IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-496
No. COA21-580
Filed 19 July 2022
Brunswick County, Nos. 20 CRS 50996, 706
STATE OF NORTH CAROLINA
v.
STEVEN RAY ROUSE, Defendant.
Appeal by defendant from judgment entered on or about 10 March 2021 by
Judge Frank Jones in Superior Court, Brunswick County. Heard in the Court of
Appeals 5 April 2022.
Attorney General Joshua H. Stein, by Assistant Attorney General Kathryne E. Hathcock, for the State.
Dunn, Pittman, Skinner & Cushman, PLLC, by Rudolph A. Ashton, III, for defendant-appellant.
STROUD, Chief Judge.
¶1 Defendant Steven Ray Rouse appeals from a judgment for habitual impaired
driving entered following a jury trial. On appeal, Defendant contends the trial court
erred when it (1) denied Defendant’s motion to suppress an eyewitness identification,
(2) denied Defendant’s motion to dismiss for insufficiency of the evidence, and (3)
instructed the jury on flight as evidence of guilt over Defendant’s objection. Because
the trial court’s unchallenged Findings of Fact support its Conclusions of Law that STATE V. ROUSE
Opinion of the Court
the eyewitness identification did not violate Defendant’s due process rights or the
relevant eyewitness identification statute, we affirm the trial court’s denial of the
motion to suppress. Further, because the State presented sufficient evidence
Defendant drove a vehicle, fled the scene, and took steps to avoid apprehension, we
find no error in the trial court’s rulings on the sufficiency or jury instruction issues.
I. Background
¶2 The State’s evidence at trial tended to show that on 29 November 2019, Charles
Randy Hewett was outside behind his mother’s house in Bolivia, North Carolina,
when he heard a crash at about 4:40 p.m. Hewett ran to the front yard, arrived at
the crash scene “less than a minute” later, and found Defendant sitting with “his
nose . . . bleeding a little bit” in the driver’s seat of a pickup truck that had crashed
nose-first into a ditch alongside the road. No one other than Hewett’s family members
were around the scene of the crash. Police later determined the truck was registered
to Defendant.
¶3 After coming upon Defendant at the crash scene, Hewett talked with
Defendant and called a phone number at his request. Defendant asked Hewett to
assist in pulling the truck out of the ditch, but Hewett declined, and someone called
911. At this point, Defendant grew increasingly “aggravated,” and left down the main
road toward Highway 17, walking in a “wobbly” manner before he appeared to head
down a dirt road into the woods. STATE V. ROUSE
¶4 Law enforcement arrived on the scene about ten to fifteen minutes after
Defendant left. Hewett gave an officer on the scene, State Highway Patrol Trooper
James Ballard, a written description of “a white male [with a] green jacket [and] long
sandy brown hair” who had exited the truck and walked up the main road. Sergeant
Keith Bowling of the Brunswick County Sheriff’s Office arrived a short time later
with a police canine and started to search where Hewett had indicated. About 15
minutes after arriving, the sergeant said, his K-9 found Defendant “behind a bush”
that was three or four feet tall. Defendant was “laying on the ground” and appeared
to be “hiding.” The sergeant estimated Defendant was found “probably within a
couple hundred feet” of where Hewett had indicated and about “a quarter mile” from
the crash site. While interacting with Defendant, Sergeant Bowling “noticed a strong
odor of alcohol and slurred speech.” Officers also found the keys to Defendant’s truck
in Defendant’s pocket. After the police dog found Defendant, Sheriff’s Deputy Gary
Green handcuffed Defendant and eventually put him into the back of his patrol car.
Deputy Green observed Defendant “seemed to be very impaired” and “had trouble
walking” because he was “stumbling [and] tripping.”
¶5 Deputy Green drove Defendant back to the crash site, where the witness,
Hewett, was waiting roadside with Trooper Ballard. The deputy pulled up and rolled
down the rear passenger-side window where Defendant was sitting. In response to
Trooper Ballard asking, “Is this the person?”, Hewett responded that he was “[a] STATE V. ROUSE
hundred percent” sure the man in the police car was the same man from the crashed
truck. Around the same time as this identification, Trooper Ballard noticed
Defendant had “a very strong odor of alcohol coming from his breath,” “droopy
eyelids,” and “slurred speech.”
¶6 Defendant was then taken to a hospital for a “pretty minor” dog bite he
sustained when the police dog found him, as Defendant had made “no attempts to
warn [police] of his presence.” While at the hospital, Defendant refused to consent to
a blood test. Trooper Ballard then took Defendant to the Brunswick County jail,
obtained a warrant, and had the jail nurse draw the blood sample. A subsequent
State Crime Laboratory analysis found Defendant had a blood-alcohol concentration
of 0.22.
¶7 On 29 November 2019, the same day as the incident, Defendant was charged
with driving while impaired “and other related offenses.” On 2 March 2020, those
charges were dismissed after the State’s motion to continue was denied. The State
refiled charges for the same conduct the same day but charged Defendant with
habitual impaired driving; he was indicted for habitual impaired driving on or about
1 June 2020.1
1 Defendant was also indicted on habitual felon status the same day. On the judgment, the trial court “adjudge[d]” Defendant “to be a habitual felon,” after Defendant admitted at trial, outside the presence of the jury, to prior felonies sufficient to qualify as a habitual felon. STATE V. ROUSE
¶8 On 30 April 2020, Defendant filed a motion to suppress “all evidence and
statements obtained as the result of a ‘show-up’ performed in violation of N.C.G.S. §
15-A-284.52(c1).” On 16 November 2020, the trial court held a hearing on
Defendant’s motion to suppress Hewett’s eyewitness identification. At the hearing,
Hewett testified about the crash, his interactions with Defendant, and the
identification process. Trooper Ballard, Sergeant Bowling, and Deputy Green
testified about tracking down Defendant, procuring Hewett’s eyewitness
identification, and testing Defendant’s blood-alcohol concentration. Defendant and
the State then argued both the statutory issue2 and whether the “suggestive
procedure” violated constitutional due process.
¶9 Following the hearing, the trial court denied Defendant’s motion to suppress.
