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.
TIMMONS-GOODSON, Judge.
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.
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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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