy. Traffic Safety Admin., U.S. Dep’t of Transp., DWI Detection and Standardized

Field Sobriety Test Participant Manual (2018). Defendant renewed his motions to

suppress at trial, which the trial court denied. The trial court subsequently

memorialized its ruling on the motion in a written order. The trial court also

permitted the State to introduce evidence of the Miranda rights advisement. After

the trial court’s rulings, among other things, the State introduced evidence before the

jury of Defendant’s HGN clues and Intoxilyzer EC/IR II reported alcohol

concentration results of .10 grams of alcohol per 210 liters of breath. At the close of

the State’s evidence and close of all the evidence, Defendant moved to dismiss the

charges against him for lack of substantial evidence, which the trial court denied.

Subsequently, the jury found Defendant guilty of driving while impaired and

speeding. Defendant timely entered his notice of appeal.

II. Jurisdiction

This Court has jurisdiction to consider Defendant’s appeal pursuant to N.C.

1 The State did not seek to introduce evidence of the results of either PBT sample.

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Gen. Stat. §§ 7A-27(b)(1) (2023) (superior court’s final judgment) and 15A-1444(a)

(2023) (pled not guilty but found guilty).

III. Analysis

Defendant raises five issues on appeal: whether the trial court erred by (1)

admitting evidence of the speed results of the radar; (2) admitting video evidence of

the advisement of his Miranda rights; (3) denying his motion to suppress; (4)

admitting evidence of the Intoxilyzer EC/IR II test result; and (5) denying his motion

to dismiss. After reviewing the record, we hold that trial court did not commit error

in the first three issues raised by Defendant. However, for reasons discussed in-depth

below, the trial court prejudicially erred in admitting the breath test result without

the proper foundation and a new trial is necessary. Consequently, we do not reach

consideration of the trial court’s denial of Defendant’s motion to dismiss.

A. Radar Foundation

Defendant first argues that the trial court erred in admitting evidence of

Trooper Cruz’s radar results because the State failed to establish the requisite

foundation for admission. More precisely, Defendant posits that the trial court

committed error by admitting the radar numerical reading because the State failed

to elicit the exact name of the agency that approved the radar model, issued the

operator’s certificate, and inspected the device. Generally, to preserve an issue for

our review, “a party must . . . present[ ] to the trial court a timely objection[ ] or

motion [that] stat[es] the specific grounds for the ruling the party desire[s] the court

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to make . . . .” N.C. R. App. P. 10(a)(1). Here, when the State sought to introduce

evidence of the radar reading to the jury, Defendant’s trial counsel preserved this

issue for our review by objecting to the lack of foundation of testimony regarding the

radar results, seemingly challenging the competency of the witness.

Rule of Evidence 602 states that “[a] witness may not testify to a matter unless

evidence is introduced sufficient to support a finding that he has personal knowledge

of the matter.” N.C. Gen. Stat. § 8C-1, R. 602 (2023). Moreover, Chapter 8, Article 7

of the North Carolina General Statutes sets out the standards for “Competency of

Witnesses” under specific circumstances. Relevant here, radar results “shall be

admissible as evidence of . . . speed in any criminal . . . proceeding for the purpose of

corroborating the opinion of a person as to the speed of an object. . . .” Id. § 8-50.2(a)

(2023) (emphasis added). “Corroborating evidence is supplementary to that already

given and tending to strengthen or confirm it.” State v. Burns, 307 N.C. 224, 231, 297

S.E.2d 384, 388 (1982) (citation omitted).

That said, such results are not admissible unless it is found that:

(1) The operator of the instrument held, at the time the

results of the speed-measuring instrument were obtained,

a certificate from the North Carolina Criminal Justice

Education and Training Standards Commission

(hereinafter referred to as the Commission) authorizing

him to operate the speed-measuring instrument from

which the results were obtained.

(2) The operator of the instrument operated the speed-

measuring instrument in accordance with the procedures

established by the Commission for the operation of such

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instrument.

(3) The instrument employed was approved for use by the

Commission and the Secretary of Public Safety pursuant to

G.S. 17C-6.

(4) The speed-measuring instrument had been calibrated

and tested for accuracy in accordance with the standards

established by the Commission for that particular

instrument.

