              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA19-381

                                Filed: 17 March 2020

Catawba County, No. 15 CRS 52717

STATE OF NORTH CAROLINA

             v.

TOBY JAY WILES


      Appeal by defendant from order entered 31 August 2017 by Judge W. Robert

Bell, and judgment entered 21 December 2018 by Judge Nathaniel J. Poovey in

Catawba County Superior Court. Heard in the Court of Appeals 30 October 2019.


      Attorney General Joshua H. Stein, by Assistant Attorney General Matthew E.
      Buckner, for the State.

      Arnold & Smith, PLLC, by Paul A. Tharp, for defendant-appellant.


      ZACHARY, Judge.


      Defendant Toby Jay Wiles appeals from an order denying his motion to

suppress and a judgment entered upon a jury’s verdict finding him guilty of driving

while impaired. After careful review, we affirm the trial court’s denial of Defendant’s

motion to suppress, and conclude that he received a fair trial, free from error.

                                    Background

      At around 8:00 p.m. on 23 May 2015, Defendant drove past State Trooper Kelly

Stewart, who was parked along the side of the road. Believing that the passenger in

the front seat of Defendant’s truck was not wearing a seatbelt, Trooper Stewart
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signaled for Defendant to pull over. As Trooper Stewart approached the passenger’s

side of Defendant’s parked truck, he “[a]lmost instantaneously” noticed an odor of

alcohol “coming through th[e] passenger window.” Upon reaching the passenger-side

window, Trooper Stewart saw the passenger wearing his seatbelt. The passenger

stated he had worn his seatbelt the entire time, and Trooper Stewart realized that

the gray seatbelt had blended into the passenger’s gray shirt. Accordingly, Trooper

Stewart decided not to issue a citation to Defendant.

      Trooper Stewart explained why he had stopped the vehicle, and the passenger

responded that he had been wearing his seatbelt prior to Trooper Stewart’s initiation

of the stop. Trooper Stewart, noting the strong odor of alcohol emanating from the

vehicle, asked whether either man had been drinking.         Both answered in the

affirmative. Trooper Stewart asked the men to exit the truck, and he observed that

Defendant’s “eyes were red, glassy and bloodshot.” Trooper Stewart administered a

roadside Alco-Sensor test to Defendant, which detected the presence of alcohol on

Defendant’s breath. Trooper Stewart next conducted a horizontal gaze nystagmus

(“HGN”) test on Defendant, which indicated that Defendant was impaired. Trooper

Stewart arrested Defendant and charged him with driving while impaired.

      Defendant filed a motion to suppress “all evidence and statements obtained as

a result of the stop” by Trooper Stewart, which came on for hearing before the

Honorable W. Robert Bell in Catawba County Superior Court on 31 August 2017.



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Trooper Stewart testified that, but for the seatbelt issue, Defendant appeared to abide

by “all the normal rules of the road.” In its order denying Defendant’s motion to

suppress, the trial court found that Trooper Stewart “[b]eliev[ed] it would be a

dereliction of duty to ignore the smell of alcohol coming from the automobile.” Thus,

the trial court concluded that “[d]uring the ‘mission of’ the valid traffic stop and prior

to the completion of its initial purpose Trooper Stewart obtained information that

provided reasonable suspicion of criminal activity to warrant an extension of the

initial traffic stop.”

       On 17 December 2018, Defendant was tried before a jury in Catawba County

Superior Court, the Honorable Nathaniel J. Poovey presiding.            The jury found

Defendant guilty of driving while impaired, and Defendant gave notice of appeal in

open court.

                                      Discussion

       Defendant raises six issues on appeal: three arising from the hearing on his

motion to suppress, and three from his trial. We address each issue in turn.

                               I. Motion to Suppress

       Defendant contends that the trial court erred in denying his motion to suppress

because Trooper Stewart (1) lacked reasonable suspicion to stop Defendant’s truck;

(2) unconstitutionally extended the length of the stop; and (3) lacked probable cause

to arrest Defendant.



