{ "id": 12175575, "name": "STATE OF NORTH CAROLINA v. JOSEPH OVEROCKER, Defendant", "name_abbreviation": "State v. Overocker", "decision_date": "2014-09-16", "docket_number": "No. COA14-270", "first_page": "423", "last_page": "436", "citations": [ { "type": "official", "cite": "236 N.C. App. 423" } ], "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": "723 S.E.2d 339", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2012, "pin_cites": [ { "parenthetical": "per curiam" }, { "page": "340" } ], "opinion_index": 0 }, { "cite": "365 N.C. 538", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4154336 ], "year": 2012, "pin_cites": [ { "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/nc/365/0538-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-16.3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 1995, "pin_cites": [ { "page": "(d)" } ], "opinion_index": 0 }, { "cite": "477 S.E.2d 221", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "224" }, { "page": "224" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 364", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11889477 ], "year": 1996, "pin_cites": [ { "page": "370" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0364-01" ] }, { "cite": "700 S.E.2d 222", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2010, "pin_cites": [ { "page": "294" } ], "opinion_index": 0 }, { "cite": "364 N.C. 419", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4152462 ], "year": 2010, "opinion_index": 0, "case_paths": [ "/nc/364/0419-01" ] }, { "cite": "689 S.E.2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "383" } ], "opinion_index": 0 }, { "cite": "201 N.C. App. 289", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4173375 ], "year": 2009, "pin_cites": [ { "page": "295" } ], "opinion_index": 0, "case_paths": [ "/nc-app/201/0289-01" ] }, { "cite": "476 S.E.2d 415", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "422" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 35", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11888444 ], "year": 1996, "pin_cites": [ { "page": "43" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0035-01" ] }, { "cite": "542 S.E.2d 283", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "287", "parenthetical": "quoting Moore v. Evans, 124 N.C. App. 35, 43, 476 S.E.2d 415, 422 (1996)" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 310", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9440838 ], "year": 2001, "pin_cites": [ { "page": "315", "parenthetical": "quoting Moore v. Evans, 124 N.C. App. 35, 43, 476 S.E.2d 415, 422 (1996)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0310-01" ] }, { "cite": "93 L. Ed. 1879", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1949, "pin_cites": [ { "page": "1890" } ], "opinion_index": 0 }, { "cite": "338 U.S. 160", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3943769 ], "weight": 2, "year": 1949, "pin_cites": [ { "page": "175" }, { "page": "1310" } ], "opinion_index": 0, "case_paths": [ "/us/338/0160-01" ] }, { "cite": "540 U.S. 366", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8897100 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "371", "parenthetical": "quoting Brinegar v. United States, 338 U.S. 160, 175, 93 L. Ed. 1879, 1890, 69 S. Ct. 1302, 1310 (1949)" }, { "page": "775", "parenthetical": "quoting Brinegar v. United States, 338 U.S. 160, 175, 93 L. Ed. 1879, 1890, 69 S. Ct. 1302, 1310 (1949)" }, { "page": "800", "parenthetical": "quoting Brinegar v. United States, 338 U.S. 160, 175, 93 L. Ed. 1879, 1890, 69 S. Ct. 1302, 1310 (1949)" } ], "opinion_index": 0, "case_paths": [ "/us/540/0366-01" ] }, { "cite": "439 S.E.2d 760", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "764" } ], "opinion_index": 0 }, { "cite": "335 N.C. 401", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2526248 ], "year": 1994, "pin_cites": [ { "page": "409" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0401-01" ] }, { "cite": "178 S.E.2d 597", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "601" } ], "opinion_index": 0 }, { "cite": "278 N.C. 36", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559596 ], "year": 1971, "pin_cites": [ { "page": "41" } ], "opinion_index": 0, "case_paths": [ "/nc/278/0036-01" ] }, { "cite": "539 S.E.2d 625", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "631", "parenthetical": "quoting State v. Smith, 278 N.C. 36, 41, 178 S.E.2d 597, 601 (1971)" }, { "page": "631" } ], "opinion_index": 0 }, { "cite": "353 N.C. 200", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135935 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "207-08", "parenthetical": "quoting State v. Smith, 278 N.C. 36, 41, 178 S.E.2d 597, 601 (1971)" }, { "page": "208" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0200-01" ] }, { "cite": "297 S.E.2d 540", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "548" } ], "opinion_index": 0 }, { "cite": "307 N.C. 130", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561131 ], "year": 1982, "pin_cites": [ { "page": "143" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0130-01" ] }, { "cite": "689 S.E.2d 530", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "532", "parenthetical": "quoting State v. Chamberlain, 307 N.C. 130, 143, 297 S.E.2d 540, 548 (1982)" } ], "opinion_index": 0 }, { "cite": "201 N.C. App. 398", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4172845 ], "year": 2009, "pin_cites": [ { "page": "400", "parenthetical": "quoting State v. Chamberlain, 307 N.C. 130, 143, 297 S.E.2d 540, 548 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/201/0398-01" ] }, { "cite": "267 S.E.2d 588", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "590" } ], "opinion_index": 0 }, { "cite": "47 N.C. App. 661", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551776 ], "year": 1980, "pin_cites": [ { "page": "652-53" } ], "opinion_index": 0, "case_paths": [ "/nc-app/47/0661-01" ] }, { "cite": "291 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "619" } ], "opinion_index": 0 }, { "cite": "306 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567694 ], "year": 1982, "pin_cites": [ { "page": "134" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0132-01" ] }, { "cite": "729 S.E.2d 63", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "66", "parenthetical": "quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)" } ], "opinion_index": 0 }, { "cite": "366 N.C. 119", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4350650 ], "year": 2012, "pin_cites": [ { "page": "123", "parenthetical": "quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc/366/0119-01" ] } ], "analysis": { "cardinality": 1116, "char_count": 34385, "ocr_confidence": 0.73, "pagerank": { "raw": 1.0559440278444224e-07, "percentile": 0.555331025090652 }, "sha256": "92a44e32b391e983cc0a49d75b295e9a3b8a23fcfceb32a880217f27bc6b663a", "simhash": "1:beaae46ef34ed4fc", "word_count": 5597 }, "last_updated": "2023-07-14T22:41:07.458141+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge STEELMAN concurs.", "Judge ROBERT N. HUNTER, JR. concurring in this opinion prior to 6 September 2014." ], "parties": [ "STATE OF NORTH CAROLINA v. JOSEPH OVEROCKER, Defendant" ], "opinions": [ { "text": "GEER, Judge.\nThe State appeals the trial court\u2019s order granting defendant Joseph Overocker\u2019s motion to suppress and dismissing the charges against him based on a lack of probable cause to arrest defendant for impaired driving and unsafe movement. We hold that the trial court\u2019s findings of fact are supported by the evidence and in turn support the court\u2019s conclusion of law that the reasons relied upon by the officer for the arrest did not provide the officer with probable cause that defendant was either impaired or had engaged in unsafe movement. We, therefore, affirm the order to the extent it grants the motion to suppress. Because, however, defendant did not make a written or oral motion to dismiss, controlling precedent requires that we reverse the trial court\u2019s dismissal of the charges.\nFacts\nOn 11 October 2012, defendant arrived at about 4:00 p.m. at a sports bar called lime Out Bar & Grill in Durham, North Carolina. Defendant parked his Porsche Cayenne SUV directly in front of the bar and met up with several friends, including Claude \u201cChip\u201d Teeter. While defendant was inside the bar, a group of motorcyclists pulled into the Time Out parking lot, and one of them parked her motorcycle behind defendant\u2019s SUV. When defendant left the bar and started backing out of his parking spot, he collided with the motorcycle.\nOfficer Everette Jefferies, an off-duty police officer with the Durham Police Department, had ridden his motorcycle to Time Out and noticed defendant when he first arrived. Officer Jefferies was outside in the parking lot when defendant was leaving, and he witnessed the collision.\nOfficer Mark Lalumiere, who was on duty with the Durham Police Department, was dispatched to the scene. After talking with defendant and Officer Jefferies, Officer Lalumiere had defendant perform standardized field sobriety tests (\u201cFSTs\u201d). Another Durham Police Department officer, Officer Marvin Hembrick, performed two portable breath tests (\u201cPBTs\u201d) on defendant. Officer Lalumiere then arrested defendant for impaired driving and unsafe movement.\nOn 11 April 2013, a district court judge found defendant guilty of both charges, and defendant timely appealed to superior court. On 11 July 2013, defendant filed a motion to suppress, asking the superior court to suppress (1) all evidence gathered after the stop of defendant\u2019s vehicle or the first interview of defendant for lack of reasonable suspicion and (2) all evidence based on a lack of probable cause to arrest defendant. After hearing testimony from defendant, Mr. Teeter, and Officers Jefferies, Lalumiere, and Hembrick, the superior court entered an order granting defendant\u2019s motion to suppress. Additionally, in the same order, the court dismissed the charges against defendant.\nIn the suppression order, the court made the following findings of fact. Defendant and Mr. Teeter arrived at Time Out at around 4:00 or 4:30 p.m. Mr. Teeter testified that he and defendant were sitting at a table outside on Time Out\u2019s patio. Defendant and Mr. Teeter left Time Out at around 8:00 or 8:30 p.m. Over the course of the evening, Mr. Teeter consumed four beers, and defendant consumed four bourbons on the rocks.\nOfficer Jefferies noticed defendant and Mr. Teeter and because \u201cthey were talking loudly,... Officer Jeffries [sic] believed the Defendant was impaired.\u201d Apart from talking loudly, \u201cthere was nothing unusual about the Defendant\u2019s behavior or conversation in the bar.