State v. Lindsey , 249 N.C. App. 516 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-1188
Filed: 20 September 2016
Union County, No. 14 CRS 50762
STATE OF NORTH CAROLINA
v.
ERIC LAMAR LINDSEY
Appeal by defendant from judgments entered 14 April 2015 by Judge Martin
B. McGee in Union County Superior Court. Heard in the Court of Appeals
29 March 2016.
Attorney General Roy Cooper, by Assistant Attorney General Kathryne E.
Hathcock, for the State.
Sharon L. Smith for defendant.
McCULLOUGH, Judge.
Eric Lamar Lindsey (“defendant”) appeals from judgments entered upon his
convictions for habitual driving while impaired and driving while license revoked for
impaired driving. For the following reasons, we find no error.
I. Background
On 27 May 2014, a Union County Grand Jury indicted defendant on charges
of DWI, habitual DWI, and DWLR. The underlying DWI was later dismissed as the
State chose to proceed on the more serious habitual DWI charge.
STATE V. LINDSEY
Opinion of the Court
Prior to the case coming on for trial, defendant filed a motion to suppress
evidence and dismiss with a supporting affidavit on 20 January 2015. Defendant’s
motion came on for hearing in Union County Superior Court before the Honorable W.
David Lee on 21 January 2015. Although defendant’s motion sought to suppress
evidence of the stop, his statements, and his arrest, defendant indicated at the
hearing that he was only focusing on the probable cause to arrest. On
26 January 2015, the trial court filed an order denying defendant’s motion to
suppress.
Defendant’s case was then called for jury trial on 13 April 2015 in Union
County Superior Court before the Honorable Martin McGee. The State’s only witness
was Officer Timothy Sykes, who pulled defendant over and arrested defendant in the
early morning hours of 21 February 2014. Officer Sykes’ testimony tended to show
that at approximately 2:47 in the morning on 21 February 2014, he pulled behind
defendant at a stoplight. Officer Sykes then ran the tag on defendant’s vehicle and
determined it was expired. Officer Sykes initiated a traffic stop at that time.
Defendant made two turns and parked in a handicap spot in a McDonald’s parking
lot. Officer Sykes did not notice any driving mistakes. Once Officer Sykes
approached the vehicle, defendant informed the officer that his license was suspended
for DWI and provided the officer with an identification card. Officer Sykes noticed a
medium odor of alcohol coming from defendant’s breath and that defendant’s eyes
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were red and glassy. Officer Sykes then returned to his patrol car, ran defendant’s
information, and confirmed that defendant’s license was suspended for DWI. Once
backup arrived, Officer Sykes returned to defendant’s vehicle and asked defendant to
exit the vehicle in order to perform field sobriety tests. Defendant complied and
exited his vehicle without any problem. Officer Sykes first performed a horizontal
gaze nystagmus test and noted 5 out of 6 indicators of impairment. Officer Sykes
then made multiple attempts to conduct a portable breath test but defendant did not
provide an adequate breath sample to register on the device. Upon further
questioning, defendant informed Officer Sykes that he had consumed three beers at
approximately 6:00 the evening before. Based on his observations of defendant,
Officer Sykes formed the opinion that defendant had consumed a sufficient quantity
of alcohol so as to appreciably impair both his mental and physical faculties and
placed defendant under arrest. Defendant later refused a breath test at the police
station. Officer Sykes further testified that he was with defendant for approximately
two hours and his opinion that defendant was appreciably impaired did not change.
During the State’s evidence, and out of the presence of the jury, defendant
stipulated to prior DWI convictions, at least in part to keep evidence of the prior
convictions from being mentioned in front of the jury. Defendant also stipulated that
his license was revoked for a DWI and pled guilty to DWLR as part of a plea
arrangement. The trial judge accepted the plea, leaving only the habitual DWI
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Opinion of the Court
charge for the jury. Upon further discussions, it was agreed that the case would
proceed as a normal DWI case, since defendant had already stipulated to prior DWI
convictions supporting the habitual portion of the habitual DWI charge.
At the close of the State’s evidence, and again at the close of all the evidence,
defendant moved to dismiss. The trial judge denied those motions.
On 14 April 2015, the jury returned a verdict finding defendant guilty of DWI.
Upon the guilty verdict, the trial judge entered judgment sentencing defendant to a
term of 25 to 39 months for habitual DWI. The trial judge also entered judgment
imposing a consecutive two day sentence for DWLR for impaired driving. Defendant
gave notice of appeal orally in court.
