              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA15-1188

                             Filed: 20 September 2016

Union County, No. 14 CRS 50762

STATE OF NORTH CAROLINA

             v.

ERIC LAMAR LINDSEY


      Appeal by defendant from judgments entered 14 April 2015 by Judge Martin

B. McGee in Union County Superior Court.          Heard in the Court of Appeals

29 March 2016.


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

      Sharon L. Smith for defendant.


      McCULLOUGH, Judge.


      Eric Lamar Lindsey (“defendant”) appeals from judgments entered upon his

convictions for habitual driving while impaired and driving while license revoked for

impaired driving. For the following reasons, we find no error.

                                 I.    Background

      On 27 May 2014, a Union County Grand Jury indicted defendant on charges

of DWI, habitual DWI, and DWLR. The underlying DWI was later dismissed as the

State chose to proceed on the more serious habitual DWI charge.
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       Prior to the case coming on for trial, defendant filed a motion to suppress

evidence and dismiss with a supporting affidavit on 20 January 2015. Defendant’s

motion came on for hearing in Union County Superior Court before the Honorable W.

David Lee on 21 January 2015. Although defendant’s motion sought to suppress

evidence of the stop, his statements, and his arrest, defendant indicated at the

hearing that he was only focusing on the probable cause to arrest.                On

26 January 2015, the trial court filed an order denying defendant’s motion to

suppress.

       Defendant’s case was then called for jury trial on 13 April 2015 in Union

County Superior Court before the Honorable Martin McGee. The State’s only witness

was Officer Timothy Sykes, who pulled defendant over and arrested defendant in the

early morning hours of 21 February 2014. Officer Sykes’ testimony tended to show

that at approximately 2:47 in the morning on 21 February 2014, he pulled behind

defendant at a stoplight. Officer Sykes then ran the tag on defendant’s vehicle and

determined it was expired.     Officer Sykes initiated a traffic stop at that time.

Defendant made two turns and parked in a handicap spot in a McDonald’s parking

lot.   Officer Sykes did not notice any driving mistakes.       Once Officer Sykes

approached the vehicle, defendant informed the officer that his license was suspended

for DWI and provided the officer with an identification card. Officer Sykes noticed a

medium odor of alcohol coming from defendant’s breath and that defendant’s eyes



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were red and glassy. Officer Sykes then returned to his patrol car, ran defendant’s

information, and confirmed that defendant’s license was suspended for DWI. Once

backup arrived, Officer Sykes returned to defendant’s vehicle and asked defendant to

exit the vehicle in order to perform field sobriety tests. Defendant complied and

exited his vehicle without any problem. Officer Sykes first performed a horizontal

gaze nystagmus test and noted 5 out of 6 indicators of impairment. Officer Sykes

then made multiple attempts to conduct a portable breath test but defendant did not

provide an adequate breath sample to register on the device.          Upon further

questioning, defendant informed Officer Sykes that he had consumed three beers at

approximately 6:00 the evening before. Based on his observations of defendant,

Officer Sykes formed the opinion that defendant had consumed a sufficient quantity

of alcohol so as to appreciably impair both his mental and physical faculties and

placed defendant under arrest. Defendant later refused a breath test at the police

station. Officer Sykes further testified that he was with defendant for approximately

two hours and his opinion that defendant was appreciably impaired did not change.

      During the State’s evidence, and out of the presence of the jury, defendant

stipulated to prior DWI convictions, at least in part to keep evidence of the prior

convictions from being mentioned in front of the jury. Defendant also stipulated that

his license was revoked for a DWI and pled guilty to DWLR as part of a plea

arrangement. The trial judge accepted the plea, leaving only the habitual DWI



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charge for the jury. Upon further discussions, it was agreed that the case would

proceed as a normal DWI case, since defendant had already stipulated to prior DWI

convictions supporting the habitual portion of the habitual DWI charge.

