An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-1369
                        NORTH CAROLINA COURT OF APPEALS

                             Filed: 31 December 2014


STATE OF NORTH CAROLINA

      v.                                      Mecklenburg County
                                              No. 10 CRS 242533
VICTORIA GUTIERREZ TSILIMOS,
          Defendant.


      Appeal by defendant from judgment entered 31 May 2013 by

Judge Richard L. Doughton in Mecklenburg County Superior Court.

Heard in the Court of Appeals 23 April 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Kathryne E. Hathcock, for the State.

      Arnold & Smith, PLLC, by Laura M. Cobb,                       for defendant-
      appellant.


      GEER, Judge.


      Defendant       Victoria    Gutierrez       Tsilimos    appeals      from   her

conviction     of   driving      while   impaired.      On    appeal,      defendant

contends that the trial court erred in denying her motion to

suppress     evidence     obtained       during   a   checkpoint      stop.       She

challenges      the     trial     court's     finding        that    the      primary

programmatic purpose of the stop was DWI detection and argues
                                        -2-
that    the   checkpoint    was   not    tailored     to   address    the    stated

purpose and was, therefore, unreasonable.                  In support of this

contention,     defendant    argues      that   the   supervising      Sergeant's

testimony that the location and timing of the checkpoint was

chosen due to a high rate of DWI arrests and accidents was not

corroborated by documented statistics.                This argument addresses

only the credibility of and the weight that should be given to

the Sergeant's testimony -- questions that are solely within the

domain of the trial court.            Because the trial court's findings

are supported by competent evidence and those findings support

the court's conclusion that the primary programmatic purpose of

the checkpoint was proper and the checkpoint was reasonable, we

hold that the trial court did not err in denying defendant's

motion to suppress.          We find defendant's remaining arguments

also unpersuasive and, therefore, hold that defendant received a

trial free from prejudicial error.

                                      Facts

       The State's evidence tended to show the following facts.

Beginning at 11:00 p.m. on              2 September 2010, the Charlotte-

Mecklenburg Police Department ("CMPD") conducted a checkpoint at

the    intersection    of   5th   Street      and   Caldwell    Street      and   the

intersection of 7th Street and Caldwell Street near downtown

Charlotte,     North   Carolina.         Marked     patrol     cars   and    orange
                                         -3-
reflective signs were posted in both directions of travel at

each checkpoint location to warn approaching motorists of the

upcoming     checkpoint.        All    officers    wore      police   uniforms    and

reflective traffic vests.

      The purpose of the checkpoint was DWI detection.                      Sergeant

David Sloan of the CMPD was the supervisor of the checkpoint and

had selected the location in advance.                  Sergeant Sloan chose the

location     because    there    are    close     to   100    bars    and   drinking

establishments in the area and because several impaired driving

related crashes and numerous DWI arrests had occurred in that

area on Thursday, Friday, and Saturday nights.                        Additionally,

the   CMPD    had   conducted     four    other    checkpoints        in    the   same

location during        the previous three to four years, which                     had

resulted in double digit DWI arrests.

      Pursuant to the checkpoint plan, officers were directed to

stop each vehicle, engage the driver in conversation, ask for a

driver's license, and look for signs of impairment.                           In the

event of an emergency or when traffic became severely congested,

only Sergeant Sloan was authorized to deviate from the directive

to stop every vehicle.           Before the checkpoint began, Sergeant

Sloan briefed the 37 participating officers on the plan for the

checkpoint and provided each of them with a written copy of the

plan.
                                         -4-
    At around 2:30 a.m., Officer Charles G. Jamieson of the

CMPD stopped defendant's vehicle.              He smelled a very strong odor

of alcohol coming from defendant and observed that her eyes were

red and watery.         When asked, defendant admitted that she had

been drinking before operating the vehicle.                   Officer Jamieson

asked defendant to step out of her vehicle, and he performed a

series of field sobriety tests.                Based upon her performance on

the tests, as well as the results of a portable breath test,

Officer Jamieson believed that she had consumed a sufficient

quantity of alcohol to be impaired.