\u201d\nWhile defendant and Mr. Teeter were in the restaurant, a group of motorcyclists parked their vehicles in Time Out\u2019s parking lot. One of these, \u201ca pink, ninja sport motorcycle,\u201d parked \u201cthree to four feet behind the Defendant\u2019s Porsche sport utility vehicle on the passenger side.\u201d The trial court found that the pink motorcycle was \u201cillegally parked.\u201d\nAt around 8:15 p.m., when it was dark outside, Officer Jefferies saw defendant and Mr. Teeter walk out of the restaurant, and he noticed that defendant and Mr. Teeter were still talking loudly. The trial court found that \u201c[w]hen the Defendant left with his friend, [Officer Jefferies] saw the Defendant and thought the Defendant should not be driving because he continued to talk loudly. He did not observe anything unusual about the Defendant\u2019s appearance, smell, walking, balance, eyes, or speech, other than he was talking loudly, upon which he based his opinion that the Defendant was impaired and should not be driving.\u201d\nDefendant got into his vehicle with the radio playing and the air conditioning on. When defendant began to back up, a motorcyclist ran toward the illegally parked motorcycle, and, together with other motorcyclists, started yelling at defendant\u2019s SUV. One motorcyclist got onto the motorcycle, but was unable to move it in time. He jumped off, and defendant\u2019s SUV \u201cbacked over it, or struck it.\u201d The motorcycle fell over and it was dragged along the pavement for a short distance.\nWhen defendant \u201cheard something,\u201d he stopped and got out of his vehicle. One person was slapping his vehicle, while two others were holding the motorcycle he had struck. Defendant\u2019s SUV had a small scratch on the bumper.\nThe trial court found that \u201c[b]ecause the motorcycle stood lower than the rear window of the Defendant\u2019s vehicle and there were other motorcycles parked in the parking space next to the passenger side of the Defendant\u2019s vehicle, there is no evidence the Defendant saw, or could even see the pink motorcycle parked behind his vehicle which was in a parking space, or was otherwise aware of its presence.\u201d\nAfter defendant\u2019s collision with the pink motorcycle, the police were called, and Officer Lalumiere was dispatched to Time Out at around 8:15 p.m. When he arrived, Officer Lalumiere \u201cfound a Porsche Cayenne sport utility vehicle and a pink motorcycle behind the parking spaces in the lane between parking spaces in the parking lot of the establishment. The motorcycle had scratches on it and there were gouge marks in the pavement from the kick stand of the motorcycle.\u201d\nOfficer Lalumiere spoke with defendant, and defendant said that \u201che came out of the restaurant and backed up striking the motorcycle.\u201d Defendant told the officer that he \u201chad been at the bar for four hours\u201d and initially claimed he had two drinks. When Officer Lalumiere asked him again about the drinks, defendant said he might have had three. The trial court found that \u201c[t]he Defendant had an odor of alcohol which Officer Lalumiere described as \u2018not real strong, light.\u2019 \u201d\nDefendant then consented to Officer Lalumiere\u2019s conducting two FSTs. The first test Officer Lalumiere asked defendant to perform was the \u201cWalk and Turn Test.\u201d After Officer Lalumiere instructed him how to perform the test, defendant \u201ctook nine steps heel-to-toe down one of the lines for a parking space while counting aloud without a problem.\u201d Defendant then asked Officer Lalumiere what he was supposed to do next. Officer Lalumiere reminded defendant to follow the instructions, and defendant \u201cwalked back nine steps heel-to-toe down on the line while counting aloud without a problem.\u201d\nOfficer Lalumiere then asked defendant to perform the \u201cOne-Legged Stand Test.\u201d He explained the directions for that test, and when defendant was told to start, defendant \u201craised his foot more than six inches above the pavement, stopped after fifteen seconds, [and] put his foot down[.]\u201d Defendant then looked at Officer Lalumiere and asked what he was supposed to do next. After Officer Lalumiere told defendant to complete the test, defendant \u201cpicked up his foot and continued for at least fifteen more seconds until he was stopped by Officer Lalumiere.\u201d\nMr. Teeter watched defendant while he performed the FSTs. According to the trial court, \u201cMr. Teeter did not see anything wrong with the Defendant\u2019s standardized field sobriety tests and he did not believe the Defendant was impaired, or unfit to drive on this occasion.\u201d The trial court noted that Mr. Teeter had no prior criminal convictions and that he \u201chas a severe and very noticeable stutter when he talks and neither Officer Jeffries [sic] nor Officer Lalumiere recalled Mr. Teeter spoke with a stutter when he was interviewed after the accident.\u201d\nOfficer Lalumiere had requested an officer who was certified to administer PBTs. Officer Hembrick responded and, once at the scene, noticed that defendant had \u201ca faint odor of alcohol on his person and red, glassy eyes.\u201d Defendant submitted to two PBTs, both of which indicated the presence of alcohol in defendant.\nOverall, Officer Lalumiere observed defendant for about an hour and concluded that defendant \u2018\u201chad consumed alcohol.