N.C. Gen. Stat. § 8-50.2(b).

North Carolina’s Administrative Code (“the Code”) provides the Commission’s

standards regarding certification and implementation of standards. See 12 N.C.

Admin. Code 9C.0300, 9C0600 (2023). Law enforcement officers using a “speed[-

]measuring instrument,” shall “hold certification from the Commission authorizing

the officer to operate the speed[-]measuring instrument.” 12 N.C. Admin. Code

9C.0308(a). And “[s]uch certification is for a three[-]year period from the date of issue

and re-certifications is for a three[-]year period from the date of issue, unless sooner

terminated by the Commission.” 12 N.C. Admin. Code 9C.0308(c). The Code specifies

that a list of “approved speed-measuring instruments” is contained in a referenced

publication by the North Carolina Justice Academy. 12 N.C. Admin. Code

9C.0601(3). Similarly, the Code “establish[es] the minimum requirements and test

methods for determining the accuracy of speed-measuring instruments used by law

enforcement agencies,” including annual and daily test standards and methods as

outlined in a publication by the North Carolina Justice Academy. 12 N.C. Admin.

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Code 9C.0607. Also, “[t]he operating procedures for each specific [r]adar . . . speed-

measuring instrument” is outlined in a publication by the North Carolina Justice

Academy and incorporated by reference in the Code. 12 N.C. Admin. Code 9C.0608.

Although our Court has not yet addressed the standard of review for testimony

corroborating a radar reading, a review of analogous cases supports application of the

abuse of discretion standard. See State v. Tellez, 200 N.C. App. 517, 526, 684 S.E.2d

733, 739 (2009) (citation omitted) (“The abuse of discretion standard applies to

decisions by a trial court that a statement is admissible for corroboration.”); see also

State v. Gettys, 243 N.C. App. 590, 594, 777 S.E.2d 351, 355 (2015) (citation omitted)

(determining abuse of discretion is the standard of review for assessing an

evidentiary ruling admitting a recorded interview for corroboration.). Accordingly,

we will apply an abuse of discretion standard of review to the trial court’s decision to

admit the radar results corroborating the trooper’s testimony. Under this standard,

“a trial judge’s discretion may be reversed only if it is manifestly unsupported by

reason or so arbitrary that it could not have been a reasoned decision.” State v.

Pickens, 385 N.C. 351, 360, 893 S.E.2d 194, 200 (2023) (citation omitted).

In his testimony about operation of the radar, Trooper Cruz did not specifically

note that his certificate was from “the North Carolina Criminal Justice Education

and Training Standards Commission” (“the Commission.”). Furthermore, he did not

testify that this radar was approved by the Commission. Nor did Trooper Cruz use

the exact words that this radar was operated or calibrated and tested for accuracy in

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accordance with the standards of the Commission. Nonetheless, Trooper Cruz

testified that he had “a permit to operate” the “approved” radar and referenced the

model used. He also stated that he was “certified” from “radar training” and had to

“requalify” every three years. Additionally, he explained the steps necessary to

operate the radar. Finally, Trooper Cruz testified, “After each traffic enforcement

you have to do . . . a tune and fork test. . . . And then once a year we have

technicians . . . make sure . . . everything is calibrated correctly. . . .” He followed up

by confirming this particular radar had been calibrated.

We are tasked with determining whether the trial court abused its discretion

by ruling that the trooper’s testimony was sufficient to admit the radar reading under

N.C. Gen. Stat. § 8-50.2(b). Defendant urges us to hold that the testimony falls short,

and to employ the same logic used by our Court when considering admission of a blood

alcohol result as substantive evidence. See State v. Roach, 145 N.C. App. 159, 162,

548 S.E.2d 841, 844 (2001) (A proper foundation was not laid to show whether the

chemical analyst possessed a current permit issued by the Department of Health and

Human Services (“DHHS”).); see also State v. Franks, 87 N.C. App. 265, 360 S.E.2d

473 (1987) (Witness did not state whether he possessed a permit issued by DHHS on

the date he administered the breathalyzer test.). Contrary to Defendant’s

contentions, we see no parallel application of this reasoning. The radar reading

testimony corroborated a “visual estimation” of Defendant’s speed. See State v.

