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An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 2 August 2011
STATE OF NORTH CAROLINA
No. 09 CRS 50338
STEPHANIE ANNE PRESLEY
Appeal by Defendant from judgment entered 27 August 2010 by
Judge Ola M. Lewis
Criminal Superior Court for Brunswick
Heard in the Court of Appeals 11 May 2011.
Attorney General Roy Cooper, by Assistant Attorney General
Jess D. Mekeel for the State.
Richard E. Jester, for Defendant.
HUNTER, JR., Robert N., Judge.
Stephanie Anne Presley (“Defendant”) appeals from a jury
verdict finding her guilty of driving while impaired.
argues the trial court erred in denying Defendant’s motion to
sentencing, and in not properly recording its findings on the
AOC-CR-311 sentencing factors form.
We find Defendant waived
her right to appeal the denial of Defendant’s motion to dismiss,
-2find no error as to the grossly aggravating factor, and remand
for correction of a clerical error as to the third issue.
Factual and Procedural History
(“Officer Rohauer”), a patrolman with the Boiling Spring Lakes
approximately 12:40 a.m., Officer Rohauer stopped Defendant at
the corner of Nassau and East Boiling Springs roads.
Defendant to determine if Defendant was impaired by alcohol.
Based on the results of these tests, Officer Rohauer believed
Defendant was impaired and placed her under arrest for suspected
driving while impaired (“DWI”).
Officer Rohauer transported Defendant to the jail where he
immediately for at least 30 days” if she refused to take the
concentration was .21.
Officer Rohauer then brought Defendant
before a magistrate and returned to his patrol duties around
approach from the direction of the jail, turn onto East Boiling
Springs Road, and then turn onto Nassau Road.
minutes after seeing the taxi cab, Officer Rohauer approached
the area where he had left Defendant’s vehicle and observed that
Defendant’s vehicle’s tail lights were on and the vehicle was
pulling out onto the road.
Knowing this was the same vehicle he
stopped earlier in the evening, Officer Rohauer began to follow
the vehicle to determine who was driving.
Officer Rohauer did
not observe anything about the operation of the vehicle that
Officer Rohauer followed the vehicle
one eighth of a mile, the driver turned into a driveway and at
Officer Rohauer then approached Defendant’s vehicle as
Defendant was turning off the engine and exiting the vehicle.
He asked her “why she was driving, because her license was just
license was revoked (“DWLR”).
While explaining to Defendant why she was under arrest,
Officer Rohauer observed that she had glassy, bloodshot eyes and
Brunswick County Detention Center.
Based on what he previously
observed, “what her alcohol concentration was earlier in the
acting,” Officer Rohauer charged Defendant with DWI.
Rohauer read Defendant the same chemical analysis rights he had
read her previously.
Defendant took an Intoximeter test and her
BAC registered .11.
On 17 January 2009, Defendant was first charged with DWI
and subsequently charged with DWLR and a second DWI.
was convicted of the first DWI at a separate hearing and pleaded
not guilty to the DWLR and second DWI.
The State called Officer
Rohauer as its single witness at trial.
Defendant put on no
evidence at trial and moved for dismissal of the DWLR.
trial court dismissed the DWLR for lack of notice to Defendant
that her license had been revoked in violation of N.C. Gen.
Stat. § 20-28.
Defendant moved for dismissal of the DWI for
lack of sufficient evidence.
At the close of trial, Defendant moved for judgment
notwithstanding the verdict.
The trial court denied Defendant’s
The trial court denied Defendant’s
At no point during the trial did Defendant make a
motion to suppress evidence related to the DWLR charge.
found Defendant guilty of DWI.
The trial court entered judgment
-5and imposed a Level Two suspended sentence with an active term
of seven days and twenty-four months supervised probation.
Jurisdiction and Standard of Review
As Defendant appeals from the final judgment of a superior
court, this Court has jurisdiction to hear the appeal pursuant
to N.C. Gen. Stat. § 7A-27(b) (2009).
prior record level de novo.
