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					 NO.     COA07-278                                 DISTRICT 1

                 NORTH CAROLINA COURT OF APPEALS

           ******************************************

STATE OF NORTH CAROLINA    )
                           )
         v.                )         From Dare
                           )
JOEL GREGORY FOGLEMAN      )

         ******************************************

                        **********************
                     DEFENDANT-APPELLANT’S BRIEF
                        **********************
3




                                   -i-

                                 INDEX

Table of Cases and Authorities. . . . . . . . . . . . . . . . ii

Question Presented. . . . . . . . . . . . . . . .. . . . . . . 1

Statement of the Case. . . . . . . . . . . . . . . . . . . . . 2

Grounds for Appellate Review. . . . . . . . . . .         . . . . . . 2

Statement of Facts. . . . . . . . . . . . . . . .         . . . . . . 3

Argument. . . . . . . .    . . . . . . . . . . . . . . . . . . . .   . . 7

        THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO
        INSTRUCT JURORS UPON THE LESSER INCLUDED OFFENSE OF
        DRIVING WHILE IMPAIRED. . . . . . . . . . . . .. . . . 7


Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Statement of No Appendix. . . . . . . . . . . . . . . . . . . 12

Certificate of Service. . . . . . . . . . . . . . . . . . . . 13
4




                              -ii-

                 TABLE OF CASES AND AUTHORITIES
                              CASES


Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d
392 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . .10

State v. Milsaps, 356 N.C. 556, 572 S.E.2d 767 (2002) . . . . 10

State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983) . . . . . . 7

State v. Peacock, 313 N.C. 554, 330 S.E.2d 190 (1985). . . . .10

State v. Priddy, 115 N.C. App. 547, 445 S.E.2d 610, disc.
rev. denied, 337 N.C. 805 (1994) . . . . . . . . . . . . . . . 8

State v. Scott, 356 N.C. 591, 573 S.E.2d 866 (2002) . . . . . .9

State v. Strickland, 307 N.C. 274, 298 S.E.2d 645 (1983),
overruled on other grounds by State v. Johnson, 317 N.C.
193, 344 S.E.2d 775 (1986) . . . . . . . . . . . . . . . . . .10

State v. Thomas, 325 N.C. 583, 386 S.E.2d 555 (1989) . . . . .10

State v. Vardiman, 146 N.C. App. 381, 552 S.E.2d 697, cert.
denied, 537 U.S. 833 (2002) . . . . . . . . . . . . . . . . . .8

State v. Whitaker, 316 N.C. 515, 342 S.E.2d 514 (1986) . . . .10

               STATUTES, RULES & OTHER AUTHORITY

N.C. GEN. STAT. §7A-27(b) . . . . . . . . . . . . . . . . . . .2

N.C. GEN. STAT. §15A-928(c) (2005) . . . . . . . . . . . . . . 9

N.C. GEN. STAT. §15A-1444(a) . . . . . . . . . . . . . . . . . 2

N.C. GEN. STAT. §20-138.1(a)(2005) . . . . . . . . . . . . . . 8

N.C. GEN. STAT. §20-138.5(a)(2005) . . . . . . . . . . . . . . 7

N.C. R. APP. P. 10(c)(4). . . . . . . . . . . . . . . . . . . .7

North Carolina Pattern Jury Instruction 101.10. . . . . . . . .9
5




NO.      COA07-278                                 DISTRICT 1

                 NORTH CAROLINA COURT OF APPEALS

           ******************************************

STATE OF NORTH CAROLINA    )
                           )
         v.                )         From Dare
                           )
JOEL GREGORY FOGLEMAN      )

         ******************************************

                        **********************
                     DEFENDANT-APPELLANT’S BRIEF
                        **********************

                          QUESTION PRESENTED

       WHETHER THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING
       TO INSTRUCT JURORS UPON THE LESSER INCLUDED OFFENSE OF
       DRIVING WHILE IMPAIRED?
6




                         STATEMENT OF THE CASE

     Defendant was indicted by the Grand Jury of Dare County on

20 February 2006 with habitual driving while impaired.        (R p. 4)

These matters were tried at the 18 September 2006 criminal

session of Dare Superior Court with Superior Court Judge J.

Richard Parker presiding.     On 19 September 2006, the jury found

Defendant guilty.     (R p. 42)   Defendant was sentenced to a term

of imprisonment.    Defendant gave notice of appeal in open court.