\u2019\u201d However, defendant \u201cwas not slurring his speech and he walked without stumbling.\u201d While in the presence of the three officers - Officers Lalumiere, Jefferies, and Hembrick - \u201c[defendant's speech was not slurred and he never staggered when he walked . . . .\u201d Nonetheless, \u201c[b]ased upon the fact that the Defendant had been at a bar, he was involved in a traffic accident, his performance tests and the odor of alcohol, Officer Lalumiere believed the Defendant \u2018was impaired and it was more probable than not that he would blow over the legal limit.\u2019 Therefore, he placed the Defendant under arrest for Impaired Driving.\u201d\nBased on these findmgs, Judge Fox concluded,\n3. The facts and circumstances known to Officer Laiumiere as a result of his observations and testing of the Defendant were insufficient, under the totality of the circumstances, to form an opinion in the mind of a reasonable and prudent man/officer that there was probable cause to believe that the offenses of Impaired Driving and Unsafe Movement had been committed and the Defendant was the person who committed those offenses.\n4. The arrest of the Defendant for Impaired Driving and Unsafe Movement on this occasion violated the Fourth Amendment of the United States Constitution and the North Carolina Constitution.\nThe trial court, therefore, allowed defendant\u2019s motion to suppress and ordered that \u201c[t]he charges of Impaired Driving and Unsafe Movement against the Defendant\u201d be dismissed. The State timely appealed to this Court.\nStandard of Review\n\u201c \u2018[T]he scope of appellate review of an order [regarding a motion to suppress] is strictly limited to determining whether the trial [court] \u215b underlying findmgs of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findmgs in turn support the [court] \u215b ultimate conclusions of law.\u2019\u201d State v. Salinas, 366 N.C. 119, 123, 729 S.E.2d 63, 66 (2012) (quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)). Findings of fact that are not challenged \u201care presumed to be supported by competent evidence and are binding on appeal.\u201d Tinkham v. Hall, 47 N.C. App. 661, 652-53, 267 S.E.2d 588, 590 (1980).\nFurther, \u201c \u2018[i]f there is a conflict between the state\u2019s evidence and defendant\u2019s evidence on material facts, it is the duty of the trial court to resolve the conflict and such resolution will not be disturbed on appeal.\u2019\u201d State v. Veazey, 201 N.C. App. 398, 400, 689 S.E.2d 530, 532 (2009) (quoting State v. Chamberlain, 307 N.C. 130, 143, 297 S.E.2d 540, 548 (1982)). \u201cThis deference is afforded the trial judge because he is in the best position to weigh the evidence, given that he has heard all of the testimony and observed the demeanor of the witnesses.... \u2018[B]y reason of his more favorable position, [the trial judge] is given the responsibility of discovering the truth.\u2019 \u201d State v. Hughes, 353 N.C. 200, 207-08, 539 S.E.2d 625, 631 (2000) (quoting State v. Smith, 278 N.C. 36, 41, 178 S.E.2d 597, 601 (1971)).\nThe State\u2019s Challenges to Findings of Fact\nThe State challenges a number of the trial court\u2019s findings of fact. Based on our review of the record, we hold that each of the findings is supported by competent evidence or is a reasonable inference drawn from the evidence.\nThe State first points to the part of the trial court\u2019s finding of fact number 6 that the pink motorcycle \u201cstood lower than the rear window of the Defendant\u2019s vehicle.\u201d At the hearing, Officer Jefferies stated that the height of the motorcycle was \u201c[c]lose - right at\u201d defendant\u2019s rear window and that the motorcycle \u201cprobably would come up ... to that line right there.\u201d Officer Jefferies demonstrated where he was referring to on a photo of the rear of defendant\u2019s SUV, although the record does not indicate the location of the line on the photo where Officer Jefferies was pointing.\nBecause of the failure of counsel to memorialize in the record where Officer Jefferies pointed, the State contends that \u201cclose\u201d \u201ccould mean above or below the [rear] window level,\u201d and this ambiguity renders the evidence incompetent. The trial court, however, was able to observe precisely where the officer was pointing.\nIn addition, Officer Jefferies explained that the pink motorcycle\u2019s \u201cfairing is on the bottom,\u201d the windshield was part of the fairing, the windshield is \u201cexposed . . . maybe about a [sic] inch\u201d over the handlebars, and \u201cthe windshield is approximately 3 to 4 feet tall from the fairing.\u201d Later in the hearing, after all the evidence was presented, Judge Fox indicated his own familiarity with the same or similar type of motorcycle as the pink motorcycle defendant struck:\nI\u2019m wondering how in the world any idiot would park a motorcycle behind an SUV. I mean, I\u2019m quite familiar with those ninja bikes. They are not very tall. They\u2019re shorter than the average motorcycle, which is not very tall. . . . [I]t\u2019s unfathomable to me how you could do that. I mean, how you could do that and leave your motorcycle and not expect to come back and find it creamed. I just don\u2019t understand that.