An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA02-596


Filed: 17 June 2003


v .                         Dare County
                            Nos. 99 CRS 2259-62
DAVID LEE JONES                    99 CRS 2306

    Appeal by defendant from judgments entered 25 February 2000 by Judge J. Richard Parker in Dare County Superior Court. Heard in the Court of Appeals 19 February 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Anne M. Middleton, for the State.

    ALEXY, MERRELL, WILLS & WILLIS, L.L.P., by James R. Wills, III, for defendant appellant.


    David Lee Jones (“defendant”) appeals from his convictions of one count of felonious speeding to elude arrest, one count of first-degree kidnapping, two counts of first-degree rape, and one count of assault with a deadly weapon on a government official. For the reasons stated herein, we find no error by the trial court.
    At trial, the State presented evidence tending to show the following: On 9 May 1999, defendant approached the victim, as she was walking on the beach, and asked her if she had seen his son. The victim informed defendant that she had not seen his son and continued to walk. Defendant then approached the victim from behind and placed a knife against her throat. The victim attempted to free herself from defendant; however, he held her arms behindher back and forced her to walk under the boardwalk on the beach. While under the boardwalk, defendant raped the victim. Defendant then removed his shirt, cut it into “strips,” tied the victim up and left. Defendant returned to the victim's location and physically placed her inside his vehicle and drove away from the beach. Defendant then stopped his automobile and again raped the victim.
    Officer William Kenna (“Officer Kenna”) was on patrol when he observed defendant's vehicle operating below the speed limit and crossing the “dotted line” on the freeway. Upon observing defendant's driving pattern, Officer Kenna activated his blue lights in order to stop defendant for a traffic violation. Defendant responded to the traffic stop by pulling his vehicle over; however, when Officer Kenna approached the vehicle defendant drove away at a high rate of speed. Officer Kenna, Officer Paul Terry (“Officer Terry”), and Officer Benjamin Deanes (“Officer Deanes”) then pursued defendant. As defendant attempted to flee the officers, his vehicle collided with Officer Deanes' patrol vehicle. The impact of the collision caused defendant's vehicle to spin in a backward direction and the victim “jumped” out of defendant's automobile. Defendant also exited his vehicle and fled on foot from the officers.
    As defendant ran from the officers, Officer Kenna “tackled” him and defendant became physically combative. The officers gained control of defendant, placed him in handcuffs and arrested him for driving while intoxicated and speeding to elude arrest. Defendantand the victim were transported to the Outer Banks Medical Center (“the medical center”). While at the medical center, Officer Kenna informed defendant of his rights to breathalyzer and blood testing for the detection of alcohol and drugs. Defendant refused the tests.
    Detective Kevin Brinkley (“Detective Brinkley”) responded to the medical center in order to investigate a report from the victim of sexual assault by defendant. During his investigation, Detective Brinkley requested that defendant voluntarily provide blood, hair, and saliva samples for a “rape suspect kit.” Defendant informed Detective Brinkley that he would not submit to testing for detection of alcohol or drugs. Thereafter, Detective Brinkley informed defendant that the samples would be used to investigate the sexual assault report. Detective Brinkley further advised defendant that if he did not voluntarily give the requested samples, a search warrant would be issued. Defendant then complied with Detective Brinkley's request and provided samples of blood, hair, and saliva.
    On 2 August 1999, defendant was indicted for felonious speeding to elude arrest, first-degree kidnapping, two counts of first-degree rape, and assault with a deadly weapon on a government official. Defendant pled not guilty and presented no evidence at trial.
    Upon the conclusion of the evidence, the jury found defendant guilty and defendant was sentenced to the following active terms of imprisonment: a minimum 384 months and a maximum of 471 months foreach count of first-degree rape; a minimum 133 months and a maximum 169 months for first-degree kidnapping; a minimum twenty-five months and a maximum of thirty months for assault with a deadly weapon on a government official; and a minimum of eleven months and maximum of fourteen months for felony speeding to elude arrest, said sentences to run consecutively. Defendant appeals.