Jenkins, 80 N.C. App. 491, 495, 342 S.E.2d 550, 552 (1986) (“[T]he speed of a vehicle

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may not be proved by the results of radar measurement alone and . . . such evidence

may be used only to corroborate the opinion of a witness as to speed, which opinion is

based upon actual observation.”).

By comparison, a chemical analysis result is substantive evidence “deemed

sufficient . . . to prove a person’s alcohol concentration.” N.C. Gen. Stat. § 20-138.1

(2023). When seeking admission of a speed-measuring instrument reading to

corroborate the opinion of a witness, evidence of N.C. Gen. Stat. § 8-50.2(b)’s

requirements is necessary. However, there is no essential talismanic phrase such as

“approved by the North Carolina Criminal Justice Education and Training Standards

Commission.” As was done here, when the witness provides sufficiently specific

testimony permitting the trial court to logically conclude compliance with N.C. Gen.

Stat. § 8-50.2(b), the trial court does not abuse its discretion in admitting a radar

reading to corroborate speed estimation testimony by a witness.

B. Evidence of Miranda Advisement

Defendant next argues that the trial court violated his state Section Twenty-

Three and federal Fifth Amendment constitutional rights when it admitted video

testimony of Trooper Cruz reading Defendant his Miranda rights. The Self-

Incrimination Clauses of both our state and federal Constitutions guarantee

defendants’ rights against self-incrimination. See N.C. Const. art. I, § 23, cl. 3; U.S.

Const. amend V, cl. 3. Our state courts generally construe these constitutional

protections against self-incrimination via silence under the same Miranda rubric.

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See, e.g., State v. McCall, 286 N.C. 472, 212 S.E.2d 132 (1975) (acknowledging

application of Miranda v. Arizona, 384 U.S. 436 (1966), to state Self-Incrimination

Clause claims). The federal and state constitutions prohibit use of a defendant’s post-

Miranda exercise of his constitutional right to remain silent. See Doyle v. Ohio, 426

U.S. 610, 619, 96 S. Ct. 2240, 2245 (1976); see also State v. Moore, 366 N.C. 100, 104,

726 S.E.2d 168, 172 (2012). And although a trial court may not permit a defendant’s

silence to be used against him, under appropriate circumstances, it may admit

evidence that a defendant was read and understood his Miranda rights. See State v.

Carter, 335 N.C. 422, 432, 440 S.E.2d 268, 273 (1994) (upholding a trial court’s

decision to allow evidence that a defendant was read his Miranda rights according to

law because it tends to refute the characterization of the officers’ conduct as

unprofessional).

Here, the State sought to introduce a video of Trooper Cruz reading Defendant

his Miranda rights “to show the jury that [he] advised [Defendant of] his rights” as

he was “supposed to do.” The trial court, prosecutor, and Defendant’s counsel

engaged a substantive back-and-forth as to whether showing the footage at all would

run afoul of the rights Miranda is intended to protect. When advocating for admitting

the rights advisement in evidence at trial, the prosecutor noted an argument to the

trial court by Defendant’s counsel that “implied that [Trooper Cruz] deliberately

brought [ ] Defendant out of view of the camera when conducting the HGN test” to

attack his professionalism and ability to follow proper procedures. In fact,

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Defendant’s counsel pursued this exact line of questioning in front of the jury, asking

Trooper Cruz “[w]hy didn’t you have [Defendant] do [the HGN test] . . . so that the

jury could see that on the video?” He proceeded to question the trooper at length

about Defendant’s placement off-camera while conducting the HGN test.

Defendant’s counsel’s assertion supposes some relevant evidentiary purpose

beyond a bare use of Defendant’s silence against him—which the prosecution

refrained from at trial. The prosecution also adhered to the trial court’s express

condition to strictly cut the video off before Defendant responded to the Miranda

recitation in any manner. And contrary to Defendant’s urging, nothing in our

precedents indicates that the admission of the reading of Miranda rights, standing

alone, constitutes error. To constitute error, the admission of such evidence must

either impermissibly use the defendant’s silence against him or have no relevancy.

