Opinion
No. COA15-1158
06-07-2016
STATE OF NORTH CAROLINA v. COREY B. DOWELL, Defendant.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Michael Bulleri, for the State. Guy J. Loranger for the Defendant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Forsyth County, No. 13CRS059023, 13CRS061448-49 Appeal by Defendant from judgment entered 14 November 2014 by Judge Anderson D. Cromer in Forsyth County Superior Court. Heard in the Court of Appeals 9 March 2016. Attorney General Roy A. Cooper, III, by Assistant Attorney General Michael Bulleri, for the State. Guy J. Loranger for the Defendant. DILLON, Judge.
Corey Brian Dowell ("Defendant") appeals from the trial court's denial of his motion to suppress evidence obtained pursuant to an investigatory stop of his vehicle. Defendant also challenges the trial court's ruling on the admissibility of hearsay evidence. We hold that Defendant had a fair trial, free from prejudicial error.
I. Background
On 9 September 2013 at approximately 11:30 PM, a Davidson County police officer responded to the scene of a breaking and entering and larceny. The officer spoke with a witness, who stated that he saw two men leave the scene in a light-colored, older style police sedan with chrome wheels, an aftermarket exhaust system, and large lettering on the side which may have read "Spider" or "Striker." Two days later, at approximately 2:30 AM on 11 September, another breaking and entering occurred at the home of an elderly couple, and the victims stated that several guns were missing from a gun rack in their living room.
At approximately 4:00 AM on the same day, the officer observed a light colored Crown Victoria sedan with chrome wheels, an aftermarket exhaust system, and large lettering on the side which read "Energizer." The officer conducted a traffic stop. Defendant was driving the vehicle, and two other individuals were seated in the car. The passenger in the rear of the vehicle had in his possession a rifle and a shotgun. The officers also recovered gloves, a flashlight, a metal bar, and a television from Defendant's vehicle.
Defendant later admitted to law enforcement that the passengers in the vehicle had requested that he drop them off at the victims' home, that he knew they were going to break into the home, and that he later picked them up from the home.
Defendant was indicted on charges related to the incident and filed a motion to suppress evidence gathered as a result of the traffic stop, arguing that he was unlawfully seized and that the officers unlawfully searched his vehicle. The trial court denied Defendant's motion to suppress. Defendant pleaded guilty to two counts of breaking or entering a motor vehicle, one count of misdemeanor larceny, and one count of obtaining property by false pretenses. At a jury trial on the remaining charges, Defendant was found guilty of first degree burglary, felonious larceny, and larceny of a firearm. Defendant timely appealed.
II. Analysis
On appeal, Defendant argues (1) that the trial court erred in denying his motion to suppress evidence obtained when the officer conducted an investigatory stop of his vehicle, and (2) that the trial court committed reversible error at Defendant's trial by sustaining the State's hearsay objection to a statement made by his co-defendant.
A. Motion to Suppress
We review a trial court's denial of a motion to suppress in two parts. First, we must determine "whether the trial judge's underlying findings of fact are supported by competent evidence." State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). Second, we must determine whether those factual findings support the trial court's conclusions of law. Id. The trial court's conclusions of law are reviewed de novo. State v. Haislip, 362 N.C. 499, 500, 666 S.E.2d 757, 758 (2008).
On appeal, Defendant challenges only one finding of fact. Accordingly, the remainder of the trial court's findings of fact are binding on appeal. See State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011). Defendant challenges the trial court's finding that the officer stopped Defendant because he believed Defendant's vehicle matched the description given to him by the witness. This finding is "conclusive on appeal if supported by competent evidence, even if the evidence is conflicting." State v. Brewington, 352 N.C. 489, 498, 532, S.E.2d 496, 501 (2000).
We believe this challenged finding is supported by competent evidence. Specifically, the officer testified at trial that he had received a description of a vehicle from the witness roughly thirty (30) hours prior to the time he pulled Defendant over, and that the witness had described a light colored, older style police sedan with chrome wheels, aftermarket exhaust, and large lettering on the side. The witness indicated that the lettering could possibly have said "Spider" or "Striker." The officer further testified that at the time he first observed the vehicle, he noticed the "lettering, the color and type of vehicle" and believed it to be the vehicle he was looking for in relation to the robbery which occurred on 9 September.