(T p. 119)   The Appellate Defender’s Office was appointed to

perfect the appeal.    (R p. 47)   Michael J. Reece was appointed

to represent Defendant on appeal.     (R p. 49)    The proposed

record on appeal was served on 17 January 2007 and was settled

by passage of time thereafter.     (R p. 52)     The record was filed

in the Court of Appeals on 6 March 2007 and docketed on 6 March

2007.   The printed record had not been mailed at the time this

brief was mailed.

                       GROUNDS FOR APPELLATE REVIEW

     The judgment of the trial court is reviewable pursuant to

N.C. Gen. Stat. §§7A-27(b) and 15A-1444(a).
7




                            STATEMENT OF FACTS

    Assistant Chief of Police Mark Grant of the Kill Devil

Hills Police Department testified that on 8 September 2005 at

1:35 p.m. he was at the Avalon pier clearing a domestic

disturbance call when he saw Joel Fogleman (“Fogleman”) drive up

to him on a moped.    (T p. 15)   There was nothing unusual about

the way he drove.    (T p. 63)    When Fogleman began talking to him

about the domestic call, which he had apparently called in,

Grant noticed that his eyes were red and glass, that he had an

odor of alcohol about him, and that his “speech was

mushmouthed.”   (T pp. 16, 60, 63)     Grant told Fogleman he

shouldn’t ride his moped any more and that he would be arrested

if he did.   Fogleman said “Okay.”    Grant asked Fogleman if he

needed a ride home or a taxi.     Fogleman indicated that he did

not and that he would go talk to his sister-in-law at a surf

shop across the street.    (T pp. 16-17, 65-66)    Grant asked

Fogleman if he would take an also-sensor test and Fogleman

declined, saying that he had been drinking liquor the whole

night before and would “blow it up.”     (T pp. 18-19)

    Fogleman left his moped in a parking spot and walked away;

Grant parked at a nearby restaurant to work on his notes from

the domestic disturbance.    About two minutes later he heard a

moped coming from behind him and saw Fogleman, who passed by him

on the road.    He pulled in behind Fogleman, who initially did
8




not drive badly but shortly thereafter almost hit a van that was

turning off the road, only stopping at the last minute and doing

so in a way that made his body lurch forward.      (T pp. 19, 69)

Fogleman turned onto another street and Grant turned on his blue

lights and siren.   Fogleman turned around to look, keeping his

arms on the handlebars, and as a result swerved into the

oncoming lane of travel, though no cars were coming.      He

straightened out and pulled into a parking lot about fifty feet

later.   (T pp. 20-21, 70-71)

    Grant again observed that Fogleman’s eyes were red and

glassy, he had the odor of alcohol on his breath and his speech

was mushmouthed.    (T p. 22)   Fogleman did not remember that he

had talked to Grant at the pier.     (Id.)   Grant asked Fogleman to

recite his ABCs.    (T p. 23)   Over objection Grant testified that

Fogleman said “A, B, C, C, - you mean in front of God and

everyone?” and then “A, B, C, D” and then merely garbled speech

until “T, L, M, O, P, X, Y, Z.”     (T p. 26)   Grant described

Fogleman’s speech as “mushmouthed” and “sticky.”      (T p. 27)

    Fogleman became excited, talkative and began “cursing in

general” although not at Grant.     Grant asked him to count

backwards from 69 to 52 and Defendant replied “69, 55, 54, 54,

51, 51 is my section of tables that I work at Kelly’s.      What do

you want me to do again?”    Grant told him again and Fogleman

replied “69, 68, 67, 56, 54, 53, 52, 51, 50” along with some
9




other unintelligible words.”   (T p. 27)     Fogleman indicated he

could not do any other tests because of his knees.      (T pp. 28,

72)

      Grant placed him under arrest.    It was his opinion that

Fogleman had consumed a “sufficient quantity of some impairing

substance enough to appreciably impair his mental and/or

physical faculties” with the source of the impairment being

alcohol.   (T pp. 28-29)

      Grant took him to the Kill Devil Hills Police Department

for an Intoxilyzer test.   Fogleman said that although he had

drunk a bottle of liquor the night before he might come in under

the limit if he drank some water.      Grant allowed Fogleman to

drink water.   (T p. 30)   Grant read Fogleman his Miranda rights

and asked him a series of questions from the AIR form.      Fogleman

indicated that he had been operating a moped, boat, and jet ski;

that he had last eaten the day before at 5:00 p.m. at which

point he ate a steak and drank a bottle of liquor; that he had

“not stopped” drinking; that he had consumed “three beers and a

pint of liquor last night”; that he worked as a bus boy; that he

was an alcoholic; that he was mentally sick; and that he only

had two or three hours sleep the night before.      (T pp. 34-36)