See, e.g., Moore, 366 N.C. at 104, 726 S.E.2d at 172 (holding “the admission of the

[defendant’s] post-Miranda testimony was error” because it impermissibly used his

silence against him); see also Carter, 335 N.C. at 432, 440 S.E.2d at 273 (holding the

trial court’s admission of the reading of the defendant’s Miranda warnings was

permissible because it was relevant to rebut defense counsel’s attacks on “the

professionalism of the conduct of the law enforcement officers who investigated the

case”); see also N.C. Gen. Stat. § 8C-1, Rule 401 (2023) (defining relevant evidence).

Thus, because the State made “[n]o specific inquiry or argument . . . about defendant’s

silence” as part of its case and such evidence was relevant to rebut assertions

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attacking the trooper’s conduct, we hold that the trial court did not err in admitting

the camera footage of Defendant being read his Miranda rights. Carter, 335 N.C. at

432, 440 S.E.2d at 273.

C. Motion to Suppress

Third, Defendant argues that Trooper Cruz lacked the probable cause to arrest

him for driving while impaired. In support of his argument, Defendant maintains

that the results of an improperly administered HGN test fall short of the necessary

threshold to sustain the trial court’s finding of probable cause. Moreover, Defendant

points to countervailing evidence of his mental acuity and physical dexterity.

A law enforcement officer may arrest a suspect without a warrant only if, as of

the arrest, the officer “ha[s] probable cause to suspect him of a crime.” State v.

Woolard, 385 N.C. 560, 570, 894 S.E.2d 717, 725 (2023). Probable cause arises from

“a reasonable belief, anchored in specific facts and objectively rational inferences,

that a particular person has committed a crime.” Id. at 570, 894 S.E.2d at 726. “[T]he

key question is whether a reasonable officer would find a supported, good faith, and

objectively rational basis to suspect a person of a crime.” Id. at 571, 894 S.E.2d at

726 (citation and internal quotation marks omitted).

1. HGN Test Administration

A variable underlying the trial court’s probable cause formulation was

Defendant’s performance on the HGN test. Defendant asserts that the HGN test

results were inadmissible because Trooper Cruz purportedly failed to follow the

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NHTSA Manual’s administration instructions. N.C. R. Evid. 702 governs a trial

court’s preliminary assessment of an expert’s admissible testimony. See State v.

Gray, 259 N.C. App. 351, 355, 815 S.E.2d 736, 739–40 (2018) (citing N.C. R. Evid 702).

Among other requirements not at issue here, the testimony’s proponent must show

that the expert has the “specialized . . . knowledge, skill, experience, training, or

education” sufficient to testify to his own evidentiary opinion. N.C. R. Evid. 702(a).

More specifically, an expert witness may testify “solely on the issue of impairment”

resulting from an HGN test “administered in accordance with the person’s training

by a person who has successfully completed training in HGN.” Id. at 702(a1)(1). “We

review a trial court’s ruling on admissibility of expert testimony pursuant to Rule

702(a) for an abuse of discretion.” State v. Hunt, 249 N.C. App. 428, 436, 790 S.E.2d

874, 881 (2016) (citing State v. McGrady, 368 N.C. 880, 883, 787 S.E.2d 1, 5 (2016)).

And reversal for abuse of discretion occurs “only upon a showing that its ruling was

manifestly unsupported by reason and could not have been the result of a reasoned

decision.” McGrady, 368 N.C. at 893, 787 S.E.2d at 11 (2016) (citation omitted).

When addressing the minimum qualifications for Trooper Cruz to offer HGN

testimony, Defendant’s attorney stated, “I don’t contest that he’s been trained and

meets the qualifications to be an expert.” Instead, Defendant suggests that Trooper

Cruz did not “appl[y] the principles and methods [of the HGN test] reliably to the

facts of [his] case.” N.C. R. Evid. 702(a)(3). Defendant’s argument rests on his

assertion that Trooper Cruz did not comply with an extrapolated minimum time

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requirement to administer the entire HGN test. However, Defendant’s exhibit, the

NHTSA Manual, contains no such requirement. Aside from the four-second

minimum required for the HGN clue of “distinct and sustained nystagmus at

maximum deviation,” and the VGN clue of “distinct and sustained” nystagmus at

“maximum elevation,” the other portions of the test require “approximate” rates of

speed for proper administration.2 The State produced countervailing evidence by

extensively questioning Trooper Cruz about the HGN test and following up by

confirming that he conducted the test in accordance with his training “in this

particular case.” In light of the evidence presented to the trial court, we cannot say

that its decision to admit the HGN test results “was manifestly unsupported by

reason and could not have been the result of a reasoned decision.” McGrady, 368 N.C.

at 893, 787 S.E.2d at 11.