    Officer       Jamieson   arrested      defendant    and   took    her     to   a

portable processing unit called the "BAT mobile," which was a

bus containing an EC/IR II intoxilyzer.                At 2:53 a.m., Officer

Jamieson       read   defendant    her     chemical    analysis      rights    and

provided her with a written copy of her rights.                   Defendant did

not exercise her right to contact an attorney or a witness to

view the testing procedure.           At 3:08 a.m., defendant submitted

to a breath test and registered a .08 alcohol concentration.

    On     8    February   2011,   the    district    court   found     defendant

guilty    of    impaired   driving.       Defendant    appealed    to    superior

court where she filed a motion to suppress.                   On 29 May 2013,

after a hearing, the trial court entered an order denying the

motion.    Defendant's case was tried before a jury on 30 and 31
                                    -5-
May 2013.    On 31 May 2013, the jury returned a verdict of guilty

of driving while impaired, and the defendant was sentenced to a

presumptive-range term of six months imprisonment.                 The trial

court     suspended   defendant's    sentence      and    placed     her   on

supervised probation for 24 months.           Defendant timely appealed

to this Court.

                                     I

    Defendant     first    argues   that    the   trial   court    erred   in

denying     her   motion    to   suppress      because    the      checkpoint

constituted an unconstitutional seizure.           Our review of a trial

court's denial of a motion to suppress is limited to "whether

the trial court's findings of fact are supported by competent

evidence, and whether these findings of fact support the court's

conclusions of law."       State v. Pulliam, 139 N.C. App. 437, 439-

40, 533 S.E.2d 280, 282 (2000).           "The trial court's conclusions

of law . . . are fully reviewable on appeal."             State v. Hughes,

353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000).

    It is well established that

            "[w]hen   considering   a   challenge   to   a
            checkpoint,   the    reviewing    court   must
            undertake a two-part inquiry to determine
            whether the checkpoint meets constitutional
            requirements.      First,   the   court   must
            determine the primary programmatic purpose
            of the checkpoint. . . . Second, if a court
            finds that police had a legitimate primary
            programmatic   purpose    for   conducting   a
            checkpoint . . . [the court] must judge its
                                 -6-
         reasonableness,           hence,              its
         constitutionality, on the basis          of   the
         individual circumstances."

State v. Jarrett, 203 N.C. App. 675, 677, 692 S.E.2d 420, 423

(2010) (quoting State v. Veazey, 191 N.C. App. 181, 185-86, 662

S.E.2d 683, 686-87 (2008)).

    Defendant argues that the trial court erred in concluding

that the primary programmatic purpose of the checkpoint was the

detection of impaired driving.     In support of this conclusion,

the trial court found, in pertinent part, that:

         3.   Sgt. David B. Sloan testified that he
              was the supervising officer on scene
              and he developed the written checkpoint
              plan (State's Exhibit #1) for the
              evening.     This location was chosen
              several weeks before the checkpoint was
              conducted[.]

         4.   Sgt. Sloan testified that the purpose
              of the checkpoint was DWI detection.

         . . . .

         7.   Sgt. Sloan testified that the location
              was chosen due to the high vehicle
              crash rate, and high number of DWI
              arrests in that immediate area.  There
              are also over 100 restaurants and bars
              in that area.

         8.   Sgt. Sloan testified that this area had
              previously been used for checkpoints
              approximately four times with double
              digit DWI arrests per checkpoint.

    Defendant argues that findings 7 and 8 are not supported by

competent evidence because Sergeant Sloan's testimony was based
                                           -7-
only    on    his    personal     knowledge       and       is   not        corroborated     by

documentary         statistical      evidence.          Defendant           points    to    CMPD

crime statistics reports submitted into evidence during Sergeant

Sloan's cross-examination that listed only three DWIs in the

vicinity of the checkpoint in the year prior to the checkpoint.