The trial court made the following Findings of Fact: Defendant was driving before
Hewett heard a crash, ran to the road, and found Defendant behind the steering
wheel of a truck in a ditch; “Hewett spent approximately 25-30 minutes at a minimum
with the Defendant,” who sought help pulling his truck from the ditch; Defendant
Defendant did not raise any arguments related to the habitual felon status or conviction on appeal. 2 Although the written motion to suppress only mentions North Carolina General Statute §
15A-284.52(c1), Defendant’s attorney argued at the suppression hearing the trial court needed to also look at the part of the statute “that directs law enforcement to look for the North Carolina Criminal Justice Education and Training Standards Commission for policy,” which is § 15A-284.52(c2). N.C. Gen. Stat. § 15A-284.52(c2) (2019). STATE V. ROUSE
walked away toward Highway 17 before law enforcement responded; Hewett told
officers about “a white man with stringy brown hair wearing what appeared to be a
green jacket or hoodie” who “was heading towards Highway 17, and . . . appeared to
head through a gate into the woods”; Sergeant Bowling arrived with a police canine
who searched and found Defendant behind a bush in the “area consistent with the
direction” Hewett had indicated; Defendant was handcuffed, placed in the back of a
police vehicle, and taken back to the crash scene for a show-up identification by
Hewett that was recorded by police body cameras and dashboard camera; Trooper
Ballard performed a show-up identification because he “was concerned with the rapid
metabolism and dissipation of alcohol as it related to this Defendant” and the driving
while impaired investigation such that he “felt” a show-up identification “was
necessary”; and finally Hewett said he was “one hundred percent certain” Defendant
was the same man from the truck that had crashed about 80 minutes earlier.
¶ 10 Based on those Findings, the trial court concluded that “proper procedure was
followed pursuant to North Carolina General Statute 15A-284.52[(c1)]”; “there was
no Due Process violation in regard to the identification procedure”; and “based on the
totality of the circumstances, the witness’s identification was reliable even if the
confrontation procedure was in fact suggestive.” The trial court also concluded the
identification procedure generally “did not violate the Defendant’s rights under the
United States Constitution and the North Carolina Constitution.” Based on these STATE V. ROUSE
conclusions, the trial court denied Defendant’s motion to suppress.
¶ 11 Defendant’s trial started 8 March 2021 after delays primarily due to COVID-
19 shutdowns. Before the trial started, Defendant raised a motion to dismiss due to
speedy trial violations, which he had originally filed on 13 April 2020. The trial court
denied Defendant’s motion to dismiss due to speedy trial violations, noting the
COVID-19 enforced delays, Defendant’s consent to the only continuance not related
to COVID-19, and Defendant’s custody on an unrelated charge in another county
since October 2020. Defendant raises no issues regarding the speedy trial motion
dismissal on appeal.
¶ 12 After jury selection but outside the presence of the jury, Defendant admitted
to three prior impaired driving offenses within ten years of the 2019 incident,
satisfying one statutory element of habitual impaired driving. N.C. Gen. Stat. § 20-
138.5 (2019). The only issue for the jury was whether Defendant was guilty of driving
while impaired on 29 November 2019. See id. (listing driving while impaired as the
other statutory element of habitual impaired driving).
¶ 13 The trial included testimony from Hewett about his interactions with and
identification of Defendant. As part of Hewett’s testimony, the State introduced
Hewett’s written statement to police the night of the incident, which recounted his
description of Defendant and the direction he saw Defendant go when Defendant left
the scene. Trooper Ballard, Sergeant Bowling, and Deputy Green once again testified STATE V. ROUSE
for the State about tracking down Defendant, procuring Hewett’s eyewitness
identification, and testing Defendant’s blood-alcohol concentration. As part of his
testimony, Trooper Ballard described the crash diagram he had sketched based on
his observations at the scene, and the State introduced that diagram into evidence.
A forensic scientist from the North Carolina State Crime Laboratory also testified
about testing Defendant’s blood. As part of this testimony, the State introduced the
lab report documenting Defendant’s blood-alcohol concentration of 0.22 the night of
the crash.
¶ 14 At the close of the State’s evidence, Defendant made an oral motion to dismiss
based on insufficient evidence, specifically on the issue of whether Defendant drove
his truck; the trial court heard a response from the State and denied that motion.
After declining to present evidence or witnesses, Defendant renewed the motion to
dismiss based on insufficient evidence, which the trial court again denied.
As the parties and court prepared jury instructions, Defendant objected to the
State’s proposed instruction on flight showing consciousness of guilt. The State
argued there was “plenty of evidence” supporting the instruction and “for the jury to
consider that [Defendant] did flee from the scene of the accident and from the crime”
including that Defendant “went down the road and into the woods” before being found
“hiding behind a bush.” Defendant argued a flight instruction would be unwarranted
and “prejudicial” because Defendant lived “within a mile” of the crash site, was “found STATE V. ROUSE
about a fourth of a mile” away, and it was “not a situation where somebody ran from
an officer or ignored commands.” The trial court ruled “the State [was] entitled to
that instruction” because Defendant was not “heading toward a home or toward” a
highway. The jury charge included the standard instruction on flight drawn from
North Carolina Pattern Jury Instructions for Criminal Cases 104.35:
The State contends that the defendant fled. Evidence of flight may be considered by you together with all other facts and circumstances in this case in determining whether the combined circumstances amount to an admission or show a consciousness of guilt. However, proof of this circumstance is not sufficient in itself to establish the defendant’s guilt.
¶ 15 The jury found Defendant guilty of driving while impaired. Taking into
account Defendant had already admitted to three prior impaired driving offenses, the
trial court then sentenced Defendant to 131 to 170 months in prison for habitual
impaired driving as enhanced by his status as a habitual felon. Defendant gave oral
notice of appeal in open court.
II. Motion to Suppress
¶ 16 Defendant contends the trial court erred in denying Defendant’s motion to
suppress the eyewitness’s show-up identification of Defendant. Specifically,
Defendant challenges the eyewitness identification on two separate grounds. First,
he contends the identification was “impermissibly suggestive” such that “the
procedures created a substantial likelihood of irreparable misidentification” in STATE V. ROUSE
violation of his constitutional due process rights. Second, he argues “law enforcement
failed to follow the recommend procedures under the Eyewitness Identification
Reform Act,” specifically North Carolina General Statute § 15A-284.52(c1) and (c2).