2. Probable Cause to Arrest

The probable cause formula relevant to this case permits an officer to arrest

an impaired driving suspect if, “under the totality of the circumstances, he reasonably

believes that a motorist consumed alcoholic beverages and drove in a faulty manner

or provided other indicia of impairment.” Woolard, 385 N.C. at 571, 894 S.E.2d at

726 (citation and internal quotation marks omitted). “The standard of review in

2 See Nat’l Hwy. Traffic Safety Admin., U.S. Dep’t of Transp., DWI Detection and Standardized

Field Sobriety Test Participant Manual sec. 8, at 19, 23–24, 29–46 (2018) (discussing various steps of

HGN test), https://www.nhtsa.gov/sites/nhtsa.gov/files/documen

ts/sfst_full_participant_manual_2018.pdf

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evaluating the denial of a motion to suppress is whether competent evidence supports

the trial court’s findings of fact and whether the findings of fact support the

conclusions of law.” State v. Biber, 365 N.C. 162, 167–68, 712 S.E.2d 874, 878 (2011)

(citation omitted). “However, when . . . the trial court’s findings of fact are not

challenged on appeal, they are deemed to be supported by competent evidence and

are binding on appeal.” Id. at 168, 712 S.E.2d at 878 (citation omitted). “Conclusions

of law are reviewed de novo and are subject to full review.” Id. (citations omitted).

“Under a de novo review, the Court considers the matter anew and freely substitutes

its own judgment for that of the lower tribunal.” Id. (citation and internal quotation

marks omitted).

Following a comprehensive examination of Trooper Cruz and arguments of

counsel, the trial court found sufficient probable cause underlying Defendant’s arrest

for driving while impaired and denied his motion to suppress. The trial court’s

written order documented findings of fact in support its ruling: Trooper Cruz’s

extensive training and experience investigating the detection of impaired drivers;

Trooper Cruz observed a vehicle traveling sixty-two miles per hour in a forty-five

mile-per-hour zone; upon Trooper Cruz stopping the vehicle for speeding, Defendant

was in the driver’s seat; Trooper Cruz noted Defendant had an odor of alcohol coming

from his breath and red, glassy eyes when initially speaking with him; Defendant

admitted to drinking one hour prior; Trooper Cruz conducted the HGN test on

Defendant and observed “all six out of the six possible clues;” Trooper Cruz observed

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Defendant “swaying slightly” while conducting the HGN test; and later on, Trooper

Cruz observed a “blank stare” on Defendant’s face and “a very strong odor of alcohol”

coming from his breath. Considering its findings, the trial court concluded that

“Trooper Cruz possessed sufficient reliable and lawfully-obtained information at the

time of [Defendant’s] arrest to constitute a reasonable ground of suspicion supported

by circumstances sufficiently strong in themselves to warrant a cautious man in

believing that [Defendant] was guilty of driving while impaired.”

Defendant does not challenge any of the findings contained in the trial court’s

order; accordingly, they are deemed supported by competent evidence. See Biber, 365

N.C. at 168, 712 S.E.2d at 878. We therefore review the conclusions of law de novo.

See id. Considering the totality of the circumstances, the trial court’s order detailed

sufficient findings to support the trooper’s reasonable belief that Defendant

consumed alcohol, drove in a faulty manner, and displayed other indicia of

impairment—including his performance on the HGN test and swaying. See Woolard,

385 N.C. at 571, 894 S.E.2d at 726. The trial court’s conclusions of law are adequately

supported by its findings of fact. See Biber, 365 N.C. at 167–68, 712 S.E.2d at 878

(2011). Our de novo review leads us to hold that the trial court did not commit error

by denying Defendant’s motion to suppress.