II. Discussion
Defendant now raises the following three issues on appeal: whether the trial
court (1) erred in denying his motion to suppress; (2) erred in denying his motions to
dismiss; and (3) erred in denying him the final argument to the jury.
1. Motion to Suppress
Defendant first argues the trial court erred in denying his motion to suppress
and dismiss because the totality of the circumstances in this case were insufficient to
constitute probable cause to arrest him for DWI.
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
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Opinion of the Court
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).
Our Courts have long recognized that
[a]n arrest is constitutionally valid when the officers have
probable cause to make it. Whether probable cause exists
depends upon “whether at that moment the facts and
circumstances within their knowledge and of which they
had reasonably trustworthy information were sufficient to
warrant a prudent man in believing that the [suspect] had
committed or was committing an offense.”
State v. Streeter, 283 N.C. 203, 207, 195 S.E.2d 502, 505 (1973) (quoting Beck v. Ohio,
379 U.S. 89, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964)); see also State v. Eubanks, 283
N.C. 556, 559-60, 196 S.E.2d 706, 708 (1973). This Court has further explained that:
“[P]robable cause requires only a probability or substantial
chance of criminal activity, not an actual showing of such
activity.” Illinois v. Gates, 462 U.S. 213, 244 n. 13, 103 S.
Ct. 2317, 76 L. Ed. 2d 527 (1983). “Probable cause for an
arrest has been defined to be a reasonable ground of
suspicion, supported by circumstances strong in
themselves to warrant a cautious man in believing the
accused to be guilty.” State v. Streeter, 283 N.C. 203, 207,
195 S.E.2d 502, 505 (1973) (citation omitted). “The
probable-cause standard is incapable of precise definition
or quantification into percentages because it deals with
probabilities and depends on the totality of the
circumstances.” Maryland v. Pringle, 540 U.S. 366, 371,
124 S. Ct. 795, 157 L. Ed. 2d 769 (2003).
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State v. Teate, 180 N.C. App. 601, 606-607, 638 S.E.2d 29, 33 (2006).
The trial court’s order in this case contained the following findings of fact:
1. On February 21, 2014, at approximately 2:53 a.m.
Patrol Officer Timothy Sykes (“Officer Sykes”) . . .
observed another vehicle as it proceeded ahead of him
on the highway. Officer Sykes ran the tag on the vehicle
and determined that the tag had expired.
2. Officer Sykes then activated his blue lights and followed
the defendant, who properly signaled both right and left
turns before entering a McDonald’s parking lot where
he parked well within the lines of a space marked for
handicapped. Officer Sykes approached the vehicle and
observed the defendant to be the driver and sole
occupant of the Ford Taurus vehicle he was operating.
Upon Officer Sykes’s request the defendant produced
only an identification card, admitting to the officer that
his license was suspended. Officer Sykes smelled a
moderate odor of alcohol coming from the defendant.
He also observed the defendant’s eyes to be red and
glassy.
3. Officer Sykes, trained in the administration of the
horizontal gaze nystagmus (“HGN”), administered the
HGN test to the defendant, telling the defendant not to
move his head and to follow the officer’s finger with his
eyes only. Of the six clues, or indicators of impairment
about which Officer Sykes was trained and
knowledgeable, he observed five such indications of
impairment upon administering the test to the
defendant.
4. Officer Sykes then directed the defendant to blow into a
properly tested, calibrated and approved alco-sensor
device. The defendant failed on at least three
successive occasions to provide a sufficient sample of
breath to enable a reading on the alco-sensor. Officer
Sykes treated these failures as a refusal to submit to
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the alco-sensor.
5. The defendant admitted to Officer Sykes that he had
consumed three Milwaukee Lite beers, but informed the
officer that he had last consumed around 6:00 p.m. that
afternoon, approximately 9 hours before the stop.
6. Following these events, Officer Sykes arrested the
defendant for driving while impaired.
Based on these findings, the trial court concluded as follows:
2. Under the totality of the circumstances, and after
carefully examining the attenuating facts and
circumstances, including the officer’s observations prior
to arrest, the officer’s administration of the HGN test,
the defendant’s responses to the officer’s investigatory
questions, and the refusal of the defendant to submit to
the alco-sensor, the Court concludes that the facts and
circumstances justified the officer’s determination that
reasonable grounds existed for believing that the
defendant had committed an implied-consent offense.