    Defendant presents three assignments of error on appeal, arguing that the trial court erred by (1) denying his motion to suppress deoxyribonucleic acid (“DNA”) evidence; (2) denying his motion to suppress evidence acquired from his vehicle; and (3) denying his motion to dismiss the charge of felonious speeding to elude arrest.    
    In his first assignment of error, defendant argues that the trial court erred by denying his motion to suppress DNA evidence seized from him at the medical center. Defendant contends that he was in police custody, and not given his Miranda rights before the evidence was seized from him. Therefore, defendant argues that the DNA evidence should have been suppressed. We disagree.
    We first note that the State erroneously argues that defendant has failed to properly preserve this assignment of error for appeal. This Court has previously held that in order to properly preserve for appeal an objection to the admissibility of evidence, a motion to suppress should be made before or during trial. State v. Howie, 153 N.C. App. 801, 802, 571 S.E.2d 245, 246 (2002). North Carolina General Statutes § 15A-979(d) states that “[a]motion to suppress evidence made pursuant to this Article is the exclusive method of challenging the admissibility of evidence upon the grounds specified in G.S. 15A-974.” N.C. Gen. Stat. § 15A- 979(d) (2001). The procedure for excluding evidence seized in violation of the Constitutions of the United States and North Carolina as well as for substantial violation of North Carolina Criminal Procedure statutes are outlined in North Carolina General Statutes § 15A-974. See N.C. Gen. Stat. § 15A-974 (2001). Here, before trial, defendant filed a motion to suppress evidence pursuant to Chapter 15A of the North Carolina General Statutes. Therefore, defendant has properly preserved this assignment of error for review by this Court.
    “A violation of the defendant's rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt.” N.C. Gen. Stat. § 15A-1443(b) (2001). The burden is on the State to show that the error was harmless. Id. The appellate court must be convinced that absent the error, the jury probably would have reached a different verdict. State v. Black, 308 N.C.736, 740-41, 303 S.E.2d 804, 806-07 (1983). Therefore, the appellate court must determine whether the error caused the jury to find the defendant guilty. State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986). Overwhelming evidence of a defendant's guilt of the crimes charged may render a constitutional error harmless. State v. Autry, 321 N.C. 392, 403, 364 S.E.2d 341, 348 (1988).     Assuming for the purpose of argument that the trial court erred in admitting the DNA evidence, the evidence of defendant's guilt, even without regard to any DNA evidence, is overwhelming. Here, the victim positively identified defendant as the individual who placed a knife against her throat, forced her to walk under a boardwalk on the beach, and raped her. The victim testified that defendant was wearing a blue shirt, cut the shirt into pieces, tied her to up and then forced her into his vehicle where he again raped her. Upon his arrest defendant was not wearing a shirt and blue strips of material were found by police on the beach. The State Bureau of Investigations assembled the blue material into a shirt. Moreover, the victim's testimony reveals that defendant threatened her with a firearm and demanded that she “jump” from his moving vehicle while he attempted to evade police.
    Testimony from Officer Kenna reveals that he attempted to stop defendant for a traffic violation and witnessed the victim exit the passenger side of the defendant's vehicle. Officer Terry testified that the victim immediately informed police that defendant abducted and raped her. In addition to defendant's vehicle being identified as the automobile pursued by police officers, the vehicle itself was the source of an overwhelming amount of incriminating evidence. A search of defendant's vehicle yielded a firearm, a knife, and other items of evidence consistent with the victim's account of the crimes. Given the overwhelming evidence of defendant's guilt, we are unable to conclude that absent evidence of defendant's DNAblood sample the jury would have reached a different verdict. This assignment of error is overruled.
By his second assignment of error, defendant argues that the trial court erred in denying his motion to suppress evidence seized from his vehicle. Defendant contends that the police did not have a reasonable suspicion of criminal activity to stop him. We disagree.
    “The trial court's findings of fact following a suppression hearing concerning the search of the defendant's vehicle are conclusive and binding on the appellate courts when supported by competent evidence.” State v. Brooks, 337 N.C. 132, 140-41, 446 S.E.2d 579, 585 (1994). However, a trial court's conclusions of law regarding whether the officer had reasonable suspicion to detain a defendant is reviewable de novo. State v. Munoz, 141 N.C. App. 675, 682, 541 S.E.2d 218, 222, cert. denied, 353 N.C. 454, 548 S.E.2d 534 (2001).
    At a pretrial hearing on defendant's motion to suppress evidence found in his automobile, the trial court made the following findings of fact:
            [Officer] Kenna, . . . observed a Mustang automobile on U.S. Highway 158 near Deering Street in Nags Head at approximately 2:20 a.m. on May 10, 1999; that Officer Kenna observed the vehicle making a jerking motion from one lane to the other and that the vehicle was going extremely slow, in his opinion, and upon clocking the vehicle determined that it was traveling at 27 miles per hour in a 50 mile per hour zone;
            That upon Officer Kenna's observation of the vehicle making the abrupt jerking motion from the inside to the outside lane, that heturned around upon the vehicle and further observed the vehicle cross over the dotted line of the highway and also observed the speed of the vehicle to change abruptly several times; that Officer Kenna then proceeded to initiate a stop of the Mustang by using his blue lights and that the vehicle pulled into [a] parking lot . . . in response to the officer's blue lights; that Officer Kenna then exited his vehicle and began approaching the Mustang, at which time the Mustang sped off, leaving the officer in the parking lot; . . . that Officer Kenna then returned to his patrol car and began pursuit of the Mustang; . . .
Based of these findings of facts, the trial court then made the following conclusion of law:
        . . . .
        . . . that Officer Kenna had sufficient reasonable and articulable suspicion to initiate the stop of the defendant's vehicle . . . especially after the defendant departed the scene of the initial stop and sped away from the officer at a high rate of speed and in a dangerous and reckless manner. . . .
        . . . .

