{ "id": 8157215, "name": "STATE OF NORTH CAROLINA v. MARY ROSEMAN JONES", "name_abbreviation": "State v. Jones", "decision_date": "2007-10-16", "docket_number": "No. COA06-1495", "first_page": "405", "last_page": "412", "citations": [ { "type": "official", "cite": "186 N.C. App. 405" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "648 S.E.2d 214", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639054 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "216" } ], "opinion_index": 0, "case_paths": [ "/se2d/648/0214-01" ] }, { "cite": "633 S.E.2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636416 ], "weight": 4, "year": 2006, "pin_cites": [ { "page": "564" }, { "page": "461" }, { "page": "461", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/633/0459-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-4.01", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(27)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 105-164.3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "page": "(22)", "parenthetical": "defining moped" } ], "opinion_index": 0 }, { "cite": "552 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "196" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 220", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11355641 ], "year": 2001, "pin_cites": [ { "page": "225" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0220-01" ] }, { "cite": "367 S.E.2d 626", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "631" } ], "opinion_index": 0 }, { "cite": "322 N.C. 176", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2514549 ], "year": 1988, "pin_cites": [ { "page": "185" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0176-01" ] }, { "cite": "241 S.E.2d 656", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "659" } ], "opinion_index": 0 }, { "cite": "294 N.C. 397", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573258 ], "year": 1978, "pin_cites": [ { "page": "402" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0397-01" ] }, { "cite": "386 S.E.2d 217", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "221", "parenthetical": "same" } ], "opinion_index": 0 }, { "cite": "96 N.C. App. 389", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522580 ], "year": 1989, "pin_cites": [ { "page": "395", "parenthetical": "same" } ], "opinion_index": 0, "case_paths": [ "/nc-app/96/0389-01" ] }, { "cite": "185 N.C. App. 271", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8209374 ], "year": 2007, "pin_cites": [ { "page": "274" } ], "opinion_index": 0, "case_paths": [ "/nc-app/185/0271-01" ] }, { "cite": "397 S.E.2d 653", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1990, "pin_cites": [ { "page": "655", "parenthetical": "\"[a]n officer's stop of a car to investigate a potential traffic offense does not require probable cause, but it is governed by the reasonableness standards of the Fourth Amendment\"" }, { "page": "655" }, { "page": "655", "parenthetical": "citation omitted" }, { "parenthetical": "finding reasonable suspicion of DWI when defendant was weaving within his own lane and traveling below the speed limit" } ], "opinion_index": 0 }, { "cite": "100 N.C. App. 628", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527353 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "631-32", "parenthetical": "\"[a]n officer's stop of a car to investigate a potential traffic offense does not require probable cause, but it is governed by the reasonableness standards of the Fourth Amendment\"" }, { "page": "631-32" }, { "page": "632" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0628-01" ] }, { "cite": "527 S.E.2d 921", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "923", "parenthetical": "applying reasonable suspicion analysis in the context of an investigatory stop" } ], "opinion_index": 0 }, { "cite": "351 N.C. 627", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155623 ], "year": 2000, "pin_cites": [ { "page": "630", "parenthetical": "applying reasonable suspicion analysis in the context of an investigatory stop" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0627-01" ] }, { "cite": "517 U.S. 806", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11746960 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "810", "parenthetical": "noting that \"the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred\"" }, { "page": "95", "parenthetical": "noting that \"the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred\"" } ], "opinion_index": 0, "case_paths": [ "/us/517/0806-01" ] }, { "cite": "360 N.C. 562", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3794266 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "565" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0562-01" ] }, { "cite": "446 S.E.2d 579", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1994, "pin_cites": [ { "page": "585" }, { "page": "585" }, { "page": "585" }, { "page": "585" } ], "opinion_index": 0 }, { "cite": "337 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2550000 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "140-41" }, { "page": "140-41" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0132-01" ] } ], "analysis": { "cardinality": 728, "char_count": 17760, "ocr_confidence": 0.713, "pagerank": { "raw": 5.0011153170616546e-08, "percentile": 0.3152496535512302 }, "sha256": "9e499918949fb397472ffbd607a999d4e12b06c60af3e14b64da09658bc631c3", "simhash": "1:a3a9d066535e9755", "word_count": 2905 }, "last_updated": "2023-07-14T19:31:40.090074+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and BRYANT concur." ], "parties": [ "STATE OF NORTH CAROLINA v. MARY ROSEMAN JONES" ], "opinions": [ { "text": "HUNTER, Judge.\nMary Roseman Jones (\u201cdefendant\u201d) pled guilty to habitual driving while impaired, conditioned on her right to appeal the trial court\u2019s denial of a motion to suppress. Defendant was sentenced to a minimum of twelve (12) months and a maximum of fifteen (15) months. Defendant now appeals the denial of her motion to suppress. After careful consideration, we affirm.\nOn 10 September 2005, defendant was traveling east on a two-wheeled motorized vehicle in Kannapolis. Officer M.D. Barnhardt (\u201cOfficer Barnhardt\u201d) of the Kannapolis Police Department was in his squad car and saw defendant make an \u201cunsteady\u201d turn onto Cannon Boulevard and \u201cput her foot down\u201d as she made the right-hand turn. Officer Barnhardt described defendant\u2019s operation of the vehicle as \u201cwobbly\u201d and equated her driving to that of a child learning to ride a bicycle without training wheels for the first time.\nOfficer Barnhardt followed defendant down Cannon Boulevard, a forty-five (45) mile per hour zone. At this time, Officer Barnhardt formed the opinion that defendant\u2019s vehicle was traveling in excess of thirty (30) miles per hour. As defendant was traveling up a slight incline, Officer Barnhardt used his radar and clocked the vehicle at a speed of thirty-two (32) miles per hour. According to Officer Barnhardt, defendant\u2019s motorized vehicle was traveling at such a rate of speed that it met the definition of a motorcycle, and he pulled the vehicle over for not having a registration plate. He also concluded that defendant may have been operating this vehicle while impaired. As a result of the traffic stop, defendant was charged with driving while impaired (\u201cDWI\u201d). Defendant was not charged with the registration plate violation or any other traffic violations.\nAt the hearing on defendant\u2019s motion to suppress, Officer Barnhardt testified to the facts as set out above. Defendant called one witness, Steven Halprin (\u201cHalprin\u201d), an owner of Accel Motor Sports. Halprin testified that defendant was operating a \u201cnoped,\u201d which means there are two floorboards where the feet are to remain while in operation and that the vehicle does not have pedals. Halprin testified that nopeds are \u201canemic,\u201d \u201caccelerate very slowly[,]\u201d are \u201cdifficult to handle [,]\u201d and are hard to maneuver with smaller tires. Halprin, however, had no personal knowledge as to the events of that day.\nDefendant presents the following issues for this Court\u2019s review: (1) whether the trial court erred in denying defendant\u2019s motion to suppress; (2) whether the trial court\u2019s order presented sufficient findings of fact to support its denial of defendant\u2019s motion to suppress; and (3) whether the trial court erred in eliciting testimony from a witness. We address each issue in turn.\nI.\nIn reviewing a ruling on a motion to suppress, the trial court\u2019s findings of fact \u201care conclusive and binding on the appellate courts when supported by competent evidence.\u201d State v. Brooks, 337 N.C. 132, 140-41, 446 S.E.2d 579, 585 (1994). The conclusions of law, however, \u201care binding upon us on appeal [only] if they are supported by the trial court\u2019s findings.\u201d Id. at 141, 446 S.E.2d at 585. Defendant argues that the trial court erred in denying defendant\u2019s motion to suppress because Officer Barnhardt did not have probable cause to stop defendant. We disagree.\nBefore turning to the merits of the case, it is necessary to discuss what level of suspicion is required under the Fourth Amendment of the United States Constitution and under Article 1, Section 20 of the North Carolina Constitution to make a traffic stop. Defendant relies on State v. Ivey, 360 N.C. 562, 633 S.E.2d 459 (2006), for the proposition that probable cause is required for all traffic stops. In that case, our Supreme Court held that \u201cthe United States and North Carolina Constitutions require an officer who makes a [stop] on the basis of a perceived traffic violation to have probable cause to believe the driver\u2019s actions violated a motor vehicle law.