After discussing the standard of review, we address each of the two grounds in turn.
A. Standard of Review
¶ 17 On appeal, “review of the denial of a motion to suppress is limited to
determining whether competent evidence supports the trial court’s findings of fact
and whether the findings of fact support the conclusions of law.” State v. Malone, 373
N.C. 134, 145, 833 S.E.2d 779, 786 (2019) (quotations and citations omitted).
“Unchallenged findings are deemed supported by competent evidence and are binding
on appeal.” State v. Fields, 268 N.C. App. 561, 566–67, 836 S.E.2d 886, 890 (2019)
(citing State v. Biber, 365 N.C. 162, 167, 712 S.E.2d 874, 878 (2011)). Challenged
findings “are conclusive on appeal if supported by competent evidence, even if the
evidence is conflicting.” Malone, 373 N.C. at 145, 833 S.E.2d at 786 (quotations and
citations omitted). “However, the trial court’s conclusions of law are fully reviewable
on appeal.” Id. (citation omitted); see also Fields, 268 N.C. App. at 567, 836 S.E.2d at
890 (“Conclusions of law are reviewed de novo.”).
B. Analysis
¶ 18 As defined in the Eyewitness Identification Reform Act (“EIRA”), a “[s]how-up”
is an identification where “an eyewitness is presented with a single live suspect for STATE V. ROUSE
the purpose of determining whether the eyewitness is able to identify the perpetrator
of a crime.” N.C. Gen. Stat. § 15A-284.52(a)(8). A show-up “‘is a much less restrictive
means of determining, at the earliest stages of the investigation process, whether a
suspect is indeed the perpetrator of a crime,’ allowing an innocent person to be
‘released with little delay and with minimal involvement with the criminal justice
system.’” State v. Rawls, 207 N.C. App. 415, 422, 700 S.E.2d 112, 117 (2010)
(alteration omitted) (quoting In re Stallings, 318 N.C. 565, 570, 350 S.E.2d 327, 329
(1986)).
¶ 19 While show-ups have been criticized, not every show-up identification
undermines a conviction. See Stovall v. Denno, 388 U.S. 293, 302, 87 S. Ct. 1967,
1972 (1967) (noting criticism while explaining the standard for overturning
convictions based on show-ups), abrogated on other grounds by U.S. v. Johnson, 457
U.S. 537, 102 S. Ct. 2579 (1982); see also State v. Reaves-Smith, 271 N.C. App. 337,
345, 844 S.E.2d 19, 25 (2020) (noting potential for show-up identifications to be
“inherently suggestive” before saying they “are not per se violative of a defendant’s
due process rights” (quoting State v. Turner, 305 N.C. 356, 364, 289 S.E.2d 368, 373
(1982))). Rather, appellate courts review the denial of motions to suppress eyewitness
identifications, including show-ups, under the constitutional requirement of due
process. See Malone, 373 N.C. at 146, 833 S.E.2d at 787 (outlining due process review
for all eyewitness identifications). Our Courts also review for compliance with EIRA, STATE V. ROUSE
but we only evaluate the identification based on the requirements in § 15A-
284.52(c1); we do not evaluate based on (c2). See Reaves-Smith, 271 N.C. App. at
340–45, 844 S.E.2d at 22–25 (evaluating the trial court’s conclusions of law on
compliance with (c1) but explaining (c2) “does not place additional statutory
requirements on law enforcement” that our courts would review).
1. Due Process
¶ 20 We first address the constitutional requirements of due process in eyewitness
identification. This inquiry asks “whether the identification procedure was so
suggestive as to create a substantial likelihood of irreparable misidentification.”
Malone, 373 N.C. at 146, 833 S.E.2d at 787 (quoting State v. Fowler, 353 N.C. 599,
617, 548 S.E.2d 684, 697–98 (2001)).
¶ 21 Reviewing courts split this inquiry into two steps, first assessing “whether the
identification procedures were impermissibly suggestive.” Id. (citations and
quotations omitted). “If this question is answered negatively, our inquiry is at an
end.” State v. Headen, 295 N.C. 437, 439, 245 S.E.2d 706, 708 (1978). If the answer
is affirmative, courts then determine “whether the procedures create a substantial
likelihood of irreparable misidentification.” Malone, 373 N.C. at 146, 833 S.E.2d at
787 (citations and quotations omitted). At this second step, “[t]he central question is
whether under the totality of the circumstances the identification was reliable even
if the confrontation procedure was suggestive.” Reaves-Smith, 271 N.C. App. at 345, STATE V. ROUSE
844 S.E.2d at 25 (citing State v. Oliver, 302 N.C. 28, 45–46, 274 S.E.2d 183, 195
(1981)); see also State v. Richardson, 328 N.C. 505, 510, 402 S.E.2d 401, 404 (1991)
(clarifying that “totality of the circumstances” applies only to the second step).
¶ 22 Addressing the first step, our courts have determined several different factors
bear on whether “the identification procedures were impermissibly suggestive.”
Malone, 373 N.C. at 146, 833 S.E.2d at 787. Our Supreme Court has said show-ups
generally may be “inherently suggestive [because] the witnesses would likely assume
that the police had brought them to view persons whom they suspected might be the
guilty parties.” State v. Matthews, 295 N.C. 265, 285–87, 245 S.E.2d 727, 739–41
(1978) (finding impermissibly suggestive a show-up at a police station outside which
the witness could see a distinctive vehicle resembling the one used in the crime). This
Court held a show-up “unduly suggestive” when the defendant was “brought before
[the witness] from the back of a police car for identification.” State v. Patterson, 249
N.C. App. 659, 667, 791 S.E.2d 517, 522 (2016). Officers’ leading statements also
have led our Supreme Court to conclude a procedure was “unnecessarily suggestive.”
Oliver, 302 N.C. at 45, 274 S.E.2d at 194. Finally, presenting a suspect in handcuffs
may have some suggestive influence, but that factor “alone is insufficient to make the
show-up impermissibly suggestive.” State v. Lee, 154 N.C. App. 410, 416, 572 S.E.2d
170, 174 (2002).
