{ "id": 4342899, "name": "STATE OF NORTH CAROLINA v. ERIC ALLEN WILLIAMS", "name_abbreviation": "State v. Williams", "decision_date": "2011-09-06", "docket_number": "No. COA10-1133", "first_page": "412", "last_page": "428", "citations": [ { "type": "official", "cite": "215 N.C. App. 412" } ], "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": "638 S.E.2d 909", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637424 ], "year": 2007, "pin_cites": [ { "page": "913" } ], "opinion_index": 0, "case_paths": [ "/se2d/638/0909-01" ] }, { "cite": "618 S.E.2d 265", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633850 ], "year": 2005, "pin_cites": [ { "page": "273", "parenthetical": "quoting State v. Greene, 332 N.C. 565, 579, 422 S.E.2d 730, 738 (1992)" } ], "opinion_index": 0, "case_paths": [ "/se2d/618/0265-01" ] }, { "cite": "181 N.C. App. 93", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8372267 ], "year": 2007, "pin_cites": [ { "page": "99" } ], "opinion_index": 0, "case_paths": [ "/nc-app/181/0093-01" ] }, { "cite": "473 S.E.2d 670", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "672" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 639", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11914748 ], "year": 1996, "pin_cites": [ { "page": "642" } ], "opinion_index": 0, "case_paths": [ "/nc-app/123/0639-01" ] }, { "cite": "553 S.E.2d 690", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "693", "parenthetical": "quoting State v. Truesdale, 123 N.C. App. 639, 642, 473 S.E.2d 670, 672 (1996)" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 532", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11360317 ], "year": 2001, "pin_cites": [ { "page": "537", "parenthetical": "quoting State v. Truesdale, 123 N.C. App. 639, 642, 473 S.E.2d 670, 672 (1996)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0532-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-7.6", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "opinion_index": 0 }, { "cite": "400 S.E.2d 31", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "36", "parenthetical": "\"The defendant candidly concedes . . . that he did not raise any double jeopardy issue at trial. Therefore, this issue has been waived.\"" } ], "opinion_index": 0 }, { "cite": "328 N.C. 223", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2540300 ], "year": 1991, "pin_cites": [ { "page": "231", "parenthetical": "\"The defendant candidly concedes . . . that he did not raise any double jeopardy issue at trial. Therefore, this issue has been waived.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0223-01" ] }, { "cite": "698 S.E.2d 65", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "67", "parenthetical": "\"To the extent defendant relies on constitutional double jeopardy principles, we agree that his argument is not preserved because [constitutional questions not raised and passed on by the trial court will not ordinarily be considered on appeal.\" (internal quotation marks omitted)" } ], "opinion_index": 0 }, { "cite": "364 N.C. 297", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4152888 ], "year": 2010, "pin_cites": [ { "page": "301" } ], "opinion_index": 0, "case_paths": [ "/nc/364/0297-01" ] }, { "cite": "577 S.E.2d 703", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "705" } ], "opinion_index": 0 }, { "cite": "157 N.C. App. 90", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9185131 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc-app/157/0090-01" ] }, { "cite": "515 S.E.2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1999, "pin_cites": [ { "page": "899" }, { "page": "899" } ], "opinion_index": 0 }, { "cite": "350 N.C. 483", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 131924 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "506" }, { "page": "506" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0483-01" ] }, { "cite": "772 A.2d 970", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 11101540 ], "year": 2001, "pin_cites": [ { "page": "976" } ], "opinion_index": 0, "case_paths": [ "/a2d/772/0970-01" ] }, { "cite": "2001 PA Super 79", "category": "reporters:state", "reporter": "Pa. Super.", "year": 2001, "pin_cites": [ { "page": "\u00b6 2" } ], "opinion_index": 0 }, { "cite": "410 S.E.2d 55", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 0 }, { "cite": "330 N.C. 188", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2512094 ], "year": 1991, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0188-01" ] }, { "cite": "402 S.E.2d 851", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "pin_cites": [ { "page": "853-54" }, { "page": "854" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 535", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524981 ], "pin_cites": [ { "page": "538" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0535-01" ] }, { "cite": "674 S.E.2d 738", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "741" } ], "opinion_index": 0 }, { "cite": "196 N.C. App. 147", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4165808 ], "year": 2009, "pin_cites": [ { "page": "151" } ], "opinion_index": 0, "case_paths": [ "/nc-app/196/0147-01" ] }, { "cite": "501 S.E.2d 625", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "638", "parenthetical": "holding that defendant was not in custody when \"defendant got into the car on his own, sat beside the officer in the front seat, was not handcuffed, and was not told he was under arrest or that he could not leave\"" } ], "opinion_index": 0 }, { "cite": "348 N.C. 377", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659773 ], "year": 1998, "pin_cites": [ { "page": "399", "parenthetical": "holding that defendant was not in custody when \"defendant got into the car on his own, sat beside the officer in the front seat, was not handcuffed, and was not told he was under arrest or that he could not leave\"" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0377-01" ] }, { "cite": "543 S.E.2d 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "828", "parenthetical": "internal quotation marks omitted" }, { "page": "828" } ], "opinion_index": 0 }, { "cite": "353 N.C. 332", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135584 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "339", "parenthetical": "internal quotation marks omitted" }, { "page": "339" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0332-01" ] }, { "cite": "290 S.E.2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "583" } ], "opinion_index": 0 }, { "cite": "305 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570930 ], "year": 1982, "pin_cites": [ { "page": "414-15" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0400-01" ] }, { "cite": "90 S.E.2d 237", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "pin_cites": [ { "page": "238-39" } ], "opinion_index": 0 }, { "cite": "243 N.C. 164", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622367 ], "year": 1955, "pin_cites": [ { "page": "166" } ], "opinion_index": 0, "case_paths": [ "/nc/243/0164-01" ] }, { "cite": "702 S.E.2d 825", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2010, "pin_cites": [ { "page": "831", "parenthetical": "\"Based on the foregoing, we hold that, for purposes of section 15A-977(f), a material conflict in the evidence exists when evidence presented by one party controverts evidence presented by an opposing party such that the outcome of the matter to be decided is likely to be affected.