\u201d Id. at 564, 633 S.E.2d at 461; see Whren v. United States, 517 U.S. 806, 810, 135 L. Ed. 2d 89, 95 (1996) (noting that \u201cthe decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred\u201d). The State argues that this statement is dicta and that the standard for a traffic stop need only amount to reasonable suspicion. See, e.g., State v. Foreman, 351 N.C. 627, 630, 527 S.E.2d 921, 923 (2000) (applying reasonable suspicion analysis in the context of an investigatory stop); State v. Aubin, 100 N.C. App. 628, 631-32, 397 S.E.2d 653, 655 (1990) (\u201c[a]n officer\u2019s stop of a car to investigate a potential traffic offense does not require probable cause, but it is governed by the reasonableness standards of the Fourth Amendment\u201d).\nGenerally, reasonable suspicion is required to stop a motorist on suspicion of DWI, while probable cause is required to stop a motorist for a simple traffic violation, such as failure to use a turn signal or speeding. See State v. Styles, 185 N.C. App. 271, 274, 648 S.E.2d 214, 216 (2007). The reason for the distinction is that in cases such as drunk driving or driving without a license, the officer must make an investigatory stop to determine whether criminal activity is afoot. Id. Accordingly, the Constitution only requires the officer to have reasonable suspicion before making the investigatory stop. Aubin, 100 N.C. App. at 631-32, 397 S.E.2d at 655. Such was not the case in Ivey. Tn that case, the Court applied the probable cause standard because it was reviewing a stop based on an alleged traffic violation \u2014 failure to use a turn signal \u2014 not a stop that would require further investigation. Thus, in this case, the officer\u2019s conduct will be constitutional if he had either: (1) reasonable suspicion to stop defendant on suspicion of DWI; or (2) probable cause to stop defendant for failure to register the vehicle. Because we find that Officer Barnhardt had reasonable suspicion to stop defendant for DWI, we need not determine whether he had probable cause to stop defendant for a registration violation.\nAt the outset, we note that the trial court\u2019s findings of fact are supported by competent evidence. The evidence in support of those findings of fact consists of Officer Barnhardt\u2019s testimony before the trial court as set out above. Accordingly, those findings of fact are binding on this Court. See Brooks, 337 N.C. at 140-41, 446 S.E.2d at 585. Thus, the issue is whether those findings of fact support the trial court\u2019s conclusion that Officer Barnhardt had reasonable suspicion to stop defendant on the DWI charge. See id. at 141, 446 S.E.2d at 585.\n\u201c \u2018A police officer may conduct a brief investigative stop of a vehicle where justified by specific, articulable facts which give rise to a reasonable suspicion of illegal conduct.\u2019 \u201d Aubin, 100 N.C. App. at 632, 397 S.E.2d at 655 (citation omitted). In this case, Officer Barnhardt observed a motorized vehicle driven by defendant operating in a \u201cwobbly\u201d manner and that defendant had to \u201cput her foot down\u201d on the road in order to negotiate a right hand turn and \u201calmost dropped the moped.\u201d He equated her operation of the vehicle as she was turning to that of \u201ca child learning to ride a bicycle[]\u201d for the first time. Officer Barnhardt testified that these initial observations occurred within approximately ten (10) seconds. After defendant made the turn, Officer Barnhardt observed defendant for \u201c[t]wo to three\u201d minutes and followed her for \u201ctwo to three blocksf.]\u201d During this time, he watched defendant wobble on the moped and described her operation of it as \u201cjerky.\u201d\nWe thus conclude that, under th\u00e9 totality of the circumstances, reasonable suspicion existed that defendant was driving while impaired. See id. (finding reasonable suspicion of DWI when defendant was weaving within his own lane and traveling below the speed limit); State v. Jones, 96 N.C. App. 389, 395, 386 S.E.2d 217, 221 (1989) (same). Accordingly, we need not address whether there was probable cause to stop defendant for failure to register her vehicle.\nDefendant relies heavily on Ivey for the proposition that, in order for an officer to constitutionally stop a vehicle, the vehicle must be interfering with traffic. Defendant mischaracterizes that Court\u2019s holding. The reason the lack of interference with surrounding traffic was relevant in Ivey was because that was a requirement of the statute at issue in that case. Ivey, 360 N.C. at 565, 633 S.E.2d at 461 (citation omitted) (\u201c \u2018[t]he duty to give a statutory signal of an intended... turn does not arise in any event unless the operation of some \u201cother vehicle may be affected by such movement\u201d \u2019 \u201d). In the instant case, the DWI statute has no such requirement. Thus, we do not find Ivey persuasive on this issue. Because defendant\u2019s Fourth Amendment rights under the United States Constitution and under Article 1, Section 20 of the North Carolina Constitution were not violated, her assignments of error as to this issue are rejected.