State v Valencia

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. NO. COA10-232 NORTH CAROLINA COURT OF APPEALS Filed: 16 November 2010 STATE OF NORTH CAROLINA v. Guilford County No. 08 CRS 110889-890 JUAN MEDINA VALENCIA Appeal by defendant from judgment entered 15 September 2009 by Judge Catherine C. Eagles in Guilford County Superior Court. Heard in the Court of Appeals 30 September 2010. Attorney General Roy A. Cooper, III, by Special Attorney General Richard E. Slipsky, for the State. Deputy Cheshire, Parker, Schneider, Bryan & Vitale, by John Keating Wiles, for defendant-appellant. JACKSON, Judge. Juan Medina Valencia ( defendant ) appeals his 15 September 2009 convictions of trafficking in 400 or more grams of cocaine by transportation and possession. For the reasons set forth below, we hold no error. On 15 December 2008, Detective Richard Alston ( Detective Alston ) was working with Christopher Wilson ( Wilson ). a confidential informant named Wilson told Detective Alston that a man named Black ( Black ) was arranging to get him half a kilo of -2cocaine from two Hispanic males that day. Wilson gave Detective Alston directions which led to a house at 4211 Olympia Drive, Greensboro, North Carolina. Detective Duane James ( Detective James ) watched the house, and Detective Alston parked several streets away. Detective Alston instructed Wilson to meet Black and the two men, to call off the deal, and to leave. arrive and Detective James saw a white pick-up truck observed two Hispanic males enter the house. Approximately five to ten minutes later, Detective James observed the passenger return to the truck and walk back into the house with a brown bag in hand. Wilson called Detective Alston and said that the driver offered him a sample of cocaine. Wilson advised Detective Alston that the two men had half a kilo of cocaine. Previously, Detective Alston asked Officer E. K. Wrenn ( Officer Wrenn ) to look for a white Chevy pick-up truck occupied by two Hispanic males. Officer Wrenn was advised when the truck left the area and received continuous updates on the vehicle its location, its direction of travel up to the point where I saw it pass where I was sitting. Within a minute, Officer Wrenn observed the truck. After identifying the truck, Officer Wrenn followed the vehicle for approximately one-half of a mile. Officer Wrenn observed the license plate light on the truck was not operating. Before making a traffic stop, he also observed the truck make a wide U-turn, swerving into the straight lane to the right. Officer Wrenn identified defendant as the driver and another Hispanic male as a passenger. -3Defendant pulled over immediately after Office Wrenn activated his patrol vehicle s blue lights to initiate the stop. Officer Wrenn spoke with defendant in English, and defendant responded in English. Officer Wrenn observed defendant to be nervous. He asked defendant to step out of the vehicle, and defendant complied. Officer Wrenn asked if defendant would give consent to search his vehicle for anything illegal, and defendant consented. Officer Wrenn found the half kilo of cocaine in two bags stuffed within the back seat of the truck. On or about 1 September 2009, defendant moved to suppress evidence on the basis of an unlawful stop. Defendant testified at the hearing and denied that he was responsible for possessing the cocaine, that he made a wide U-turn, that the license plate lights were out, and that he gave consent for the search. further testified that he understanding Officer Wrenn. had a little bit Defendant of trouble Defendant s wife testified that the truck s license plate lights were working when she picked up the truck from police impoundment. Rosa Rodriguez. She sold the truck to a friend, Rodriguez testified that the license plate lights were working properly. The trial court denied defendant s motion to suppress. On 15 September 2009, pursuant to a plea agreement, defendant pleaded guilty to trafficking in cocaine by transporting 400 or more grams and trafficking in cocaine by possessing 400 or more grams. The trial court consolidated the two charges for judgment pursuant to the plea agreement and sentenced defendant to a minimum of -4175 months and a maximum of 219 months imprisonment. Defendant appeals. In the record on appeal, defendant s counsel made eight assignments of error. Pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493 (1967), defendant s brief presents the only argument that he perceives presents an arguable basis for relief and requests that the Court conduct its own review. Pursuant to Anders, this Court must now determine from a full examination of all the proceedings whether the appeal is wholly frivolous. In carrying out this duty, we will review the legal points appearing in the record, transcript, and briefs, not for the purpose of determining their merits (if any) but to determine whether they are wholly frivolous. State v. Kinch, 314 N.C. 99, 102 03, 331 S.E.2d 665, 667 (1985) (citing Anders, 386 U.S. 738, 18 L. Ed. 2d 493) (footnote call number omitted). In Kinch, counsel s brief requested that the Court review the record on appeal and abandoned all assignments of error. Id. at 100 01, 331 S.E.2d at 666. We hold that defendant s counsel has complied with Anders and Kinch. Defendant argues that the trial court erred in denying his motion to suppress, because its factual findings regarding defendant s traffic violations were incorrect and led to improper conclusions of law. We disagree. It is well established that the standard of review in evaluating a trial court s ruling on a motion to suppress is that the trial court s findings of fact are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting. The trial court s conclusions of law, however, are fully reviewable. -5State v. Green, 194 N.C. App. 623, 626, 670 S.E.2d 635, 637 (2009) (citing State v. Nixon, 160 N.C. App. 31, 33, 584 S.E.2d 