\"" }, { "page": "833" } ], "opinion_index": 0 }, { "cite": "572 S.E.2d 165", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 111", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249038 ], "year": 2002, "pin_cites": [ { "page": "116" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0111-01" ] }, { "cite": "278 S.E.2d 200", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "205" } ], "opinion_index": 0 }, { "cite": "303 N.C. 235", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572694 ], "year": 1981, "pin_cites": [ { "page": "243" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0235-01" ] }, { "cite": "481 S.E.2d 44", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "78" } ], "opinion_index": 0 }, { "cite": "345 N.C. 184", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 53983 ], "year": 1997, "pin_cites": [ { "page": "245" } ], "opinion_index": 0, "case_paths": [ "/nc/345/0184-01" ] }, { "cite": "422 S.E.2d 730", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "738" } ], "opinion_index": 0 }, { "cite": "332 N.C. 565", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2507201 ], "year": 1992, "pin_cites": [ { "page": "579" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0565-01" ] }, { "cite": "173 N.C. App. 61", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352872 ], "year": 2005, "pin_cites": [ { "page": "72", "parenthetical": "quoting State v. Greene, 332 N.C. 565, 579, 422 S.E.2d 730, 738 (1992)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0061-01" ] }, { "cite": "195 N.C. App. 554", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4165417 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "555" } ], "opinion_index": 0, "case_paths": [ "/nc-app/195/0554-01" ] }, { "cite": "648 S.E.2d 841", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639128 ], "year": 2007, "opinion_index": 1, "case_paths": [ "/se2d/648/0841-01" ] }, { "cite": "620 S.E.2d 204", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634098 ], "year": 2005, "opinion_index": 1, "case_paths": [ "/se2d/620/0204-01" ] }, { "cite": "2001 Pa. Super. 79", "category": "reporters:state", "reporter": "Pa. Super.", "weight": 2, "opinion_index": 1 }, { "cite": "674 SE.2d 738", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "361 N.C. 565", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3735771 ], "year": 2007, "opinion_index": 1, "case_paths": [ "/nc/361/0565-01" ] }, { "cite": "268 S.E.2d 452", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "457" } ], "opinion_index": 1 }, { "cite": "300 N.C. 678", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564413 ], "year": 1980, "pin_cites": [ { "page": "685" } ], "opinion_index": 1, "case_paths": [ "/nc/300/0678-01" ] }, { "cite": "174 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8350238 ], "year": 2005, "opinion_index": 1, "case_paths": [ "/nc-app/174/0001-01" ] }, { "cite": "702 S.E.2d 828", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "opinion_index": 1 }, { "cite": "772 A.2d 970", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 11101540 ], "weight": 2, "year": 2001, "opinion_index": 1, "case_paths": [ "/a2d/772/0970-01" ] }, { "cite": "402 S.E.2d 851", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 1 }, { "cite": "102 N.C. App. 535", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524981 ], "opinion_index": 1, "case_paths": [ "/nc-app/102/0535-01" ] }, { "cite": "196 N.C. App. 147", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4165808 ], "year": 2009, "opinion_index": 1, "case_paths": [ "/nc-app/196/0147-01" ] }, { "cite": "501 S.E.2d 625", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 1 }, { "cite": "348 N.C. 377", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659773 ], "year": 1998, "opinion_index": 1, "case_paths": [ "/nc/348/0377-01" ] }, { "cite": "543 S.E.2d 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 1 }, { "cite": "353 N.C. 332", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135584 ], "year": 2001, "opinion_index": 1, "case_paths": [ "/nc/353/0332-01" ] } ], "analysis": { "cardinality": 1340, "char_count": 40938, "ocr_confidence": 0.735, "pagerank": { "raw": 4.3776877221195043e-08, "percentile": 0.27490058300696296 }, "sha256": "89ff9876a67184d8246775bec7fc7ca355dd73e93d22a9dd03226f7fedb4b94f", "simhash": "1:abe8d36a562ba914", "word_count": 6834 }, "last_updated": "2023-07-14T18:49:09.394868+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge ELMORE concurs.", "Judge BRYANT concurs in part and dissents in part in a separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. ERIC ALLEN WILLIAMS" ], "opinions": [ { "text": "GEER, Judge.\nDefendant Eric Allen Williams appeals from his convictions of two counts of sex offense in a parental role and two counts of incest. Defendant primarily contends on appeal that the trial court erred in admitting a statement he made to a detective prior to being read his Miranda rights. Defendant argues that the statement should have been excluded because (1) he was in custody at the time of the statement, and (2) he was so intoxicated that his statement was not voluntarily made. Because there exists a conflict in the evidence as to whether defendant was in custody and because the trial court failed to enter a written order containing findings of fact resolving this conflict, we must remand for entry of a written order including findings of fact and conclusions of law. We find unpersuasive, however, defendant\u2019s argument as to his level of impairment and his remaining arguments regarding the trial.\nFacts\nThe State\u2019s evidence tended to show the following facts. In February 2007, when \u201cNatalie\u201d was 16 years old, her mother married defendant. At some point, Natalie became concerned about the relationship between her younger sister and defendant. Natalie observed instances in which defendant moved her sister away from Natalie and her brother, and Natalie\u2019s sister, according to Natalie, \u201cwould be sitting on his lap and he would be in her face talking to her and he would kiss her on her lips.