D. PBT Administration

Defendant also argues that the trial court erred in allowing the State to

present video evidence to the jury showing he submitted to a PBT since the device’s

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results had been excluded from evidence. As noted, this Court reviews questions of

evidence admission for abuse of discretion by the trial court. State v. Moultry, 246

N.C. App. 702, 706, 784 S.E.2d 572, 574 (2016) (citation omitted) (“When a defendant

objects to the admission of evidence, we consider, whether the evidence was

admissible as a matter of law, and if so, whether the trial court abused its discretion

in admitting the evidence.”). A trial court may admit otherwise inadmissible hearsay

evidence that speaks to a defendant’s “then existing state of mind . . . or physical

condition[.]” N.C. R. Evid. 803(3). Such evidence is admissible if “the trial court

properly instruct[s] the jury as to the limited use of this evidence,” and the defendant

“fail[s] to show prejudice from the admission of these statements.” State v. Taylor,

344 N.C. 31, 49, 473 S.E.2d 596, 607 (1996). Absent evidence to the contrary, we

presume that a jury “follow[s] a trial court’s instructions.” State v. Prevatte, 356 N.C.

178, 254, 570 S.E.2d 440, 482 (2002) (citation omitted).

Here, Defendant does not raise enough material facts to credibly attack the

PBT dashcam’s admission as an abuse of discretion. Trooper Cruz’s improper

administration of the second PBT—which the State conceded—is a separate issue.

The footage itself has a “tendency make the existence of” Defendant’s impairment

“more probable” to the jury’s factfinding “than it would be without the evidence.” N.C.

R. Evid. 401. Aware of the potential prejudice to Defendant, the trial court on

multiple occasions instructed the jury to assess the footage only to determine

Defendant’s “demeanor and behavior.” Thus, this Court holds that trial court did not

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err by admitting the dashcam footage of Defendant’s otherwise inadmissible PBT.

E. Intoxilyzer EC/IR II Results

Defendant next argues the trial court erred by permitting the admission of his

breath test result in evidence. His argument is premised on the assertion that the

State did not show the test was performed in accordance with the rules of DHHS by

failing to offer evidence of two sequential breath samples that did not differ by more

than .02 grams of alcohol per 210 liters of breath. In further support of his position,

Defendant cites the operational procedures prescribed in 10A N.C. Admin. Code

41B.0322 (2023).

The statutory procedures governing chemical analyses permit the admission

of breath test results if: (1) the test is performed in accordance with the rules of

DHHS; and (2) the operator had a current permit issued by DHHS authorizing the

operator to perform a test using the type of instrument used. N.C. Gen. Stat. § 20-

139.1(b) (2023). Additionally, “the testing of at least duplicate sequential breath

samples” is required. Id. § 20-139.1(b3). Further, “[t]he results of the chemical

analysis of all breath samples are admissible if the test results from any two

consecutively collected breath samples do not differ from each other by an alcohol

concentration greater than 0.02.” Id. And “[o]nly the lower of the two test results of

the consecutively administered tests can be used to prove a particular alcohol

concentration.” Id.

Defendant challenges that the State did not meet its burden with respect to

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Opinion of the Court

the first subsection of N.C. Gen. Stat. § 20-139.1(b). Compliance with 10A N.C.

Admin. Code 41B.0322 fulfills the requirement of N.C. Gen. Stat. § 20-139.1(b)(1).

This Code subsection prescribes an eight-step process for operating the Intoxilyzer

EC/IR II. 10A N.C. Admin. Code 41B.0322. “If alcohol concentrations differ by more

than 0.02,” additional breath samples must be collected. Id. The breath sample

collection process outlined in the Code is reflected in N.C. Gen. Stat. § 20-139.1(b3).

Failure to offer evidence of compliance with the statutorily prescribed methods

of administering the test renders the result inadmissible. See State v. Gray, 28 N.C.

App. 506, 506, 221 S.E.2d 765, 765 (1976) (holding that the defendant was entitled to

a new trial when the trial court committed prejudicial error by admitting breath test

results over the defendant’s objection after the State failed to establish compliance

with the procedures outlined in N.C. Gen. Stat. § 20-139.1).3 The State may “prove

compliance with these two requirements in any proper and acceptable manner.”

State v. Powell, 10 N.C. App. 726, 728, 179 S.E.2d 785, 786 (1971).