       Defendant       cites    no   authority,         and      we    have     found      none,

requiring      an      officer       to   corroborate            his        testimony       with

documentary statistical evidence.                 This Court has, in fact, held

that    comparable       testimony        based        on    personal        knowledge       and

experience as a police officer constitutes competent evidence of

a checkpoint's programmatic purpose.                        See State v. Dippel, ___

N.C. App ___, ___ S.E.2d. ___, 2014 N.C. App. LEXIS 1260, *10,

2014   WL    6907567,     *4    (2014)     (unpublished)          (holding       Sergeant's

testimony that he chose DWI checkpoint location based on his

personal knowledge of prior DWI arrests and crashes in area

constituted         competent     evidence    in        support        of    trial    court's

finding that primary programmatic purpose of checkpoint was DWI

detection).

       Further,      Sergeant     Sloan    explained          that     the     CMPD   reports

included only incidents reported by 911 dispatch and by calls

for service -- the reports did not include officer-generated

arrests.      Therefore, Sergeant Sloan explained, the reports were

not    an    accurate    representation           of    the      total       number   of     DWI
                                             -8-
arrests.       To    the       extent     that       the    documentary          statistical

evidence conflicted with Sergeant Sloan's testimony regarding

the   frequency      of    DWI        arrests      and     vehicle      crashes      in    the

checkpoint    area,       it    is    well   settled        that      "[i]f      there    is    a

conflict between the state's evidence and defendant's 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."      State v. Chamberlain, 307 N.C. 130, 143, 297 S.E.2d

540, 548 (1982).               Here, Sergeant Sloan's failure to produce

supporting    statistical            documents       presented     a    question     of    the

weight and credibility to be given his testimony, which was

solely for the trial court to determine.

      Next,    defendant         argues      that        this    case       is    materially

indistinguishable from State v. Rose, 170 N.C. App. 284, 612

S.E.2d 336 (2005).              In Rose, this Court held that the trial

court erred in accepting at face value the officers' stated

purpose of a checkpoint stop without conducting a closer review

of all the evidence presented.                   Id. at 289, 612 S.E.2d at 340.

Defendant asserts that "[t]he only thing that distinguishes this

case from Rose is the identity of the officer who testified

regarding the primary purpose                   --    a supervisor as opposed to

'individual officers acting at the scene.'"                             (Quoting id. at

290, 612 S.E.2d at 340.)              We disagree.
                                     -9-
    Defendant       misconstrues    the    holding     in   Rose.      In    Rose,

although    the   officers   at    the    checkpoint    testified      that    the

purpose of the stop was to check licenses and registrations, the

officers also testified that the checkpoint was spontaneous, and

no plan had been created ahead of time.               Id. at 291, 612 S.E.2d

at 341.    In addition, there was no evidence presented as to why

the specific location for the checkpoint was chosen or if that

area had a problem with unlicensed or unregistered drivers.                    Id.

at 294, 612 S.E.2d at 342-43.             Additionally, four of the five

officers involved in the checkpoint were narcotics detectives,

and the defendant had been arrested for possession of drugs and

a weapon and not for a faulty license or registration.                      Id. at

285, 290, 612 S.E.2d at 338, 340.              In conducting the checkpoint,

one officer would check the drivers' licenses and registrations

while a second officer would "scan the inside of the vehicle and

walk around it."       Id. at 292, 612 S.E.2d at 341.               This Court

noted that this evidence suggested that "the function of the

second    officer   may   have    been    to   scan   for   possible   criminal

activity."    Id.

    As explained by this Court in State v. Burroughs, 185 N.C.

App. 496, 501, 648 S.E.2d 561, 565 (2007), "our holding in Rose

was that where contradictory evidence exists as to the actual

primary purpose of a checkpoint program, the trial court must
                                            -10-
examine the available evidence to determine the actual purpose,

because bare assertions of a constitutional purpose cannot be

allowed to mask actual purposes that are unconstitutional."                          As

this Court further explained in Burroughs, in Rose,

               this Court was forced to closely examine the
               facts surrounding the checkpoint's purpose
               because its alleged purpose -- to check
               licenses   and    registrations,     which   the
               Supreme Court has held to be constitutional
               -- was belied by substantial evidence to the
               contrary showing the checkpoint's actual
               purpose was almost certainly to check for
               narcotics, which the Supreme Court has
               expressly   held    to   be    unconstitutional.
               This, then, is why this Court held in Rose
               that the trial court was required to make
               findings of fact as to the checkpoint's
               purpose:   Not because every trial court in
               every case must make such findings of fact,
               but because in this specific case, bare
               statements   that    the    checkpoint   had   a
               constitutional purpose were unreliable.