Grant described Fogleman’s demeanor as “excited, indifferent,

talkative and profane” and “polite but profane.”      (T pp. 37, 74-

75)
10




     Fogleman took the Intoxilyzer test, which reported a blood

alcohol reading of .14 grams of alcohol per 210 liters of

breath.   (T p. 59)

     Fogleman chose to remain silent as to his alleged prior

convictions.    (T pp. 83, 86)   The State introduced certified

records purporting to prove his three prior convictions for

Driving While Impaired.    With respect to one conviction, from

Guilford County, Defendant objected to its admission, as what

was presented was a computer printout showing the disposition

along with a letter under seal from the Guilford County Clerk of

Superior Court indicating that the original file had been

destroyed.   (T pp. 84-89; R pp. 14-17)

     Fogleman’s motion to dismiss at the close of the state’s

evidence and at the close of all the evidence was denied.     (T

pp. 92-94)

     The jury convicted Fogleman of Habitual Driving While

Impaired.    (T p. 113)
11




                                    ARGUMENT


          THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO
          INSTRUCT JURORS UPON THE LESSER INCLUDED OFFENSE OF
          DRIVING WHILE IMPAIRED.
          Assignments of error no. 3. R p. 51.


     A.    The Standard of Review


     The standard of review is de novo.        Where trial counsel

neither objected to the jury charges at trial, nor requested

instructions on driving while impaired, this assignment of error

is subject to "plain error" review.      N.C. R. App. P. 10(c)(4).

Under the rule established by State v. Odom, 307 N.C. 655, 300

S.E.2d 375 (1983), this Court may only review this issue for

plain error by the trial court.      "Plain error" means that absent

the error, the jury probably would have reached a different

verdict.    Id.


     B.    Elements of Habitual Impaired Driving

     Habitual Impaired Driving was defined at the time of the

offense in question in N.C. Gen. Stat. §20-138.5(a)(2005) as

follows:


     “A person commits the offense of habitual impaired driving

if he drives while impaired as defined in G.S. 20-138.1 and has

been convicted of three or more offenses involving impaired

driving as defined in G.S. 20-4.01(24a) within seven years of

the date of this offense.”
12




     Impaired Driving was defined in N.C. Gen. Stat. §20-

138.1(a) as follows:


          “Offense. – A person commits the offense of impaired

     driving if he drives any vehicle upon any highway, any

     street, or any public vehicular area within this State:


               (1) While under the influence of an impairing

                  substance; or


               (2) After having consumed sufficient alcohol that

                  he has, at any relevant time after the

                  driving, an alcohol concentration of 0.08 or

                  more.”


     Habitual Impaired Driving is a substantive offense as

opposed to a recidivism offense.   State v. Vardiman, 146 N.C.

App. 381, 384-85, 552 S.E.2d 697, 699, cert. denied, 537 U.S.

833 (2002); State v. Priddy, 115 N.C. App. 547, 550, 445 S.E.2d

610, 612, disc. rev. denied, 337 N.C. 805 (1994).   The

difference between Habitual Impaired Driving and the lesser

included offense of Impaired Driving (or its more common name,

Driving While Impaired) lies in the element concerning the three

prior convictions within the relevant seven year period.     If the

Defendant admits existence of the three prior Driving While

Impaired Convictions, the State may not present evidence
13




thereof.    If the Defendant denies the convictions or remains

silent, the State must prove the existence of the convictions

just as it would any other element of the offense.    See N.C.

Gen. Stat. §15A-928(c) (2005); State v. Scott, 356 N.C. 591, 573

S.E.2d 866 (2002) (statute applies to habitual impaired driving

charges).   In the case here, Defendant chose to remain silent.

(T p. 83)   The existence of the prior convictions was thus at

issue and the State had to prove them beyond a reasonable doubt.