      At the close of the State’s evidence, and again at the close of all the evidence,

defendant moved to dismiss. The trial judge denied those motions.

      On 14 April 2015, the jury returned a verdict finding defendant guilty of DWI.

Upon the guilty verdict, the trial judge entered judgment sentencing defendant to a

term of 25 to 39 months for habitual DWI. The trial judge also entered judgment

imposing a consecutive two day sentence for DWLR for impaired driving. Defendant

gave notice of appeal orally in court.

                                   II.    Discussion

      Defendant now raises the following three issues on appeal: whether the trial

court (1) erred in denying his motion to suppress; (2) erred in denying his motions to

dismiss; and (3) erred in denying him the final argument to the jury.

                              1.     Motion to Suppress

      Defendant first argues the trial court erred in denying his motion to suppress

and dismiss because the totality of the circumstances in this case were insufficient to

constitute probable cause to arrest him for DWI.

      Our review of a trial court’s denial of a motion to suppress is “strictly limited

to determining whether the trial judge’s underlying findings of fact are supported by



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competent evidence, in which event they are conclusively binding on appeal, and

whether those factual findings in turn support the judge’s ultimate conclusions of

law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). “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).

      Our Courts have long recognized that

             [a]n arrest is constitutionally valid when the officers have
             probable cause to make it. Whether probable cause exists
             depends upon “whether at that moment the facts and
             circumstances within their knowledge and of which they
             had reasonably trustworthy information were sufficient to
             warrant a prudent man in believing that the [suspect] had
             committed or was committing an offense.”

State v. Streeter, 283 N.C. 203, 207, 195 S.E.2d 502, 505 (1973) (quoting Beck v. Ohio,

379 U.S. 89, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964)); see also State v. Eubanks, 283

N.C. 556, 559-60, 196 S.E.2d 706, 708 (1973). This Court has further explained that:

             “[P]robable cause requires only a probability or substantial
             chance of criminal activity, not an actual showing of such
             activity.” Illinois v. Gates, 462 U.S. 213, 244 n. 13, 103 S.
             Ct. 2317, 76 L. Ed. 2d 527 (1983). “Probable cause for an
             arrest has been defined to be a reasonable ground of
             suspicion, supported by circumstances strong in
             themselves to warrant a cautious man in believing the
             accused to be guilty.” State v. Streeter, 283 N.C. 203, 207,
             195 S.E.2d 502, 505 (1973) (citation omitted). “The
             probable-cause standard is incapable of precise definition
             or quantification into percentages because it deals with
             probabilities and depends on the totality of the
             circumstances.” Maryland v. Pringle, 540 U.S. 366, 371,
             124 S. Ct. 795, 157 L. Ed. 2d 769 (2003).


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State v. Teate, 180 N.C. App. 601, 606-607, 638 S.E.2d 29, 33 (2006).

      The trial court’s order in this case contained the following findings of fact:

             1. On February 21, 2014, at approximately 2:53 a.m.
                Patrol Officer Timothy Sykes (“Officer Sykes”) . . .
                observed another vehicle as it proceeded ahead of him
                on the highway. Officer Sykes ran the tag on the vehicle
                and determined that the tag had expired.

             2. Officer Sykes then activated his blue lights and followed
                the defendant, who properly signaled both right and left
                turns before entering a McDonald’s parking lot where
                he parked well within the lines of a space marked for
                handicapped. Officer Sykes approached the vehicle and
                observed the defendant to be the driver and sole
                occupant of the Ford Taurus vehicle he was operating.
                Upon Officer Sykes’s request the defendant produced
                only an identification card, admitting to the officer that
                his license was suspended. Officer Sykes smelled a
                moderate odor of alcohol coming from the defendant.
                He also observed the defendant’s eyes to be red and
                glassy.

