An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-489
                        NORTH CAROLINA COURT OF APPEALS

                               Filed: 21 October 2014


STATE OF NORTH CAROLINA

      v.                                          Buncombe County
                                                  No. 12 CRS 50309
ANGELO FRANK SELLAS



      Appeal by defendant from judgment entered 18 December 2013

by Judge Alan Z. Thornburg in Buncombe County Superior Court.

Heard in the Court of Appeals 24 September 2014.


      Roy Cooper, Attorney General, by Richard Slipsky, Special
      Deputy Attorney General, for the State.

      Willis Johnson & Nelson                   PLLC,     by    Drew        Nelson,      for
      defendant-appellant.


      STEELMAN, Judge.


      Where    the     trial      court    made     findings     of        fact   at     the

suppression      hearing,        and    these     findings     were        supported      by

unchallenged evidence and in turn supported the trial court’s

conclusions     of   law,    the       trial    court   did    not    err    in    denying

defendant’s     motion      to    suppress.         The    trial      court       left    no

material      issues    unresolved         in     concluding         the     suppression
                                              -2-
hearing.      The    trial    court       did       not    abuse     its      discretion       in

granting    the     State’s   motion          in    limine     to    exclude        irrelevant

evidence.

                     I. Factual and Procedural History

      Early   in     the   morning       on    8     January       2012,      Detective        Ben

Davidson (Detective Davidson) of the Asheville Police Department

was informed by his supervisor that a man had been seen emerging

from a local bar, and was possibly impaired.                            Detective Davidson

was given a description of the man, and subsequently saw a man

fitting    that     description.          The       man    was     later      identified        as

Angelo     Sellas     (defendant).                 Detective        Davidson        recognized

defendant by name from a prior sexual assault investigation.

Detective Davidson was not the lead investigator on that case.

      Detective Davidson was walking towards his parked patrol

vehicle when he saw defendant sitting in the driver’s seat of

his   vehicle.        Upon    reaching          his       patrol     vehicle,        Detective

Davidson    saw     defendant’s         vehicle       drive      off.      He       got   behind

defendant’s    vehicle       at    a    red    light.         When      the    light      turned

green, defendant’s vehicle remained stopped for the entire light

cycle,    which     Detective       Davidson         estimated          lasted      20    to   40

seconds.      Only     when       the    light      turned       yellow       did    defendant

proceed    through     the    intersection.                Detective       Davidson        later
                                             -3-
observed defendant changing lanes into a designated left turn

only lane.        Defendant did not turn left, but continued straight

through an intersection.              At trial, defendant testified that he

moved into the left turn only lane because there was a parked

taxi     cab    in    the     right    lane.          Detective       Davidson    had    no

recollection of a cab being in the right lane.                              He did not

recall whether defendant give a turn signal when changing lanes.

       Detective        Davidson      continued        following       defendant,       and

observed defendant change lanes at least once without using his

turn signal.         Detective Davidson also observed defendant weaving

within    his     lane      of    travel.      Detective       Davidson     called      for

backup,    and       pulled      defendant    over.      Officer       Jonathan    Morgan

(Officer Morgan) of the Asheville Police Department, the backup

officer, approached defendant’s vehicle on the driver’s side,

and    Detective        Davidson      approached        on     the    passenger     side.

Officer        Morgan    smelled      a      strong     odor    of     alcohol     inside

defendant’s vehicle and on defendant as he exited his vehicle.

Defendant’s speech was slurred, his eyes were red and glassy,

and he admitted that he had been drinking.                           Without prompting,

he offered to perform a field sobriety test.                            Officer Morgan

conducted the field sobriety test.                      Defendant’s eyes did not

follow smoothly during the horizontal gaze nystagmus test.                              The
                                       -4-
test   revealed    all   6   clues    indicating    impairment.     Defendant

could not keep his balance, and swayed and leaned during the

walk and turn portion of the field sobriety test.               Defendant had

to use his arms to maintain his balance during the one-legged

stand test.       Defendant was administered the Alco-sensor breath

test twice; both samples were positive for alcohol.                 Defendant

admitted to having consumed four or five drinks.

       Defendant was charged with impaired driving and improper

use of traffic lanes.           Defendant appealed his District Court

convictions to Buncombe County Superior Court.

       In   Superior     Court,      defendant     moved   to   dismiss,   or

alternatively to suppress the evidence that resulted from the

stop, contending that the stop of his vehicle was not supported

by reasonable suspicion and that the arrest was not supported by

probable cause.        These motions were denied in open court, and

memorialized in a written order dated 17 December 2013 and filed

15 January 2014.       At trial, the State made a motion in limine to

limit testimony concerning a prior sexual assault investigation

involving defendant.         The trial court granted that motion.

       On 18 December 2013, the jury found defendant guilty of

driving while impaired, and not responsible for the infraction.

The trial court sentenced defendant to 60 days imprisonment,
                                           -5-
suspended      the       sentence,     placed      defendant    on    unsupervised

probation for 12 months, and assessed a $100.00 fine, as well as

costs and fees in the amount of $1,886.50.

       Defendant appeals.

                              II. Findings of Fact

       In his first argument, defendant contends that the trial

court    erred      by    failing     to   make    findings     of   fact    at     the

suppression hearing, which resulted in a material dispute not

being resolved.          We disagree.

                              A. Standard of Review

       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 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).