\nII.\nDefendant argues that the trial court did not make sufficient findings of fact. We disagree.\nIn essence, defendant argues that the trial court\u2019s factual findings were insufficient because the court did not make any findings \u201cthat the defendant committed any traffic violations.\u201d As seen in the order entered in open court and the written order signed by the trial court, the court clearly found such violations. Specifically, the trial court found that: \u201c13. Based on the foregoing, Officer Barnhardt initiated a traffic stop on his suspicion that the Defendant could have violated North Carolina law including driving while under the influence and for a registration plate law violation.\u201d (Emphasis added.) Thus, defendant\u2019s assignment of error as to this issue is rejected.\nIll-\nDefendant makes two arguments in this section. First, that the trial court erred in hearing testimony regarding defendant\u2019s behavior after the traffic stop, and second, that the trial court committed prejudicial error in questioning Officer Barnhardt after the close of the evidence. We disagree and address each argument in turn.\nA.\nAt the conclusion of re-cross examination by defendant\u2019s counsel, Officer Barnhardt was told to step down and the State was told to call its next witness. Before Officer Barnhardt stepped down the trial judge asked him, \u201c[a]fter you stopped her[,] what did you do next?\u201d Officer Barnhardt responded, \u201c[m]y field sobriety tests. Well, I approached her and asked for her license and she didn\u2019t have any.\u201d At this point, defense counsel objected and pointed out to the trial court that the purpose of the hearing was limited to the narrow issue of whether the stop was constitutional and not whether the defendant was in fact under the influence at the time of the stop.\nBecause of this additional questioning, defendant argues that the trial judge violated defendant\u2019s constitutional right to a \u201ctrial[] by an impartial jury of the state[.]\u201d U.S. Const, amend. VI. We fail to see how these questions demonstrate that the trial judge was partial to the State\u2019s case. As the trial judge stated, he was trying to understand \u201cthe whole picture on what happened[.]\u201d Although \u201cthe whole picture on what happened\u201d that night was outside the scope of what was appropriate for such a hearing, defendant has made no legitimate argument that the judge was partial to the State\u2019s case.\nIn fact, \u201c[w]hen the trial judge questions a witness to clarify his testimony or to promote an understanding of the case, such questioning does not amount to an expression of the trial judge\u2019s opinion as to defendant\u2019s guilt or innocence.\u201d State v. Davis, 294 N.C. 397, 402, 241 S.E.2d 656, 659 (1978). Furthermore, the trial court is presumed to disregard incompetent evidence in making its decisions as a finder of fact. State v. Allen, 322 N.C. 176, 185, 367 S.E.2d 626, 631 (1988). There has been no showing by defendant to overcome this presumption. None of the trial court\u2019s findings of fact were related to any testimony received after Officer Barnhardt was asked to step down. Accordingly, we find no prejudicial error, and defendant\u2019s assignment of error as to this issue is overruled.\nB.\nDefendant also argues that the trial court erred in questioning Officer Barnhardt after the close of the evidence without again informing the officer that he was still under oath.\nAt the conclusion of the evidence by the State and defendant, the trial court stood in recess while the trial judge left the bench to render his decision. The trial judge returned and asked Officer Barnhardt, who was sitting next to the assistant district attorney and not on the witness stand, \u201cwhat was your suspicion for stopping the defendant on this date? What were you suspicious of her doing?\u201d Officer Barnhardt responded that \u201c[a]fter her wobbling and the clocking of the moped it was a DWI.\u201d The trial court also asked \u201c[d]id the registration plate have any reason why you stopped her?\u201d Officer Barnhardt responded that it did.\n\u201c[W]here the trial court fails to administer the oath to a witness, the defendant\u2019s failure to object waives appellate review of the court\u2019s error.