State v. Sellas

• Court: Court of Appeals of North Carolina
• Decided: October 21, 2014
• Docket: 14-489
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA14-489 NORTH CAROLINA COURT OF APPEALS

Filed: 21 October 2014

STATE OF NORTH CAROLINA

v. Buncombe County No. 12 CRS 50309 ANGELO FRANK SELLAS

Appeal by defendant from judgment entered 18 December 2013

by Judge Alan Z. Thornburg in Buncombe County Superior Court.

Heard in the Court of Appeals 24 September 2014.

Roy Cooper, Attorney General, by Richard Slipsky, Special Deputy Attorney General, for the State.

Willis Johnson & Nelson PLLC, by Drew Nelson, for defendant-appellant.

STEELMAN, Judge.

Where the trial court made findings of fact at the

suppression hearing, and these findings were supported by

unchallenged evidence and in turn supported the trial court’s

conclusions of law, the trial court did not err in denying

defendant’s motion to suppress. The trial court left no

material issues unresolved in concluding the suppression -2- hearing. The trial court did not abuse its discretion in

granting the State’s motion in limine to exclude irrelevant

evidence.

I. Factual and Procedural History

Early in the morning on 8 January 2012, Detective Ben

Davidson (Detective Davidson) of the Asheville Police Department

was informed by his supervisor that a man had been seen emerging

from a local bar, and was possibly impaired. Detective Davidson

was given a description of the man, and subsequently saw a man

fitting that description. The man was later identified as

Angelo Sellas (defendant). Detective Davidson recognized

defendant by name from a prior sexual assault investigation.

Detective Davidson was not the lead investigator on that case.

Detective Davidson was walking towards his parked patrol

vehicle when he saw defendant sitting in the driver’s seat of

his vehicle. Upon reaching his patrol vehicle, Detective

Davidson saw defendant’s vehicle drive off. He got behind

defendant’s vehicle at a red light. When the light turned

green, defendant’s vehicle remained stopped for the entire light

cycle, which Detective Davidson estimated lasted 20 to 40

seconds. Only when the light turned yellow did defendant

proceed through the intersection. Detective Davidson later -3- observed defendant changing lanes into a designated left turn

only lane. Defendant did not turn left, but continued straight

through an intersection. At trial, defendant testified that he

moved into the left turn only lane because there was a parked

taxi cab in the right lane. Detective Davidson had no

recollection of a cab being in the right lane. He did not

recall whether defendant give a turn signal when changing lanes.

Detective Davidson continued following defendant, and

observed defendant change lanes at least once without using his

turn signal. Detective Davidson also observed defendant weaving

within his lane of travel. Detective Davidson called for

backup, and pulled defendant over. Officer Jonathan Morgan

(Officer Morgan) of the Asheville Police Department, the backup

officer, approached defendant’s vehicle on the driver’s side,

and Detective Davidson approached on the passenger side.

Officer Morgan smelled a strong odor of alcohol inside

defendant’s vehicle and on defendant as he exited his vehicle.

Defendant’s speech was slurred, his eyes were red and glassy,

and he admitted that he had been drinking. Without prompting,

he offered to perform a field sobriety test. Officer Morgan

conducted the field sobriety test. Defendant’s eyes did not

follow smoothly during the horizontal gaze nystagmus test. The -4- test revealed all 6 clues indicating impairment. Defendant

could not keep his balance, and swayed and leaned during the

walk and turn portion of the field sobriety test. Defendant had

to use his arms to maintain his balance during the one-legged

stand test. Defendant was administered the Alco-sensor breath

test twice; both samples were positive for alcohol. Defendant

admitted to having consumed four or five drinks.

Defendant was charged with impaired driving and improper

use of traffic lanes. Defendant appealed his District Court

convictions to Buncombe County Superior Court.

In Superior Court, defendant moved to dismiss, or

alternatively to suppress the evidence that resulted from the

stop, contending that the stop of his vehicle was not supported

by reasonable suspicion and that the arrest was not supported by

probable cause. These motions were denied in open court, and

memorialized in a written order dated 17 December 2013 and filed

15 January 2014. At trial, the State made a motion in limine to

limit testimony concerning a prior sexual assault investigation

involving defendant. The trial court granted that motion.

On 18 December 2013, the jury found defendant guilty of

driving while impaired, and not responsible for the infraction.

The trial court sentenced defendant to 60 days imprisonment, -5- suspended the sentence, placed defendant on unsupervised

probation for 12 months, and assessed a $100.00 fine, as well as

costs and fees in the amount of $1,886.50.

Defendant appeals.

II. Findings of Fact

In his first argument, defendant contends that the trial

court erred by failing to make findings of fact at the

suppression hearing, which resulted in a material dispute not

being resolved. We disagree.

A. Standard of Review

Our review of a trial court’s denial of 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). “The trial court’s

conclusions of law . . . are fully reviewable on appeal.” State

v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000).