             3. Officer Sykes, trained in the administration of the
                horizontal gaze nystagmus (“HGN”), administered the
                HGN test to the defendant, telling the defendant not to
                move his head and to follow the officer’s finger with his
                eyes only. Of the six clues, or indicators of impairment
                about which Officer Sykes was trained and
                knowledgeable, he observed five such indications of
                impairment upon administering the test to the
                defendant.

             4. Officer Sykes then directed the defendant to blow into a
                properly tested, calibrated and approved alco-sensor
                device.   The defendant failed on at least three
                successive occasions to provide a sufficient sample of
                breath to enable a reading on the alco-sensor. Officer
                Sykes treated these failures as a refusal to submit to


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                the alco-sensor.

             5. The defendant admitted to Officer Sykes that he had
                consumed three Milwaukee Lite beers, but informed the
                officer that he had last consumed around 6:00 p.m. that
                afternoon, approximately 9 hours before the stop.

             6. Following these events, Officer Sykes arrested the
                defendant for driving while impaired.

Based on these findings, the trial court concluded as follows:

             2. Under the totality of the circumstances, and after
                carefully examining the attenuating facts and
                circumstances, including the officer’s observations prior
                to arrest, the officer’s administration of the HGN test,
                the defendant’s responses to the officer’s investigatory
                questions, and the refusal of the defendant to submit to
                the alco-sensor, the Court concludes that the facts and
                circumstances justified the officer’s determination that
                reasonable grounds existed for believing that the
                defendant had committed an implied-consent offense.

             3. Under the totality of the circumstances Officer Sykes
                possessed sufficient reliable and lawfully-obtained
                information at the time of the defendant’s arrest to
                constitute a reasonable ground of suspicion supported
                by circumstances sufficiently strong in themselves to
                warrant a cautious man in believing that the defendant
                was guilty of driving while impaired. The arrest and
                seizure of the defendant, as well as the evidence
                gathered by Officer Sykes was justified under the law.

             4. The stop of the defendant’s vehicle was based upon a
                reasonable articulable suspicion . . . and the subsequent
                arrest of the defendant did not violate the defendant’s
                rights under the Fourth Amendment of the United
                States Constitution, Article I, Section 20 of the North
                Carolina Constitution, or the provisions of Chapter 15A
                of the North Carolina General Statutes.


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      Although defendant seems to take issue with the trial court’s failure to issue

findings of fact regarding police lights flashing during the HGN test, or the effect the

flashing police lights may have had on the HGN test, defendant does not challenge

any particular finding of fact issued by the trial court. Instead, defendant challenges

the trial court’s determination that its findings of fact support the conclusion that

there was probable cause to arrest defendant for DWI.          In doing so, defendant

emphasizes that the trial judge thought this was “a really close case.” Defendant

then distinguishes the present case from cases in which this Court has upheld trial

courts’ probable cause determinations by identifying circumstances in those cases

that were not present in this case; namely, that defendant was not driving poorly, did

not commit a traffic violation, was not involved in an accident, did not have slurred

speech, had no problem exiting the vehicle, was steady on his feet, was cooperative

and able to follow directions, and there was not an open container of alcohol visible

in the vehicle. See Teate, 180 N.C. App. at 604-606, 638 S.E.2d at 32-33 (probable

cause to arrest for DWI where the defendant failed to stop at a license checkpoint,

there was an odor of alcohol on the defendant, the defendant admitted she had been

drinking, the defendant’s eyes were “glassy” and she had slurred speech, the

defendant had difficulty performing counting tests, and breath samples tested with

an alco-sensor instrument indicated intoxication); Richardson v. Hiatt, 95 N.C. App.

