An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1132


Filed: 19 July 2005


         v.                        Alamance County
                                Nos. 03 CRS 52704; 55420

    Appeal by defendant from judgments signed 3 March 2004 by Judge Steve A. Balog in Alamance County Superior Court. Heard in the Court of Appeals 13 June 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Patricia A. Duffy, for the State.

    Irving Joyner for defendant-appellant.

    BRYANT, Judge.

    Hunter Jerome Harris (defendant) appeals his judgment signed 3 March 2004 entered consistent with a jury verdict finding him guilty of driving while impaired.
    The State's evidence tended to show that on 22 March 2003, at approximately 9:46 p.m., Alamance County Sheriff's Deputy John Eric Franklin (Deputy Franklin) and three other officers responded to a 911 call regarding a domestic disturbance at 5240 George Miles Road. The officers were looking for the suspect, Jerry Brandon. Deputy Franklin and his lieutenant, traveling in separate patrol vehicles, were the first to arrive at the intersection of George Miles Road and Willie Pace Road. George Miles Road was an unlit,dead-end road, with Willie Pace being the only way in or out.
    As Deputy Franklin searched for 5240 George Miles Road, defendant pulled out of a driveway near where Deputy Franklin believed the residence was located. Upon seeing the vehicle leave the driveway, Deputy Franklin notified his lieutenant that he was going to pull the van over to see if any of the occupants were involved in the disturbance. The lieutenant approved Deputy Franklin's plan. Once defendant drove past Deputy Franklin, Deputy Franklin turned around and initiated a stop. Deputy Franklin approached defendant in the van and asked to see his driver's license and identification. Defendant reported that he did not have his license, but stated his birth date and name, Hunter Jerome Harris. Deputy Franklin returned to his vehicle and called Central Communications to confirm that defendant was not the suspect.
    Before receiving a response from Central Communications, other officers alerted Deputy Franklin that the suspect, Jerry Brandon, was in custody. Soon thereafter, Central Communications reported that defendant's license was in a state of revocation because of previous convictions of driving while impaired. Upon returning to the van, Deputy Franklin smelled a strong odor of alcohol. Unsure if the smell came from defendant or the passenger, Deputy Franklin inquired if defendant had been drinking. Defendant responded that he had “had a couple.” Deputy Franklin asked defendant to perform three sobriety tests. Deputy Franklin testified that defendant failed to correctly perform two of three sobriety tests. Based on his observation of defendant Deputy Franklin formed the opinionthat defendant's faculties were appreciably impaired and arrested defendant for driving while impaired. Defendant refused to perform the intoxilyzer test when he arrived at the police station.
    On 18 August 2003, defendant was indicted for habitual driving while impaired and driving while license revoked. This matter came for a jury trial at the 2 March 2004 criminal session of Alamance County Superior Court with the Honorable Steve A. Balog presiding. Immediately prior to trial, a hearing was held on defendant's motion to suppress. The trial court denied defendant's motion to suppress on the grounds that the arresting officer had reasonable articulable suspicion to have executed the stop which led to defendant's arrest. Defendant thereafter pled guilty to the driving while license revoked charge and was found guilty by a jury of driving while impaired.
    Defendant stipulated to three prior driving while impaired convictions within a seven-year period of the current charge. The trial court sentenced defendant to a minimum term of 17 months and a maximum term of 21 months imprisonment for the habitual driving while impaired conviction and 120 days for the driving while license revoked. Defendant appeals.

    The issues on appeal are whether the trial court erred in denying defendant's: (I) motion to suppress and (II) motion to dismiss the driving while impaired charges based on insufficiency of the evidence.
    Defendant first contends the trial court erred in denying his motion to suppress. The scope of appellate review of an order denying 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) (citations omitted). Further, “the trial court's ruling on a motion to suppress is afforded great deference upon appellate review as it has the duty to hear testimony and weigh the evidence.” State v. McClendon, 130 N.C. App. 368, 377, 502 S.E.2d 902, 908 (1998), aff'd, 350 N.C. 630, 517 S.E.2d 128 (1999) (citation omitted).
    The trial court's findings with respect to defendant's motion to suppress are as follows:
        (2) At 9:46 p.m. on March 22, 2003 Franklin was dispatched along with other deputies to a residence on George Miles Road in Alamance County in response to a disturbance call at 5240 George Miles Road. The nature of the disturbance was a 911 call that a Jerry Brandon was drunk in the residence, starting fights and destroying property.

        (3) George Miles Road is a dead[-]end road, with its intersection at Willie Pace Road being the only way in or out. George Miles Road is approximately 200 to 300 yards long with approximately ten to fifteen houses, with no street lighting. It is a public highway.

        (4) After arriving at the intersection of George Miles Road and Willie Pace Road at 10 p.m., Franklin and the other deputies did not know which house was 5240 George Miles Road. Turning onto George Miles Road, Franklin was in the lead car with his lieutenant followingin another car. Franklin began shining a light on the mailboxes to read the numbers as he slowly proceeded down the road.

        (5) After reading the first house number, Franklin estimated where 5240 George Miles Road would be located based on his understanding of the county's numbering system and his experience as a road deputy. As he looked up to the area where he believed the residence to be located, Franklin saw a van pull out of a driveway, from an area that was wooded, shadowed and dark. It appeared to Franklin that the van might have come from the residence at 5240 George Miles Road. The van turned toward Franklin and proceeded in the direction of Willie Pace Road, which was the only exit from George Miles Road.