3. Under the totality of the circumstances Officer Sykes
possessed sufficient reliable and lawfully-obtained
information at the time of the defendant’s arrest to
constitute a reasonable ground of suspicion supported
by circumstances sufficiently strong in themselves to
warrant a cautious man in believing that the defendant
was guilty of driving while impaired. The arrest and
seizure of the defendant, as well as the evidence
gathered by Officer Sykes was justified under the law.
4. The stop of the defendant’s vehicle was based upon a
reasonable articulable suspicion . . . and the subsequent
arrest of the defendant did not violate the defendant’s
rights under the Fourth Amendment of the United
States Constitution, Article I, Section 20 of the North
Carolina Constitution, or the provisions of Chapter 15A
of the North Carolina General Statutes.
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Opinion of the Court
Although defendant seems to take issue with the trial court’s failure to issue
findings of fact regarding police lights flashing during the HGN test, or the effect the
flashing police lights may have had on the HGN test, defendant does not challenge
any particular finding of fact issued by the trial court. Instead, defendant challenges
the trial court’s determination that its findings of fact support the conclusion that
there was probable cause to arrest defendant for DWI. In doing so, defendant
emphasizes that the trial judge thought this was “a really close case.” Defendant
then distinguishes the present case from cases in which this Court has upheld trial
courts’ probable cause determinations by identifying circumstances in those cases
that were not present in this case; namely, that defendant was not driving poorly, did
not commit a traffic violation, was not involved in an accident, did not have slurred
speech, had no problem exiting the vehicle, was steady on his feet, was cooperative
and able to follow directions, and there was not an open container of alcohol visible
in the vehicle. See Teate, 180 N.C. App. at 604-606, 638 S.E.2d at 32-33 (probable
cause to arrest for DWI where the defendant failed to stop at a license checkpoint,
there was an odor of alcohol on the defendant, the defendant admitted she had been
drinking, the defendant’s eyes were “glassy” and she had slurred speech, the
defendant had difficulty performing counting tests, and breath samples tested with
an alco-sensor instrument indicated intoxication); Richardson v. Hiatt, 95 N.C. App.
196, 200, 381 S.E.2d 866, 868 (1989) (probable cause to arrest for impaired driving
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Opinion of the Court
where there was a strong odor of alcohol on the defendant, the defendant had been
involved in a one-vehicle accident in excellent driving conditions in the middle of the
afternoon, and the defendant claimed to have fallen asleep); State v. Simmons, 205
N.C. App. 509, 525-26, 698 S.E.2d 95, 106-107 (2010) (the defendant was driving
poorly, there was a strong odor of alcohol coming from the defendant’s breath, the
defendant admitted he had consumed a couple of beers, there were beer bottles in the
passenger area of the vehicle, one of which was half full, the defendant’s eyes were
red and glassy, the defendant’s speech was slightly slurred, and alco-sensor tests of
the defendant’s breath were positive for alcohol; but probable cause to arrest was
upheld solely based on the defendant’s possession of an open container of alcohol in
the vehicle). Thus, defendant contends the evidence of impairment in the present
case does not rise to the level of the evidence in other cases. Defendant analogizes
the facts in the present case to the facts in State v. Sewell, __ N.C. App. __, 768 S.E.2d
650 (available at 2015 WL 67193), disc. rev. denied, 368 N.C. 239, 768 S.E.2d 851
(2015), in which this Court affirmed the trial court’s determination that there was
not probable cause to arrest the defendant for DWI. Defendant contends that there
was more evidence of impairment in Sewell then in the present case and, yet, there
still was not probable cause to arrest for DWI in Sewell.
We are not persuaded by defendant’s arguments. Simply because the facts in
this case do not rise to the level of the facts in the cases distinguished by defendant
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Opinion of the Court
does not mean the trial court’s findings in this case are insufficient to support a
probable cause determination. “Whether probable cause exists to justify an arrest
depends on the ‘totality of the circumstances’ present in each case.” State v. Sanders,
327 N.C. 319, 339, 395 S.E.2d 412, 425 (1990) cert. denied, 498 U.S. 1051, 112 L. Ed.
2d 782 (1991). The evidence in this case supports the following findings by the trial
court: the officer smelled a moderate odor of alcohol coming from defendant and
observed defendant’s eyes to be red and glassy; the officer observed five of six
indicators of impairment upon administering an HGN test to defendant; and
defendant admitted to the officer that he had consumed three beers hours before the
stop. Without even considering defendant’s multiple failed attempts to provide an
adequate breath sample on an alco-sensor device, we hold the trial court’s findings
support its conclusion that there was probable cause to arrest defendant for DWI.