¶ 23 Here, Defendant’s show-up identification was impermissibly suggestive STATE V. ROUSE
because officers exhibited Defendant in a way that “witnesses would likely assume
the police had brought them to view persons whom they suspected might be the guilty
parties.” Matthews, 295 N.C. at 285–86, 245 S.E.2d at 739. Like in Patterson,
Defendant was brought for the show-up in the back of a police car. 249 N.C. App. at
667, 791 S.E.2d at 522. On top of that, Defendant was handcuffed. While this fact
alone was not sufficient in Lee, 154 N.C. App. at 416, 572 S.E.2d at 174, here,
combined with the Defendant being in the back of a police car, we conclude the show-
up was impermissibly suggestive.
¶ 24 After affirmatively answering the first question of this two-part test, we next
determine “whether the procedures create a substantial likelihood of irreparable
misidentification.” Malone, 373 N.C. at 146, 833 S.E.2d at 787. Post-Malone, we
continue to rely on five factors to assess the substantial likelihood question:
[(1)] the opportunity of the witness to view the accused at the time of the crime, [(2)] the witness’ degree of attention at the time, [(3)] the accuracy of his prior description of the accused, [(4)] the witness’ level of certainty in identifying the accused at the time of the confrontation, and [(5)] the time between the crime and the confrontation.
Id., 373 N.C. at 147, 833 S.E.2d at 787 (quoting State v. Thompson, 303 N.C. 169,
172, 277 S.E.2d 431, 434 (1981) (in turn citing Neil v. Biggers, 409 U.S. 188, 200, 93 STATE V. ROUSE
S. Ct. 375, 382 (1971))).3
¶ 25 Reviewing courts do not need to find all five factors weigh against a substantial
likelihood of irreparable misidentification to admit the evidence over due process
concerns. See Malone, 373 N.C. App. at 147, 833 S.E.2d at 787–88 (stating in terms
of specific question before Malone Court about independent origin of in-court
identification). Instead, “[a]gainst these factors must be weighed the corrupting
effect of the suggestive procedure itself.” State v. Pigott, 320 N.C. 96, 100, 357 S.E.2d
631, 634 (1987) (citing Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2255
(1977)).
¶ 26 Here, the trial court concluded that “based on the totality of circumstances, the
witness’ identification was reliable even if the confrontation procedure was in fact
suggestive.” While the trial court did not explicitly address the five reliability factors,
they were outlined and argued by counsel at the motion hearing.
¶ 27 Under the standard of review articulated in Malone, appellate courts only
review the conclusions of law to confirm they are supported by findings of fact that in
turn are supported by competent evidence. 373 N.C. at 145, 833 S.E.2d at 786.
3 While Malone discusses these factors in the context of “determining whether the witness’s in-court identification had the necessary independent origin,” 373 N.C. at 147, 833 S.E.2d at 787, it later clarifies this “independent origin inquiry . . . is merely the second part of the due process inquiry” that asks “whether due process requires the suppression of eyewitness identification evidence.” 373 N.C. at 148 & n.2, 833 S.E.2d at 788 & n.2. STATE V. ROUSE
“[F]indings of fact to which [a] defendant failed to assign error are binding on appeal.”
State v. Campbell, 188 N.C. App. 701, 704, 656 S.E.2d 721, 724 (2008); see also Fields,
268 N.C. App. at 566–67, 836 S.E.2d at 890 (“Unchallenged findings are deemed
supported by competent evidence and are binding on appeal.”). “Here, [D]efendant
‘failed to assign error’ to any of the trial court’s [F]indings of [F]act in the order
denying his motion to suppress. Therefore, the trial court’s [F]indings of [F]act are
binding on appeal.” State v. Williams, 209 N.C. App. 255, 257, 703 S.E.2d 905, 907
(2011) (citing Campbell, 188 N.C. App. at 704, 656 S.E.2d at 724). Using the trial
court’s binding Findings of Fact, we conclude Hewett’s identification was more
reliable than that in Malone, which our Supreme Court still found “sufficiently
reliable.” Id., 373 N.C. at 149, 833 S.E.2d at 789.
¶ 28 Turning to the specific factors from Malone, first, Hewett had ample
opportunity to view the man behind the wheel of Defendant’s crashed truck, whom
he would later identify as Defendant. In an unchallenged Finding, the trial court
found Hewett spent “approximately 25-30 minutes at a minimum” with Defendant
before Defendant walked away from the crash. That is far longer than indicated in
Malone, where two eyewitnesses saw the perpetrators for less than two minutes. 373
N.C. at 149, 833 S.E.2d at 789. Additionally, Hewett did not just see Defendant but
also conversed with Defendant, who asked for help pulling his truck from the ditch.
¶ 29 Second, Hewett clearly paid attention while he interacted with Defendant. STATE V. ROUSE
Hewett was attentive enough to give the officers a detailed description of “a white
man with stringy brown hair wearing what appeared to be a green jacket or hoodie”
who “was heading towards Highway 17, and . . . appeared to head through a gate
into the woods.” Hewett paid close attention because Defendant’s arrival—by
crashing his truck into a ditch—was out of the ordinary and sufficient to arouse
suspicion, much like how a witness in Malone paid close attention to a stranger
because he approached with hands in his pockets. 373 N.C. at 150, 833 S.E.2d at 789.