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         A.        Standard of Review

         It is well settled that

                   [t]he standard of review for a motion to suppress is whether
                   the trial court’s findings of fact are supported by the
                   evidence and whether the findings of fact support the
                   conclusions of law. The court’s findings are conclusive on
                   appeal if supported by competent evidence, even if the
                   evidence is conflicting. The trial court’s ruling on a motion
                   to suppress is afforded great deference upon appellate
                   review as it has the duty to hear testimony and weigh the
                   evidence.

State v. Wainwright, 240 N.C. App. 77, 83-84, 770 S.E.2d 99, 104 (2015) (internal

citations and quotation marks omitted). “Conclusions of law are reviewed de novo

and are subject to full review.” State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878

(2011) (citation omitted).

         B.        The Stop of Defendant’s Vehicle1

         From the order denying his motion to suppress, Defendant challenges findings

of fact 6, 7, and 8 as not being supported by competent evidence, as well as conclusion

of law 2, which stated that the traffic stop was valid. We address each in turn.

                   1. Findings of Fact

         Defendant challenges the following findings:

                   6. [Trooper Stewart] observed the Defendant driving
                   towards his position. There was a passenger in the front
                   passenger seat of the vehicle that Trooper Stewart believed
                   100% was not wearing a seat belt.

         1   Defendant properly objected to this issue at both the suppression hearing and the subsequent
trial.

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              7. [Trooper] Stewart stopped the truck being driven by the
              Defendant and approached the passenger side to
              investigate. Standing at the open passenger side window
              [Trooper Stewart] smelled a strong odor of alcohol
              emanating from the passenger compartment of the vehicle.
              He also noticed that the passenger was wearing a seatbelt.

              8. The passenger stated that he had been wearing a
              seatbelt the entire time. Despite his certainty that the
              passenger had not been wearing a seatbelt, Trooper
              Stewart gave the benefit of the doubt to the passenger since
              he was wearing a [gray] shirt and the seatbelt was [gray]
              also.

       Defendant offers no particular evidence of the insufficiency of the evidence to

support the findings of fact. However, each of these findings is directly traceable to

Trooper Stewart’s testimony on direct examination at the suppression hearing,

during which he recounted the events of the night in question. Trooper Stewart

explained that he “did truly, 100 percent believe that [Defendant] wasn’t wearing his

seat belt.” He also said that he “approached the passenger side and . . . . [w]hile [he]

was at the vehicle [he] was getting an odor of alcohol from the vehicle.” Lastly, he

noted that, “If [he is] giving [the passenger] the benefit of the doubt, [he] couldn’t say

with a gray shirt, gray seat belt, that clear-cut, [he] couldn’t have testified 100 percent

that [the passenger] wasn’t wearing [a seat belt].”

       “The court’s findings are conclusive on appeal if supported by competent

evidence[.]” Wainwright, 240 N.C. App. at 84, 770 S.E.2d at 104. Competent evidence

is defined as “evidence that a reasonable mind might accept as adequate to support


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the finding.” State v. Ashworth, 248 N.C. App. 649, 651, 790 S.E.2d 173, 176 (citation

omitted), disc. review denied, 369 N.C. 190, 793 S.E.2d 694 (2016). Because Trooper

Stewart’s testimony concerning the stop provided “evidence that a reasonable mind

might accept as adequate,” these findings are supported by competent evidence and

are conclusive on appeal. Ashworth, 248 N.C. App. at 651, 790 S.E.2d at 176.

             2. Conclusion of Law

      Defendant also challenges conclusion of law 2, which states:

             Trooper Stewart’s view of and belief that the passenger in
             Defendant’s car was not wearing a seatbelt provided him
             more than an unparticularized suspicion or hunch that a
             law was being broken and gave him the minimal level of
             objective justification for making the traffic stop. The
             traffic stop was valid.