Additionally, we note that Sewell is not controlling in the present case. First
and foremost, Sewell is an unpublished opinion and does not constitute controlling
legal authority. See N.C. R. App. P. 30(e)(3) (2016). Second, although some facts are
similar, there are key distinctions between the facts in Sewell and the present case.
In Sewell, the defendant was stopped at a checkpoint and a trooper detected a strong
odor of alcohol “emanating from [the] defendant’s vehicle, not from the defendant,
who was accompanied by a passenger.” 2015 WL 67193 at *3. The trooper also
observed that the defendant had red and glassy eyes, the defendant exhibited six of
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Opinion of the Court
six indicators on the HGN test, and the defendant tested positive for the presence of
alcohol on two alco-sensor breath tests. The trial court, however, determined the
facts and circumstances known to the trooper were insufficient to establish probable
cause to believe the defendant had committed the offense of DWI where the trooper
“did not testify that [the] defendant herself was the source of the odor of alcohol[]”
and the defendant did not have slurred speech, retrieved her license and registration
without difficulty or delay, was steady on her feet, was cooperative, and exhibited no
signs of intoxication on the “[o]ne-[l]eg [s]tand” and “[w]alk and [t]urn” tests. Id. This
court affirmed the grant of the defendant’s motion to suppress. Id. Contrary to the
facts in Sewell, the evidence in this case was that defendant was the sole occupant of
the vehicle and the officer smelled a medium odor of alcohol coming from defendant’s
breath. We find this factual discrepancy to be significant.
It is the trial judge’s role to weigh the credibility of the witnesses and the
evidence. Here, the evidence supports the trial court’s findings, which in turn support
the conclusion that the officer had probable cause to arrest defendant for DWI.
2. Motion to Dismiss
Defendant also argues the trial judge erred in denying his motions to dismiss
the DWI charge for insufficiency of the evidence.
“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). “ ‘Upon defendant’s
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motion for dismissal, the question for the Court is whether there is substantial
evidence (1) of each essential element of the offense charged, or of a lesser offense
included therein, and (2) of defendant’s being the perpetrator of such offense. If so,
the motion is properly denied.’ ” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451,
455 (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)), cert.
denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000). “Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
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. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515
U.S. 1135, 132 L. Ed. 2d 818 (1995).
Circumstantial evidence may withstand a motion to
dismiss and support a conviction even when the evidence
does not rule out every hypothesis of innocence. If the
evidence presented is circumstantial, the court must
consider whether a reasonable inference of defendant’s
guilt may be drawn from the circumstances. Once the court
decides that a reasonable inference of defendant’s guilt
may be drawn from the circumstances, then it is for the
jury to decide whether the facts, taken singly or in
combination, satisfy [it] beyond a reasonable doubt that the
defendant is actually guilty.
Fritsch, 351 N.C. at 379, 526 S.E.2d at 455 (citations and quotation marks omitted).
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Opinion of the Court
Relevant to this case, the offense of impaired driving is defined as follows: “[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 . . . [w]hile under
the influence of an impairing substance[.]” N.C. Gen. Stat. § 20-138.1(a)(1) (2015).
Thus, “[t]he essential elements of DWI: are (1) [d]efendant 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. Mark, 154 N.C. App. 341,
345, 571 S.E.2d 867, 870 (2002), aff'd per curiam, 357 N.C. 242, 580 S.E.2d 693 (2003).
The only element at issue in this case is the third element, the impairment of
defendant.
This Court has explained that “[b]efore [a] defendant can be convicted under
N.C. Gen. Stat. § 20-138.1(a)(1), the State must prove beyond a reasonable doubt that
defendant had ingested a sufficient quantity of an impairing substance to cause his
faculties to be appreciably impaired. This means a finding that defendant's
impairment could be recognized and estimated.” State v. Phillips, 127 N.C. App. 391,
393, 489 S.E.2d 890, 891 (1997) (internal citation omitted). In Phillips, this Court
held that there was sufficient evidence the defendant was appreciably impaired to
satisfy the elements of N.C. Gen. Stat. § 20-138.1(a)(1) when reviewing the record in
the light most favorable to the State where there was evidence of erratic driving, a
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pronounced odor of alcohol on the defendant, and the defendant admitted to drinking
significantly earlier in the evening. Id. at 393, 489 S.E.2d at 892.