¶ 30 Third, Hewett gave a detailed, consistent, and generally accurate description
before identifying Defendant. Hewett described the suspect to law enforcement as “a
white man with stringy brown hair wearing what appeared to be a green jacket or
hoodie.” While the trial court did not make Findings on the accuracy of this
description and the body cam photos in our record are indiscernible, Defendant’s
mugshots show Defendant as a white male with long, sandy-brown hair. Hewett thus
provided more accurate details than the witness in Malone who “accurately described
defendant’s shoulder-length hair, [which] appears to be the only accurate detail
identified by the trial court.” 373 N.C. at 150, 833 S.E.2d at 790. In Malone, this
factor cut for the defendant but was outweighed by the other factors suggesting
reliability. 373 N.C. at 152, 833 S.E.2d at 790. Thus, even if the greater accuracy
here does not tip this factor in the State’s favor, it still does not entitle Defendant to
relief on this ground. STATE V. ROUSE
¶ 31 Defendant asserts “[s]ome of [Hewett’s] descriptions of the perpetrator were
inconsistent,” apparently in reference to how Defendant appeared at the time, but
fails to specify the alleged inconsistencies. Focusing only on Hewett’s description
prior to the show-up, see Malone, 373 N.C. at 147, 833 S.E.2d at 787 (limiting third
factor to “accuracy of [witness’s] prior description of the accused” (emphasis added)),
the only potential inconsistency relates to Defendant’s clothing. The trial court’s
unchallenged Finding of Fact indicates Hewett described Defendant to law
enforcement as “wearing what appeared to be a green jacket or hoodie.” The color of
the hoodie in the mugshot photos in our record is open to differing interpretations.
Even if we assume this is what Defendant meant regarding inconsistent descriptions
and further assume arguendo the hoodie from the mugshot photos is not green,
Hewett’s description otherwise appears accurate. At most, this factor slightly favors
Defendant, but that alone does not require us to determine due process bars the show-
up identification evidence. See Malone, 373 N.C. App. at 147, 150–52, 833 S.E.2d at
787–88, 790 (explaining not all factors need to be met to find no due process violation
occurred before concluding no due process violation occurred even though the third
factor weighed in the defendant’s favor).
¶ 32 Fourth, Hewett expressed absolute certainty Defendant was the man from the
truck, with the trial court making an unchallenged Finding that at the time of the
show-up, Hewett was “one hundred percent certain that it was the same individual” STATE V. ROUSE
he saw earlier. This matches or exceeds the certainty of the witness in Malone who
testified that, upon seeing another photo of the defendant on social media, “she was
sure that he was the” perpetrator. 373 N.C. at 151, 833 S.E.2d at 790. Hewett’s
confidence also contrasts with a rare case rejecting an identification by a witness who
expressed doubt at the time of the identification, among other factors. Headen, 295
N.C. at 442–43, 245 S.E.2d at 710.
¶ 33 Finally, the time between the crime and the confrontation was relatively short.
The trial court found about 80 minutes had passed between crash and show-up. The
trial court also found Hewett spent “approximately 25 to 30 minutes, minimum,” with
the man in the truck—which means Hewett identified Defendant within an hour of
when he had last seen Defendant. That is much faster than indicated in Malone,
where our Supreme Court noted “only a week or two passed between the crime and
[the witness’s independent] identification of [the] defendant from [a] Facebook
picture.” 373 N.C. at 151, 833 S.E.2d at 790 (emphasis added).
¶ 34 Overall, at least four of the five reliability factors weigh in favor of finding
Hewett’s identification of Defendant was reliable, even if the show-up procedure was
suggestive. Defendant identifies some ambiguity or imprecision regarding the color
of a piece of clothing, but all other elements of Hewett’s detailed description are
consistent. Even if that one factor weighs in Defendant’s favor, the other four factors
all weigh strongly in favor of reliability. When considering the totality of the STATE V. ROUSE
circumstances and weighing the reliability factors against the corruptive effect of the
impermissibly suggestive procedure, Hewett’s identification did not present a
substantial risk of irreparable misidentification. The trial court therefore did not err
in denying Defendant’s motion to suppress on the grounds the show-up violated
Defendant’s due process rights.
¶ 35 Defendant also argues “the in-court identification was tainted by the illegal
pretrial procedures.” Because the pretrial procedures did not violate due process,
they could not have tainted the in-court identification and thus it also did not violate
due process.
2. Eyewitness Identification Reform Act (“EIRA”)
¶ 36 In addition to his due process arguments, Defendant contends officers “failed
to follow the recommended procedures under the [EIRA].” Defendant notes the EIRA
section detailing requirements for show-ups, North Carolina General Statute § 15A-
284.52(c1), but does not specify how those requirements may have been violated.
Defendant also argues the show-up here ran afoul of standards under § 15A-
284.52(c2).
¶ 37 Looking at § 15A-284.52(c1) first, that subsection has three parts that might
be applicable, but Defendant cannot successfully challenge any of them. The
subsection’s first requirement is “a suspect matching the description of the
perpetrator is located in close proximity in time and place to the crime.” § 15A- STATE V. ROUSE
284.52(c1)(1). According to the trial court’s unchallenged Findings and as discussed
above, Defendant largely matched Hewett’s description and was found nearby less
than 80 minutes after the crash. That first subsection also limits show-ups to
“circumstances that require the immediate display of a suspect to an eyewitness.” Id.
That requirement is satisfied by the trial court’s unchallenged Finding that Trooper
Ballard was “concerned with the rapid metabolism and dissipation of alcohol . . . and
felt that it was necessary to perform a show-up identification” to protect the driving
while impaired investigation.
¶ 38 The subsection’s second requirement is “using a live suspect” rather than a
photograph. § 15A-284.52(c1)(2). The trial court’s unchallenged Findings show this
requirement is easily satisfied; Defendant was brought before the eyewitness in
person.
¶ 39 The subsection’s final mandate is that officers “photograph a suspect at the
time and place of the show-up to preserve a record of the appearance of the suspect.”
§ 15A-284.52(c1)(3). The trial court found “still pictures were taken at the
approximate time [of] the show-up through in car camera and body cam.” The record
contains images taken from police body-camera recordings, which this Court has
recognized as sufficient. See Reaves-Smith, 271 N.C. App. at 343, 844 S.E.2d at 24
(concluding officers complied with EIRA requirements when “[t]he show-up
identification was conducted with a live person” and “was recorded on the officers’ STATE V. ROUSE
body cameras”). Therefore, the trial court’s unchallenged Findings of Fact support
its Conclusion of Law that “proper procedure was followed pursuant to North
Carolina General Statute 15A-284.52[(c1)].”
¶ 40 Defendant raises another EIRA issue under § 15A-284.52(c2) arguing officers
failed to follow “recommended procedures” by “omitt[ing] standard instructions” and
inquiries about the witness’s vision and communications with other people.
Defendant notes Trooper Ballard testified he did not offer any instructions but “just
asked [Hewett] if that was the gentleman he saw in the vehicle.”
