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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA07-558



Filed: 20 November 2007


    v.                    Mecklenburg County
                        Nos. 05 CRS 257350 - 257352

    Appeal by defendant from order entered 25 January 2007 by Judge J. Gentry Caudill in Mecklenburg County Superior Court. Heard in the Court of Appeals 16 November 2007.

    Attorney General Roy Cooper, by Assistant Attorney General Tamara L. Shields, for the State.

    Robin E. Strickland, for defendant-appellant.

    TYSON, Judge.

    Jose Sanchez (“defendant”) appeals from order entered denying his motion to suppress. We affirm.

I. Background
    On 6 December 2005, defendant was arrested for impaired driving, reckless driving, and speeding. On 22 September 2006, defendant was found guilty in the Mecklenburg County District Court of impaired driving and sentenced to ninety days imprisonment and twelve months unsupervised probation. Defendant appealed to the Mecklenburg County Superior Court.
    On 23 January 2007, defendant filed a motion to suppress evidence obtained from an arrest without an arrest warrant or insufficient probable cause to justify an arrest. At thesuppression hearing, Charlotte-Mecklenburg Police Officer James R. Montgomery (“Officer Montgomery”) testified on 6 December 2005 at 2:50 a.m., he was driving southbound on the 6100 block of South Boulevard when he observed defendant's vehicle approaching from behind him exceeding the posted forty miles per hour speed limit. Officer Montgomery stopped his patrol car and activated his rear radar antenna, which measured defendant's speed at seventy miles per hour. Remaining stationary, Officer Montgomery watched as defendant's vehicle “almost ran into the back of [his] patrol car” before moving into the adjacent lane. After defendant passed him, Officer Montgomery activated his blue lights and initiated a traffic stop.
    Officer Montgomery spoke to defendant through his open car window and discovered defendant spoke little English and had “a very strong odor of alcohol emitting from his breath[.]” Defendant also “had a very hard time” producing his driver's license and failed to produce a registration card for the vehicle. When Officer Montgomery asked defendant to step out of the vehicle, he “had a hard time” and “almost fell” to the ground. Based upon defendant's driving, the difficulty he experienced in exiting his vehicle, and the odor on his breath, Officer Montgomery formed an opinion that defendant's faculties were appreciably impaired by the consumption of alcohol. Officer Montgomery called his dispatcher and was advised that no Spanish-speaking officers were available to assist him. Officer Montgomery was unable to administer fieldsobriety tests due to the language barrier. Defendant was placed under arrest for impaired driving, reckless driving, and speeding.
    During his cross-examination of Officer Montgomery, defendant entered into evidence an audiotape and videotape of the traffic stop recorded by equipment installed in the patrol car. Defendant called no witnesses and did not testify.
    At the conclusion of the hearing, the trial court made findings of fact consistent with Officer Montgomery's testimony. Based upon these findings, the trial court concluded that Officer Montgomery had sufficient grounds to perform an investigatory stop of defendant's vehicle, and probable cause to arrest him for impaired driving pursuant to N.C. Gen. Stat. § 20-138.1. On 25 January 2007, the trial court entered an order denying defendant's motion to suppress.
    While preserving the right to appeal the denial of his motion to suppress pursuant to N.C. Gen. Stat. § 15A-979(b), defendant entered an Alford plea to the charges of impaired driving pursuant to N.C. Gen. Stat. § 20-179 and reckless driving pursuant to N.C. Gen. Stat. § 20-140B. North Carolina v. Alford, 400 U.S. 25, 37, 27 L. Ed. 2d 162, 171 (1970). The trial court sentenced defendant to a term of 120 days imprisonment for impaired driving and thirty days imprisonment for reckless driving. The trial court suspended these sentences and placed defendant on unsupervised probation for a period of twelve months. Defendant appeals.
II. Issue
    Defendant argues the arresting officer lacked probable cause to arrest him for impaired driving and asserts the trial court erred by denying his motion to suppress.
III. Motion to Suppress
    Defendant asserts the trial court should have suppressed evidence pertaining to his impaired driving charge. Defendant argues his warrantless arrest was not supported by probable cause, as required by the Fourth and Fourteenth Amendments of the United States Constitution, Article I, Section 19-20, of the North Carolina Constitution, and N.C. Gen. Stat. § 15A-401(b)(2). We disagree.
A. Standard of Review
    In reviewing the denial of a motion to suppress, we must determine “'whether the trial court's findings of fact were supported by competent evidence, in which event they are binding on appeal, and whether those findings support the trial court's conclusions of law.'” State v. Styles, __ N.C. App. __, __, 648 S.E.2d 214, 215 (2007) (quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)). Because the trial court's oral findings were supported by Officer Montgomery's hearing testimony, we are bound thereby. We review de novo the trial court's conclusion that the facts known to Officer Montgomery at the time supported probable cause. Id.
B. Analysis
     Defendant contends the trial court erred in finding probable cause for his arrest because Officer Montgomery failed to performa field sobriety test. Defendant also argues that Officer Montgomery's claim that defendant nearly fell down while exiting his vehicle was “apparently contradicted by the police car videotape.”
    “To be lawful, a warrantless arrest must be supported by probable cause.” State v. Zuniga, 312 N.C. 251, 259, 322 S.E.2d 140, 145 (1984). An officer has probable cause to arrest a suspect if he has a “'reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty.'” Id. (quoting State v. Shore, 285 N.C. 328, 335, 204 S.E.2d 682, 687 (1974)). “'Probable cause is a flexible, common-sense standard. It does not demand any showing that such a belief be correct or more likely true than false. A practical, nontechnical probability is all that is required.'” State v. Sinapi, 359 N.C. 394, 399, 610 S.E.2d 362, 365 (2005) (quoting Zuniga, 312 N.C. at 262, 322 S.E.2d at 146).
    N.C. Gen. Stat. § 20-138.1(a) (2005) provides:
        A person commits the offense of impaired driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this State:

        (1) While under the influence of an impairing substance; or

        (2) After having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more.

    The State presented evidence of : (1) defendant's reckless manner of driving, including his delay in changing lanes to avoid Officer Montgomery's car; (2) a strong odor of alcohol ondefendant's breath at 3:00 a.m.; and (3) the difficulties defendant displayed in producing his driver's license and exiting his vehicle. This evidence was sufficient to provide Officer Montgomery with probable cause for an arrest. State v. Tappe, 139 N.C. App. 33, 38, 533 S.E.2d 262, 265 (2000); State v. Rogers, 124 N.C. App. 364, 369-70, 477 S.E.2d 221, 224 (1996), disc. rev. denied, 345 N.C. 352, 483 S.E.2d 187 (1997).
    To the extent defendant challenges the trial court's findings are contradicted by the audiotape and videotape played at the suppression hearing, we note defendant failed to include the audiotape and videotape as exhibits to the record on appeal. “An appellate court will not assume error when none appears in the record on appeal, and the burden is on appellant to show error.” State v. Kornegay, 313 N.C. 1, 19, 326 S.E.2d 881, 895-96 (1985) (citing State v. Phifer, 290 N.C. 203, 212, 225 S.E.2d 786, 792 (1976), cert. denied, 429 U.S. 1123, 51 L. Ed. 2d 573 (1977); In re Moore, 306 N.C. 394, 403, 293 S.E.2d 127, 132 (1982)). This assignment of error is overruled.
IV. Conclusion
    The trial court's findings and conclusion to deny defendant's motion to suppress are supported by Officer Montgomery's hearing testimony. Defendant failed to include the videotape and audiotape in the record on appeal. The trial court's order denying defendant's motion to suppress is affirmed.
    Judges GEER and STEPHENS concur.
    Report per Rule 30(e).

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