Appeal by defendant from judgment entered 8 December 2004 by
Judge John O. Craig III in Guilford County Superior Court. Heard
in the Court of Appeals 30 November 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Patricia A. Duffy, for the State.
M. Alexander Charns for defendant-appellant.
Defendant Eddie Glenn Bowden appeals his convictions for
habitual driving while impaired and driving with a revoked license.
On appeal, defendant principally contends that the trial court
erred in denying his motion to suppress. Although defendant argues
that the police lacked reasonable articulable suspicion to stop
him, the Supreme Court's opinion in State v. Foreman, 351 N.C. 627,
527 S.E.2d 921 (2000), addressing almost identical circumstances,
holds otherwise. The trial court, therefore, properly denied
defendant's motion to suppress.
The State's evidence tended to show the following facts. On
the evening of 5 February 2003, the police were conducting a
driver's license checkpoint on Florida Street in Greensboro, North
Carolina. Florida Street is a two-lane road that intersects with
Holden Road at the bottom of a hill. The checkpoint was not
visible to motorists approaching on Holden Road until after they
crested the hill about 250 feet away. One police officer, Officer
Goodykoontz, sitting in a patrol car, was assigned to identify
drivers on Holden Road who might be trying to elude the checkpoint.
At about 11:30 p.m., Officer Goodykoontz heard the sound of an
engine revving loudly and then saw a pickup truck crest the hill on
Holden Road and descend rapidly towards the checkpoint. As he
watched, the truck braked hard, causing the front headlights to dip
low. The truck then made an abrupt right-hand turn into the
parking lot of the nearest apartment complex. Officer Goodykoontz
followed in his patrol car with the blue lights turned off,arriving at the entrance of the parking lot approximately 30
Once he was in the parking lot, Officer Goodykoontz spotted a
pickup matching the one he had just seen. As he approached in his
patrol car, he saw the truck pull out of a parking space into which
it had apparently backed, travel towards the parking lot's exit,
but then drive head first into a new parking space as the patrol
car drew near. Officer Goodykoontz pulled his patrol car behind
the truck and activated his blue lights. He walked up to the truck
and asked the occupant for his driver's license and registration.
In response, defendant, who was the truck's sole occupant,
stated that another person named "Marcus" had been driving the
truck, but that he had just left. Asked to explain further,
defendant claimed that he had just come out of one of the
apartments in the complex and that Marcus had asked him to drive
the pickup to Marcus' girlfriend's apartment elsewhere in the
complex. He stated that the girlfriend's apartment was "around the
corner, but he didn't know which apartment."
As this conversation took place, Officer Goodykoontz noticed
that defendant's speech was slurred, his eyes were glassy and red,
and he smelled of alcohol. The officer asked defendant to step out
of the truck. When defendant complied, Officer Goodykoontz
observed that defendant was unsteady on his feet and was wavering
from side to side. In order to check defendant's story, Officer
Goodykoontz asked him to identify the apartment he had left when he
went to move the truck for Marcus. Defendant then denied being inany apartment, claiming that he had reached the apartment complex
on foot from a restaurant about two miles away.
When Officer Goodykoontz asked defendant how much he had had
to drink, he replied that he had had "a few." Officer Goodykoontz
then asked defendant to step to the sidewalk so that he could
perform field sobriety tests. At that point, defendant stuck out
his hands towards the officer and said, "You might as well arrest
me. I'm not doing any tests."
Officer Goodykoontz arrested defendant for driving while
impaired ("DWI"). He was transported to the police department,
read his Miranda
rights, and asked to take an Intoxilyzer test,
which he refused. He was later indicted for DWI, habitual DWI
under N.C. Gen. Stat. § 20-138.5 (2005), and driving with a revoked
license under N.C. Gen. Stat. § 20-28(a) (2005). A jury convicted
him of all three crimes, and the trial judge imposed a consolidated
sentence of 24 to 29 months. Defendant filed a timely appeal.
Motion to Suppress
 Defendant first assigns error to the trial court's denial
of his motion to suppress all evidence obtained as a result of
Officer Goodykoontz' encounter with defendant. In reviewing a
trial court's ruling on a motion to suppress, we first determine
whether the trial court's findings of fact are supported by
competent evidence. State v. Smith
, 160 N.C. App. 107, 114, 584
S.E.2d 830, 835 (2003). In this case, however, the trial court
failed to make findings of fact in its ruling upon the motion tosuppress, an omission that defendant contends is reversible error.
When the trial court conducts an evidentiary hearing regarding
the competency of the evidence, the trial court is required to make
findings of fact if there is a conflict in the evidence. State v.