¶ 41 Section 15A-284.52(c2) provides: “The North Carolina Criminal Justice
Education and Training Standards Commission shall develop a policy regarding
standard procedures for the conduct of show-ups in accordance with this section. The
policy shall apply to all law enforcement agencies and shall address” items including
“[s]tandard instructions for eyewitnesses” and “[c]onfidence statements by the
eyewitness including information related to the eyewitness’ vision, the circumstances
of the events witnessed, and communications with other eyewitnesses, if any.” N.C.
Gen. Stat. § 15A-284.52(c2).
¶ 42 Contrary to Defendant’s argument, this Court has held § 15A-284.52(c2) “does
not place additional statutory requirements on law enforcement, but rather requires
the North Carolina Criminal Justice Education and Training Standards Commission
to develop nonbinding guidelines.” Reaves-Smith, 271 N.C. App. at 344–45, 844 STATE V. ROUSE
S.E.2d at 25. “[O]nly Section 15A-284.52(c1) sets forth the requirements for show-up
identification compliance.” Id., 271 N.C. App. at 345, 844 S.E.2d at 25. As a result,
according to “[t]he plain language of the statute,” the recommended procedures
promulgated under (c2) are merely “nonbinding guidelines.” Id., 271 N.C. App. at
344, 844 S.E.2d at 25. Thus, Defendant cannot claim a violation of Section 15A-
¶ 43 We conclude the unchallenged, and therefore binding, Findings of Fact support
the trial court’s Conclusions of Law on both the due process and EIRA issues.
Therefore, we affirm the trial court’s denial of Defendant’s motion to suppress.
III. Motion to Dismiss
¶ 44 Defendant next contends the trial court erred in denying Defendant’s motion
to dismiss for insufficiency of evidence. Specifically, Defendant argues “there was
insufficient evidence as a matter of law that he was operating the vehicle.” We
disagree.
¶ 45 “In order to justify the denial of a motion to dismiss for insufficient evidence,
the State must present substantial evidence of (1) each essential element of the
charged offense and (2) defendant’s being the perpetrator of such offense.” State v.
Privette, 218 N.C. App. 459, 470–71, 721 S.E.2d 299, 308 (2012) (quotations, citation,
and alterations omitted). STATE V. ROUSE
¶ 46 “Substantial evidence is ‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” Id., 218 N.C. App. at 471, 721 S.E.2d at
308 (quoting State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980)). “In
making its determination, the trial court must consider all evidence admitted,
whether competent or incompetent, in the light most favorable to the State, giving
the State the benefit of every reasonable inference and resolving any contradictions
in its favor.” State v. Burris, 253 N.C. App. 525, 544–45, 799 S.E.2d 452, 464 (2017)
(quotations and citation omitted); see also State v. Franklin, 327 N.C. 162, 171–72,
393 S.E.2d 781, 787 (1990) (“If there is any evidence tending to prove guilt or which
reasonably leads to this conclusion as a fairly logical and legitimate deduction, it is
for the jury to say whether it is convinced beyond a reasonable doubt of defendant’s
guilt.”).
¶ 47 In other words, “[t]he trial court need only satisfy itself that the evidence is
sufficient to take the case to the jury; it need not be concerned with the weight of that
evidence.” Franklin, 327 N.C. at 171, 393 S.E.2d at 787. As such:
“Circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence.” State v. Stone, 323 N.C. 447, 452, 373 S.E.2d 430, 433 (1988). If the evidence presented is circumstantial, the court must consider whether a reasonable inference of defendant’s guilt may be drawn from the circumstances.
State v. Fritsch, 351 N.C. 373, 379, 526 S.E.2d 451, 455 (2000) (quoting State v. STATE V. ROUSE
Barnes, 334 N.C. 67, 75–76, 430 S.E.2d 914, 918–19 (1993)).
¶ 48 “This Court reviews the trial court’s denial of a motion to dismiss de novo.”
State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citing State v.
McKinnon, 306 N.C. 288, 298, 293 S.E.2d 118, 125 (1982)). On appeal, similar to the
trial court’s approach, “we view ‘the evidence in the light most favorable to the State,
giving the State the benefit of all reasonable inferences.’” Privette, 218 N.C. App. at
471, 721 S.E.2d at 308 (quoting State v. Morgan, 359 N.C. 131, 161, 604 S.E.2d 886,
904 (2004)).
¶ 49 Here, the only charge for the jury to decide was whether Defendant was driving
while impaired. The judgment in turn says Defendant was convicted of Habitual
Impaired Driving under North Carolina General Statute § 20-138.5. Habitual
Impaired Driving involves driving while impaired in violation of North Carolina
General Statute § 20-138.1 and having “been convicted of three or more offenses
involving impaired driving as defined in G.S. 20-4.01(24a) within 10 years of the date
of this offense.” N.C. Gen. Stat. § 20-138.5 (2019). Outside the presence of the jury,
Defendant admitted to three prior impaired driving offenses within ten years of the
offense date, so the only issue for the jury, and thus for our review of sufficiency, was
the driving while impaired under § 20-138.1.
¶ 50 “The essential elements of driving while impaired under Section 20-138.1 are: STATE V. ROUSE
‘(1) Defendant was driving a vehicle; (2) upon any highway, any street, or any public
vehicular area within this State; (3) while under the influence of an impairing
substance.’” State v. Romano, 268 N.C. App. 440, 453–54, 836 S.E.2d 760, 772 (2019)
(quoting State v. Mark, 154 N.C. App. 341, 345, 571 S.E.2d 867, 870 (2002)).
¶ 51 Defendant only challenges the sufficiency of the evidence as to the first
element, whether he was driving, because “no one saw [him] operating the pick-up
truck.” Driving means “actual physical control of a vehicle which is in motion or
which has the engine running.” Burris, 253 N.C. App. at 545, 799 S.E.2d at 465
(quoting Fields, 77 N.C. App. at 406, 335 S.E.2d at 70).