\n\u201c[I]t is the appellant who has the burden in the first instance of demonstrating error from the record on appeal[,]\u201d State v. Adams, 335 N.C. 401, 409, 439 S.E.2d 760, 764 (1994), and the State has failed to show that Officer Jefferies\u2019 reference to the photo of the SUV supported a finding contrary to the finding that \u201cthe motorcycle stood lower than the rear window of the Defendant\u2019s vehicle.\u201d Further, the finding that the motorcycle \u201cstood lower than the rear window of the Defendant\u2019s vehicle,\u201d along with Judge Fox\u2019s remark that \u201cit\u2019s unfathomable... how you could ... leave your motorcycle [behind an SUV] and not expect to come back and find it creamed,\u201d indicate that Judge Fox dismissed any suggestion that the top of the motorcycle stood at or above the bottom of defendant\u2019s rear windshield. To the extent that any of the evidence offered as to the height of the pink motorcycle was conflicting, it was the duty of the trial court to resolve the conflict.\nThe State also challenges the portion of finding of fact number 6 that \u201cthere is no evidence the Defendant saw, or could even see the pink motorcycle parked behind his vehicle which was in a parking space, or was otherwise aware of its presence.\u201d Defendant testified that when he was walking to his SUV he did not see the motorcycle, and when he got to the SUV he did not walk around it \u201cto check ... if anything was parked behind it.\u201d Moreover, the trial court found that the motorcycle stood lower than defendant\u2019s rear windshield, suggesting that defendant would not have been able to see the motorcycle from inside the SUV.\nIn arguing that the finding incorrectly stated that \u201cno evidence\u201d existed that defendant saw or could see the motorcycle, the State chiefly contends that Officer Jefferies testified \u201cthat a reasonable person would be able to see the motorcycle parked four to five feet behind the defendant\u2019s car.\u201d This assertion is not a fair representation of Officer Jefferies\u2019 testimony. When Judge Fox asked Officer Jefferies whether defendant \u201c[w] as ... in a position to see the motorcycle parked [behind his SUV] [,]\u201d Officer Jefferies responded, \u201cI think a reasonable person probably could have seen it because there were several motorcycles out there.\u201d (Emphasis added.) The trial court could reasonably have concluded that the mere fact (1) that Officer Jefferies thought defendant \u201ccould have seen it\u201d or (2) that there were other motorcycles parked elsewhere in the parking lot was not evidence that defendant did see or should have seen the motorcycle parked directly behind his SUV.\nThe State also suggests that there was actual evidence that defendant could see the motorcycle because it \u201cwas only partially behind the defendant\u2019s car\u201d and \u201cthere was [sic] at least three people that saw the motorcycle],]\u201d including Officer Jefferies, the individual who tried to move the motorcycle, and Mr. Teeter. With respect to the position of the motorcycle, while Officer Jefferies testified that \u201c[t]he front wheel - the forks, the front tire and part of the front fender was behind part of the vehicle,\u201d the trial court\u2019s unchallenged finding of fact that there were motorcycles parked in the parking space on defendant\u2019s passenger side suggests that defendant\u2019s view of the rest of the pink motorcycle was obfuscated.\nAs for the ability of others to see the motorcycle, the State disregards the fact that it did not show that any of the people who saw the motorcycle were in a location with similar visibility to that of defendant at the time they noticed the motorcycle. Indeed, the record shows that these three individuals had very different vantage points than defendant when he walked to his car, got into his car, and backed up.\nMoreover, although the record indicates that Officer Jefferies and Mr. Teeter witnessed one to three individuals trying to move the pink motorcycle before defendant hit it, there is no actual testimony from Officer Jefferies or Mr. Teeter that either one of them noticed that the pink motorcycle was parked behind defendant\u2019s SUV before the frenzied efforts to try to move it. At most, Officer Jefferies testified that, prior to defendant\u2019s backing up, he was aware that there were motorcycles in the parking lot. Based on our review of the evidence, the trial court could reasonably conclude that even though others may have been aware of the pink motorcycle before defendant backed into it, none of the evidence showed that defendant did see or could have seen the pink motorcycle parked behind his SUV.\nThe State next challenges the portion of finding of fact 10 that the pink motorcycle was \u201cillegally parked\u201d behind defendant\u2019s SUV. The State presented evidence - including testimony from Officers Jefferies and Lalumiere - that the pink motorcycle was not parked within the lines of any parking space and that it was parked directly behind defendant\u2019s SUV in the area of the parking lot where vehicles were intended to drive.\nWe fail to see any basis for objecting to the trial court\u2019s finding given the undisputed evidence regarding the location of the motorcycle. Indeed, the State during the motion to suppress hearing essentially conceded that point, although arguing that the fact was immaterial: \u201cMaybe the motorcycle being behind the defendant\u2019s car led to an incident that wasn\u2019t the defendant\u2019s fault. That\u2019s not the issue. The issue is: Was the defendant impaired at the time that this incident happened?