196, 200, 381 S.E.2d 866, 868 (1989) (probable cause to arrest for impaired driving



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where there was a strong odor of alcohol on the defendant, the defendant had been

involved in a one-vehicle accident in excellent driving conditions in the middle of the

afternoon, and the defendant claimed to have fallen asleep); State v. Simmons, 205

N.C. App. 509, 525-26, 698 S.E.2d 95, 106-107 (2010) (the defendant was driving

poorly, there was a strong odor of alcohol coming from the defendant’s breath, the

defendant admitted he had consumed a couple of beers, there were beer bottles in the

passenger area of the vehicle, one of which was half full, the defendant’s eyes were

red and glassy, the defendant’s speech was slightly slurred, and alco-sensor tests of

the defendant’s breath were positive for alcohol; but probable cause to arrest was

upheld solely based on the defendant’s possession of an open container of alcohol in

the vehicle). Thus, defendant contends the evidence of impairment in the present

case does not rise to the level of the evidence in other cases. Defendant analogizes

the facts in the present case to the facts in State v. Sewell, __ N.C. App. __, 768 S.E.2d

650 (available at 2015 WL 67193), disc. rev. denied, 368 N.C. 239, 768 S.E.2d 851

(2015), in which this Court affirmed the trial court’s determination that there was

not probable cause to arrest the defendant for DWI. Defendant contends that there

was more evidence of impairment in Sewell then in the present case and, yet, there

still was not probable cause to arrest for DWI in Sewell.

      We are not persuaded by defendant’s arguments. Simply because the facts in

this case do not rise to the level of the facts in the cases distinguished by defendant



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does not mean the trial court’s findings in this case are insufficient to support a

probable cause determination. “Whether probable cause exists to justify an arrest

depends on the ‘totality of the circumstances’ present in each case.” State v. Sanders,

327 N.C. 319, 339, 395 S.E.2d 412, 425 (1990) cert. denied, 498 U.S. 1051, 112 L. Ed.

2d 782 (1991). The evidence in this case supports the following findings by the trial

court: the officer smelled a moderate odor of alcohol coming from defendant and

observed defendant’s eyes to be red and glassy; the officer observed five of six

indicators of impairment upon administering an HGN test to defendant; and

defendant admitted to the officer that he had consumed three beers hours before the

stop. Without even considering defendant’s multiple failed attempts to provide an

adequate breath sample on an alco-sensor device, we hold the trial court’s findings

support its conclusion that there was probable cause to arrest defendant for DWI.

      Additionally, we note that Sewell is not controlling in the present case. First

and foremost, Sewell is an unpublished opinion and does not constitute controlling

legal authority. See N.C. R. App. P. 30(e)(3) (2016). Second, although some facts are

similar, there are key distinctions between the facts in Sewell and the present case.

In Sewell, the defendant was stopped at a checkpoint and a trooper detected a strong

odor of alcohol “emanating from [the] defendant’s vehicle, not from the defendant,

who was accompanied by a passenger.” 2015 WL 67193 at *3. The trooper also

observed that the defendant had red and glassy eyes, the defendant exhibited six of



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six indicators on the HGN test, and the defendant tested positive for the presence of

alcohol on two alco-sensor breath tests. The trial court, however, determined the

facts and circumstances known to the trooper were insufficient to establish probable

cause to believe the defendant had committed the offense of DWI where the trooper

“did not testify that [the] defendant herself was the source of the odor of alcohol[]”

and the defendant did not have slurred speech, retrieved her license and registration

without difficulty or delay, was steady on her feet, was cooperative, and exhibited no

signs of intoxication on the “[o]ne-[l]eg [s]tand” and “[w]alk and [t]urn” tests. Id. This

court affirmed the grant of the defendant’s motion to suppress. Id. Contrary to the

facts in Sewell, the evidence in this case was that defendant was the sole occupant of

the vehicle and the officer smelled a medium odor of alcohol coming from defendant’s

breath. We find this factual discrepancy to be significant.

      It is the trial judge’s role to weigh the credibility of the witnesses and the

evidence. Here, the evidence supports the trial court’s findings, which in turn support

the conclusion that the officer had probable cause to arrest defendant for DWI.

                               2.      Motion to Dismiss

      Defendant also argues the trial judge erred in denying his motions to dismiss

the DWI charge for insufficiency of the evidence.