     C.   Defendant was Entitled to an Instruction on the Lesser
     Included Offense of Driving While Impaired.

     N.C. Gen. Stat. §15A-928(c)(1) makes clear that if the

Defendant admits the previous convictions, “[t]he court may not

submit to the jury any lesser included offense which is

distinguished from the offense charged solely by the fact that a

previous conviction is not an element thereof.”    It naturally

follows that if Defendant denies the convictions or remains

silent, he is entitled to an instruction on the lesser included

offense.    N.C.P.I. 270.25, n.9, recognizes this possibility by

setting forth “FOOTNOTE 9. If there is to be instruction on

lesser included offenses, the last phrase should be: '…you will

not return a verdict of guilty of habitual impaired driving, but

would consider…'“ [lesser offenses.]

     In determining whether the evidence requires an instruction

on the lesser offense, “[t]he test is whether there is the
14




presence, or absence, of any evidence in the record which might

convince a rational trier of fact to convict the defendant of a

less grievous offense.”   State v. Thomas, 325 N.C. 583, 594, 386

S.E.2d 555, 561 (1989).    Defendant’s trial counsel timely

objected to introduction of evidence regarding one of the three

prior alleged convictions, as there was an issue as to the

accuracy or admissibility of the court records.   Though trial

counsel did not request jury instructions on Driving While

Impaired, due process requires that a jury be instructed on a

lesser-included offense whenever “the evidence would permit a

jury rationally to find [the accused] guilty of the lesser

offense and acquit him of the greater.”   Beck v. Alabama, 447

U.S. 625, 635, 100 S.Ct. 2382, 2388, 65 L.Ed.2d 392, 401 (1980);

State v. Strickland, 307 N.C. 274, 286, 298 S.E.2d 645, 654

(1983), overruled on other grounds by State v. Johnson, 317 N.C.

193, 344 S.E.2d 775 (1986); State v. Milsaps, 356 N.C. 556, 561,

572 S.E.2d 767, 772 (2002).   The trial court must instruct the

jury on all lesser included offenses that are supported by any

evidence, even in the absence of a special request for such an

instruction.   Failure to do has been held to be reversible error

which is not cured by a verdict finding the defendant guilty of

the greater offense.   State v. Whitaker, 316 N.C. 515, 520, 342

S.E.2d 514, 518 (1986).   Only where the “evidence is clear and

positive as to each element of the offense charged” and there is
15




no evidence to support a lesser offense may the trial judge

refuse to charge on the lesser offense.    State v. Peacock, 313

N.C. 554, 558, 330 S.E.2d 190, 193 (1985).

     Defendant respectfully contends that given the dispute

regarding the admissibility of the Guilford County records, a

point raised by trial counsel, a reasonable jury could possibly

have acquitted him of the crime of habitual impaired driving and

found him guilty only of driving while impaired.   Whether this

different result was “probable” is for this Court to determine.

The trial court’s failure to instruct the jury on Driving While

Impaired constitutes plain error and Defendant is entitled to a

new trial.



                              CONCLUSION

     Defendant respectfully requests that this Court grant him a

new trial.



     Respectfully submitted this _____ day of March, 2007.



                              _________________________________
                              Michael J. Reece
                              NC State Bar No. 21262
                              Attorney for Defendant-Appellant
                              PO Box 708
                              Smithfield, NC 27577
                              (919) 934-4000
16




          DEFENDANT-APPELLANT DOES NOT INCLUDE APPENDIX



          Pursuant to Rule 28(d)(2)(iii) of the North Carolina

     Rules of Appellate Procedure, Defendant-Appellant does not

     herein include or attach an Appendix to his Brief, and

     respectfully states to the Court that the Defendant-

     Appellant has fully summarized, pursuant to Rule 28(b)(4)

     and (5), the evidence necessary to understand the questions

     presented in Defendant-Appellant’s Brief.
17




                          CERTIFICATE OF SERVICE



     THIS   IS   TO    CERTIFY   that   the   undersigned    has   this   date

served the Defendant’s Appellate Brief in the above captioned

action   upon    the   State   of   North   Carolina   by   mailing   a   copy

postage prepaid to the Office of the Attorney General for the

State of North Carolina, addressed to:



                  Attorney General of North Carolina
                  N.C. Department of Justice
                  PO Box 629
                  Raleigh, North Carolina 27602


     This the _____ day of March, 2007.


                                     _________________________________
                                     Michael J. Reece
                                     NC State Bar No. 21262
                                     Attorney for Defendant-Appellant
                                     PO Box 708
                                     Smithfield, NC 27577
                                     (919) 934-4000

				
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