      The Fourth Amendment guarantees that “[t]he right of the people to be secure

in their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated[.]” U.S. Const. amend. IV. As applied through the

Fourteenth Amendment, the Fourth Amendment “impose[s] a standard of

reasonableness upon the exercise of discretion by government officials, including law

enforcement agents, in order to safeguard the privacy and security of individuals

against arbitrary invasions.” Delaware v. Prouse, 440 U.S. 648, 653-54, 59 L. Ed. 2d

660, 667 (1979) (internal quotation marks omitted). Accordingly, “[t]he touchstone of

the Fourth Amendment is reasonableness.” Florida v. Jimeno, 500 U.S. 248, 250, 114

L. Ed. 2d 297, 302 (1991).


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       “[R]easonable suspicion is the necessary standard for traffic stops, regardless

of whether the traffic violation was readily observed or merely suspected.” State v.

Styles, 362 N.C. 412, 415, 665 S.E.2d 438, 440 (2008). With regard to an officer’s

authority to lawfully stop a vehicle, our Supreme Court has held that “[t]he stop must

be based on specific and articulable facts, as well as the rational inferences from those

facts, as viewed through the eyes of a reasonable, cautious officer, guided by his

experience and training.” State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70

(1994). To assess the validity of a stop, “[a] court must consider the totality of the

circumstances—the whole picture in determining whether a reasonable suspicion to

make an investigatory stop exists.” Id. at 441, 446 S.E.2d at 70 (internal quotation

marks omitted); see also State v. Nicholson, 371 N.C. 284, 290, 813 S.E.2d 840, 844

(2018) (“Assessments of reasonable suspicion are often fact intensive, and courts must

always view facts offered to support reasonable suspicion in their totality rather than

in isolation.”).

       Here, Defendant argues that “[a] subjective and admittedly mistaken

observation that a passenger is not wearing a seatbelt cannot, logically, serve as the

objectively reasonable basis for performing an investigative stop of a vehicle.” We

disagree.

       It is manifest that “[t]he Fourth Amendment tolerates only reasonable

mistakes, and those mistakes–whether of fact or of law–must be objectively



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reasonable.” State v. Eldridge, 249 N.C. App. 493, 498, 790 S.E.2d 740, 743 (2016)

(citation omitted). The issue in this case is whether Trooper Stewart’s mistake of

fact—i.e., his mistaken belief that Defendant’s passenger was not wearing a

seatbelt—could provide reasonable suspicion to justify the stop.

      It is well established that a law enforcement officer may stop a vehicle for a

seatbelt infraction, and during the mission of the stop determine that probable cause

exists to arrest a person for the commission of a separate offense. See, e.g., State v.

Salinas, 214 N.C. App. 408, 409, 715 S.E.2d 262, 263 (2011) (concluding that it was

constitutional for police officers to stop the suspect on belief that he was not wearing

his seatbelt, and then, “[b]ased upon [the d]efendant’s physical appearance, conduct,

and a strong odor of burnt marijuana, . . . eventually search[ ] the vehicle and

discover[ ] drug paraphernalia”), aff’d and modified, 366 N.C. 119, 729 S.E.2d 63

(2012); State v. Brewington, 170 N.C. App. 264, 268-69, 612 S.E.2d 648, 651 (affirming

a defendant’s conviction where the car was stopped due to a seatbelt violation, only

to discover drugs on the defendant’s person upon reaching the car), disc. review

denied, 360 N.C. 67, 621 S.E.2d 881 (2005).

      Further, it is clear that a law enforcement officer’s mistaken belief that a

defendant has violated the law may nevertheless provide the reasonable suspicion

required for a lawful stop. In State v. Kincaid, 147 N.C. App. 94, 96, 555 S.E.2d 294,

297 (2001), the defendant held up his hand to cover his face as he drove by the officer.



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The officer recognized the defendant, and believed that the defendant’s license had

been revoked for several years. Kincaid, 147 N.C. App. at 96, 555 S.E.2d at 297.