\u201d When Natalie asked her sister what defendant was saying, she answered, \u201c[H]e says I\u2019m the only one that understands him and stuff like that.\u201d Natalie was concerned because when she herself was eight years old, she was abused by her first stepfather, who used to say similar things to her.\nIn November 2007, Natalie, her sister, her brothers, and defendant were in the living room watching television. Defendant was lying on the floor on a blanket. Natalie noticed that defendant was \u201cmoving the covers like over his penis . .. maybe he was scratching.\u201d But then the covers flipped down and he exposed his penis. Natalie took her little sister into another bedroom to get away from defendant and tried to pretend as if nothing happened.\nEither the next day or later that week, defendant exposed his penis to Natalie again as she walked through the living room. He was sitting with his legs pulled up to his chest, and his loose basketball shorts were \u201cup and his penis was hanging out the bottom of it.\u201d He said, \u201cpsst\u201d and \u201cwas like I know you see me.\u201d\nLater that week, Natalie confronted defendant about his actions. Defendant at first claimed not to know what she was talking about, but after Natalie said she had seen him, he asked, \u201c[D]o you want to see it again.\u201d She said \u201cno\u201d and went into another room to call a friend. Defendant came into the room and \u201chad his pants kind of down and his penis was out and he was jumping up and down.\u201d As he did this, he repeatedly asked Natalie if she was \u201cready,\u201d and she replied \u201cNo.\u201d She got off the phone and walked to her room. Defendant walked behind her, continuing to ask her whether she was ready, and she finally said \u201cyeah, okay.\u201d When asked at trial why she said \u201cyeah, okay,\u201d she explained: \u201cBecause I was tired of him bothering me.\u201d\nDefendant entered Natalie\u2019s room and sat on the bed. He asked her, \u201c[D]o you see what you do to me\u201d? He then put her hand on his erect penis and asked if he could touch her chest. She said, \u201c[YJeah, sure, okay\u201d and \u201cjust look[ed] off in space\u201d as defendant touched her chest. Defendant asked whether she was ready, and Natalie lay back. Defendant put his penis into Natalie\u2019s vagina until she told him to stop. Afterward, she said to defendant, \u201cI thought you wanted my sister.\u201d He responded, \u201c[N]o, I got you now.\u201d\nNatalie testified that after that day in November 2007, when Natalie came home from school each day, defendant, who did not work, would be walking around the house naked. Natalie and defendant would have sex every day after Natalie got home from school while they were alone in the house. Natalie was always the first child to arrive home from school, and her mother would still be at work. Natalie testified that in January 2008, they had sex more than once a day. They continued to have sex \u201ca lot\u201d through April 2009, at least every week, except during periods when defendant was in jail. Natalie was ashamed of what was happening, but she never told anyone because she did not want defendant or her mother to get in trouble and because she feared that her mother would blame her.\nIn April 2009, Natalie\u2019s mother, Ms. Williams, discovered a letter Natalie had written to defendant but never given him. The letter indicated Natalie felt \u201cguilty about what they did,\u201d and it \u201csaid something about just because you have good dick.\u201d Later that day, Ms. Williams told Natalie that she had found the letter, and Natalie admitted that she and defendant had been having sex. Ms. Williams subsequently reported the matter to law enforcement.\nDetective Matt DeSilva of the Johnston County Sheriff\u2019s Office was assigned to investigate the case in May 2009. Detective DeSilva first spoke with Natalie and her mother, and their statements to him were consistent with their trial testimony.\nDetective DeSilva also spoke to defendant about his relationship with Natalie. Defendant admitted that he had vaginal sex with Natalie before he went to jail in November 2007. After he got out of jail in January 2008, he had sex with Natalie again. He was incarcerated again from March 2008 until February 2009, when he was released from prison. He and Natalie, who was 18 years old at that time, then continued to have sex. Defendant had sex with Natalie for the last time in March 2009, just prior to when he and Ms. Williams ended their relationship. Detective DeSilva read each page of defendant\u2019s statement to defendant, and defendant initialed each page before signing and dating the statement at the end.\nOn 6 July 2009, defendant was indicted for two counts of statutory rape in a parental role and two counts of incest. Subsequently, on 2 November 2009, he was indicted as a habitual felon based on two prior convictions for sale of cocaine and a conviction for uttering a forged instrument.\nAt trial, defendant denied ever having a sexual relationship with Natalie. Defendant claimed that Natalie had come into his room one night in April 2009 while he was intoxicated and begun to perform oral sex on him and that he told her to stop. Defendant said Natalie told him she \u201cwanted her mama to suffer like she was suffering because the relationship [sic] her mama wouldn\u2019t let her have.\u201d Defendant admitted, however, that, prior to one of his previous periods of incarceration, he had sent Natalie a letter asking her to spend a weekend with him and to bring him penis enlargement pills, and to hide the letter itself \u201c \u2018so no one will find it.\u2019 \u201d Defendant also claimed that Detective DeSilva had fabricated his written statement and that he had not paid attention to the statement when he signed it.\nIn addition, one of the indictments had listed January 2008 as the date of the offense. Defendant\u2019s mother and sister testified, however, that defendant was at his mother\u2019s house for the first several days in January 2008.\nThe jury found defendant guilty of two counts of sex offense in a parental role and two counts of incest. Defendant pled guilty to being a habitual felon. The trial court sentenced defendant to a presumptive-range term of 133 to 169 months imprisonment for the January 2008 offenses and to a consecutive presumptive-range term of 37 to 54 months imprisonment for the November 2007 offenses. Defendant timely appealed to this Court.\nI\nDefendant first argues that the trial court erred in denying his motion to suppress his statement to Detective DeSilva and in later overruling the objections he made when this evidence was introduced at trial. Defendant insists that his statement was inadmissible because, at the time he gave it, he was in custody but had not yet been read his Miranda rights. In addition, he argues that he was impaired to such an extent that the statement was made involuntarily.