State v. Boyd, __ N.C. App. __, __,
substitutes its own judgment for that of the trial court. State
v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008). A
should be denied if “there is
offense charged, or of a lesser offense included therein, and
(2) of defendant’s being the perpetrator of such offense.” State
Substantial evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” State v.
Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980).
The Court “‘must consider the evidence in the light most
reasonable inference to be drawn from that evidence.’” State v.
Contradictions and discrepancies do not warrant dismissal of the
case but are for the jury to resolve.
State v. Benson, 331 N.C.
537, 544, 417 S.E.2d 756, 761 (1992).
brings three issues to us on appeal.
Defendant contends the trial court erred in denying her motion
evidence to convict her of the DWI charge.
contends the trial court erred during sentencing when it found
one grossly aggravating factor that Defendant had been convicted
of a prior DWI.
As discussed hereinafter, we disagree with both
of these contentions.
Finally, Defendant identifies a clerical
error made by the trial court when it did not properly record
its findings on the AOC-CR-311 form.
We agree that the trial
court erred in filling out the form, and remand for correction
of the clerical error.
State provided no substantial evidence for Defendant’s second
At trial, Officer Rohauer testified that the only
reason he stopped Defendant for the second time that evening was
because he believed Defendant’s license had just been revoked by
Thus, Defendant argues that once the DWLR was
contends that without a proper initial arrest, Officer Rohauer’s
testimony “can’t come in” because any evidence obtained after
burden of presenting substantial evidence of the second DWI.
A motion to suppress is a request to exclude evidence from
consideration by the trier of fact. N.C. Gen. Stat. § 15A-977
N.C. Gen. Stat. § 15A-977(a) states in part that
[a] motion to suppress evidence in superior court made
before trial must be in writing and a copy of the
motion must be served upon the State. The motion must
state the grounds upon which it is made. The motion
must be accompanied by an affidavit containing facts
supporting the motion.
N.C. Gen. Stat. § 15A-977(a) (2009).
A motion to suppress may
also be made during trial, in writing or orally, and “may be
made in the same manner as when made before trial.”
establishing that the motion was proper in form and timely.”
State v. Golden, 96 N.C. App. 249, 253, 385 S.E.2d 346, 348
(1989) (citing State v. Holloway, 311 N.C. 573, 319 S.E.2d 261
-8Our Supreme Court has held that “a defendant’s failure to
meet the requirements of N.C. Gen. Stat. § 15A-977 waives his
statutory or constitutional grounds.”
349 (citation omitted).
Id. at 253, 385 S.E.2d at
Defendant’s Counsel may have intended
for the Motion to Dismiss to have the same effects as a motion
It does not.
Defendant did not make the motion in
writing and did not serve the motion upon the State in a timely
statutory requirements, she has therefore waived her right to
appeal the denial of the motion on statutory or constitutional
sentencing when it found one grossly aggravating factor that
Defendant had been convicted of a prior DWI.
judge may accept any evidence as to the presence or absence of
previous convictions that he finds reliable but he shall give
prima facie effect to convictions recorded by the Division or
any other agency of the State of North Carolina.”
Stat. § 20-179(o) (2009).
The State must prove any grossly
aggravating factor beyond a reasonable doubt.
on 14 July 2010,
provided notice to Defendant that the State intended to prove
-9Defendant was convicted of a prior DWI within seven years of
sentencing for the DWI charge at issue.
proof of prior convictions.”
During sentencing, the
State v. Eubanks, 151 N.C. App.
499, 505, 565 S.E.2d 738, 742 (2002) (citation omitted).
State may prove the existence of Defendant’s prior conviction
1340.14(f) (2009); State v. Jeffery, 167 N.C. App. 575, 580, 605
S.E.2d 672, 675 (2004) (holding a defendant can stipulate to a
prior record level through a colloquy between defense counsel
and the trial court).
A defendant need not make an affirmative
statement during sentencing to stipulate to her prior record
level if defense counsel had an opportunity to object to the
Alexander, 359 N.C. 824, 829, 616 S.E.2d 914, 918 (2005).
This record level worksheet is not included in the appellate
The burden is on Defendant to include a copy of the
worksheet in the record in order to assist the appellate court
in reviewing assignments of error. State v. Bell, 166 N.C. App.