Id. at 502, 648 S.E.2d at 565.

       In     this    case,    unlike       in   Rose,    there   was    no   evidence

presented that suggests that the checkpoint was for any purpose

other than to detect DWIs.                  Thus, we conclude that the trial

court did not err in concluding that the primary programmatic

purpose for the checkpoint was DWI detection.                          See Burroughs,

185    N.C.    App.    at     503,    648    S.E.2d      at   565-66    (holding   that

evidence was sufficient to establish constitutional purpose when

no    evidence       suggested       that   stated    purpose     of    checkpoint   --
                                        -11-
checking      for     sobriety     --      was       a     mask    for      another,

unconstitutional purpose).

       "After finding a legitimate programmatic purpose, the trial

court must determine whether the roadblock was reasonable and,

thus, constitutional."           State v. Townsend, ___ N.C. App. ___,

___,    762    S.E.2d    898,      907    (2014).            In    analyzing      the

reasonableness of a checkpoint, this Court balances the public's

interest and the individual's privacy interest by applying the

three-prong test set out in Brown v. Texas, 443 U.S. 47, 50-51,

61 L. Ed. 2d 357, 362, 99 S. Ct. 2637, 2640 (1979).                            "Under

Brown, the trial court must consider '[1] the gravity of the

public concerns served by the seizure[;] [2] the degree to which

the seizure advances the public interest[;] and [3] the severity

of the interference with individual liberty.'"                          Jarrett, 203

N.C. App. at 679, 692 S.E.2d at 425 (quoting Rose, 170 N.C. App.

at 293-94, 612 S.E.2d at 342).

       "The   first   Brown   factor      --   the       gravity   of    the   public

concerns served by the seizure -- analyzes the importance of the

purpose of the checkpoint.           This factor is addressed by first

identifying the primary programmatic purpose . . . and then

assessing the importance of the particular stop to the public."

Rose, 170 N.C. App. at 294, 612 S.E.2d at 342 (internal citation

omitted).     This Court has held that the first Brown factor is
                                       -12-
satisfied where the purpose of the stop is DWI detection.                      See

Townsend, ___ N.C. App. at ___, 762 S.E.2d at 908.                Accordingly,

we hold that the first Brown factor is met in this case.

    The     second     Brown   factor    "requires      the    trial   court    to

determine   whether     '[t]he    police      appropriately     tailored    their

checkpoint stops to fit their primary purpose.'"                   Id. at ___,

762 S.E.2d at 908 (quoting Veazey, 191 N.C. App. at 191, 662

S.E.2d at 690).

            "Our Court has previously identified a
            number of non-exclusive factors that courts
            should consider when determining whether a
            checkpoint    is   appropriately    tailored,
            including:   whether   police   spontaneously
            decided to set up the checkpoint on a whim;
            whether police offered any reason why a
            particular road or stretch of road was
            chosen for the checkpoint; whether the
            checkpoint had a predetermined starting or
            ending time; and whether police offered any
            reason why that particular time span was
            selected."

Id. at ___, 762 S.E.2d at 908 (quoting Veazey, 191 N.C. App. at

191, 662 S.E.2d at 690).

    Here,     the    trial     court    found    that   the    checkpoint      was

scheduled   to   run    from   11:00    p.m.    until   3:30   a.m.;   that    the

location was chosen in advance; the location was selected due to

a high vehicle crash rate and high number of DWI arrests in the

area, and because there are over 100 restaurants and bars in the

area; and that the area had previously been used for checkpoints
                                       -13-
approximately      four    times   with    double    digit      DWI   arrests    per

checkpoint.      As we have already concluded, these findings are

supported by competent evidence in the record.

      Defendant, however, points to evidence that the timing and

placement of the checkpoints -- two per year in each of 13

divisions throughout the city -- is linked to the availability

of the BAT mobile and the timing of the "Booze it or Lose it"

campaign.      We fail to see how those circumstances conflict with

the   above    findings    or   otherwise       further    defendant's      argument

that the checkpoint was not appropriately tailored to detect

impaired driving.         Indeed, the BAT mobile allows the officers to

conduct the checkpoint more efficiently.