, 352 N.C. 227, 237, 536 S.E.2d 1, 7 (2000), cert. denied
U.S. 1167, 148 L. Ed. 2d 997, 121 S. Ct. 1131 (2001). When,
however, there is no conflict in the evidence, findings are not
required, although it is preferable for the trial court to make
In the event there is no conflict in the evidence and
the trial court makes no findings, "'the necessary findings are
implied from the admission of the challenged evidence.'" Id.
(quoting State v. Vick
, 341 N.C. 569, 580, 461 S.E.2d 655, 661
Here, defendant did not present any evidence of his own, and
no apparent conflict arose from the State's evidence, which was
comprised solely of Officer Goodykoontz' testimony. The trial
court did not, therefore, commit reversible error by failing to
make findings of fact in connection with the denial of the motion
Defendant's assignment of error regarding the merits of the
motion to suppress states: "The trial court committed error by not
granting defendant's motion to suppress the stop of his vehicle on
the grounds that the stop was without probable cause or reasonable
articulable suspicion . . . ." In his brief, however, defendant
argues first that the trial court erred in failing to make thefindings of fact required by State v. Rose
, 170 N.C. App. 284,
291_93, 612 S.E.2d 336, 341, appeal dismissed and disc. review
, 359 N.C. 641, 617 S.E.2d 656 (2005), in determining the
constitutionality of a checkpoint. Defendant did not, however,
argue before the trial court that the checkpoint was
unconstitutional. The trial court, therefore, had no reason to
address the issue. Further, because defendant did not argue the
constitutionality of the checkpoint below, we do not address that
question on appeal. State v. Hunter
, 305 N.C. 106, 112, 286 S.E.2d
535, 539 (1982) ("[A] constitutional question which is not raised
and passed upon in the trial court will not ordinarily be
considered on appeal.").
Alternatively, defendant argues that the checkpoint violated
N.C. Gen. Stat. § 20-16.3A (2005), which sets out the requirements
for "impaired driving checks of drivers of vehicles on highways and
public vehicular areas." The State argues that the legality of the
checkpoint does not matter in light of the fact defendant did not
stop at the checkpoint. Since, however, the evidence in the record
is undisputed that the checkpoint at issue was a driver's license
and registration checkpoint and not an impaired driving checkpoint,
whether the checkpoint complied with N.C. Gen. Stat. § 20-16.3A is
immaterial, and we need not address the State's argument.
The final issue with respect to the motion to suppress is
whether, under State v. Foreman
, 351 N.C. 627, 527 S.E.2d 921
(2000), Officer Goodykoontz had a reasonable, articulable suspicion
to stop defendant. Foreman
"reaffirmed the long-standing rule that[w]hen an officer observes conduct which leads him reasonably to
believe that criminal conduct may be afoot, he may stop the
suspicious person to make reasonable inquiries." Id.
at 630, 527
S.E.2d at 923 (internal quotation marks omitted) (alteration
original). To justify a stop, the officer "'must be able to point
to specific and articulable facts, which taken together with
rational inferences from those facts, reasonably warrant [the]
(quoting State v. Thompson
, 296 N.C. 703, 706,
252 S.E.2d 776, 779, cert. denied
, 444 U.S. 907, 62 L. Ed. 2d 143,
100 S. Ct. 220 (1979)
) (alteration original).
involved facts remarkably similar to those of this
case. The police in Foreman
were operating a DWI checkpoint in the
middle of the night. They had posted signs warning of the
checkpoint one-tenth of a mile prior to the actual stop, and they
had an officer assigned to watch for vehicles that appeared to be
avoiding the checkpoint. A small red car approached and made a
quick, but legal, left turn immediately after passing the sign that
warned of the checkpoint. The police officer began following the
car, without attempting to stop it, and watched it make another
quick left hand turn. He lost sight of it for a moment, and then
found it parked in a residential driveway, with its lights and
engine turned off and the doors closed. The officer turned on his
bright lights and shined them on the car, which enabled him to see
people crouching down in the car and not moving. When backup
arrived, the officer approached the vehicle and observed open
containers of alcohol. Upon investigating further, he found thatthe driver smelled of alcohol and was unsteady on her feet. She
was subsequently convicted of DWI.
Court first held that the officer did not stop
defendant's vehicle at any point because the defendant voluntarily
parked her car and remained in the car until the officer
at 630, 527 S.E.2d at 923. "Therefore, defendant
was not 'seized' by the police officer until at least that point
[when the officer approached the vehicle]." Id. See also State v.