Next, we must determine whether the trial court's findings of fact support its conclusions of law. Defendant argues that the findings did not support the trial court's conclusion that the stop of Defendant's vehicle was based on reasonable, articulable suspicion. We disagree.
"[A]n officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot." Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673, 675, 145 L. Ed.2d 570, 576 (2000); see also State v. Styles, 362 N.C. 412, 414, 665 S.E.2d 438, 439 (2008). Reasonable suspicion is a "less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence." State v. Barnard, 362 N.C. 244, 247, 658 S.E.2d 643, 645 (2008). In determining whether an officer had reasonable suspicion to stop a vehicle, our Court considers the totality of the circumstances. State v. Maready, 362 N.C. 614, 618, 669 S.E.2d 564, 567 (2008).
Based on the totality of the circumstances, we believe that the stop of Defendant's vehicle was lawful. Approximately thirty (30) hours after receiving a description from a witness of a vehicle leaving the scene of a crime, the officer saw a vehicle in the same general area that he reasonably believed to match the description. Defendant argued both at trial and on appeal that the description of the witness could have led to the "pulling over [of] any number of cars," and that the writing on the side of Defendant's car said "Energizer," not "Spider" or "Striker." However, we believe that the combination of the color, wheel description, exhaust description, lettering, and model of the vehicle, taken together, could certainly provide the officer with reasonable, articulable suspicion (rather than a mere hunch) that Defendant's vehicle was involved in criminal activity. Thus, we believe that the officer was justified in conducting an investigatory stop of Defendant's vehicle. Accordingly, this argument is overruled.
B. Hearsay Evidence
Defendant argues that the trial court improperly excluded testimony that Defendant sought to elicit on cross-examination. Specifically, Defendant contends that the statement of a passenger in Defendant's vehicle at the time he was stopped by the officer, that "[t]he guns are mine," and "[t]hey didn't know anything about [the gun]," should have been admissible as an excited utterance on cross-examination of the officer during the State's case-in-chief.
Although a trial court's determination concerning whether an out of court statement constitutes admissible or inadmissible hearsay is reviewed de novo by this Court, State v. Castaneda, 215 N.C. App. 144, 147, 715 S.E.2d 290, 293 (2011), decisions of the trial court regarding the scope of cross-examination are reviewed for an abuse of discretion. State v. Herring, 322 N.C. 733, 743, 370 S.E.2d 363, 370 (1988).
When the trial court ruled on the State's objection to the statement, it stated: "You can ask this question[.] You can call [the officer] on the defendant's side of the case and ask him that question . . . . I'm agreeing with you that you can elicit this information." The trial court did not exclude the evidence entirely; it simply placed a discretionary limitation on when it could be introduced.
Even assuming arguendo that the trial court erred in failing to admit this evidence, we do not believe it is reasonably possible that the admission would have changed the outcome of Defendant's trial in light of other evidence of Defendant's guilt. See State v. Lynch, 217 N.C. App. 455, 459, 720 S.E.2d 452, 455 (2011) (noting that "[e]ven where the trial court improperly excludes certain evidence . . . a defendant is not entitled to a new trial unless he can establish prejudice as the result of this error"); see also State v. Easterling, 300 N.C. 594, 605, 268 S.E.2d 800, 807 (1980). There was substantial, uncontroverted evidence of Defendant's guilt in this case. Specifically, the evidence presented at trial showed that when Defendant was stopped by the officer, he had items in his vehicle from the victims' home, in addition to gloves, a flashlight, and a metal bar. Defendant also concedes on appeal that the State "presented a recorded interview [at trial] in which [Defendant] appears to have admitted to aiding and abetting in the offenses." Accordingly, this argument is overruled.
NO ERROR.
Judges CALABRIA and DIETZ concur.
Report per Rule 30(e).