      “This Court reviews the trial court’s denial of a motion to dismiss de novo.”

State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). “ ‘Upon defendant’s



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motion for dismissal, the question for the Court is whether there is substantial

evidence (1) of each essential element of the offense charged, or of a lesser offense

included therein, and (2) of defendant’s being the perpetrator of such offense. If so,

the motion is properly denied.’ ” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451,

455 (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)), cert.

denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000). “Substantial evidence is such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”

State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). “In making its

determination, the trial court must consider all evidence admitted, whether

competent or incompetent, in the light most favorable to the State, giving the State

the benefit of every reasonable inference and resolving any contradictions in its

favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied, 515

U.S. 1135, 132 L. Ed. 2d 818 (1995).

             Circumstantial evidence may withstand a motion to
             dismiss and support a conviction even when the evidence
             does not rule out every hypothesis of innocence. If the
             evidence presented is circumstantial, the court must
             consider whether a reasonable inference of defendant’s
             guilt may be drawn from the circumstances. Once the court
             decides that a reasonable inference of defendant’s guilt
             may be drawn from the circumstances, then it is for the
             jury to decide whether the facts, taken singly or in
             combination, satisfy [it] beyond a reasonable doubt that the
             defendant is actually guilty.

Fritsch, 351 N.C. at 379, 526 S.E.2d at 455 (citations and quotation marks omitted).



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      Relevant to this case, the offense of impaired driving is defined as follows: “[a]

person commits the offense of impaired driving if he drives any vehicle upon any

highway, any street, or any public vehicular area within this State . . . [w]hile under

the influence of an impairing substance[.]” N.C. Gen. Stat. § 20-138.1(a)(1) (2015).

Thus, “[t]he essential elements of DWI: are (1) [d]efendant was driving a vehicle; (2)

upon any highway, any street, or any public vehicular area within this State; (3) while

under the influence of an impairing substance.” State v. Mark, 154 N.C. App. 341,

345, 571 S.E.2d 867, 870 (2002), aff'd per curiam, 357 N.C. 242, 580 S.E.2d 693 (2003).

The only element at issue in this case is the third element, the impairment of

defendant.

      This Court has explained that “[b]efore [a] defendant can be convicted under

N.C. Gen. Stat. § 20-138.1(a)(1), the State must prove beyond a reasonable doubt that

defendant had ingested a sufficient quantity of an impairing substance to cause his

faculties to be appreciably impaired.       This means a finding that defendant's

impairment could be recognized and estimated.” State v. Phillips, 127 N.C. App. 391,

393, 489 S.E.2d 890, 891 (1997) (internal citation omitted). In Phillips, this Court

held that there was sufficient evidence the defendant was appreciably impaired to

satisfy the elements of N.C. Gen. Stat. § 20-138.1(a)(1) when reviewing the record in

the light most favorable to the State where there was evidence of erratic driving, a




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pronounced odor of alcohol on the defendant, and the defendant admitted to drinking

significantly earlier in the evening. Id. at 393, 489 S.E.2d at 892.

      Similar to his argument concerning the denial of his motion to suppress,

defendant contends the evidence of intoxication in this case is distinguishable from

evidence in prior cases in which our courts determined there was sufficient evidence

of impairment to survive motions to dismiss. See id.; State v. Norton, 213 N.C. App.