\nThe State presented the following evidence during a voir dire examination of Detective DeSilva. On the morning of 20 May 2009, Detective DeSilva drove by defendant\u2019s residence and saw defendant and another man on the top of the residence repairing the roof. Detective DeSilva did not see any alcohol on the roof or near defendant. Detective DeSilva turned his vehicle around and returned to the residence. He saw the other man working on the rooftop and asked him where defendant went. The man said that defendant had just stepped down. Detective DeSilva noticed that the front door of the residence was open, and he called out for defendant. Defendant exited the residence voluntarily.\nDefendant did not appear to be intoxicated. Detective DeSilva did not detect any odor of alcohol, defendant was steady on his feet, defendant made good eye contact, and defendant\u2019s speech was not slurred. Detective DeSilva introduced himself and explained that he needed to speak with defendant about the situation between Natalie and him. Because there was a lot of noise from the roof work, Detective DeSilva asked defendant if he minded sitting in his patrol vehicle with him in the front seat. Detective DeSilva explained to defendant that he was not under arrest, and he was not being charged with any crime.\nAccording to Detective DeSilva, defendant entered the patrol vehicle and sat down in the passenger seat, although he left the passenger side door open. Detective DeSilva again told defendant that he was not under arrest. Defendant agreed to speak with Detective DeSilva. At no time during their conversation did Detective DeSilva advise defendant of his Miranda rights.\nDetective DeSilva reported the allegations that defendant had engaged in sex with Natalie. Detective DeSilva told defendant that he was not saying that defendant had sex with Natalie when she was 16 years old; rather, Detective DeSilva told defendant, he had been told that Natalie was 17 years old when the sex occurred. Defendant told Detective DeSilva that he did not have sex with Natalie when she was 16, but he admitted that he had engaged in sex with her when she was 17 years old.\nDetective DeSilva further testified that defendant admitted that he had vaginal sex with Natalie (1) in 2007 before he was incarcerated later that year, (2) in January 2008 after being released, and (3) after he completed a prison term from June 2008 to February 2009, when Natalie was 18. Defendant admitted he also had oral sex with Natalie when she was 18 years old, but claimed he \u201cnever had sex with her again in any way after that.\u201d Defendant said the last time he had sex with her was in March 2009 when he split up with her mother.\nDetective DeSilva took handwritten notes during his conversation with defendant. Detective DeSilva read the notes aloud to defendant while defendant followed along. Defendant did not indicate that anything was wrong with the statement, and he signed the pages. After the conversation, defendant exited Detective DeSilva\u2019s vehicle. Detective DeSilva left and did not arrest defendant.\nDetective DeSilva stated that defendant was not handcuffed, he seemed to understand the questions Detective DeSilva asked him, and he had no problem speaking or reading. Detective DeSilva was seated close enough to defendant that he was able to observe defendant \u2014 he did not observe anything unusual about defendant. Defendant did not appear to be impaired.\nOn cross-examination, Detective DeSilva further testified that defendant never said that he had been drinking and never indicated that he was impaired. When Detective DeSilva invited defendant into his patrol vehicle, defendant never protested, and he never suggested that he could speak with him at a later time. Defendant\u2019s eyes were not red, glassy, or bloodshot. No odor of alcohol was present.\nDefendant also testified on voir dire, and his evidence tended to show the following. When Detective DeSilva arrived at his residence, he was in the backyard drinking beer. Defendant testified that he was drinking \u201cOld Gold, Old English 800,\u201d and that he had consumed about two 40 ounce beers. Defendant testified that he told Detective DeSilva that he did not feel like talking at that time because he was \u201cnot in [his] right state of mind,\u201d and he asked if he could talk to Detective DeSilva the next day. Defendant testified that Detective DeSilva told him, \u201c[N]o, since I have you here now, just go get in the car and I will talk to you now.\u201d Defendant testified that after he entered the patrol vehicle, Detective DeSilva placed handcuffs on the dashboard, and defendant closed the passenger side door. Defendant testified that he \u201ckept asking\u201d Detective DeSilva if he could exit the vehicle, and Detective DeSilva said \u201cno.\u201d\nFollowing the testimony and arguments by counsel, the trial court announced: \u201cThe Court will find that the defendant was not in custody, that the defendant was not impaired at the time of the statement; that the statement of the defendant was voluntary to the detective and the Court will deny the motion to suppress.\u201d The trial court did not make any additional findings or reduce the ruling to writing.\nDefendant contends that the trial court violated N.C. Gen. Stat. \u00a7 15A-977(f) (2009) by failing to enter a written order on the motion to suppress that included findings of fact resolving all material conflicts in the evidence. N.C. Gen. Stat. \u00a7 15A-977(f) provides that in ruling on a motion to suppress, \u201c[t]he judge must set forth in the record his findings of facts and conclusions of law.\u201d \u201cThis statute has been interpreted as mandating a written order unless (1) the trial court provides its rationale from the bench, and (2) there are no material conflicts in the evidence at the suppression hearing.\u201d State v. Williams, 195 N.C. App. 554, 555, 673 S.E.2d394, 395 (2009). If both these criteria are met, the necessary findings of fact are implied from the denial of the motion to suppress. Id.\nHere, although the trial court announced its rationale for the denial from the bench, defendant contends that a written order was required because there was a material conflict in the evidence. According to defendant, the evidence gave rise to an issue as to (1) whether he was impaired at the time he gave his statement and (2) whether he was in custody at the time he gave his statement.\nWith respect to the question of defendant\u2019s impairment, it is well established that \u201c \u2018[w]hether a confession was voluntarily given is to be determined from the totality of the circumstances surrounding the confession.