Similar to his argument concerning the denial of his motion to suppress,
defendant contends the evidence of intoxication in this case is distinguishable from
evidence in prior cases in which our courts determined there was sufficient evidence
of impairment to survive motions to dismiss. See id.; State v. Norton, 213 N.C. App.
75, 79-80, 712 S.E.2d 387, 390-91 (2011) (sufficient evidence of impairment where
there were witnesses to erratic driving, the defendant exhibited superhuman
strength when officers attempted to apprehend him, a witness smelled alcohol on the
defendant, and blood tests established the defendant’s alcohol and cocaine use); State
v. Scott, 356 N.C. 591, 597-98, 573 S.E.2d 866, 869-70 (2002) (sufficient evidence of
impairment where there was a strong odor of alcohol in the defendant’s vehicle, the
officer observed an open container of beer in the passenger area of the vehicle, the
defendant’s coat was wet from what appeared to be beer, and the defendant’s speech
was slurred). Defendant emphasizes that in those cases, “the defendant was involved
in an accident, there was evidence of faulty driving or erratic behavior, alcohol was
found in the car, and/or there was substantial evidence that the defendant was over
the legal limit for alcohol[,]” facts which are not present in this case. Defendant
instead compares his case to State v. Hough, 229 N.C. 532, 50 S.E.2d 496 (1948), in
which the Court held there was insufficient evidence of impairment to raise more
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Opinion of the Court
than a suspicion or conjecture of impairment where the only evidence was from two
officers who arrived at the scene of an accident approximately 25 minutes after the
accident, one of whom testified that he opined the defendant driver was intoxicated
based on the fact that he smelled something on the defendant’s breath, and the other
who testified he was of the opinion the defendant was intoxicated or under the
influence of something. Id. at 533-34, 50 S.E.2d at 496-97. But in Hough, both
officers testified that they were unsure whether the defendant’s condition that night
was the result of impairment or the accident. Id. at 533, 50 S.E.2d at 497. The Court
reasoned that “[i]f the witnesses who observed the defendant immediately after his
accident, were unable to tell whether or not he was under the influence of an
intoxicant or whether his condition was the result of the injuries he had just
sustained, we do not see how the jury could do so.” Id.
As in the first issue on appeal, we agree that there may have been more
evidence of impairment in the cases cited by defendant. Yet, we must judge the facts
of the present case, which provide more evidence of impairment than in Hough.
Here the evidence was that defendant pulled into a handicap spot, Officer
Sykes noticed a moderate odor of alcohol coming from defendant’s breath, defendant
had red and glassy eyes, defendant admitted to consuming alcohol hours before,
Officer Sykes noted five out of six indicators of impairment on the HGN test, and
Officer Sykes believed that defendant was impaired. Viewing these facts in the light
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Opinion of the Court
most favorable to the State, and despite other evidence tending to show defendant
was driving properly and was steady on his feet, we hold the evidence in this case
was sufficient to survive defendant’s motions to dismiss.
3. Final Argument to the Jury
In defendant’s final argument on appeal, defendant contends the trial court
erred in denying him the final closing argument to the jury.
Pertinent to this issue, Rule 10 of the North Carolina General Rules of Practice
for the Superior and District Courts provides that “if no evidence is introduced by the
defendant, the right to open and close the argument to the jury shall belong to him.”
N.C. Super. and Dist. Ct. R. 10 (2016).
In this case, defendant did not call any witnesses or put on any evidence after
the State concluded its presentation of the case. Yet, defendant did cross-examine
the State’s only witness and sought to play a video of the entire stop recorded by the
officer’s in-car camera during cross-examination. Defendant argued the video was
illustrative. The State argued playing the video constituted introducing evidence.
After argument on the issue, the trial court noted that it was a “difficult call” and
indicated to the parties that it would make its final determination of whether the
video constituted new evidence after the video had been played. The parties agreed,
with the defense further indicating that “[they] intend to play [the video] one way or
the other and understand the potential consequences.” The video was marked as
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“Defendant’s Exhibit 1” and played for the jury, with defendant stopping the video at
times to ask questions of the State’s witness. Upon the conclusion of the defense’s
cross-examination and the close of the State’s evidence, the trial court heard further
arguments by the parties on whether the video constituted new evidence. The trial
court again noted it was a “tough call,” but ultimately determined that playing the
video to the jury constituted putting on evidence, resulting in defendant’s loss of the
final argument to the jury.