¶ 52 In Burris, this Court found “circumstantial evidence” the defendant drove—
namely that the defendant was found sitting in the driver’s seat of a car registered to
him with the engine off while parked by the front door of a hotel rather than in a
parking spot—sufficient alongside the defendant’s admission he drove. 253 N.C. App.
at 546, 799 S.E.2d at 465. Similarly, in State v. Clowers, this Court found evidence
the defendant was driving the vehicle on the day in question combined with
“circumstantial evidence” that no one else was in the car around the time of the police
officers’ arrival following an accident sufficient to overrule the defendant’s argument
the State “merely provide[d] ‘a strong suspicion’ that he was operating a motor vehicle
. . . since no witness identified him as the driver.” 217 N.C. App. 520, 526–27, 720
S.E.2d 430, 435 (2011). Both Burris and Clowers show DWI is no different from any STATE V. ROUSE
other area of law when it comes to circumstantial evidence sufficing to “withstand a
motion to dismiss and support a conviction.” Fritsch, 351 N.C. at 379, 526 S.E.2d at
455.
¶ 53 Here, viewing the evidence in the light most favorable to the State after de
novo review, the State presented sufficient circumstantial evidence for us to conclude
Defendant was driving the vehicle. Hewett testified he came running from behind
the house when he heard the crash, arrived within a minute or so, and found
Defendant sitting with a bloody nose in the driver’s seat of his own truck, the front of
which rested in a ditch, with no one else nearby except Hewett’s family members who
were at the house before the crash. Thus, similar to Burris, a truck registered to
Defendant was in a spot where vehicles are not normally parked, i.e., in a ditch by
the side of the road, unless they have been driven there recently. 253 N.C. App. at
546, 799 S.E.2d at 465. As in Clowers, a witness saw Defendant and only Defendant
near the vehicle in the immediate aftermath of a crash. 217 N.C. App. at 526, 720
S.E.2d at 435. Defendant also asked Hewett for assistance in removing his truck
from the ditch, indicating his continued intent to possess and control his truck and,
one could certainly infer, to avoid interaction with law enforcement related to any
investigation of the accident.
¶ 54 Further, Defendant had a bloody nose, and a permissible inference from that
is that he was in the truck when it crashed and may have hit his nose on the steering STATE V. ROUSE
wheel of the truck, thereby indicating he was driving. See Burris, 253 N.C. App. at
544, 799 S.E.2d at 464 (giving State “benefit of every reasonable inference” when
reviewing sufficiency of the evidence). After leaving the scene on foot, Defendant was
then found hiding behind a bush near the scene of the crash, with the truck keys in
his pocket. Finally, Defendant made a statement while in jail that could be
reasonably considered as an admission of guilt in general, not just of driving; he
specifically said the last time he was accused of DWI “he wasn’t guilty, but this time
he probably was; he was going to go to jail for a long time.” Taking this evidence in
the light most favorable to the State, the State presented substantial evidence
Defendant was driving.
¶ 55 While Defendant accurately notes a lack of direct evidence Defendant drove his
truck, the above circumstantial evidence is substantial. Our precedents show
circumstantial evidence alone may suffice if it supports a reasonable inference,
Fritsch, 351 N.C. at 379, 526 S.E.2d at 455, especially while “giving the State the
benefit of all reasonable inferences” on appeal. Privette, 218 N.C. App. at 471, 721
S.E.2d 299 at 309 (quotation and citation omitted).
¶ 56 As part of this argument, Defendant cites cases where our courts have found
substantial evidence in the past that is “substantially more egregious” or
“significantly stronger” than the evidence in this case. (Citing Romano, 268 N.C. App.
440, 836 S.E.2d 760, and Burris, 254 N.C. App. 525, 799 S.E.2d 452.) This argument STATE V. ROUSE
misunderstands the nature of the test for sufficiency of the evidence. The test sets a
floor the State’s evidence must clear; it does not matter by how much the State’s
evidence clears that floor. See Franklin, 327 N.C. at 171, 393 S.E.2d at 787 (“The
trial court need only satisfy itself that the evidence is sufficient to take the case to
the jury; it need not be concerned with the weight of that evidence.”). Thus, it does
not matter if Defendant can find other cases that clear the sufficiency of the evidence
floor more substantially than the evidence here; it only matters the State’s evidence
here is sufficient, as we have detailed already.
¶ 57 Defendant also tries to distinguish certain cases, but we are not convinced.
First, Defendant tries to distinguish Burris on the grounds the evidence there was
“significantly stronger than the evidence in the instant case,” but as we have laid out
above, that argument carries no weight. Defendant also seeks to distinguish Clowers
because that defendant was “under continuous observation by a witness while
operating the red car and after it crashed.” The distinction is minor since Hewett
reached the scene within a minute or two and there is no evidence that anyone else
left Defendant’s truck. Deducing from the circumstances that Defendant drove his
truck into the ditch is an eminently reasonable inference to which the State is entitled
on appeal. See Privette, 218 N.C. App. at 471, 721 S.E.2d at 308 (“On appeal, we view
the evidence in the light most favorable to the State, giving the State the benefit of
all reasonable inferences.” (quotations and citation omitted)). STATE V. ROUSE
¶ 58 After de novo review, viewing the evidence in the light most favorable to the
State, we conclude the State presented sufficient evidence Defendant was driving the
vehicle. Therefore, we hold the trial court did not err in denying Defendant’s motion
to dismiss for insufficient evidence.
IV. Jury Instruction on Flight
¶ 59 Finally, Defendant asserts the trial court “erred by instructing the jury on
flight” as “evidence indicating consciousness of guilt” with Pattern Jury Instruction
104.35 over his objection. (Capitalization altered.) Defendant specifically argues “the
evidence in this case was insufficient to support the flight instruction because it
showed nothing more than his leaving the scene of the accident and walking in the
direction of his home” whereas the jury instruction can only be given if “there is some
evidence in the record reasonably supporting the theory that the defendant fled after
commission of the crime charged.” Defendant also argues giving the instruction “was
prejudicial . . . because a different verdict might have been reached absent this
instruction.” We disagree.
¶ 60 “[Arguments] challenging the trial court’s decisions regarding jury instructions
are reviewed de novo by this Court.” State v. Golden, 224 N.C. App. 136, 148, 735
S.E.2d 425, 433 (2012) (alteration in original) (quoting State v. Osorio, 196 N.C. App.