\u2019 \u201d State v. Tuck, 173 N.C. App. 61, 72, 618 S.E.2d 265, 273 (2005) (quoting State v. Greene, 332 N.C. 565, 579, 422 S.E.2d 730, 738 (1992)). \u201c \u2018[W]hile they are factors to be considered, intoxication and subnormal mentality do not of themselves necessarily cause a confession to be inadmissible because of involuntariness or the ineffectiveness of a waiver.\u2019 \u201d Id. (quoting State v. Barnes, 345 N.C. 184, 245, 481 S.E.2d 44, 78 (1997)). \u201cInstead, the confession \u2018is admissible unless the defendant is so intoxicated that he is unconscious of the meaning of his words.\u2019 \u201d Id. (quoting State v. Oxendine, 303 N.C. 235, 243, 278 S.E.2d 200, 205 (1981)).\nIn arguing that he was impaired, defendant points to his testimony that he had consumed two 40-ounce beers and did not feel in his \u201cright state of mind\u201d at the time. This testimony is not sufficient to show that defendant was unconscious of the meaning of his words or that he \u201cwas so heavily under the influence that he could not understand the implications of confessing to sexually assaulting his [step]daughter.\u201d State v. Barnes, 154 N.C. App. 111, 116, 572 S.E.2d 165, 169 (2002) (\u201cThe record does not show defendant was so heavily under the influence that he could not understand the implications of confessing to sexually assaulting his daughter. There was no evidence defendant was unable to walk or carry on a normal conversation. Defendant\u2019s own testimony was the only evidence tending to prove any use of prescription drugs and alcohol, and defendant contends only that he was under the influence of alcohol and perhaps prescription drugs. Lastly, defendant was able to relate the events of 20 July 1998 to a degree of detail inconsistent with someone who was impaired and unaware of the meaning of his words.\u201d).\nAlthough defendant\u2019s testimony conflicted with Detective DeSilva\u2019s on the question whether defendant was intoxicated, because defendant\u2019s testimony was not adequate to meet the standard for rendering his statement involuntary, the conflict was not material. See State v. Baker,_N.C. App._,_, 702 S.E.2d 825, 831 (2010) (\u201cBased on the foregoing, we hold that, for purposes of section 15A-977(f), a material conflict in the evidence exists when evidence presented by one party controverts evidence presented by an opposing party such that the outcome of the matter to be decided is likely to be affected.\u201d).\nThis conflict did not, therefore, require the trial court to make written findings regarding defendant\u2019s level of impairment. The extent of defendant\u2019s intoxication at the time he gave his statement, and the weight to be given it, was for the jury to consider in evaluating the credibility of the evidence. State v. Isom, 243 N.C. 164, 166, 90 S.E.2d 237, 238-39 (1955).\nWe now turn to defendant\u2019s contentions regarding whether he was in custody when he gave his statement. Miranda\u2019s requirements are triggered when an individual is \u201cin custody.\u201d State v. Davis, 305 N.C. 400, 414-15, 290 S.E.2d 574, 583 (1982). The \u201cappropriate inquiry in determining whether a defendant is in custody for purposes of Miranda is, based on the totality of the circumstances, whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.\u201d State v. Buchanan, 353 N.C. 332, 339, 543 S.E.2d 823, 828 (2001) (internal quotation marks omitted).\nThe State\u2019s evidence, on the one hand, showed that Detective DeSilva asked defendant if he could speak with him about what happened with Natalie. Defendant got in the patrol car himself and left the passenger door open during the conversation. Detective DeSilva told defendant he was not under arrest and was not being charged with any crime.\nDefendant\u2019s evidence, on the other hand, indicated that Detective DeSilva, whose gun and badge were visible to defendant, asked if he could speak to defendant. Defendant asked if he could speak to him the next day, but Detective DeSilva \u201csaid no, . . . just go get in the car and I will talk to you now.\u201d Defendant got in the car, Detective DeSilva displayed his handcuffs on the dashboard, and Detective DeSilva directed defendant to close the passenger door. According to defendant, he \u201cclosed the door, but [defendant] kept asking [Detective DeSilva] could [he] get out because [he] didn\u2019t feel like talking. [Detective DeSilva] said no, since you\u2019re here we\u2019re going to talk.\u201d Defendant \u201ckept telling him [he] didn\u2019t want to talk to him.\u201d\nDetective DeSilva and defendant thus presented completely conflicting descriptions of what occurred. The question remains whether this conflict was material with respect to whether defendant\u2019s statement should have been excluded.\nThe State, in arguing that defendant was not in custody, relies upon Detective DeSilva\u2019s testimony. That testimony would suggest that defendant was not in custody. See State v. Hipps, 348 N.C. 377, 399, 501 S.E.2d 625, 638 (1998) (holding that defendant was not in custody when \u201cdefendant got into the car on his own, sat beside the officer in the front seat, was not handcuffed, and was not told he was under arrest or that he could not leave\u201d); State v. Rooks, 196 N.C. App. 147, 151, 674 S.E.2d 738, 741 (2009) (holding that defendant was not in custody when \u201cthe trial court found that defendant was asked politely by the detective to enter an unmarked police car and answer questions\u201d; \u201c[h]e was told that he was not under arrest\u201d; \u201c[t]he car was unlocked and defendant was left unattended after the officer completed the interview\u201d; and \u201c[n]o evidence was presented indicating that the officer displayed a weapon, or otherwise threatened the defendant\u201d).\nDefendant\u2019s testimony, however, if believed in whole, would support a conclusion that defendant was in custody. A trial court could reasonably find, based on that testimony, that defendant did not voluntarily get into Detective DeSilva\u2019s car, but rather was required to do so and was required to shut the door. Further, the trial court could find that defendant was then prohibited by Detective DeSilva, who displayed his gun and handcuffs, from leaving the car without answering the detective\u2019s questions. This testimony would be sufficient to support a conclusion that defendant was in custody.\nOur Supreme Court, in Buchanan, 353 N.C. at 339, 543 S.E.2d at 828, noted that \u201c[circumstances supporting an objective showing that one is \u2018in custody\u2019 might include a police officer standing guard at the door [or] locked doors or application of handcuffs.