\u201d\nFinally, the State challenges finding of fact 19:\n19. Mr. Teeter did not see anything wrong with the Defendant\u2019s standardized field sobriety tests and he did not believe the Defendant was impaired, or unfit to drive on this occasion. He has no prior criminal convictions. Mr. Teeter also has a severe and very noticeable stutter when he talks and neither Officer Jeffries [sic] nor Officer Lalumiere recalled Mr. Teeter spoke with a stutter when he was interviewed after the accident.\nFirst, the State argues that there was no competent evidence to support a finding that Mr. Teeter \u201cdid not believe the Defendant was impaired, or unfit to drive on this occasion.\u201d However, Mr. Teeter\u2019s testimony indicated that he was with defendant throughout the entire evening and that he did not \u201cnotice [defendant] acting unusually ... in the restaurant at all\u201d or \u201cbeing unusually loud or boisterous.\u201d Mr. Teeter also stated that he \u201cdid not see anything wrong\u201d with defendant\u2019s performance on the FSTs that Officer Lalumiere conducted. This testimony was competent and supported the trial court\u2019s finding - a reasonable inference from that testimony - that Mr. Teeter did not believe defendant was impaired or unfit to drive.\nThe State also contends there is no evidence that \u201cMr. Teeter... has a severe and very noticeable stutter when he taiks[.]\" However, as the trial court was able to \u201csee[] the witnesses, [and] observe]] their demeanor as they testified],\u201d he was in the best position to determine that Mr. Teeter spoke with a stutter. Hughes, 353 N.C. at 208, 539 S.E.2d at 631. The State does not point to any evidence that Mr. Teeter did not have a stutter. Indeed, defense counsel noted that stutter on the record. Accordingly, we conclude that competent evidence supports finding of fact 19.\nThe State\u2019s Challenges to the Conclusions of Law\nThe State argues that the trial court\u2019s findings of fact do not support the conclusion that Officer Lalumiere lacked probable cause to arrest defendant for impaired driving. Initially, we note that the trial court determined Officer Lalumiere lacked probable cause based on \u201c[t]he facts and circumstances known to Officer Lalumiere as a result of his observations and testing of the Defendant.. . .\u201d Additionally, the trial court also stated in finding of fact 23 that Officer Lalumiere concluded there was probable cause based on \u201cthe fact that the Defendant had been at a bar, he was involved in a traffic accident, his performance tests[,] and the odor of alcohol[.]\u201d Because the State does not challenge this finding, it is binding on appeal.\nIn reviewing the determination that probable cause was lacking, therefore, we consider only those \u201cfacts and circumstances known to Officer Lalumiere as a result of his observations,\u201d which include the fact that defendant had been at a bar, was involved in a collision with the pink motorcycle, performed sobriety tests, and had an odor of alcohol.\nProbable cause \u201cdeals with probabilities and depends on the totality of the circumstances\u201d and \u201c \u2018[t]he substance of all the definitions of probable cause is a reasonable ground for belief of guilt.\u2019\u201d Maryland v. Pringle, 540 U.S. 366, 371, 157 L. Ed. 2d 769, 775, 124 S. Ct. 795, 800 (2003) (quoting Brinegar v. United States, 338 U.S. 160, 175, 93 L. Ed. 1879, 1890, 69 S. Ct. 1302, 1310 (1949)). \u201c\u2018The test for whether probable cause exists is an objective one - whether the facts and circumstances, known at the time, were such as to induce a reasonable police officer to arrest, imprison, and/or prosecute another.\u2019\u201d Thomas v. Sellers, 142 N.C. App. 310, 315, 542 S.E.2d 283, 287 (2001) (quoting Moore v. Evans, 124 N.C. App. 35, 43, 476 S.E.2d 415, 422 (1996)).\nWith regard to what Officer Lalumiere knew when he arrested defendant, the trial court found that when he arrived at Time Out, Officer Lalumiere knew that defendant had been inside Time Out drinking up to three drinks over the course of approximately four hours (although in actuality defendant had had four drinks). Defendant \u201ccame out of the restaurant and backed up striking the motorcycle [,]\u201d which was illegally parked behind defendant\u2019s SUV. There was no evidence that defendant saw the motorcycle or should have seen it before he backed up.\nThe State argues that other findings of fact related to the collision with the motorcycle support a conclusion that defendant was impaired. The State points to the trial court\u2019s finding that defendant dragged the motorcycle for a short distance before stopping, that there were gouge marks in the pavement as a result, and that defendant did not react to the individuals yelling at him to stop. The State argues that these findings constitute \u201cevidence of the defendant\u2019s failure to recognize his surroundings ... and... defendant had a delayed reaction time after he hit the motorcycle.\u201d\nThe trial court, however, made no finding - and the record contains no evidence - regarding whether defendant\u2019s reaction time was delayed in light of the \u201cshort distance\u201d defendant traveled after hitting the motorcycle. Moreover, the trial court found that defendant\u2019s SUV suffered only a small scratch and the motorcycle\u2019s only reported damage was that it had \u201cscratches on it.