75, 79-80, 712 S.E.2d 387, 390-91 (2011) (sufficient evidence of impairment where

there were witnesses to erratic driving, the defendant exhibited superhuman

strength when officers attempted to apprehend him, a witness smelled alcohol on the

defendant, and blood tests established the defendant’s alcohol and cocaine use); State

v. Scott, 356 N.C. 591, 597-98, 573 S.E.2d 866, 869-70 (2002) (sufficient evidence of

impairment where there was a strong odor of alcohol in the defendant’s vehicle, the

officer observed an open container of beer in the passenger area of the vehicle, the

defendant’s coat was wet from what appeared to be beer, and the defendant’s speech

was slurred). Defendant emphasizes that in those cases, “the defendant was involved

in an accident, there was evidence of faulty driving or erratic behavior, alcohol was

found in the car, and/or there was substantial evidence that the defendant was over

the legal limit for alcohol[,]” facts which are not present in this case. Defendant

instead compares his case to State v. Hough, 229 N.C. 532, 50 S.E.2d 496 (1948), in

which the Court held there was insufficient evidence of impairment to raise more



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than a suspicion or conjecture of impairment where the only evidence was from two

officers who arrived at the scene of an accident approximately 25 minutes after the

accident, one of whom testified that he opined the defendant driver was intoxicated

based on the fact that he smelled something on the defendant’s breath, and the other

who testified he was of the opinion the defendant was intoxicated or under the

influence of something. Id. at 533-34, 50 S.E.2d at 496-97. But in Hough, both

officers testified that they were unsure whether the defendant’s condition that night

was the result of impairment or the accident. Id. at 533, 50 S.E.2d at 497. The Court

reasoned that “[i]f the witnesses who observed the defendant immediately after his

accident, were unable to tell whether or not he was under the influence of an

intoxicant or whether his condition was the result of the injuries he had just

sustained, we do not see how the jury could do so.” Id.

      As in the first issue on appeal, we agree that there may have been more

evidence of impairment in the cases cited by defendant. Yet, we must judge the facts

of the present case, which provide more evidence of impairment than in Hough.

      Here the evidence was that defendant pulled into a handicap spot, Officer

Sykes noticed a moderate odor of alcohol coming from defendant’s breath, defendant

had red and glassy eyes, defendant admitted to consuming alcohol hours before,

Officer Sykes noted five out of six indicators of impairment on the HGN test, and

Officer Sykes believed that defendant was impaired. Viewing these facts in the light



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most favorable to the State, and despite other evidence tending to show defendant

was driving properly and was steady on his feet, we hold the evidence in this case

was sufficient to survive defendant’s motions to dismiss.

                         3.     Final Argument to the Jury

      In defendant’s final argument on appeal, defendant contends the trial court

erred in denying him the final closing argument to the jury.

      Pertinent to this issue, Rule 10 of the North Carolina General Rules of Practice

for the Superior and District Courts provides that “if no evidence is introduced by the

defendant, the right to open and close the argument to the jury shall belong to him.”

N.C. Super. and Dist. Ct. R. 10 (2016).

      In this case, defendant did not call any witnesses or put on any evidence after

the State concluded its presentation of the case. Yet, defendant did cross-examine

the State’s only witness and sought to play a video of the entire stop recorded by the

officer’s in-car camera during cross-examination. Defendant argued the video was

illustrative. The State argued playing the video constituted introducing evidence.

After argument on the issue, the trial court noted that it was a “difficult call” and

indicated to the parties that it would make its final determination of whether the

video constituted new evidence after the video had been played. The parties agreed,

with the defense further indicating that “[they] intend to play [the video] one way or

the other and understand the potential consequences.” The video was marked as



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“Defendant’s Exhibit 1” and played for the jury, with defendant stopping the video at

times to ask questions of the State’s witness. Upon the conclusion of the defense’s

cross-examination and the close of the State’s evidence, the trial court heard further

arguments by the parties on whether the video constituted new evidence. The trial

court again noted it was a “tough call,” but ultimately determined that playing the

video to the jury constituted putting on evidence, resulting in defendant’s loss of the

final argument to the jury.