\u201d In State v. Washington, 102 N.C. App. 535, 538, 402 S.E.2d 851, 853-54 (Greene, J., dissenting), rev\u2019d for reasons in dissenting opinion, 330 N.C. 188, 410 S.E.2d 55 (1991) (per curiam), Judge Greene applied a similar reasoning. In Washington, the defendant was stopped and placed in the back seat of the officer\u2019s police car where the door handles did not work. Judge Greene pointed out that the defendant was, \u201cin effect, incarcerated on the side of the road\u201d and that \u201c[a] reasonable person in the defendant\u2019s position would have believed that he had been taken into custody . . . .\u201d Id., 402 S.E.2d at 854. Consequently, the defendant was in custody for purposes of Miranda. Id.\nHere, defendant\u2019s account would allow a trial court to reasonably infer that Detective DeSilva required defendant to get inside the patrol car, told him to shut the door, and was essentially \u201cstanding guard at the door\u201d of the vehicle, in that he was sitting right next to defendant, who asked to leave, and \u2014 with handcuffs prominently displayed \u2014 told defendant that he could not leave and that they were going to talk. See also Commonwealth v. Turner, 2001 PA Super 79, \u00b6 2, 772 A.2d 970, 976 (2001) (\u201cWe conclude that the combination of placing Turner in the police car, shutting the door, leaving him there until Cassidy arrived, and Cassidy questioning him while blocking the doorway and leaning into the backseat with Torres behind him, compels the conclusion that Turner reasonably could have presumed that he was not free to leave.\u201d).\nIf the trial court accepted defendant\u2019s version of the encounter, then it could conclude defendant was in custody. The State, in attempting to distinguish Washington, depends entirely on Detective DeSilva\u2019s testimony. The State makes no argument that defendant\u2019s testimony, if believed, would result in a determination that defendant was not in custody. This conflict between Detective DeSilva\u2019s testimony and defendant\u2019s testimony was, therefore, material. \u201cBecause a material conflict in the evidence presented at the suppression hearing exist[ed], the trial court, by virtue of the mandate of section 15A-977(f) and our holding in Williams, was required to make findings of fact and conclusions of law.\u201d Baker,_N.C. App. at_, 702 S.E.2d at 833.\nConsequently, we must remand for written findings of fact and conclusions of law resolving the material conflict in the evidence regarding whether defendant was in custody at the time he gave his statement and whether he should have been read his Miranda rights. If the trial court determines that the motion to suppress was properly denied, then defendant would not be entitled to a new trial because there would have been no error in the admission of the evidence, and his convictions would stand. If, however, the trial court determines that the motion to suppress should have been granted, defendant would be entitled to a new trial.\nII\nDefendant next argues that, during jury deliberation, the trial court violated N.C. Gen. Stat. \u00a7 15A-1233(a) (2009) by failing to conduct the jurors back to the courtroom after the jury sent a note saying: \u201cWant to see all State\u2019s evidence including both copies of letters.\u201d N.C. Gen. Stat. \u00a7 15A-1233(a) provides:\nIf the jury after retiring for deliberation requests a review of certain testimony or other evidence, the jurors must be conducted to the courtroom. The judge in his discretion, after notice to the prosecutor and defendant, may direct that requested parts of the testimony be read to the jury and may permit the jury to reexamine in open court the requested materials admitted into evidence. In his discretion the judge may also have the jury review other evidence relating to the same factual issue so as not to give undue prominence to the evidence requested.\n(Emphasis added.)\nIn this case, when the jury sent its request, the judge read the request aloud. Both the prosecutor and defense counsel indicated they had no objection to the request. Then, pursuant to the judge\u2019s instruction, the bailiff took the State\u2019s exhibits to the jury room. Although defendant did not object to the failure of the trial court to conduct the jury to the courtroom, defendant is not precluded from raising this issue on appeal. State v. Nobles, 350 N.C. 483, 506, 515 S.E.2d 885, 899 (1999).\nIn Nobles, the Supreme Court held that although the trial court erred in failing to conduct the jury to the courtroom, the defendant was still required to \u201cdemonstrate that there [was] a reasonable possibility that a different result would have been reached had the trial court\u2019s error not occurred.\u201d Id. The Court pointed out that \u201c[n]ot only did defendant\u2019s counsel agree with the trial court when it erroneously thought that it had discretion whether to bring the jury to the courtroom, but there was unanimous agreement among the State, the defendant, and the trial judge concerning the items requested by the jury; and the prosecution and defendant consented to permitting the jury to have those items.\u201d Id. Given those circumstances, the Court concluded that the defendant failed to show he was prejudiced by the trial court\u2019s failure to follow the requirements of N.C. Gen. Stat. \u00a7 15A-1233(a). Nobles, 350 N.C. at 506, 515 S.E.2d at 899.\nIn this case, it is apparent that the trial court also violated N.C. Gen. Stat. \u00a7 15A-1233(a). But, as in Nobles, defendant consented to the jury\u2019s receiving the requested items and had no objection to submitting the items to the jury without bringing the jury to the courtroom. With respect to the question of prejudice, defendant admits in his brief that \u201con its face, the jury\u2019s request seems to be fairly clear,\u201d but defendant suggests that perhaps the jury wanted a copy of the transcript of the State\u2019s witnesses\u2019 testimony. Defendant cannot, however, meet his burden through speculation in his brief as to the mere possibility that the jury was requesting evidence not provided. Accordingly, we hold that defendant has failed to meet his burden of showing that he was prejudiced by the trial court\u2019s failure to comply with N.C. Gen. Stat. \u00a7 15A-1233(a).\nIll\nDefendant further argues that after the jury returned its verdicts, the trial court violated defendant\u2019s right to be free from double jeopardy when it sentenced him for both sex offense in a parental role and incest because, he claims, this amounted to multiple punishments for the same offense. Defendant admits that he did not raise this issue at trial but relies on State v. Hargett, 157 N.C. App. 90, 577 S.E.2d 703 (2003), for the proposition that this issue is nonetheless preserved for review. In Hargett, this Court held that the defendant was not required to have raised the double jeopardy issue below since it was a sentencing error. Id. at 92, 577 S.E.2d at 705.