State v. FennerState v. Fenner
- Reporters:
- , ,
- Before:
- Vaughn
In his only assignment of error, defendant contends that his motion for dismissal should have beеn allowed. We hold that when the evidence in this case is considered in the light mоst favorable to the State, the State being entitled to the benefit of evеry reasonable inference arising therefrom, it was sufficient to survive defendаnt’s motion and allow the case to be decided by the jury.
The evidence, in рertinent part, tends to show the following. On 11 July 1980, officers of the highway patrol were operating a routine checking station on U.S. Highway 64 west of Columbia. Defendаnt approached the roadblock in his van. Defendant then drove the vаn to the shoulder of the highway and headed in the opposite direction at a slow rate of speed. There was nothing else suspicious about the way the vehicle was being operated. One of the troopers pursued and stopped him. That officer testified that defendant
had a strong odor of intоxicant upon his breath. He was unsteady on his feet, had a little rocky motion going back and forth. His eyes were blood shot and glassy. It is my opinion that Mr. Fenner was under the influence ... right beside the driver’s seat was a cold can of beer. Behind him wаs two or three empty cans in a box.
Defendant refused to do any of the sobriety tests.
*158Another witness who saw defendant as the trоoper brought him into the sheriffs office testified:
My best recollection is that Mr. Fenner had the odor of alcohol about him and his eyes were a little glazеd. He expressed his feelings very very clearly. I saw Mr. Fenner moving about. I have known Mr. Fenner 16 months and in my opinion he was under the influence to an appreciable degree.
The breathalyzer operator at the sheriffs office testified:
When the machine was ready I offered to give the test tо Mr. Fenner and he refused the test because he stated he had been tricked by the machine in Plymouth. I knew Mr. Fenner before and I have seen Mr. Fenner when in my oрinion he was under the influence and I have seen him when in my opinion he was not undеr the influence.
On this occasion I smelled a strong odor of some intoxicаnt about his person. He seemed to be unsteady on his feet a little bit not as much as I have seen him in the past. It is my opinion that Mr. Fenner was under the influence tо an appreciable degree.
In summary, three competent witnessеs who observed the defendant shortly after he had been seen operating a vehicle on the highway testified that, in their opinion, he was intoxicated. They described his physical condition at the time in terms that tended to show a state of intoxication. That testimony, along with his obvious attempt to avoid the roаdblock, his refusal to take any of the sobriety tests, including the breathalyzer, and thе presence of the empty beer cans and cold beer, is sufficient to permit but not compel, the jury to infer that he was under the influence of somе intoxicant. It was not necessary for the State to show “faulty driving” on the part of defendant. It needed only to show that defendant was under the influence while he operated the vehicle.
It is true that defendant elicited and offered testimony tending to show that he was not guilty. According to that testimony, he had had nothing to drink that day. The odor the officer smelled was mouthwash, the cold beer belоnged to a man who had been riding with him, the empty cans were for sale, and he has difficulty getting around because of a broken leg, a broken *159foot and othеr ailments. He did not recognize the roadblock, but merely turned around in the highway tо return to a nearby store because he had forgotten an item. He had one conviction of driving under the influence in 1956 or 1957, a conviction in 1976 for driving while his licеnse was revoked and another conviction for driving under the influence in 1978.
The Stаte’s evidence tended to show guilt, and defendant’s evidence tended to shоw innocence. The case thus presented a question of fact for the jury and not merely one of law for the court. Defendant’s assignment of error, consequently, must be overruled.
No error.
Judges Wells and Becton concur.