An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-238


Filed: 2 January 2007


v .                             Iredell County
                                No. 03 CRS 58699
ALLAN R. STITT, SR.,                    

    Appeal by defendant from judgment entered 19 May 2005 by Judge W. David Lee in the Superior Court in Iredell County. Heard in the Court of Appeals 31 October 2006.

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

    Charlotte Gail Blake, for defendant-appellant.

    HUDSON, Judge.

    At the 10 May 2005 criminal session of the Superior Court in Iredell County, defendant Allan R. Stitt, Sr., was indicted for second-degree murder and driving while impaired (“DWI”) in connection with the death of Kathryn Tolbert Collins. Defendant timely filed a motion to suppress the results of a blood test. Following a hearing, the court denied defendant's motion and the jury convicted defendant on both counts. The court sentenced defendant to twelve months on the DWI charge and 145 to 183 months on the second-degree murder charge. Defendant appeals. As discussed below, we find no error.
    The evidence tended to show the following: On 28 August 2003, William and Kathryn Collins were returning home from Charlotte toMount Airy after transporting a car via tow dolly to their daughter, a college student at the University of North Carolina at Charlotte. The Collins were pulling their daughter's broken-down car on a tow dolly behind their pickup truck. The dolly's lights were not working, but Mr. Collins had turned on the car's parking lights to make it visible. At approximately 9:30 p.m., as Mr. Collins drove north on I-77, he saw a red pickup truck come up close behind him, and then try to pass him on the right in the breakdown lane. Defendant clipped the guardrail and then collided with the Collins' truck and tow dolly. The Collins' truck went over the guardrail and off the road, landing on its side. Mrs. Collins died at the scene and Mr. Collins suffered serious injuries and was hospitalized for twelve days. Several other drivers testified that, prior to the accident, they had seen defendant tailgating, flashing his lights and driving in an aggressive and reckless manner.
    Trooper Brad Hyatt of the North Carolina Highway Patrol arrived on the scene, and after checking on the Collins, spoke to defendant who had remained in his truck. Trooper Hyatt noted that defendant smelled of alcohol and had slurred, mumbled speech, and seemed disoriented. Trooper Travis Baity arrived at the scene and saw several beer cans in and around defendant's truck. Trooper Baity testified that defendant had red, glassy eyes, a flushed face, slurred speech and was unable to recite the ABCs. Both Troopers and an EMT at the scene formed the opinion that defendant was intoxicated. Defendant refused to submit to an Alco-Sensortest, and Troutman Fire and Rescue transported him to Davis Regional Hospital.
    Trooper Baity obtained a search warrant for a blood sample from defendant, which subsequently revealed defendant's blood alcohol concentration to be 0.09 grams per 100 milliliters. An expert witness testified that defendant's blood alcohol concentration would have been about 0.15 at the time of the crash.
    Defendant first argues that the court erred in denying his motion to suppress the blood test results obtained pursuant to the search warrant. We do not agree.
    Defendant contends that the search warrant was defective and thus violated his constitutional rights and rights under N.C. Gen. Stat. § 15A-974. Defendant also contends that the court erred in considering the testimony of Trooper Baity about what he told the magistrate when obtaining the warrant. The State acknowledges that the warrant application contained inadvertently false information, but asserts that the application also contained sufficient truthful allegations to establish probable cause.
    Our standard of review of the trial court's ruling on the motion to suppress is well-established:
        [T]he trial court's findings of fact are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting. Any conclusions of law reached by the trial court . . . must be legally correct, reflecting a correct application of applicable legal principles to the facts found.

State v. Barden, 356 N.C. 316, 332, 572 S.E.2d 108, 120-21 (2002), cert. denied, 538 U.S. 1040, 155 L. Ed. 2d 1074 (2003) (internalcitations and quotation marks omitted). In addition, where a defendant fails to specifically challenge any of the trial court's findings of fact relating to the motion to suppress or to clearly identify in his brief which of the trial court's findings of fact are not supported by the evidence, “this Court's review is limited to whether the trial court's findings of fact support its conclusions of law.” State v. Cheek, 351 N.C. 48, 63, 520 S.E.2d 545, 554 (1999), cert. denied, 530 U.S. 1245, 147 L. Ed. 2d 965 (2000).
    An affidavit supporting a search warrant is presumed valid. State v. Monserrate, 125 N.C. App. 22, 30, 479 S.E.2d 494, 500 (1997). “Where, however, defendant makes a substantial preliminary showing that a false statement was knowingly and intentionally, or with reckless disregard for the truth, included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, he is entitled to a hearing at his request.” Id. at 30-31, 479 S.E.2d at 500. Where information that is false is “included in the affidavit as a result of exaggeration, reckless disregard, or even bad faith,” the error is harmless if “the affidavit's remaining content is sufficient to establish probable cause.” Id. at 32, 479 S.E.2d at 501.
    Here, defendant has not assigned error to any specific finding of fact in the trial court's order denying his motion to suppress, nor has he clearly identified an erroneous finding in his brief. The trial court made extensive findings about the accurate and relevant information contained in the search warrant application,including sworn statements from Trooper Baity that: he detected the odor of alcohol on defendant's breath and saw a beer can under defendant's vehicle, that defendant had red, glassy eyes and a flushed face, was belligerent, and was unable to correctly recite the alphabet, all of which in Trooper Baity's experience suggested defendant had consumed alcohol. These factual findings support the court's conclusion that the truthful and accurate information contained in the application was “sufficient to establish probable cause for purposes of the magistrate issuing a search warrant.” This assignment of error is without merit.
    Defendant next argues that the trial court erred in admitting testimony about defendant's prior speeding convictions under Rule 404(b). We do not agree.
    Defendant contends that the admission of evidence about his prior convictions for speeding for the purpose of showing malice was improper under N.C. Rule Of Evidence 404(b). However, we conclude that defendant failed to preserve this issue for our review. Defendant testified on his own behalf at trial, and the State questioned him about four prior speeding convictions. Defendant admitted each conviction without objection from his counsel. Even if defendant had preserved this issue, he would not prevail. Our Courts have repeatedly held that “prior driving convictions of a defendant are admissible to show malice, and the showing of malice in a second-degree murder case is a proper purpose within the meaning of Rule 404(b).” State v. Edwards, 170 N.C. App. 381, 385, 612 S.E.2d 394, 396 (2005) (internal citationand quotation marks omitted). We overrule this assignment of error.
    Defendant also argues that the court erred in denying his motion to dismiss for insufficiency of the evidence. We disagree.
    Defendant contends that the State failed to prove malice, one of the elements of second-degree murder. When a defendant moves 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.'” State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002) (quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980)). In reviewing challenges to the sufficiency of evidence, this Court
        must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve. The test for sufficiency of the evidence is the same whether the evidence is direct or circumstantial or both. Circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence.    

at 596, 573 S.E.2d at 869 (quoting State v. Barnes, 334 N.C. 67, 75-6, 430 S.E.2d 914, 918-19 (1993)).
    As discussed supra, evidence of defendant's four prior speeding convictions was properly admitted to show malice. In addition, the State presented evidence that defendant was driving while impaired on a congested highway at night, tailgating other vehicles and flashing his lights at them, and then tried to pass avehicle on the right in the emergency lane while speeding. Viewing this evidence in the light most favorable to the State and giving the State the benefit of all reasonable inferences, this evidence was sufficient to establish malice. We overrule this assignment of error.
    No error.
    Judges WYNN and STEPHENS concur.
    Report per Rule 30(e).
    The judges participated and submitted this opinion for filing prior to 1 January 2007.

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