\nHargett, however, is inconsistent with numerous Supreme Court cases holding that a double jeopardy argument cannot be raised for the first time on appeal. See, e.g., State v. Davis, 364 N.C. 297, 301, 698 S.E.2d 65, 67 (2010) (\u201cTo the extent defendant relies on constitutional double jeopardy principles, we agree that his argument is not preserved because [constitutional questions not raised and passed on by the trial court will not ordinarily be considered on appeal.\u201d (internal quotation marks omitted)); State v. Madric, 328 N.C. 223, 231, 400 S.E.2d 31, 36 (1991) (\u201cThe defendant candidly concedes . . . that he did not raise any double jeopardy issue at trial. Therefore, this issue has been waived.\u201d). Because we are bound to follow the Supreme Court, we hold that defendant\u2019s argument is not preserved. Although defendant asks, in the alternative, that we exercise Rule 2, we decline, in our discretion, to do so.\nIV\nIn his final argument, defendant contends that the trial court erred in determining that he was a prior record level IV offender because the State improperly used two of his felony convictions both to establish defendant\u2019s habitual felon status and to calculate his prior record level. N.C. Gen. Stat. \u00a7 14-7.6 (2009) provides that \u201c[i]n determining the prior record level, convictions used to establish a person\u2019s status as an habitual felon shall not be used.\u201d\nThe State contended that defendant was a habitual felon based on (1) a 19 January 1999 conviction for the Class G felony of selling cocaine (file number 98 CRS 16308), (2) a 9 January 2002 conviction for the Class G felony of selling cocaine (file number 01 CRS 59125), and (3) a 13 December 2007 conviction for the Class I felony of uttering a forged instrument (file number 05 CRS 59401). Based on our review of the record, we conclude that the trial court properly calculated defendant\u2019s prior record level without including any of these felonies used to establish defendant\u2019s habitual felon status.\nDefendant stipulated to the prior record level worksheet and that worksheet indicates defendant had two 9 January 2002 convictions for the Class G felony of selling a schedule II controlled substance. Moreover, at trial, defendant testified that he was convicted of two counts of selling cocaine on 9 January 2002. This Court has previously held that a \u201ctrial court is not prohibited \u2018from using one conviction obtained in a single calendar week to establish habitual felon status and using another separate conviction obtained the same week to determine prior record level.\u2019 \u201d State v. Skipper, 146 N.C. App. 532, 537, 553 S.E.2d 690, 693 (2001) (quoting State v. Truesdale, 123 N.C. App. 639, 642, 473 S.E.2d 670, 672 (1996)). Accordingly, after the trial court used one of the 9 January 2002 convictions for habitual felon determination, under Skipper, it could still use the other 9 January 2002 conviction to calculate defendant\u2019s prior record level.\nDefendant also contends that the prior record level calculation improperly \u201cinclud[ed] a class H cocaine conviction in 98 CRS 16308,\u201d even though that \u201cfelony cocaine conviction[] [was] alleged in the habitual felony bill of indictment.\u201d The \u201ccocaine conviction\u201d in the indictment was, however, the Class G felony of sale of cocaine, while the conviction used to calculate the prior record level was a Class H felony for possession with intent to manufacture, sell, or deliver cocaine. The record contains a copy of defendant\u2019s 19 January 1999 judgment indicating that defendant was convicted of one Class G offense and one Class H offense on the same day. The trial court used the Class G offense for the habitual felon determination, but, under Skipper, the court was free to use the Class H offense for prior record level points. Since defendant makes no other argument about the calculation of his prior record level, we conclude that the trial court did not err in determining that defendant was a prior record level IV offender.\nRemanded in part; no error in part.\nJudge ELMORE concurs.\nJudge BRYANT concurs in part and dissents in part in a separate opinion.\n. The pseudonym \u201cNatalie\u201d is used to protect the victim\u2019s privacy and for ease of reading.\n. We recognize that this Court has previously held that \u201cwhen a defendant\u2019s lawyer consents to the trial court\u2019s communication with the jury in a manner other than bringing the jury back into the courtroom, the defendant waives his right to assert a ground for appeal based on failure to bring the jury back into the courtroom.\u201d State v. Pointer, 181 N.C. App. 93, 99, 638 S.E.2d 909, 913 (2007). We are, however, bound to follow the Supreme Court and thus, consistent with Nobles, we address the merits of defendant\u2019s argument.", "type": "majority", "author": "GEER, Judge." }, { "text": "BRYANT, Judge,\nconcurring in part and dissenting in part.\nWhere the majority holds that there exists a material conflict in the evidence regarding whether defendant was in custody at the time he gave his statement and remands for entry of an order including findings of fact and conclusions of law, I disagree, and, therefore, respectfully dissent from this portion of the majority opinion only. I otherwise fully concur in the majority opinion holding no error as to defendant\u2019s remaining arguments.\nPreliminarily, I note that in his appeal defendant did not object to the issue at hand; i.e. the trial court\u2019s failure to make findings of fact and conclusions of law. Failure to object at trial makes this issue subject to dismissal for failure to properly preserve an issue for appellate review. N.C. R. App. P. 10(a)(1) (\u201cIn order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make ....\u201d). However, citing N.C.G.S. \u00a7 15A-977, defendant avers that his right to appeal this issue is properly preserved because the trial court \u201cacted contrary to a statutory mandate.\u201d Because I do not find that the trial court acted contrary to a statutory mandate, I would dismiss defendant\u2019s appeal of this issue based on failure to properly preserve the issue.\nThe majority acknowledges that the trial court announced its rationale for denial of defendant\u2019s motion to suppress in open court. In its ruling, the trial court stated, inter alia, that defendant was not in custody, that defendant\u2019s statement was voluntary and denied defendant\u2019s motion to suppress. While the trial court\u2019s order was not set out in a separate writing containing formal findings of fact, conclusions of law, and signature of the trial court, the trial court\u2019s order denying suppression is a part of the record as recorded in the transcript of the hearing. Therefore, I must emphasize that in this case, because the trial court\u2019s findings of fact are clearly, albeit succinctly, a part of the record, requiring remand to clarify the record in writing is elevating form over substance.