458, 466, 675 S.E.2d 144, 149 (2009)). “An instruction about a material matter must STATE V. ROUSE
be based on sufficient evidence.” Osorio, 196 N.C. App. at 466, 675 S.E.2d at 149.
¶ 61 Our courts have long evaluated evidence of a defendant’s flight as follows:
We have held that evidence of a defendant’s flight following the commission of a crime may properly be considered by a jury as evidence of guilt or consciousness of guilt. A trial court may properly instruct on flight where there is some evidence in the record reasonably supporting the theory that the defendant fled after the commission of the crime charged. However, mere evidence that defendant left the scene of the crime is not enough to support an instruction on flight. There must also be some evidence that defendant took steps to avoid apprehension.
State v. Lloyd, 354 N.C. 76, 119, 552 S.E.2d 596, 625–26 (2001) (citations, quotations,
and alterations omitted).
¶ 62 “The bar for a defendant taking ‘steps to avoid apprehension’ such that an
instruction on flight will be deemed proper is low.” State v. Bradford, 252 N.C. App.
371, 377, 798 S.E.2d 546, 550 (2017). Such steps might include “an action that was
not part of [a d]efendant’s normal pattern of behavior.” State v. Shelly, 181 N.C. App.
196, 209, 638 S.E.2d 516, 526 (2007). “The fact that there may be other reasonable
explanations for defendant’s conduct does not render the instruction improper.” State
v. Parks, 264 N.C. App. 112, 118, 824 S.E.2d 881, 886 (2019) (alteration from original
removed) (quoting State v. Irick, 291 N.C. 480, 494, 231 S.E.2d 833, 842 (1977)).
¶ 63 For example, in all the following cases, our courts found no error when the trial STATE V. ROUSE
court gave a flight instruction. First, this Court recently found no error in a flight
instruction where a defendant left the scene, entered a wooded area, and was found
by a police dog “curled in a ball behind a large tree.” State v. Miller, 275 N.C. App.
843, 852–53, 852 S.E.2d 704, 711–12 (2020). Further, in State v. Harvell, the trial
court did not err in giving a flight instruction when a defendant fled the scene to a
dirt road that an officer said was “not a road that people use for traffic.” 236 N.C.
App. 404, 412–13, 762 S.E.2d 659, 664–65 (2014). This Court has also held a
defendant abandoning his own vehicle was sufficient evidence of flight. State v.
Ethridge, 168 N.C. App. 359, 363, 607 S.E.2d 325, 328 (2005). Finally, in State v.
Levan, our Supreme Court rejected the defendant’s argument a flight instruction was
improper because he “did not merely drive home” but rather told others to conceal or
destroy evidence. 326 N.C. 155, 165, 388 S.E.2d 429, 434 (1990).
¶ 64 Here, the record before us contains sufficient evidence tending to show
Defendant fled and took steps to avoid apprehension. Defendant exited and
abandoned his own vehicle, as in Ethridge. 168 N.C. App. at 363, 607 S.E.2d at 328.
He walked down a road and turned off onto a dirt road, as in Harvell. 236 N.C. App.
at 412, 762 S.E.2d at 664. Sergeant Bowling testified his police dog found Defendant
“hiding” on the ground “behind a bush,” much like the defendant in Miller was found
hiding behind a tree, 275 N.C. App. at 852, 852 S.E.2d at 711–12, and Defendant
“made no attempts to warn [the police searching for him] of his presence.” Thus, the STATE V. ROUSE
evidence here is sufficient for a flight instruction.
¶ 65 Defendant contends this evidence is insufficient because the record “showed
nothing more than his leaving the scene of the accident and walking in the direction
of his home.” As an initial matter, Defendant presenting an alternate explanation
for his conduct does not require us to conclude the record lacks sufficient evidence to
support a flight instruction; such an instruction may be proper even if “there may be
other reasonable explanations for [a] defendant’s conduct.” Parks, 264 N.C. App. at
118, 824 S.E.2d at 886. Additionally, Defendant’s argument is not convincing.
Defendant may have lived nearby, but his location on the ground behind a bush in
the woods off a road shows he “did not merely [go] home.” Levan, 326 N.C. at 165,
388 S.E.2d at 434.
¶ 66 Defendant also argues someone “who was actually fleeing a crime would
certainly go more than” the quarter-mile Defendant covered in about an hour.
However, flight does not require successfully making it far from the scene before
apprehension, as in Miller where the defendant was found in the woods “not far from
the scene of the crime.” 275 N.C. App. at 852, 852 S.E.2d at 711. As Sergeant Bowling
said in the trial testimony Defendant cites: “[T]hey don’t always keep running. They
can stop and hide.” In addition, Hewett described Defendant as “wobbly” as he left
the scene of the crash; there was no indication he was moving particularly fast.
Defendant seeks to distinguish this case from the “egregious nature of the flight” in STATE V. ROUSE
many precedents, but our precedents do not grade flight by its egregiousness. To the
extent they discuss weight of the evidence at all, they make clear “[t]he bar for a
defendant taking ‘steps to avoid apprehension’ such that an instruction on flight will
be deemed proper is low.” Bradford, 252 N.C. App. at 377, 798 S.E.2d at 550.
¶ 67 After our de novo review, we hold Defendant’s actions provided sufficient
evidence that he took steps to avoid apprehension and thus clear the low bar to justify
the trial court’s flight instruction. As a result, we need not reach Defendant’s
allegation of prejudice because the trial court did not err in giving the instruction.
V. Conclusion
¶ 68 Having reviewed all Defendant’s arguments, we find no error. We affirm the
trial court’s denial of Defendant’s motion to suppress the eyewitness identification
because unchallenged Findings of Fact support its legal conclusions on the due
process and EIRA issues. The trial court also did not err when it denied Defendant’s
motion to dismiss for insufficient evidence because, taking the evidence in the light
most favorable to it, the State presented sufficient circumstantial evidence the
Defendant was driving. Finally, the trial court did not err in instructing the jury on
flight because there was sufficient evidence Defendant took steps to avoid
apprehension.
AFFIRMED AND NO ERROR.
Judges TYSON and ZACHARY concur.