The question we must address is whether admitting the entire video of the stop
during cross-examination constituted introducing evidence. In State v. Hennis, 184
N.C. App. 536, 646 S.E.2d 398, disc. rev. denied, 361 N.C. 699, 653 S.E.2d 148 (2007),
this Court summarized the applicable law as follows:
In State v. Shuler, 135 N.C. App. 449, 520 S.E.2d 585
(1999), this Court determined that evidence is
“introduced,” within the meaning of Rule 10, when the
cross-examiner either formally offers the material into
evidence, or when the cross-examiner presents new matter
to the jury that is not relevant to the case. Id. at 453, 520
S.E.2d at 588; see also State v. Wells, 171 N.C. App. 136,
138, 613 S.E.2d 705, 706 (2005) (quoting Shuler, 135 N.C.
App. at 453, 520 S.E.2d at 588). However, “[n]ew matters
raised during the cross-examination, which are relevant,
do not constitute the ‘introduction’ of evidence within the
meaning of Rule 10.” Shuler, 135 N.C. App. at 453, 520
S.E.2d at 588. Most recently, in State v. Bell, 179 N.C. App.
430, 633 S.E.2d 712 (2006), this Court stated that evidence
is introduced during cross-examination when: “(1) it is
‘offered’ into evidence by the cross-examiner; or (2) the
cross-examination introduces new matter that is not
relevant to any issue in the case.” Id. at 431, 633 S.E.2d at
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713 (citing Shuler, 135 N.C. App. at 452-53, 520 S.E.2d at
588).
Id. at 537-38, 646 S.E.2d at 399. In Hennis, this Court addressed “whether, under
the first test in Bell, the defendant ‘offered’ [a] diagram and incident report into
evidence during his cross-examination.” Id. at 538, 646 S.E.2d at 399. This Court
further explained that “[i]n State v. Hall, 57 N.C. App. 561, 291 S.E.2d 812 (1982),
this Court set forth the following test to determine whether evidence is ‘offered’
within the meaning of Rule 10: ‘whether a party has offered [an object] as substantive
evidence or so that the jury may examine it and determine whether it illustrates,
corroborates, or impeaches the testimony of the witness.’ ” Hennis, 184 N.C. App at
538, 646 S.E.2d at 399 (quoting Hall, 57 N.C. App. at 564, 291 S.E.2d at 814).
Applying the above law, this Court granted the Hennis defendant a new trial, holding
the defendant did not offer evidence under either test articulated in Bell. Id. at 539,
646 S.E.2d at 400. This Court reasoned that the exhibits in Hennis related directly
to the State’s witness’ testimony on direct examination and did not constitute
substantive evidence – the diagram was used to merely illustrate the State’s witness’
prior testimony and the incident report was not published to the jury as substantive
evidence, nor given to the jury to examine. Id.
In the present case, defendant now analogizes the facts of his case to Hennis
and asserts “[t]he videotape was used by the defendant to illustrate Officer Sykes’
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account of these events. It was not admitted as substantive evidence and it was
directly relevant to Officer Sykes’ testimony[.]” We are not convinced.
Although Officer Sykes had provided testimony describing the stop that was
shown in the video, we agree with the trial court that the video evidence in this case
goes beyond the testimony of the officer, and is different in nature from evidence
presented in other cases that was determined not to be substantive. Here, the playing
of the video of the stop allowed the jury to hear exculpatory statements by defendant
to police beyond those testified to by the officer and introduced evidence of flashing
police lights, that was not otherwise in the evidence, to attack the reliability of the
HGN test. This evidence was not merely illustrative. Moreover, the video allowed
the jury to make its own determinations concerning defendant’s impairment apart
from the testimony of the officer and, therefore, amounted to substantive evidence.
Consequently, we hold the trial court did not err in determining defendant put on
evidence and in denying defendant the final argument to the jury.
III. Conclusion
For the reasons discussed above, we find the trial court did not err in denying
defendant’s motions to suppress or dismiss, or in denying defendant the final closing
argument to the jury.
NO ERROR.
Judges BRYANT and STEPHENS concur.
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