An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 19 July 2005
STATE OF NORTH CAROLINA
v. Alamance County
Nos. 03 CRS 52704; 55420
HUNTER JEROME HARRIS
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.
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
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
(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
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,
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.
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
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.
, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980) (citation
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,
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)
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
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.
Judges ELMORE and GEER concur.
Report per Rule 30(e).
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