State v. Sellas ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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 PLLC, by Drew Nelson, for
defendant-appellant.
STEELMAN, Judge.
Where the trial court made findings of fact at the
suppression hearing, and these findings were supported by
unchallenged evidence and in turn supported the trial court’s
conclusions of law, the trial court did not err in denying
defendant’s motion to suppress. The trial court left no
material issues unresolved in concluding the suppression
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hearing. The trial court did not abuse its discretion in
granting the State’s motion in limine to exclude 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 description. The man was later identified as
Angelo Sellas (defendant). Detective Davidson 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. Upon reaching his patrol vehicle, Detective
Davidson saw defendant’s vehicle drive off. He got behind
defendant’s vehicle at a red light. When the light turned
green, defendant’s vehicle remained stopped for the entire light
cycle, which Detective Davidson estimated lasted 20 to 40
seconds. Only when the light turned yellow did defendant
proceed through the intersection. Detective Davidson later
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observed 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 had no
recollection of a cab being in the right lane. 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. Detective Davidson also observed defendant weaving
within his lane of travel. Detective Davidson called for
backup, and pulled defendant over. Officer Jonathan Morgan
(Officer Morgan) of the Asheville Police Department, the backup
officer, approached defendant’s vehicle on the driver’s side,
and Detective Davidson approached on the passenger side.
Officer Morgan smelled a strong odor of 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. Officer Morgan
conducted the field sobriety test. Defendant’s eyes did not
follow smoothly during the horizontal gaze nystagmus test. The
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test 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,
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suspended 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
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18 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. Defendant’s
contention that the trial court failed to enter an order
containing findings of fact is without merit.
In its order, the trial court found that: (1) Deputy
Davidson saw defendant, who matched the description 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 of these findings was supported by
evidence in the record. These findings, in turn, support the
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trial 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 and articulable suspicion sufficient to stop a
vehicle. See State v. Barnard, 362 N.C. 244, 248, 658 S.E.2d
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643, 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 onto the
defendant during the State’s motion in limine. 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 investigation would be irrelevant and confusing to the
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jury. 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 outweighed by the
danger of . . . confusion of the issues.” N.C. R. Evid. 403.
In the instant case, defendant contends that the trial
court was confronted with “what appears to be a difficult
evidentiary decision.” Specifically, defendant notes that,
during pre-trial hearings, the trial court had overruled the
State’s objection to testimony concerning the sexual assault
investigation. Subsequently, however, the court granted the
State’s motion in limine, stating, “I’ll grant the motion just
to be safe.” Defendant contends that this statement constituted
an abuse of discretion, 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.
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We find defendant’s argument unpersuasive. The instant
case concerned a charge of driving while impaired. 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).