Upon stopping the defendant, however, the officer discovered that the driver’s license

was, in fact, valid.   Id.   Despite his mistake regarding the license, the officer

proceeded to ask the defendant whether he could search the car for drugs, because he

had previously heard that the defendant was a drug dealer. Id. The defendant

consented to the search, which yielded the discovery of marijuana, and the defendant

was arrested. Id. At a pretrial suppression hearing, the trial court found that “the

officer had reasonable suspicion to stop [the] defendant, even though the suspicion

proved to be wrong[,]” and concluded that the search was not unreasonable. Id. at

97, 555 S.E.2d at 297. On appeal, this Court held that “[a]lthough the officer’s

suspicion turned out to be incorrect,” the officer had reasonable suspicion to stop the

defendant in light of the totality of the circumstances. Id. at 98, 555 S.E.2d at 298.

      In the present case, as in Kincaid, Trooper Stewart initially stopped Defendant

based on a purported seatbelt infraction, not a reasonable suspicion that Defendant

was driving while impaired. Trooper Stewart’s mistake—failing to see a gray seatbelt

atop a gray shirt—is one a reasonable officer could make.         As Trooper Stewart

explained:

             [T]he only reason I didn’t cite him is not because I still
             didn’t believe my initial suspicion but because I couldn’t
             say 100 percent testifying with my hand on the Bible with
             him having a gray shirt that it could [sic] have been the


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             other way. But I did truly, 100 percent believe that he
             wasn’t wearing his seat belt.

However, this reasonable mistake of fact did not divest Trooper Stewart of the

authority to investigate the source of the odor of alcohol.

     Trooper Stewart testified that he smelled alcohol “instantaneously.”            He

explained that while he inquired into the seatbelt issue, he noted the smell of alcohol.

Trooper Stewart asked whether Defendant and his passenger had been drinking:

             [i]mmediately following my initial giving the reason for
             why I stopped and listening to the passenger’s articulation
             about him actually having his seat belt on. I did say, well,
             I appreciate that; however, right now I’m smelling alcohol
             coming out of your vehicle. And I said I understand it has
             nothing to do with your seat belt but I can’t just ignore
             what I’m smelling.

      In sum, Trooper Stewart’s stop of Defendant’s car was constitutional despite

his mistake of fact regarding the passenger’s seatbelt infraction. Trooper Stewart

had a reasonable suspicion to justify his stop based on his “100 percent” belief that

the passenger was not wearing a seatbelt. Furthermore, Trooper Stewart’s inquiry

into whether Defendant had been drinking was appropriate. See Salinas, 214 N.C.

App. at 409, 715 S.E.2d at 263; Kincaid, 147 N.C. App. at 96, 555 S.E.2d at 297.

       C.    Extension of the Traffic Stop and Probable Cause to Arrest

      In his next two arguments, Defendant asserts that (1) Trooper Stewart

unconstitutionally extended the traffic stop “in order to smell something”; and (2)

there was no probable cause to arrest Defendant. However, because Defendant failed


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to object to these purported errors at trial, we need not reach the merits of these

arguments.

      “In order to preserve an issue for appellate review, a party must have

presented to the trial court a timely request, objection, or motion, stating the specific

grounds for the ruling the party desired the court to make if the specific grounds were

not apparent from the context.” N.C.R. App. P. 10(a)(1). However, an objection

during “a trial court’s evidentiary ruling on a pretrial motion [to suppress] is not

sufficient to preserve the issue of admissibility for appeal unless a defendant renews

the objection during trial.” State v. Oglesby, 361 N.C. 550, 554, 648 S.E.2d 819, 821

(2007).