                                      B. Analysis

       Defendant contends that the trial court erred by failing to

make findings of fact.            Defendant gave oral notice of appeal on
                                          -6-
18 December 2013.          On 15 January 2014, the trial court filed its

written order regarding defendant’s motion to suppress, which

contained    detailed       findings     of    fact     and   conclusions          of    law.

Defendant failed to include a copy of the trial court’s written

order in the record, and the argument in his brief presumes that

this order was never entered.               Fortunately, the State filed this

order as a supplement to the record pursuant to Rule 9(b)(5)(a)

of the North Carolina Rules of Appellate Procedure.                          Defendant’s

contention       that   the    trial     court    failed       to    enter    an        order

containing findings of fact is without merit.

    In     its     order,     the   trial     court     found       that:    (1)    Deputy

Davidson     saw    defendant,      who       matched    the    description             of   a

possible intoxicated individual, sometime after 2:00 a.m.; (2)

Deputy Davidson observed defendant stop at a stoplight, where

defendant remained while it turned green and then yellow; (3)

Deputy   Davidson       observed    defendant      drive      straight       through         an

intersection in a lane clearly designated as a left turn lane;

and (4) defendant wove into an adjacent lane of traffic without

signaling.

    We     hold     that    each    of    these   findings          was   supported          by

evidence in the record.             These findings, in turn, support the
                                        -7-
trial court’s conclusion that Deputy Davidson had a reasonable

and articulable suspicion for stopping defendant’s vehicle.

    Defendant argues that the trial court left a material issue

unresolved;    that    being     whether      there    was    a   parked     taxi    cab

blocking defendant’s path, forcing him to change lanes into the

left turn lane.       The trial court, in its findings, observed that

Deputy Davidson “did not recall if there was an obstruction in

the lane designated for traffic traveling straight through the

intersection[,]” but did not specifically resolve this factual

issue.     Even assuming arguendo that the trial court left this

matter unresolved, however, it was not a material issue.                        There

was other evidence that supported the trial court’s findings of

fact and conclusions of law.

    Even     assuming    that     defendant      was    justified     in     changing

lanes to the left turn lane due to a cab blocking the right

lane, the trial court’s other, uncontested findings demonstrate

that defendant’s vehicle sat at a stoplight through the entire

green and yellow cycle, and that defendant subsequently changed

lanes    without    giving   a   turn    signal.        Our   Supreme      Court     has

previously held that either of these constitutes a basis for a

reasonable    and     articulable       suspicion      sufficient       to    stop     a

vehicle.     See State v. Barnard, 362 N.C. 244, 248, 658 S.E.2d
                                          -8-
643, 645-46 (2008) (holding that a thirty-second delay at a

stoplight    after    it    has    turned       green   creates      reasonable     and

articulable suspicion); State v. Styles, 362 N.C. 412, 416-17,

665 S.E.2d 438, 441 (2008) (holding that changing lanes without

signaling creates reasonable and articulable suspicion).                            Any

error in failing to determine whether the right lane was blocked

by a parked cab was harmless.

       This argument is without merit.

                            III. Motion to Exclude

       In his second argument, defendant contends that the trial

court    erred   by   shifting      the    burden       of    persuasion   onto     the

defendant during the State’s motion in limine.                     We disagree.

                            A. Standard of Review

       “We review a trial court’s decision to exclude evidence

under Rule 403 for abuse of discretion.” State v. Whaley, 362

N.C. 156, 160, 655 S.E.2d 388, 390 (2008).

                                   B. Analysis

       The State made a motion in limine to exclude all testimony

concerning       an   investigation         into        allegations      of    sexual

misconduct against defendant.             The State argued that evidence of

this    investigation      would   be     irrelevant         and   confusing   to   the
                                               -9-
jury.         Defendant     contends          that     the     trial      court       improperly

shifted the burden of persuasion on this motion to defendant.

       As   a     general      rule,     evidence        which       tends      to    make     the

existence of a fact of consequence more or less probable is

relevant and admissible.               State v. Huggins, 338 N.C. 494, 500,

450 S.E.2d 479, 483 (1994) (citing N.C. R. Evid. 401).                                 However,

Rule 403 of the North Carolina Rules of Evidence permits a trial

court, in its discretion, to exclude otherwise relevant evidence

“if   its     probative        value     is    substantially           outweighed         by   the

danger of . . . confusion of the issues.”                        N.C. R. Evid. 403.

       In   the      instant     case,    defendant          contends      that       the    trial

court   was       confronted      with        “what    appears       to    be     a   difficult

evidentiary          decision.”        Specifically,            defendant         notes      that,

during pre-trial hearings, the trial court had overruled the

State’s     objection       to    testimony         concerning       the     sexual       assault

investigation.           Subsequently,          however,       the     court      granted      the

State’s motion in limine, stating, “I’ll grant the motion just

to be safe.”          Defendant contends that this statement constituted

an    abuse     of    discretion,        as     a     “close    call”      ruling       on     the

admissibility of relevant evidence – as defendant contends this

to be – should fall in favor of admission, not exclusion.
                                 -10-
    We   find   defendant’s   argument   unpersuasive.   The   instant

case concerned a charge of driving while impaired.       Any evidence

of a prior investigation or allegations of sexual misconduct

were not relevant.     We discern no abuse of discretion in the

trial court’s decision to exclude this evidence.

    This argument is without merit.

    NO ERROR.

    Judges CALABRIA and McCULLOUGH concur.

    Report per Rule 30(e).