\n\u201cThe language of section 15A-977(f) has been interpreted as mandatory to the trial court unless (1) the trial court provides its rationale from the bench, and (2) there are no material conflicts in the evidence at the suppression hearing.\u201d Baker,__ N.C. App. at_, 702 S.E.2d 828-29. See also, State v. Jacobs, 174 N.C. App. 1, 620 S.E.2d 204 (2005) (holding no error where the trial court failed to make written findings of fact and conclusions of law in support of its conclusion to deny the defendant\u2019s motion to suppress where the trial court provided its rationale from the bench, (citing State v. Phillips, 300 N.C. 678, 685, 268 S.E.2d 452, 457 (1980)) (vacated in part on other grounds, rev\u2019d in part on other grounds, 361 N.C. 565, 648 S.E.2d 841 (2007)).\nThe critical issue that distinguishes the majority\u2019s reasoning from the reasoning in this dissent: The majority says the conflict in the evidence was material. I strongly disagree. The record supports that there exists conflict in the evidence between what defendant said occurred (officer asked if he could speak to defendant and had him get into patrol car where handcuffs were \u201cdisplayed\u201d on dashboard, defendant did not feel like talking but officer said since you are here we\u2019re going to talk), and what officer said occurred (officer asked if he could speak to defendant and defendant got in patrol car and left passenger door open while they talked; and defendant was told by officer he was not under arrest and not being charged). Again, I disagree that this constitutes a material conflict.\nIn order to constitute a material conflict, evidence presented must be so controverted as to likely affect the outcome of the matter. Baker,_N.C. App. at_, 702 S.E.2d at 831 (\u201ca material conflict in the evidence exists when evidence presented by one party controverts evidence presented by an opposing party such that the outcome of the matter to be decided is likely to be affected.\u201d). Here, defendant\u2019s evidence needs to be sufficient to support a conclusion that defendant was in custody. I do not believe this evidence is sufficient to do so. Further, the majority cites a number of cases from our Supreme Court and Court of Appeals holding that on similar facts, the defendant was found not to be in custody: Hipps, 348 N.C. 377, 501 S.E.2d 625; Buchanan, 353 N.C. 332, 543 S.E.2d 823; Rooks, 196 N.C. App. 147, 674 SE.2d 738; Washington, 102 N.C. App. 535, 402 S.E.2d 851; and Turner, 2001 Pa. Super. 79, 772 A.2d 970. With the exception of Washington (where facts showed defendant involuntarily restricted in back seat of patrol car), the majority cites only one Pennsylvania case holding that a custodial interrogation occurred, and in that case defendant was placed in the back seat of a car and questioned by one officer while another stood just behind him. Turner, 2001 Pa. Super. 79, 772 A.2d 970. Therefore, the majority\u2019s reasoning seems to be that the evidence in the instant case presents a material conflict because, based on the cases the majority discusses, defendant\u2019s evidence would be sufficient to support a conclusion that defendant was in custody.\nBecause I disagree with the basic premise that these facts, if taken as true, would support a conclusion that defendant was in custody, I would hold that the trial court\u2019s summary findings, on the record, though not in writing, were more than sufficient to meet the dictates of N.C.G.S. \u00a7 15-977.1 would affirm the trial court\u2019s denial of defendant\u2019s motion to suppress.", "type": "concurring-in-part-and-dissenting-in-part", "author": "BRYANT, Judge," } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorneys General Charles E. Reece and Catherine F. Jordan, for the State.", "William D. Spence for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ERIC ALLEN WILLIAMS\nNo. COA10-1133\n(Filed 6 September 2011)\n1. Confessions and Incriminating Statements \u2014 motion to suppress statements \u2014 intoxication\u2014credibility\u2014custody \u2014written findings and conclusions required\nThe trial court erred in a sex offense in a parental role and incest case by denying defendant\u2019s motion to suppress his statements to a detective and in later overruling the objections he made when this evidence was introduced at trial. Although the extent of defendant\u2019s intoxication at the time he gave his statement, and the weight to be given it, was for the jury to consider in evaluating the credibility of the evidence, the case was remanded for written findings of fact and conclusions of law resolving the material conflict in the evidence regarding whether defendant was in custody at the time he gave his statements and whether he should have been read his Miranda rights.\n2. Jury \u2014 request for evidence \u2014 failure to conduct jurors back to courtroom \u2014 failure to show prejudice\nAlthough the trial court in a sex offense in a parental role and incest case violated N.C.G.S. \u00a7 15A-1233(a) by failing to conduct the jurors back to the courtroom after the jury sent a note requesting all State\u2019s evidence including copies of letters, defendant failed to meet his burden of showing that he was prejudiced.\n3. Appeal and Error \u2014 preservation of issues \u2014 failure to raise constitutional issue at trial\nAlthough defendant contended that the trial court violated his right to be free from double jeopardy when it sentenced him for both sex offense in a parental role and incest, defendant failed to preserve this argument because he did not raise this issue at trial and the Court of Appeals declined to exercise its discretion under N.C. R. App. P. 2.\n4. Sentencing \u2014 prior record level \u2014 calculation\nThe trial court did not err by determining that defendant was a prior record level IV offender. The trial court properly calculated defendant\u2019s prior record level without including any of the felonies used to establish his habitual felon status.\nJudge BRYANT concurring in part and dissenting in part.\nAppeal by defendant from judgments entered 24 March 2010 by Judge James G. Bell in Johnston County Superior Court. Heard in the Court of Appeals 23 February 2011.\nAttorney General Roy Cooper, by Assistant Attorneys General Charles E. Reece and Catherine F. Jordan, for the State.\nWilliam D. Spence for defendant-appellant." }, "file_name": "0412-01", "first_page_order": 422, "last_page_order": 438 }