      We hold that the trial court's findings "indicate that the

trial court considered appropriate factors to determine whether

the   checkpoint    was    sufficiently       tailored     to   fit   its   primary

purpose, satisfying the second Brown prong."                    Jarrett, 203 N.C.

App. at 680-81, 692 S.E.2d at 425.               See also Townsend, ___ N.C.

App. at ___, 762 S.E.2d at 908 (second Brown prong satisfied

where trial court found that DWI checkpoint had fixed starting

and   ending    times,    checkpoint      was    located    near   shopping      area

where   alcohol     was     served,    location      was    selected     based    on

impaired      driving     statistics,     and     checkpoint       was   conducted

according to written plan).
                                   -14-
     Defendant   concedes   that    the   third   Brown   factor   --   the

severity of the interference with individual liberty -- is met.

Consequently, we conclude that the trial court's order contained

adequate findings of fact, supported by competent evidence, to

identify the primary programmatic purpose of the checkpoint and

to satisfy the three factors of the Brown reasonableness test.

These findings in turn support the trial court's conclusion that

the checkpoint was constitutional.         Accordingly, we affirm the

suppression order.1

                                    II

     Defendant next argues that the trial court erred by failing

to declare a mistrial after the arresting officer testified that

he performed a portable breath test on defendant.            We review a

trial court's decision whether to declare a mistrial for abuse

of discretion.   State v. McCarver, 341 N.C. 364, 383, 462 S.E.2d

25, 36 (1995).

     This issue is controlled by State v. Fuller, 176 N.C. App.

104, 626 S.E.2d 655 (2006).        In Fuller, the arresting officer

was asked during the defendant's DWI trial what he relied upon
     1
      Defendant additionally argued that various other findings
of fact were not supported by sufficient evidence, but, even
accepting   without   deciding  the   validity  of   defendant's
arguments, she has failed to show that any of these other
findings of fact are material to the trial court's determination
of the primary programmatic purpose of the stop and that the
roadblock was reasonable. We, therefore, need not address those
arguments.
                                          -15-
to determine that the defendant was impaired prior to arresting

her.        He testified that he relied upon "'[a] strong odor of

alcohol . . . red glassy eyes, her speech, and then also with

the backings of an Alco-Sensor test that was performed.'"                       Id.

at   109,     626   S.E.2d   at    658.     The   trial    court   sustained    the

defendant's objection to the officer's reference to the Alco-

Sensor test and instructed the jury to disregard the statement,

but denied defendant's motion for a mistrial.                    Id. at 106, 626

S.E.2d at 657.

       On    appeal,   this       Court   held    that    the   admissibility   of

portable alcohol screening tests is governed by N.C. Gen. Stat.

§ 20-16.3(d) (2003).          Fuller, 176 N.C. App. at 109, 626 S.E.2d

at 658.      Pursuant to N.C. Gen. Stat. § 20-16.3(d) (2003),

              [t]he results of an alcohol screening test
              or a driver's refusal to submit may be used
              by a law-enforcement officer, a court, or an
              administrative agency in determining if
              there are reasonable grounds for believing
              that the driver has committed an implied-
              consent   offense    under   G.S.   20-16.2.
              Negative or low results on the alcohol
              screening test may be used in factually
              appropriate cases by the officer, a court,
              or an administrative agency in determining
              whether a person's alleged impairment is
              caused by an impairing substance other than
              alcohol.     Except as provided in this
              subsection,   the  results  of   an  alcohol
              screening test may not be admitted in
              evidence in any court or administrative
              proceeding.
                                     -16-
    The Court in Fuller reasoned that the officer's testimony

did not violate N.C. Gen. Stat. § 20-16.3(d) because he "did not

testify regarding the results of the Alco-Sensor test, only that

one was administered."      176 N.C. App. at 109, 626 S.E.2d at 658.

