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State v. Sauls

Court of Appeals of North Carolina

September 19, 2017

STATE OF NORTH CAROLINA, Plaintiff,
v.
CATHY MANGUM SAULS, Defendant.

         Appeal by defendant from order entered 5 February 2016 by Judge Thomas H. Lock and judgment entered 4 March 2016 by Judge Robert F. Floyd in Superior Court, Johnston County.No. 14 CRS 050399 Heard in the Court of Appeals 23 February 2017.

          Attorney General Joshua H. Stein, by Assistant Attorney General Lee J. Miller, for the State.

          The Law Office of Sterling Rozear, PLLC, by Sterling Rozear, for defendant-appellant.

          STROUD, JUDGE.

         Defendant appeals the order denying her motion to suppress based upon her contention that the evidence obtained from the stop of her vehicle should have been suppressed because the deputy lacked reasonable suspicion for the traffic stop and the judgment convicting her of driving while impaired ("DWI") because the trooper involved should not have been allowed to testify on the results of the horizontal gaze nystagmus test ("HGN test") because the State did not formally tender him as an expert witness. We affirm the order and determine there was no error as to the judgment.

         I. Background

         In January of 2014, a citation was issued against defendant for operating a vehicle while impaired. The case made its way through district court, and in September of 2017 defendant filed a motion in superior court

for an order suppressing and excluding the evidence seized . . . for the reason that . . . Deputy Thomas Sewell of the Johnston County Sheriff's Department and Trooper M.D. Williams of the State Highway Patrol stopped the defendant in her motor vehicle on January 25, 2014 without reasonable suspicion that defendant had violated a criminal or traffic offense[.]

         Defendant sought to suppress the evidence resulting from the stop of her vehicle, including various field sobriety tests. In February of 2016, the trial court denied defendant's motion to suppress. Ultimately, defendant's case went to trial, and the jury convicted her of driving while impaired. The trial court entered judgment, and defendant appeals both the order denying her motion to suppress and the judgment.

         II. Motion to Suppress

         Defendant first argues that the trial court committed plain error by denying her motion to suppress. Defendant admits that she failed to properly preserve her appeal of her motion to suppress because she failed to object when the evidence was introduced. To be clear, defendant is actually challenging the denial of her motion to suppress as plain error and is not challenging the evidence admitted at trial because of the denial. Our Court recently addressed a case in the same posture:

Here, defendant filed a pretrial motion to suppress evidence of his arrest alleging that there was not sufficient evidence to establish probable cause for his arrest. That motion was decided after an evidentiary hearing and denied. Thereafter, the record is silent as to any further objection from defendant to the introduction of the same evidence at the trial of this case. Therefore, defendant has waived any objection to the denial of his motion to suppress, and it is not properly preserved for this Court's review. Defendant, however, attempts to cure this defect by arguing that the trial court committed plain error instead.

In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.

The North Carolina Supreme Court has elected to review unpreserved issues for plain error when they involve either (1) errors in the judge's instructions to the jury, or (2) rulings on the admissibility of the evidence. Under the plain error rule, defendant must establish that a fundamental error occurred at trial and that absent the error, it is probable the jury would have returned a different verdict.
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 exclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law. The trial court's conclusions of law are fully reviewable on appeal.

State v. Williams, __ N.C.App. __,, 786 S.E.2d 419, 424-25 (2016) (citations quotation marks, and ellipses omitted). Ultimately, this Court concluded that the trial court did not commit plain error in denying the motion to suppress without considering the evidence actually presented at trial because the only issue on appeal was whether the trial court had plainly erred in denying the motion to dismiss to suppress. See id. at, 786 S.E.2d at 425.

         The unchallenged and binding findings of fact, see id., establish:

1. On 24 January 2014, at approximately 1:00 AM, Deputy Thomas Sewell of the Johnston County Sheriff's Office was in uniform and on duty ...

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