State v. Sellas
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA14-489 NORTH CAROLINA COURT OF APPEALS Filed: 21 October 2014 STATE OF NORTH CAROLINA v. Buncombe County No. 12 CRS 50309 ANGELO FRANK SELLAS Appeal by defendant from judgment entered 18 December 2013 by Judge Alan Z. Thornburg in Buncombe County Superior Court. Heard in the Court of Appeals 24 September 2014. Roy Cooper, Attorney General, by Richard Slipsky, Special Deputy Attorney General, for the State. Willis Johnson & Nelson defendant-appellant. PLLC, by Drew Nelson, for STEELMAN, Judge. Where the suppression trial hearing, court and made these findings findings of fact were at supported the by unchallenged evidence and in turn supported the trial court s conclusions of defendant s motion material law, issues the to trial court suppress. unresolved in did The not trial concluding err in court the denying left no suppression -2hearing. The granting the trial State s court did not motion in abuse limine its to discretion exclude in irrelevant evidence. I. Factual and Procedural History Early in the morning on 8 January 2012, Detective Ben Davidson (Detective Davidson) of the Asheville Police Department was informed by his supervisor that a man had been seen emerging from a local bar, and was possibly impaired. Detective Davidson was given a description of the man, and subsequently saw a man fitting that Angelo description. Sellas The (defendant). man was later Detective identified Davidson as recognized defendant by name from a prior sexual assault investigation. Detective Davidson was not the lead investigator on that case. Detective Davidson was walking towards his parked patrol vehicle when he saw defendant sitting in the driver s seat of his vehicle. Davidson saw defendant s Upon reaching defendant s vehicle at his vehicle a red patrol drive light. vehicle, off. When He the Detective got behind light turned green, defendant s vehicle remained stopped for the entire light cycle, which seconds. proceed Detective Only through when the Davidson the light estimated turned intersection. lasted yellow Detective did 20 to 40 defendant Davidson later -3observed defendant changing lanes into a designated left turn only lane. Defendant did not turn left, but continued straight through an intersection. At trial, defendant testified that he moved into the left turn only lane because there was a parked taxi cab in the right lane. Detective Davidson recollection of a cab being in the right lane. had no He did not recall whether defendant give a turn signal when changing lanes. Detective Davidson continued following defendant, and observed defendant change lanes at least once without using his turn signal. within backup, his and Detective Davidson also observed defendant weaving lane of pulled travel. defendant Detective over. Davidson Officer called Jonathan for Morgan (Officer Morgan) of the Asheville Police Department, the backup officer, approached defendant s vehicle on the driver s side, and Detective Officer Morgan Davidson smelled approached on a odor strong the passenger of side. alcohol inside defendant s vehicle and on defendant as he exited his vehicle. Defendant s speech was slurred, his eyes were red and glassy, and he admitted that he had been drinking. Without prompting, he offered to perform a field sobriety test. conducted the field sobriety test. Officer Morgan Defendant s eyes did not follow smoothly during the horizontal gaze nystagmus test. The -4test revealed all 6 clues indicating impairment. Defendant could not keep his balance, and swayed and leaned during the walk and turn portion of the field sobriety test. Defendant had to use his arms to maintain his balance during the one-legged stand test. Defendant was administered the Alco-sensor breath test twice; both samples were positive for alcohol. Defendant admitted to having consumed four or five drinks. Defendant was charged with impaired driving and improper use of traffic lanes. Defendant appealed his District Court convictions to Buncombe County Superior Court. In Superior Court, defendant moved to dismiss, or alternatively to suppress the evidence that resulted from the stop, contending that the stop of his vehicle was not supported by reasonable suspicion and that the arrest was not supported by probable cause. These motions were denied in open court, and memorialized in a written order dated 17 December 2013 and filed 15 January 2014. At trial, the State made a motion in limine to limit testimony concerning a prior sexual assault investigation involving defendant. The trial court granted that motion. On 18 December 2013, the jury found defendant guilty of driving while impaired, and not responsible for the infraction. The trial court sentenced defendant to 60 days imprisonment, -5suspended the sentence, placed defendant on unsupervised probation for 12 months, and assessed a $100.00 fine, as well as costs and fees in the amount of $1,886.50. Defendant appeals. II. Findings of Fact In his first argument, defendant contends that the trial court erred by failing to make findings of fact at the suppression hearing, which resulted in a material dispute not being resolved. We disagree. A. Standard of Review Our review of a trial court s denial of a motion to suppress is strictly limited to determining whether the trial judge s underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge s ultimate conclusions of law. State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). The trial court s conclusions of law . . . are fully reviewable on appeal. State v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000). B. Analysis Defendant contends that the trial court erred by failing to make findings of fact. Defendant gave oral notice of appeal on -618 December 2013. On 15 January 2014, the trial court filed its written order regarding defendant s motion to suppress, which contained detailed findings of fact and conclusions of law. Defendant failed to include a copy of the trial court s written order in the record, and the argument in his brief presumes that this order was never entered. Fortunately, the State filed this order as a supplement to the record pursuant to Rule 9(b)(5)(a) of the North Carolina Rules of Appellate Procedure. contention that the trial court failed to Defendant s enter an order containing findings of fact is without merit. In its Davidson saw order, the defendant, trial court found who matched the that: (1) description Deputy of a possible intoxicated individual, sometime after 2:00 a.m.; (2) Deputy Davidson observed defendant stop at a stoplight, where defendant remained while it turned green and then yellow; (3) Deputy Davidson observed defendant drive straight through an intersection in a lane clearly designated as a left turn lane; and (4) defendant wove into an adjacent lane of traffic without signaling. We hold that each evidence in the record. of these findings was supported by These findings, in turn, support the -7trial court s conclusion that Deputy Davidson had a reasonable and articulable suspicion for stopping defendant s vehicle. Defendant argues that the trial court left a material issue unresolved; that being whether there was a parked taxi cab blocking defendant s path, forcing him to change lanes into the left turn lane. The trial court, in its findings, observed that Deputy Davidson did not recall if there was an obstruction in the lane designated for traffic traveling straight through the intersection[,] but did not specifically resolve this factual issue. Even assuming arguendo that the trial court left this matter unresolved, however, it was not a material issue. There was other evidence that supported the trial court s findings of fact and conclusions of law. Even assuming that defendant was justified in changing lanes to the left turn lane due to a cab blocking the right lane, the trial court s other, uncontested findings demonstrate that defendant s vehicle sat at a stoplight through the entire green and yellow cycle, and that defendant subsequently changed lanes without giving a turn signal. Our Supreme Court has previously held that either of these constitutes a basis for a reasonable vehicle. and articulable suspicion sufficient to stop a See State v. Barnard, 362 N.C. 244, 248, 658 S.E.2d -8643, 645-46 (2008) (holding that a thirty-second delay at a stoplight after it has turned green creates reasonable and articulable suspicion); State v. Styles, 362 N.C. 412, 416-17, 665 S.E.2d 438, 441 (2008) (holding that changing lanes without signaling creates reasonable and articulable suspicion). Any error in failing to determine whether the right lane was blocked by a parked cab was harmless. This argument is without merit. III. Motion to Exclude In his second argument, defendant contends that the trial court erred by shifting the burden of persuasion defendant during the State s motion in limine. onto the We disagree. A. Standard of Review We review a trial court s decision to exclude evidence under Rule 403 for abuse of discretion. State v. Whaley, 362 N.C. 156, 160, 655 S.E.2d 388, 390 (2008). B. Analysis The State made a motion in limine to exclude all testimony concerning an investigation into allegations of sexual misconduct against defendant. The State argued that evidence of this irrelevant investigation would be and confusing to the -9jury. Defendant contends that the trial court improperly shifted the burden of persuasion on this motion to defendant. As a general rule, evidence which tends to make the existence of a fact of consequence more or less probable is relevant and admissible. State v. Huggins, 338 N.C. 494, 500, 450 S.E.2d 479, 483 (1994) (citing N.C. R. Evid. 401). However, Rule 403 of the North Carolina Rules of Evidence permits a trial court, in its discretion, to exclude otherwise relevant evidence if its probative value is substantially danger of . . . confusion of the issues. In court the was instant case, confronted evidentiary with decision. defendant what outweighed the N.C. R. Evid. 403. contends appears Specifically, by to that be defendant a the trial difficult notes that, during pre-trial hearings, the trial court had overruled the State s objection investigation. to testimony Subsequently, concerning however, the the sexual court assault granted the State s motion in limine, stating, I ll grant the motion just to be safe. Defendant contends that this statement constituted an discretion, abuse of as a close call ruling on the admissibility of relevant evidence as defendant contends this to be should fall in favor of admission, not exclusion. -10We find defendant s argument unpersuasive. case concerned a charge of driving while impaired. The instant Any evidence of a prior investigation or allegations of sexual misconduct were not relevant. We discern no abuse of discretion in the trial court s decision to exclude this evidence. This argument is without merit. NO ERROR. Judges CALABRIA and McCULLOUGH concur. Report per Rule 30(e).
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