\u201d State v. Beane, 146 N.C. App. 220, 225, 552 S.E.2d 193, 196 (2001). The rationale for this rule is that upon objection the trial court could have corrected any error. Id. Defense counsel neither objected nor attempted to question Officer Barnhardt at any time before, during, or after the trial court\u2019s questions. Accordingly, defendant has waived review of this error.\nIV.\nIn summary, we hold that neither defendant\u2019s Fourth Amendment rights under the United States Constitution nor defendant\u2019s rights under Article I, Section 20 of the North Carolina Constitution were violated. We find no error in the trial court\u2019s findings of fact and no prejudicial error in the trial court eliciting testimony from the officer.\nAffirmed.\nJudges WYNN and BRYANT concur.\n. Defendant asserts that the vehicle was a moped or noped, while the State argues that defendant\u2019s vehicle, under the North Carolina General Statutes, met the definition of a motorcycle. See N.C. Gen. Stat. \u00a7 105-164.3(22) (2005) (defining moped); N.C. Gen. Stat. \u00a7 20-4.01(27)d (2005) (defining motorcycle).", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Assistant Attorney General Christopher W. Brooks, for the State.", "The Law Office of Yolanda M. Trotman, PLLC, by Yolanda M. Trotman, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MARY ROSEMAN JONES\nNo. COA06-1495\n(Filed 16 October 2007)\n1. Search and Seizure\u2014 probable cause \u2014 reasonable suspicion \u2014 driving while impaired\nThe trial court did not err in a habitual driving while impaired case by denying defendant\u2019s motion to suppress even though defendant contends an officer did not have probable cause to stop her, because: (1) it is unnecessary to determine whether he had probable cause for a registration violation when the totality of circumstances revealed the officer had reasonable suspicion to stop defendant for DWI; and (2) contrary to defendant\u2019s assertion, the DWI statute has no requirement that a vehicle must be interfering with traffic in order for an officer to constitutionally stop a vehicle.\n2. Motor Vehicles\u2014 habitual driving while impaired \u2014 sufficiency of findings of fact\nThe trial court did not err in a habitual driving while impaired ease by allegedly making insufficient findings of fact that defendant committed any traffic violations, because: (I) the order in open court and the written order signed by the court found such violations; and (2) the trial court specifically found that the officer initiated a traffic stop on his suspicion that defendant could have violated North Carolina law including driving while under the influence and for a registration plate law violation.\n3. Evidence\u2014 questioning by trial court \u2014 promoting understanding of case \u2014 impartiality\u2014no expression of opinion\nThe trial court did not err in a habitual driving while impaired case by asking an officer an additional question about defendant\u2019s behavior after the traffic stop, because: (1) the trial court stated it was trying to understand the whole picture of what happened, and although it was outside the scope of what was appropriate for such a hearing, defendant made no legitimate argument that the judge was partial to the State\u2019s case; (2) when the trial court questions a witness to clarify his testimony or to promote an understanding of the case, such questioning does not amount to an expression of the trial court\u2019s opinion as to defendant\u2019s guilt or innocence; (3) the trial court is presumed to disregard incompetent evidence in making its decisions as a finder of fact, and there was no showing by defendant to overcome this presumption; and (4) none of the trial court\u2019s findings of fact related to any testimony received after the officer was asked to step down.\n4. Appeal and Error\u2014 preservation of issues \u2014 failure to object \u2014 failure to administer oath to witness\nThe trial court did not commit prejudicial error in a habitual driving while impaired case by questioning an officer after the close of the evidence without again informing the officer that he was still under oath, because: (1) where a trial court fails to administer the oath to a witness, defendant\u2019s failure to object waives appellate review of the court\u2019s error since upon objection the trial court could have corrected any error; and (2) defense counsel neither objected nor attempted to question the officer at any time before, during, or after the trial court\u2019s questions.\nAppeal by defendant from judgment entered 25 April 2006 by Judge Michael E. Beale in Cabarrus County Superior Court. Heard in the Court of Appeals 21 August 2007.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General Christopher W. Brooks, for the State.\nThe Law Office of Yolanda M. Trotman, PLLC, by Yolanda M. Trotman, for defendant-appellant." }, "file_name": "0405-01", "first_page_order": 435, "last_page_order": 442 }