    “The Fourth Amendment's protection against 'unreasonable . . . seizures' includes seizure of the person.” State v. Kincaid, 147 N.C. App. 94, 97, 555 S.E.2d 294, 297 (2001) (quoting California v. Hodari D., 499 U.S. 621, 624, 113 L. Ed. 2d 690, 696 (1991)). “These seizures include 'brief investigatory detentions such as those involved in the stopping of a vehicle.'” Id. (quoting State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994). Before stopping a vehicle and detaining its occupants without a warrant, the police officer must have a reasonable suspicion that the individual is involved in criminal activity. See State v. Bonds,139 N.C. App. 627, 628, 533 S.E.2d 855, 856 (2000); see also Terry v. Ohio, 392 U.S. 1, 30, 20 L. Ed. 2d 889, 911 (1968). A court must consider the totality of the circumstances to determine whether reasonable suspicion exists. State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994). “The stop must be based on specific and articulable facts, as well as the rational inferences from those facts, as viewed through the eyes of a reasonable, cautious officer, guided by his experience and training.” Id. A stop requires “a minimal level of objective justification, something more than an 'unparticularized suspicion or hunch.'” Id. (quoting United States v. Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 10 (1989)).
    Officer Kenna testified that while on patrol he observed a “small Mustang” vehicle traveling “much slower” than the posted speed limit. Officer Kenna further testified that he observed the vehicle make an “abrupt jerking maneuver from the inside lane to the outside lane” and that the vehicle “crossed over the dotted line twice” on the highway. Upon observing the vehicle, Officer Kenna initiated a traffic stop. We conclude that under this combination of circumstances, Officer Kenna had a reasonable suspicion to stop defendant based on articulated and specific facts; therefore, the stop by Officer Kenna was legal. We overrule this assignment of error.
    By his final assignment of error, defendant argues that the trial court erred by failing to grant his motion to dismiss. Defendant contends that the State failed to show that he wasspeeding in excess of fifteen miles per hour over the legal speed limit, and that his negligent driving led to an accident causing property damage in excess of $1,000.00. We disagree.     
     When ruling on a motion to dismiss, the trial court must consider the evidence in the light most favorable to the State. State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 652 (1982). In considering a motion for dismissal, the trial court is to determine whether there is substantial evidence “(a) of each essential element of the offense charged, or of a lesser offense included therein, and (b) of defendant's being the perpetrator of the offense. If so, the motion to dismiss is properly denied.” Id. at 65-66, 296 S.E.2d at 651-52. “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990). The evidence should be viewed in the light most favorable to the State. See State v. Malloy, 309 N.C. 176, 179, 305 S.E.2d 718, 720 (1983).
    As amended, North Carolina General Statutes section 20-141.5 provides in pertinent part that:    
        (a) It shall be unlawful for any person to operate a motor vehicle on a street, highway, or public vehicular area while fleeing or attempting to elude a law enforcement officer who is in the lawful performance of his duties. Except as provided in subsection (b) of this section, violation of this section shall be a Class 1 misdemeanor.