\u201d Further, the trial court\u2019s findings explained why defendant did not hear individuals yelling: he had the radio and air conditioning on. The State\u2019s argument regarding defendant\u2019s recognition of his surroundings and any delayed reaction asks this Court to weigh the evidence and assess its credibility in a manner different from that of the trial court. We are not allowed to do so.\nIn short, the trial court\u2019s findings of fact support its conclusion that there was no probable cause to believe that defendant had engaged in unsafe movement. The State, at the trial level, essentially conceded that point, but argued there was still evidence of impairment.\nThe trial court\u2019s findings proceed to establish the lack of any other reasonable basis for concluding that defendant was impaired. The trial court found that apart from the traffic accident, Officer L\u00e1lumiere relied for probable cause on the fact that defendant had been at a bar, his performance tests, and the odor of alcohol on defendant. Yet, the trial court found that Officer Lalumiere testified that the strength of the alcohol odor was \u201c \u2018not real strong, light.\u2019 \u201d In addition, none of the three officers on the scene observed defendant staggering or stumbling when he walked, and his speech was not slurred. Further, the only error defendant committed when performing the two field sobriety tests was to ask the officer half-way through each test what to do next. When instructed to finish the tests, defendant did so.\nThe State points to Officer Lalumiere\u2019s testimony that defendant \u201cdidn\u2019t do terrible\u201d on the FSTs as \u201cadditional evidence . . . that defendant had committed an implied consent offense.\u201d However, this testimony conflicts with Mr. Teeter\u2019s testimony that he saw nothing wrong with defendant\u2019s performance on the FSTs. Further, the trial judge remarked that \u201cthese tests do not even begin to... come to the level... that I would view as being failed.\u201d The court, therefore, resolved any conflict in the evidence as to defendant\u2019s performance on the FSTs in favor of defendant.\nThe State argues on appeal that because Officer Lalumiere testified he spoke with Officer Jefferies, necessarily, Officer Jefferies\u2019 observations of defendant and his belief about his impairment provided part of Officer Lalumiere\u2019s probable cause. The trial court, however, in finding of fact 23, set out the circumstances upon which Officer Lalumiere relied in determining that he had probable cause to arrest defendant. That finding, which is binding on appeal, does not mention Officer Jefferies. It is apparent from other findings of fact that the trial court did not find Officer Jefferies completely credible. After weighing the evidence and assessing credibility, the trial court apparently determined that Officer Jefferies\u2019 claimed observations of defendant\u2019s prior behavior were not part of the basis for defendant\u2019s arrest. The State presents no grounds for us to revisit that determination on appeal.\nIn sum, the trial court found that while defendant had had four drinks in a bar over a four-hour time frame, the traffic accident in which he was involved was due to illegal parking by another person and was not the result of unsafe movement by defendant. Further, defendant\u2019s performance on the field sobriety tests and his behavior at the accident scene did not suggest impairment. A light odor of alcohol, drinks at a bar, and an accident that was not defendant\u2019s fault were not sufficient circumstances, without more, to provide probable cause to believe defendant was driving while impaired.\nThe State contends that the facts of this case are similar to those in Steinkrause v. Tatum, 201 N.C. App. 289, 295, 689 S.E.2d 379, 383 (2009), aff\u2019d per curiam, 364 N.C. 419, 700 S.E.2d 222 (2010), in which this Court found probable cause to arrest the driver for impaired driving when (1) the driver was involved in a one-car accident that resulted in the car being found upside down in a ditch after rolling several times, (2) one officer noted an odor of alcohol on the driver, and (3) a second officer observed that the driver looked dirty and sleepy. The Court specifically found probable cause based on the \u201cfact and severity of the one-car accident coupled with some indication of alcohol consumption.\u201d Id.\nThe Court emphasized that a \u201ccar accident alone does not support a finding of probable cause.\u201d Id. at 294, 689 S.E.2d at 382. In this case, the accident was minor and determined by the trial court to not be defendant\u2019s fault. Nothing in Steinkrause or any of the other cases cited by the State suggest that such an accident combined with evidence of alcohol consumption and a fight odor of alcohol is sufficient to give rise to probable cause with no evidence of actual impairment.\nFinally, the State argues that \u201cwhile the numerical reading on the portable breath test was not admissible at the probable cause hearing, that number was before the officer in his consideration of whether defendant had operated a motor vehicle with a certain alcohol concentration.