Trooper Cruz testified that the Intoxilyzer EC/IR II is “the instrument that we

use . . . when we arrest somebody for DWI[,] we take them to the . . . Pitt County

Detention Center and then we have them provide two [ ] breath samples . . . to give a

reading of alcohol concentration.” However, noticeably absent from the record is any

3 Each case presents unique facts with some bearing greater evidence of impairment than

others, but when considering the particular facts of State v. Gray, 28 N.C. App. 506, 221 S.E.2d 765,

the Court determined that “the failure of the State to produce evidence of the test operator’s

compliance with G.S. 20-139.1 (b) must be deemed prejudicial error.”

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Opinion of the Court

evidence from which the trial court could have gleaned the foundational requirement

that the two consecutively collected breath samples do not differ from each other by

an alcohol concentration greater than 0.02. See N.C. Gen. Stat. § 20-139.1(b3); see

also 10A N.C. Admin. Code 41B.0322. Testimony simply noting the test is performed

in accordance with the rules of DHHS could have met this requirement; yet the record

is completely devoid of such evidence. See State v. Powell, 279 N.C. 608, 611, 184

S.E.2d 243, 245 (1971) (holding evidence was sufficient to meet the requirements of

G.S. 20-139.1(b) since the officer had a valid permit to conduct the analysis and

testified that he made the analysis in this case according to methods approved by the

State Board of Health, now identified as DHHS).

Therefore, when the State moved to admit its exhibit displaying Defendant’s

breath test result, Defendant objected to the foundation. The trial court judge

overruled Defendant’s objection and accepted the breath test exhibit into evidence.

Next, the State asked for the trooper’s testimony of the breath result, and Defendant

objected a second time to foundation. Again, the trial court judge overruled

Defendant’s objection, and the result was stated before the jury. In the absence of

some form of compliance with both requirements of N.C. Gen. Stat. § 20-139.1(b), we

are constrained to hold that these rulings amounted to prejudicial error. Gray, 28

N.C. App. at 506, 221 S.E.2d at 765.

Following admission of the breath test result into evidence, the State finished

direct examination of the trooper, and the jurors left the courtroom for a break.

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Opinion of the Court

During this break, the State brought a matter to the attention of the trial court:

The reason I hesitated about – when I was about to ask the

trooper if there’s anything that had been altered or

changed, that’s because we did white-out the second test

per request of the Defendant . . . . We had no objection to

that, but I just wanted to clarify that for the record.

In light of this conversation, the State argues for the application of invited error on

appeal. While a defendant suffers no actual prejudice from an alleged error caused

by relief he sought in the first place, we are presented with a wholly separate issue.

See N.C. Gen. Stat. § 15A-1443(c) (2023); see also State v. Crane, 269 N.C. App. 341,

343, 837 S.E.2d 607, 610 (2020). Here, the record does not contain a single piece of

evidence from which the trial court could have known whether the two sequential

breath samples did not differ by more than 0.02 at the time the breath test result was

ruled admissible. Furthermore, nothing in the record shows that the trial court ever

had any information about the second reading that was redacted, i.e., what was

behind the white-out. The State’s argument would have merit if the record contained

evidence of a colloquy between the parties in the presence of the trial court discussing

the redaction of the result before the admission of the result, or evidence of a

stipulation to that effect. But that is not the case and the record shows that the State

simply did not meet the minimal requirements of N.C. Gen. Stat. § 20-139.1(b).

F. Motion to Dismiss

Since trial court erred in admitting the breath test result without the requisite

foundation, at this time we are unable to address Defendant’s last argument that

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trial court also committed error by denying his motion to dismiss his charges for lack

of substantial evidence.

IV. Conclusion

For the reasons discussed above, this Court holds that trial court did not

commit error by admitting evidence of Trooper Cruz’s radar gun results, admitting

evidence of Defendant’s taped advising of his Miranda rights, or denying Defendant’s

motion to suppress evidence of impairment for lack of probable cause. However, the

record leads us to the inescapable conclusion that the State failed to lay the proper

foundation permitting admission of Defendant’s breath test result from the

Intoxilyzer EC/IR II. We are bound by precedent to hold that admission of the breath

test result into evidence by the trial court constitutes prejudicial error and entitles

Defendant to a new trial.

NEW TRIAL.

Judges ZACHARY and WOOD concur.

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