        (6) Franklin believed that Jerry Brandon, the suspect in the disturbance, might be in the van. As the van approached Franklin, he called his lieutenant and said that he was going to stop and check the van, and that the lieutenant should go ahead and check the residence.

        (7) As the van passed Franklin, he turned on his blue lights and turned around to pursue the van. The van stopped within 100 feet of where Franklin turned on his blue lights, still on George Miles Road and approximately 15 feet before the intersection with Willie Pace Road. The approximate time of the stop was 10:05 p.m.

        (8) Franklin approached the van, which was driven by the Defendant and had a passenger in the right front seat. Franklin asked the Defendant and his passenger their names. Neither the Defendant nor his passenger gave the name of Jerry Brandon.

        (9) Prior to this incident, Franklin did not know the Defendant, the Defendant's passenger, or Jerry Brandon; Franklin then asked the Defendant and his passenger for a driver's license or identification. The Defendant told Franklin that he did not have a license with him, and after being asked, gave Franklin his date of birth.
        (10) Leaving the Defendant seated in the driver's seat of the van, Franklin returned to his patrol car and called the Defendant's name and date of birth to Central Communications, to verify the Defendant's identity with the N.C. Department of Motor Vehicles driver's license data bank.

        (11) While waiting for the verification, Franklin learned by radio that the other deputies had arrived at the residence and located the suspect, Jerry Brandon, and that Franklin was not needed. Immediately after learning that the suspect had been found, Franklin received a report from Central Communications that the Defendant's driver's license was in a state of revocation for a prior conviction of Driving While Impaired.

Based on these findings of fact, the trial court found that “Deputy Franklin had sufficient reasonable articulable suspicion to perform an investigatory stop.”
     In determining whether a reasonable suspicion to make an investigatory stop exists, “[a] court must consider 'the totality of the circumstances--the whole picture.'” State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994) (citing U.S. v. Cortez, 449 U.S. 411, 417, 66 L. Ed. 2d 621, 629 (1981)). These “specific and articulable facts” must provide only a minimum level of justification when “viewed through the eyes of a reasonable, cautious officer, guided by his experience and training.” Id., (citing Terry v. Ohio, 392 U.S. 1, 21-22, 20 L. Ed. 2d 889, 906 (1968)). Our Supreme Court has upheld a brief investigatory stop for the purposes of seeking the individual's identity in light of the facts known to the officer at the time. State v. Thompson, 296 N.C. 703, 707, 252 S.E.2d 776, 779, cert. denied, 444 U.S. 907, 62 L. Ed. 2d 143 (1979). In Thompson, our Supreme Court concludedthat officers were reasonably warranted in approaching and detaining the occupants of a van for purposes of investigating their activities and determining their identity where the van was located in an isolated area at 12:30 a.m. near the vicinity where break-ins involving a van had recently been reported. Id. The Court noted that it “must examine both the articulable facts known to the officers at the time they determined to approach and investigate the activities.” Id. at 706, 252 S.E.2d at 779.
    In the present case, the investigatory stop occurred at 10:05 p.m. on the same unlit street where the domestic disturbance had taken place. While three officers were dispatched to the disturbance call, Deputy Franklin was the first to arrive. He knew only that the suspect was male. At the time he decided to stop defendant, Deputy Franklin had received no reports from other officers regarding activity in the area or interaction with the suspect. Additionally, Deputy Franklin observed no activity other than defendant's van leaving a location very near the place where he believed the location of the disturbance to be. Deputy Franklin stopped the van in order to seek identification of the driver and passenger. Based on these facts, there is sufficient evidence that reasonable suspicion for an investigatory stop existed. Accordingly, the trial court properly denied defendant's motion to suppress.
     Defendant also contends the trial court erred in denying a motion to dismiss on the DWI charge based on insufficiency of theevidence. Specifically, defendant argues there was not substantial evidence that he was impaired. We disagree.
    “Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied.” State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980) (citation omitted). In reviewing challenges to the sufficiency of evidence, the Court “must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences.” State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992) (citation omitted). Furthermore, “contradictions and discrepancies do not warrant dismissal of the case -- they are for the jury to resolve.” State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 653 (1982) (citation omitted).
    “[T]he 'fact that a motorist has been drinking, when considered in connection with faulty driving . . . or other conduct indicating an impairment of physical or mental faculties, is sufficient prima facie to show a violation of [N.C.G.S. §] 20-138.'” Atkins v. Moye, 277 N.C. 179, 185, 176 S.E.2d 789, 794 (1970) (quoting State v. Hewitt, 263 N.C. 759, 764, 140 S.E.2d 241, 244 (1965)). “An officer's opinion that a defendant is appreciably impaired is competent testimony and admissible evidence when it is based on the officer's personal observation of an odor of alcohol and of faulty driving or other evidence of impairment.” State v.Gregory, 154 N.C. App. 718, 721, 572 S.E.2d 838, 840 (2002) (citation omitted). Furthermore, refusal to submit to a chemical analysis of breath is also evidence of impairment. State v. Scott, 356 N.C. 591, 597-98, 573 S.E.2d 866, 869-70 (2002).
     Here, Deputy Franklin smelled an odor of alcohol when he approached the vehicle a second time. Defendant admitted that he had “had a couple” when Deputy Franklin asked defendant if he had been drinking. Defendant also failed to correctly perform two of three field sobriety tests and refused to take an intoxilyzer test at the police station. Finally, Deputy Franklin testified that, in his opinion, defendant's faculties were appreciably impaired. Based on this evidence of defendant's impairment, the trial court properly denied defendant's motion to dismiss.
    No error.
    Judges ELMORE and GEER concur.
    Report per Rule 30(e).

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