\u201d The State represents that finding of fact 23 finds that \u201cOfficer Lalumiere had a portable breath test reading that indicated to him that defendant \u2018was impaired and it was more probable than not that he would blow over the legal limit.\u2019 \u201d However, contrary to the State\u2019s implication that Officer Lalumiere used a specific alcohol concentration reading from one of the PBTs to form probable cause, the evidence and the order only indicate that the PBTs returned \u201cpositive\u201d results for alcohol in defendant\u2019s bloodstream.\nNotwithstanding the absence of any numerical reading from an alcohol screening test in the evidence before us, the State cites State v. Rogers, 124 N.C. App. 364, 370, 477 S.E.2d 221, 224 (1996), for support. In Rogers, the trial court admitted the numerical reading of an Alco-sensor test, in accordance with N.C. Gen. Stat. \u00a7 20-16.3 (1995), to help establish whether the arresting officer had probable cause for the defendant\u2019s driving impaired. 124 N.C. App. at 370, 477 S.E.2d at 224. However, the pertinent language of N.C. Gen. Stat. \u00a7 20-16.3 that allowed the arresting officer in Rogers to consider the numerical reading of the Alco-sensor test was supplanted in 2006 by the current version of the statute. 2006 N.C. Sess. Laws ch. 253, \u00a7 7. The plain language of N.C. Gen. Stat. \u00a7 20-16.3(d) (2013) prohibits \u201cthe actual alcohol concentration result\u201d of an \u201calcohol screening test\u201d from being used \u201cby a law-enforcement officer ... in determining if there are reasonable grounds for believing . . . [t]hat the driver has committed an implied-consent offense under G.S. 20-16.2[,]\u201d such as driving while impaired.\nMoreover, in fight of the absence of any numerical reading in the evidentiary record before us, the State\u2019s argument would effectively allow law enforcement to evade review when arresting individuals for impaired driving after conducting alcohol screening tests. This argument, therefore, is wholly without merit.\nMotion to Dismiss\nWe lastly address the issue whether the trial court erred in dismissing the charges against defendant. We note that the State, in support of its position, merely repeats its arguments that the trial court erred in concluding that Officer Lalumiere lacked probable cause to arrest defendant. The State does not, however, cite any authority suggesting that the trial corut erred in dismissing the charges.\nHowever, pursuant to her ethical duty of candor to this Court, defendant\u2019s appellate counsel properly referred the Court to State v. Joe, 365 N.C. 538, 723 S.E.2d 339 (2012) (per curiam). In Joe, the Supreme Court reversed this Court for affirming a trial court\u2019s dismissal of the State\u2019s charge of felony possession of cocaine with intent to sell or deliver because the defendant made no written or oral motion to dismiss that charge. Id. at 539, 723 S.E.2d at 340. Here, defendant made no written or oral motion to dismiss the charges, and, therefore, we must reverse the trial court\u2019s dismissal.\nAffirmed in part; reversed and remanded in part.\nJudge STEELMAN concurs.\nJudge ROBERT N. HUNTER, JR. concurring in this opinion prior to 6 September 2014.\n. The State does not challenge the trial court\u2019s conclusion that probable cause was lacking for defendant\u2019s unsafe movement violation.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Christopher W. Brooks, for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defender Kathleen M. Joyce, for defendant-appellee." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOSEPH OVEROCKER, Defendant\nNo. COA14-270\nFiled 16 September 2014\n1. Motor Vehicles\u2014driving while impaired\u2014unsafe movement\u2014 findings of fact\u2014sufficiency\nThe trial court did not err in an impaired driving and unsafe movement case by making its findings of fact numbers 6,10, and 19. Each of the findings was supported by competent evidence or was a reasonable inference drawn from the evidence.\n2. Search and Seizure\u2014motion to suppress\u2014lack of probable cause\u2014impaired driving\u2014unsafe movement\nThe trial court did not err by granting defendant\u2019s motion to suppress evidence based on a lack of probable cause to arrest defendant for impaired driving and unsafe movement. The findings of fact supported the conclusions of law that the reasons relied upon by the officer for the arrest did not provide the officer with probable cause that defendant was either impaired or had engaged in unsafe movement.\n3. Civil Procedure\u2014motion to dismiss erroneously granted\u2014 failure to make written or oral motion to dismiss\nThe trial court erred by dismissing the charges of impaired driving and unsafe movement against defendant. Defendant did not make a written or oral motion to dismiss, and thus, controlling precedent required the Court of Appeals to reverse the trial court\u2019s dismissal of the charges.\nAppeal by the State from order entered 4 October 2013 by Judge Carl R. Fox in Durham County Superior Court. Heard in the Court of Appeals 28 August 2014.\nAttorney General Roy Cooper, by Assistant Attorney General Christopher W. Brooks, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Kathleen M. Joyce, for defendant-appellee." }, "file_name": "0423-01", "first_page_order": 431, "last_page_order": 444 }