261, 266, 602 S.E.2d 13, 16-17 (2004) (internal quotation marks
and citations omitted).
This Court is bound by the record
before it, and absent anything to indicate otherwise, we will
assume the trial judge correctly applied the law and ruled
appropriately. Id. This omission is not at issue on appeal.
-10The State handed the previously mentioned worksheet to the
trial judge and the following discussion took place:
THE COURT: Okay.
Madame Clerk – Anything as to the
level from the State of North Carolina?
[THE PROSECUTOR]: Your Honor, we would submit that one
grossly aggravating factor, which is the conviction
from the first D.W.I.
. . .
[DEFENSE COUNSEL]: I think what Madame D.A. is saying
is Level Two, one prior. I don’t know that the court
has any opportunity for deviation or not.
THE COURT: Madame D.A., these grossly
factors do not have to be [f]ound by - - -
[THE PROSECUTOR]: The only one – I pulled the
aggravating factor for the one’s that – and the only
one that it said, was that – the only one that you can
consider is the prior conviction, Judge.
THE COURT: All right.
[THE PROSECUTOR]: And I’ll find that somewhere. Okay.
Mr. Stiller, this is my question. Has Ms. Presley had
[DEFENSE COUNSEL]: Yes, ma’am.
Completed all her
classes for the first D.W.I. She hasn’t done anything
in regards to this one.
THE COURT: Okay.
Alexander, where this Court held that making a reference to the
stipulation to the defendant’s prior record level.
359 N.C. at
particular case he had no felony convictions, as you can see
from his worksheet.”
This court found the “reference” in
Alexander to be a stipulation.
discussion of Defendant’s record level when he said, “I think
what Madame D.A. is saying is Level Two, one prior.
know that the court has any opportunity for deviation or not.”
Thus, Defense Counsel’s clarification serves the same purpose as
the “reference” in Alexander and is a stipulation because it
shows “not only that defense counsel was cognizant [of the prior
charge], but also that he had no objections to it.”
Defense counsel also stated that Defendant had completed
all of her classes for her first DWI.
This is a clear statement
recognizing that Defendant had a prior DWI conviction and is a
worksheet, cognizance of Defendant’s prior charge, and colloquy
with the trial court indicates a stipulation by defense counsel
to Defendant’s prior DWI. Because defense counsel stipulated to
Defendant’s record, we conclude the trial court correctly found
-12convicted of a DWI offense within seven years of the commission
of the instant DWI.
Lastly, Defendant contends the trial court made a clerical
error when it did not properly record its findings on the AOCCR-311 sentencing factors form.
Specifically, the trial court
failed to mark block 1(c) on the AOC-CR-311 form indicating its
finding at the sentencing hearing that Defendant had one prior
DWI conviction within seven years preceding the sentencing for
the instant DWI.
We agree that this was a clerical error.
“When, on appeal, a clerical error is discovered in the
trial court’s judgment or order, it is appropriate to remand the
case to the trial court for correction because of the importance
that the record ‘speak the truth.’” State v. Smith, 188 N.C.
App. 842, 845, 656 S.E.2d 695, 696 (2008) (citations omitted).
A clerical error is “‘[a]n error resulting from a minor mistake
or inadvertence, [especially] in writing or copying something on
the record, and not from judicial reasoning or determination.’ ”
State v. Lark, 198 N.C. App. 82, 95, 678 S.E.2d 693, 702-03
(quoting State v. Jarman, 140 N.C. App. 198, 202, 535 S.E.2d
875, 878 (2000)).
We find this to be an inadvertent error and
the case should be remanded for correction of the AOC-CR-311
sentencing factors form.
We conclude Defendant waived her right to contest on appeal
the admission of evidence obtained subsequent to the unlawful
stop on statutory or constitutional grounds and the trial court
properly found the grossly aggravating factor of a prior DWI
conviction during sentencing.
However, the trial court did not
properly record its findings on the AOC-CR-311 form and the case
should be remanded for correction of the clerical error.
Remand for clerical error.
Judges STEELMAN and STEPHENS concur.
Report per Rule 30(e).