      The question we must address is whether admitting the entire video of the stop

during cross-examination constituted introducing evidence. In State v. Hennis, 184

N.C. App. 536, 646 S.E.2d 398, disc. rev. denied, 361 N.C. 699, 653 S.E.2d 148 (2007),

this Court summarized the applicable law as follows:

             In State v. Shuler, 135 N.C. App. 449, 520 S.E.2d 585
             (1999), this Court determined that evidence is
             “introduced,” within the meaning of Rule 10, when the
             cross-examiner either formally offers the material into
             evidence, or when the cross-examiner presents new matter
             to the jury that is not relevant to the case. Id. at 453, 520
             S.E.2d at 588; see also State v. Wells, 171 N.C. App. 136,
             138, 613 S.E.2d 705, 706 (2005) (quoting Shuler, 135 N.C.
             App. at 453, 520 S.E.2d at 588). However, “[n]ew matters
             raised during the cross-examination, which are relevant,
             do not constitute the ‘introduction’ of evidence within the
             meaning of Rule 10.” Shuler, 135 N.C. App. at 453, 520
             S.E.2d at 588. Most recently, in State v. Bell, 179 N.C. App.
             430, 633 S.E.2d 712 (2006), this Court stated that evidence
             is introduced during cross-examination when: “(1) it is
             ‘offered’ into evidence by the cross-examiner; or (2) the
             cross-examination introduces new matter that is not
             relevant to any issue in the case.” Id. at 431, 633 S.E.2d at


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             713 (citing Shuler, 135 N.C. App. at 452-53, 520 S.E.2d at
             588).

Id. at 537-38, 646 S.E.2d at 399. In Hennis, this Court addressed “whether, under

the first test in Bell, the defendant ‘offered’ [a] diagram and incident report into

evidence during his cross-examination.” Id. at 538, 646 S.E.2d at 399. This Court

further explained that “[i]n State v. Hall, 57 N.C. App. 561, 291 S.E.2d 812 (1982),

this Court set forth the following test to determine whether evidence is ‘offered’

within the meaning of Rule 10: ‘whether a party has offered [an object] as substantive

evidence or so that the jury may examine it and determine whether it illustrates,

corroborates, or impeaches the testimony of the witness.’ ” Hennis, 184 N.C. App at

538, 646 S.E.2d at 399 (quoting Hall, 57 N.C. App. at 564, 291 S.E.2d at 814).

Applying the above law, this Court granted the Hennis defendant a new trial, holding

the defendant did not offer evidence under either test articulated in Bell. Id. at 539,

646 S.E.2d at 400. This Court reasoned that the exhibits in Hennis related directly

to the State’s witness’ testimony on direct examination and did not constitute

substantive evidence – the diagram was used to merely illustrate the State’s witness’

prior testimony and the incident report was not published to the jury as substantive

evidence, nor given to the jury to examine. Id.

      In the present case, defendant now analogizes the facts of his case to Hennis

and asserts “[t]he videotape was used by the defendant to illustrate Officer Sykes’




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account of these events. It was not admitted as substantive evidence and it was

directly relevant to Officer Sykes’ testimony[.]” We are not convinced.

      Although Officer Sykes had provided testimony describing the stop that was

shown in the video, we agree with the trial court that the video evidence in this case

goes beyond the testimony of the officer, and is different in nature from evidence

presented in other cases that was determined not to be substantive. Here, the playing

of the video of the stop allowed the jury to hear exculpatory statements by defendant

to police beyond those testified to by the officer and introduced evidence of flashing

police lights, that was not otherwise in the evidence, to attack the reliability of the

HGN test. This evidence was not merely illustrative. Moreover, the video allowed

the jury to make its own determinations concerning defendant’s impairment apart

from the testimony of the officer and, therefore, amounted to substantive evidence.

Consequently, we hold the trial court did not err in determining defendant put on

evidence and in denying defendant the final argument to the jury.

                                  III.   Conclusion

      For the reasons discussed above, we find the trial court did not err in denying

defendant’s motions to suppress or dismiss, or in denying defendant the final closing

argument to the jury.

      NO ERROR.

      Judges BRYANT and STEPHENS concur.



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