Because "[t]he results of an alcohol screening test may be used

by an officer to determine if there are reasonable grounds to

believe that a 'driver has committed an implied-consent offense

under G.S. 16.2[,]'" the officer's "testimony that he relied on

the alcohol screening in making the determination that he had

reasonable   grounds   to   arrest    defendant   for   DWI   was   properly

admissible."   Id. (quoting N.C. Gen. Stat. § 20-16.3(d) (2003)).

    Subsequent   to    Fuller,   our    General   Assembly    amended   N.C.

Gen. Stat. § 20-16.3(d).      See 2006 N.C. Sess. Law 253 § 7.          N.C.

Gen. Stat. § 20-16.3(d) (2013) provides, in relevant part, that:

         The fact that a driver showed a positive or
         negative result on an alcohol screening
         test,    but   not    the   actual  alcohol
         concentration result . . . is admissible in
         a court . . . in determining if there are
         reasonable grounds for believing:

                (1)    That the driver has committed an
                       implied-consent offense under G.S.
                       20-16.2; and

                (2)    That   the   driver   had   consumed
                       alcohol and that the driver had in
                       his   or    her   body    previously
                       consumed alcohol, but not to prove
                       a         particular         alcohol
                       concentration.
                                           -17-
       The    amended    statute      is     consistent    with      Fuller's    holding

that    the    fact    that    an    Alco-Sensor       test    was     administered     is

admissible to show that the arresting officer had reasonable

grounds to believe that the defendant had committed an implied-

consent offense.

       Here,    Officer       Jamieson       testified    that    he    believed      that

defendant was impaired "based on the [field sobriety] tests, the

odor,    and    a     portable      breath    test."      Defendant       argues      that

Officer       Jamieson's       testimony       is   distinguishable           from     the

testimony      in     Fuller   because       "[u]nlike    in     Fuller,      where    the

testimony regarding the Alco-Sensor was made in the probable-

cause    context,       Officer      Jamieson's     testimony        occurred    at    the

close of the State's case, at a point at which the Prosecutor's

questions appeared to lead Officer Jamieson to communicate to

the jury that, inter alia, Defendant was guilty."                        The testimony

in both cases, however, was made in the presence of the jury and

in response to a question regarding what the officer relied upon

in determining that the defendant was impaired prior to arrest.

See Fuller, 176 N.C. App. at 109, 626 S.E.2d at 658.                            Officer

Jamieson's testimony, therefore, like the testimony in Fuller,

addressed      the    question      of   probable      cause     and    was   admissible

under N.C. Gen. Stat. § 20-16.3(d).
                                               -18-
       Even     assuming         that     Officer          Jamieson's        testimony          was

inadmissible,         defendant         has     failed       to     show     that       she     was

prejudiced.        Immediately after Officer Jamieson's testimony, the

trial court instructed the jury to dismiss the statement and not

consider      it    in     its   deliberations.               Additionally,         there       was

substantial        evidence      of     defendant's        guilt.          Officer      Jamieson

testified      that       defendant      had    a     very    strong       odor    of     alcohol

coming from her person; that she had red, watery eyes; that she

admitted to drinking prior to driving; and that she performed

poorly on all three field sobriety tests.                             Significantly, the

Intoximeter breath test indicated that defendant had an alcohol

concentration of .08.

       The Intoximeter breath test alone constituted sufficient

evidence to convict defendant of DWI.                        See N.C. Gen. Stat. § 20-

138.1(a)(2) (2013) (providing that person is guilty of DWI if

she drives a vehicle "[a]fter having consumed sufficient alcohol

that   [s]he       has,    at    any    relevant       time    after       the    driving,      an

alcohol concentration of 0.08 or more" and that "[t]he results

of a chemical analysis shall be deemed sufficient evidence to

prove a       person's alcohol concentration").                        In light of this

evidence,      defendant         has     failed       to     show     that        there    is    a

reasonable possibility that had the portable breath test not

been mentioned, a different result would have been reached at
                               -19-
trial.   See N.C. Gen. Stat. § 15A-1443 (2013).   We hold that the

trial court did not abuse its discretion by failing to declare a

mistrial.


    Affirmed.

    Judges STEPHENS and ERVIN concur.

    Report per Rule 30(e).