        (b) If two or more of the following aggravating factors are present at the time the violation occurs, violation of this section shall be a Class H felony.            (1) Speeding in excess of 15 miles per hour over the legal speed limit.

            . . . .

            (3) Reckless driving as proscribed by G.S. 20-140.

            (4) Negligent driving leading to an accident causing:
                a. Property damage in excess of one thousand dollars ($1,000.00); or
                b. Personal injury.

            . . . .

N.C. Gen. Stat. § 20-141.5 (2001).
    In the present case, defendant argues that there was not substantial evidence that he operated his vehicle in excess of fifteen miles per hour. However, the trial court only submitted to the jury the factors of reckless driving and negligent driving leading to an accident causing property damage in excess of $1,000.00. Because the speeding factor was not submitted to the jury, defendant's argument on appeal regarding sufficiency of the evidence as to speeding lacks merit.
    Defendant continues this assignment of error by arguing that the evidence failed to show that defendant's negligent operation of a motor vehicle led to property damage in excess of $1,000.00. However, defendant has waived this assignment of error.
    Our Supreme Court “has long held that where a theory argued on appeal was not raised before the trial court, 'the law does not permit parties to swap horses between courts in order to get a better mount'” in the appellate courts. State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5 (1996) (quoting Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)), cert. denied, 350 N.C. 848, 539S.E.2d 647 (1999). According to Rule of Appellate Procedure 10(b)(1), in order to preserve a question for appellate review, the party must state the specific grounds for the ruling the party desires the court to make. N.C.R. App. P. 10(b)(1) (2002). “The defendant may not change his position from that taken at trial to obtain a 'steadier mount' on appeal.” State v. Woodard, 102 N.C. App. 687, 696, 404 S.E.2d 6, 11 (quoting State v. Benson, 323 N.C. 318, 322, 372 S.E.2d 517, 519 (1988)), disc. review denied, 329 N.C. 504, 407 S.E.2d 550 (1991).
    In the instant case, defense counsel stated the following:
        [o]ur contention would be that certainly you have evidence that could be construed as reckless driving that led to the collision, viewing the testimony and evidence in the light most favorable to the State, it would be one aggravating factor. They are not separate and distinct factors.

At trial, defendant argued that defendant's negligent driving leading to property damage was caused by his reckless driving and should be one aggravating factor. For the first time on appeal, defendant asserts that there was not substantial evidence that defendant's negligent driving led to property damage in excess of $1,000.00. Because defendant impermissibly presents a different theory on appeal than argued at trial, this assignment of error was not properly preserved. Therefore, it is waived by defendant.
    For the reasons contained herein, we hold that the trial court did not err.
    No error.
    Judge WYNN concurs.     Judge LEVINSON concurs in the result.
    Report per Rule 30(e).    

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