B. Analysis

Defendant contends that the trial court erred by failing to

make findings of fact. Defendant gave oral notice of appeal on -6- 18 December 2013. On 15 January 2014, the trial court filed its

written order regarding defendant’s motion to suppress, which

contained detailed findings of fact and conclusions of law.

Defendant failed to include a copy of the trial court’s written

order in the record, and the argument in his brief presumes that

this order was never entered. Fortunately, the State filed this

order as a supplement to the record pursuant to Rule 9(b)(5)(a)

of the North Carolina Rules of Appellate Procedure. Defendant’s

contention that the trial court failed to enter an order

containing findings of fact is without merit.

In its order, the trial court found that: (1) Deputy

Davidson saw defendant, who matched the description of a

possible intoxicated individual, sometime after 2:00 a.m.; (2)

Deputy Davidson observed defendant stop at a stoplight, where

defendant remained while it turned green and then yellow; (3)

Deputy Davidson observed defendant drive straight through an

intersection in a lane clearly designated as a left turn lane;

and (4) defendant wove into an adjacent lane of traffic without

signaling.

We hold that each of these findings was supported by

evidence in the record. These findings, in turn, support the -7- trial court’s conclusion that Deputy Davidson had a reasonable

and articulable suspicion for stopping defendant’s vehicle.

Defendant argues that the trial court left a material issue

unresolved; that being whether there was a parked taxi cab

blocking defendant’s path, forcing him to change lanes into the

left turn lane. The trial court, in its findings, observed that

Deputy Davidson “did not recall if there was an obstruction in

the lane designated for traffic traveling straight through the

intersection[,]” but did not specifically resolve this factual

issue. Even assuming arguendo that the trial court left this

matter unresolved, however, it was not a material issue. There

was other evidence that supported the trial court’s findings of

fact and conclusions of law.

Even assuming that defendant was justified in changing

lanes to the left turn lane due to a cab blocking the right

lane, the trial court’s other, uncontested findings demonstrate

that defendant’s vehicle sat at a stoplight through the entire

green and yellow cycle, and that defendant subsequently changed

lanes without giving a turn signal. Our Supreme Court has

previously held that either of these constitutes a basis for a

reasonable and articulable suspicion sufficient to stop a

vehicle. See State v. Barnard, 362 N.C. 244, 248, 658 S.E.2d -8- 643, 645-46 (2008) (holding that a thirty-second delay at a

stoplight after it has turned green creates reasonable and

articulable suspicion); State v. Styles, 362 N.C. 412, 416-17,

665 S.E.2d 438, 441 (2008) (holding that changing lanes without

signaling creates reasonable and articulable suspicion). Any

error in failing to determine whether the right lane was blocked

by a parked cab was harmless.

This argument is without merit.

III. Motion to Exclude

In his second argument, defendant contends that the trial

court erred by shifting the burden of persuasion onto the

defendant during the State’s motion in limine. We disagree.

“We review a trial court’s decision to exclude evidence

under Rule 403 for abuse of discretion.” State v. Whaley, 362

N.C. 156, 160, 655 S.E.2d 388, 390 (2008).

The State made a motion in limine to exclude all testimony

concerning an investigation into allegations of sexual

misconduct against defendant. The State argued that evidence of

this investigation would be irrelevant and confusing to the -9- jury. Defendant contends that the trial court improperly

shifted the burden of persuasion on this motion to defendant.

As a general rule, evidence which tends to make the

existence of a fact of consequence more or less probable is

relevant and admissible. State v. Huggins, 338 N.C. 494, 500,

450 S.E.2d 479, 483 (1994) (citing N.C. R. Evid. 401). However,

Rule 403 of the North Carolina Rules of Evidence permits a trial

court, in its discretion, to exclude otherwise relevant evidence

“if its probative value is substantially outweighed by the

danger of . . . confusion of the issues.” N.C. R. Evid. 403.

In the instant case, defendant contends that the trial

court was confronted with “what appears to be a difficult

evidentiary decision.” Specifically, defendant notes that,

during pre-trial hearings, the trial court had overruled the

State’s objection to testimony concerning the sexual assault

investigation. Subsequently, however, the court granted the

State’s motion in limine, stating, “I’ll grant the motion just

to be safe.” Defendant contends that this statement constituted

an abuse of discretion, as a “close call” ruling on the

admissibility of relevant evidence – as defendant contends this

to be – should fall in favor of admission, not exclusion. -10- We find defendant’s argument unpersuasive. The instant

case concerned a charge of driving while impaired. Any evidence

of a prior investigation or allegations of sexual misconduct

were not relevant. We discern no abuse of discretion in the

trial court’s decision to exclude this evidence.

NO ERROR.

Judges CALABRIA and McCULLOUGH concur.

Report per Rule 30(e).