, 115 N.C. App. 711, 714, 446 S.E.2d 135, 138 (1994) (where
defendant got out of his car and appeared unsteady, and officer
asked why he turned off of the road prior to the license check,
this Court noted that a "seizure does not occur simply because a
police officer approaches an individual and asks a few questions.
Communications between police and citizens involving no coercion or
detention are outside the scope of the fourth amendment" (internal
quotation marks and citation omitted)).
In this case, defendant contended at trial that the officer's
use of his blue lights and his parking of the patrol car so as to
block defendant's car resulted in a stop. Even if, however, we
that a stop occurred, the remaining holding of
compels the conclusion that the trial court properly denied
the motion to suppress in this case.
Although the Supreme Court in Foreman
had concluded that no
stop occurred, it proceeded to reverse the Court of Appeals'
conclusion that the legal turn immediately preceding the
checkpoint, without more, did not justify an investigatory stop. The Court stated: "[W]e hold that it is reasonable and permissible
for an officer to monitor a checkpoint's entrance for vehicles
whose drivers may be attempting to avoid the checkpoint, and it
necessarily follows that an officer, in light of and pursuant to
the totality of the circumstances
or the checkpoint plan, may
pursue and stop a vehicle which has turned away from a checkpoint
within its perimeters for reasonable inquiry to determine why the
vehicle turned away." Foreman
, 351 N.C. at 632-33, 527 S.E.2d at
924 (emphasis added).
In this case, the totality of the circumstances justified the
officer's pursuing and stopping defendant's vehicle to inquire as
to why he turned away prior to the checkpoint. In addition to the
fact of defendant's legal turn immediately prior to the checkpoint,
the following facts combined to allow Officer Goodykoontz to make
a reasonable inquiry to determine whether defendant was trying to
evade the checkpoint: (1) the late hour; (2) the sudden braking of
the truck when defendant crested the hill and could see the
checkpoint, to the point that the headlights dipped as the front of
the truck dove towards the street; (3) the abruptness of
defendant's turn into the nearest apartment complex parking lot;
and (4) defendant's behavior in first backing the truck into one
space, pulling out and proceeding towards the parking lot exit, and
then re-parking when he spotted the patrol car approaching him.
Under the totality of these circumstances, any investigatory stop
that Officer Goodykoontz may have performed was proper. Therefore,
the trial court correctly ruled that the evidence gleaned from theencounter between defendant and the officer should not be
Defendant also contends that if the evidence from his
encounter with Officer Goodykoontz had been suppressed, it would
have been proper for the trial court to grant his motion to dismiss
the charges for insufficiency of the evidence. Since we find that
the evidence was properly admitted, we need not reach this
argument. Defendant, we note, does not contend that his motion to
dismiss should have been granted even in the event that Officer
Goodykoontz' testimony was properly admitted.
 Defendant's final argument is that the superior court
lacked jurisdiction to conduct a trial on defendant's misdemeanor
DWI and driving with a revoked license charges without a trial
first in district court. Defendant contends that habitual DWI is
a status and not a substantive felony offense and therefore, those
misdemeanor charges were not properly joined for trial in superior
N.C. Gen. Stat. § 7A-271(a)(3) (2005) (providing that
superior court has jurisdiction to try a misdemeanor charge if
properly consolidated with a felony charge under N.C. Gen. Stat. §
As defendant recognizes, this Court held otherwise in State v.
, 115 N.C. App. 547, 550, 445 S.E.2d 610, 612 (holding that
a superior court erred in dismissing defendant's habitual DWI
charge for lack of jurisdiction), disc. review denied
, 337 N.C.
805, 449 S.E.2d 751 (1994). Defendant contends, however, that thesubsequent case of State v. Vardiman
, 146 N.C. App. 381, 552 S.E.2d
697 (2001), cert. denied
, 537 U.S. 833, 154 L. Ed. 2d 51, 123 S.
Ct. 142 (2002), implicitly overruled Priddy
because it described
habitual DWI as a recidivist offense. One panel of the Court of
Appeals may not, however, overrule another panel. In re Appeal
from Civil Penalty
, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989).
In any event, Vardiman
in fact reaffirms Priddy
's holding that
"[h]abitual impaired driving is a substantive offense[,]" not a
status offense as defendant would prefer. Vardiman
, 146 N.C. App.
at 384-85, 552 S.E.2d at 700. The mere fact that a statute is
directed at recidivism does not prevent the statute from
establishing a substantive offense. Defendant "concedes that if
this Court determines that the habitual DWI statute creates a
substantive offense, then the Superior Court possessed jurisdiction
to try him on the misdemeanor offenses set out in the same
indictment with the habitual DWI charge."
Judges HUNTER and McCULLOUGH concur.
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