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.
Law Office of Sterling Rozear, PLLC, by Sterling Rozear, for
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
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
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.
Motion to Suppress
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
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.
unchallenged and binding findings of fact, see id.,
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 ...