820, 822 (2003)). In determining the credibility of witnesses, this Court has held that we must defer to the trial court since it was in the best position to observe the demeanor of the witness . . . . State v. Morocco, 99 N.C. App. 421, 429, 393 S.E.2d 545, 550 (1990) (citing State v. Smith, 278 N.C. 36, 41, 178 S.E.2d 597, 601, cert. denied, 403 U.S. 934, 29 L. Ed. 2d 715 (1971)). The trial court sees the witnesses, observes th[ei]r demeanor as they testify and by reason of his more favorable position, he is given the responsibility of discovering the truth. The appellate court is much less favored because it sees only a cold, written record. Hence the findings of the trial [court] are, and properly should be, conclusive on appeal if they are supported by the evidence. State v. Cooke, 306 N.C. 132, 135, 291 S.E.2d 618, 620 (1982) (quoting State v. Smith, 278 N.C. 36, 41, 178 S.E.2d 597, 601, cert. denied, 403 U.S. 934, 29 L. Ed. 2d 715 (1971)). We previously have considered traffic stop cases when the defendant and the State presented inconsistent evidence. Where, as here, there is a conflict between the [S]tate s evidence and defendant s evidence on material facts, it is the duty of the trial court to resolve the conflict and such resolution will not be disturbed on appeal. State v. Hopper, ___ N.C. App. ___, ___, 695 S.E.2d 801, 805 (quoting State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357 (1997)). testimony that the roads In Hopper, we held that an officer s were the property of the City of Winston-Salem and is a public road was sufficient evidence to -6support the trial court s finding that the street was indeed public. Hopper, ___ N.C. App. at ___, 695 S.E.2d at 805 06. Our Supreme Court has held that a Chapter 20 violation is sufficient to give rise to reasonable suspicion to stop a vehicle. State v. Styles, 362 N.C. 412, 417, 665 S.E.2d 438, 441 (2008). Officer license tag Wrenn lights testified and made that a the wide constituted violations of Chapter 20. truck lacked U-turn, both operating of which Defendant testified on his own behalf and presented testimony that the license tag light was in working order and that defendant properly executed the U-turn. Notwithstanding evidence to the contrary, the officer s testimony is nonetheless competent evidence that defendant s truck lacked operating license tag lights and made a wide U-turn. Therefore, we hold that the trial court s findings of fact are supported by competent evidence. In accordance with Styles, we further hold that the officer had reasonable suspicion to stop defendant s vehicle. Defendant further argues that the trial court erred in denying his motion to suppress, because its factual findings regarding defendant s consent were incorrect and led to improper conclusions of law regarding the constitutionality of the search. We disagree. We review the trial court s findings of fact in denying a motion to suppress for competency of the evidence. State v. Young, 186 N.C. App. 343, 347, 651 S.E.2d 576, 579 dismissed, 362 N.C. 372, 662 S.E.2d 394 (2008). (2007), appeal We must keep in mind that [w]here the trial judge sits as a jury and where -7different reasonable inferences can be drawn from the evidence, the determination of which reasonable inferences shall be drawn is for the trial judge. Young, 186 N.C. App. at 350, 651 S.E.2d at 581 (quoting Sharp v. Sharp, 116 N.C. App. 513, 530, 449 S.E.2d 39, 48, disc. rev. denied, 338 N.C. 669, 453 S.E.2d 181 (1994)) (emphasis in original). Officer Wrenn testified that defendant consented to the search and that defendant appeared to understand. Although defendant testified that he refused consent, Officer Wrenn s testimony is competent evidence. Therefore, we hold that the trial court s finding of fact is supported by competent evidence. Regarding the trial court s conclusion of law, [a] reviewing court determines whether a reasonable person would feel free to decline the officer s request or otherwise terminate the encounter by examining the totality of the circumstances. State v. Icard, 363 N.C. 303, 308 09, 677 S.E.2d 822, 826 (2009). Evidence seized during a warrantless search is admissible if the State proves that the defendant freely and voluntarily, without coercion, duress, or fraud, consented to the search. State v. Williams, 314 N.C. 337, 344, 333 S.E.2d 708, 714 (1985) (citing State v. Long, 293 N.C. 286, 237 S.E.2d 728 (1977)). Previously, this Court has considered language barriers in the context of search and seizure. See, e.g., State v. Medina, ___ N.C. App. ___, ___, 697 S.E.2d 401, 402 06, disc. rev. denied, 364 N.C. 330, ___ S.E.2d ___ (2010). When a defendant did not respond to English questions and the officer was not fluent, but knew -8college-level Spanish and subsequently asked questions in Spanish, we held consent to be valid. Id. at ___, 697 S.E.2d at 403 05. Additionally, when a defendant gave logical responses to questions, our Supreme Court held the waiver of rights to be voluntary. State v. Mlo, 335 N.C. 353, 366, 440 S.E.2d 98, 104, cert. denied, 512 U.S. 1224, 129 L. Ed. 2d 841 (1994). Officer Wrenn testified that he had no difficulty understanding defendant s English and that defendant responded logically. Although defendant testified that he had a little bit of difficulty in understanding Officer Wrenn, defendant gave logical, clear answers in response to Officer Wrenn s questions. No testimony from defendant or Officer defendant could not proceed in English. Wrenn indicates that We hold defendant s consent to be voluntary. Therefore, the trial court s conclusions regarding defendant s motion to suppress are correct. In accordance with our duty pursuant to Kinch and Anders, we have conducted a thorough review of the record, transcript, and brief. We hold no error. No error. Judges ELMORE and THIGPEN concur. Report per Rule 30(e).

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