      After careful review of the transcript, we cannot find—and Defendant does not

identify—specific objections at trial concerning the issues raised on appeal. Instead,

in his brief to this Court, Defendant directs our attention to a short colloquy with the

trial court, which occurred at the beginning of the second day of trial:

             [Defense Counsel]: Judge, just for the record, I had just
             three objections that were just to preserve the record for
             appellate purposes. I don’t know if the Court – I think the
             Court heard the last one but I don’t know. I didn’t say them
             entirely loud because they were just for, you know, for
             purposes of preserving those issues.
                    But I would object to the stop at a point that the
             trooper said he was activating his blue lights to pull over
             [Defendant].

             The Court: I heard that objection. I think I overruled it,
             but I didn’t hear any others.


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                [Defense Counsel]: And then I objected to the arrest and
                then just to – out of an abundance of caution objected to the
                – before the intoxilyzer reading.

                The Court: You’re saying that – you did object to before the
                intoxilyzer reading but I don’t remember you objecting to
                the arrest. Your saying it is so now doesn’t make it so, so I
                don’t think you objected before the actual arrest.

                [Defense Counsel]: Well, did the Court hear my objection
                before the intoxilyzer reading?

                The Court: I did.

        Plainly, Defendant never objected to either (1) the extension of the stop, or (2)

whether there was probable cause to arrest Defendant. Because these arguments are

constitutional in nature, and because “[c]onstitutional issues not raised and passed

upon at trial will not be considered for the first time on appeal,” State v. Lloyd, 354

N.C. 76, 86-87, 552 S.E.2d 596, 607 (2001), we dismiss this portion of Defendant’s

appeal.2

                                               II. Trial




        2 In his reply brief to this Court, Defendant requests in the alternative that this Court invoke
Appellate Rule 2 so that we may reach the merits of these arguments. Rule 2 provides that, “[t]o
prevent manifest injustice to a party, or to expedite decision in the public interest, either court of the
appellate division may, except as otherwise expressly provided by these rules, suspend or vary the
requirements or provisions of any of these rules[.]” N.C.R. App. P. 2. However, a reply brief should be
“limited to a concise rebuttal to arguments set out in the brief of the appellee which were not addressed
in the appellant’s principal brief,” N.C.R. App. P. 28(h)(3), and Defendant may not assert new grounds
for appellate review in the reply brief. See State v. Triplett, 258 N.C. App. 144, 147, 810 S.E.2d 404,
407 (2018).

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       From his jury trial, Defendant argues that the trial court erred in (1) denying

his motion to dismiss; (2) admitting into evidence the results of portable breath tests

under Evidentiary Rule 403; and (3) qualifying Trooper Stewart as an expert in HGN

administration under Evidentiary Rule 702.

      A.     Denial of Defendant’s Motion to Dismiss

      Defendant posits that the trial court erred in denying his motions to dismiss

at the close of the State’s evidence and all evidence. However, in his brief to this

Court, Defendant offers a perfunctory argument, fewer than 100 words in length,

asking this Court to reach a different outcome from that of the trial court. His

argument consists of a few conclusory assertions that the trial court should have

granted the motion to dismiss. More importantly, Defendant neglects to include any

legal authority or references to the transcript upon which to base these assertions.

Our Rules of Appellate Procedure make clear that “[i]ssues not presented in a party’s

brief, or in support of which no reason or argument is stated, will be taken as

abandoned.” N.C.R. App. P. 28(b)(6). Having failed to cite any authority or make a

proper argument to this Court, this portion of Defendant’s appeal is “taken as

abandoned.” N.C.R. App. P. 28(b)(6).

      B.     Admission of Breath Tests

      Defendant next argues that the trial court “abused its discretion when it

allowed the State to introduce evidence regarding two portable breath tests.”



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Defendant maintains that these “positive test results, as along with the prosecutor’s

description of alcohol circulating through Defendant’s system, unduly prejudiced his

defense.”

             1. Standard of Review

      Admissions under Rule 403 are reviewed by this Court for an abuse of

discretion. State v. Adams, 220 N.C. App. 319, 328, 727 S.E.2d 577, 584 (2012).

“Abuse of discretion results where the court’s ruling is manifestly unsupported by

reason or is so arbitrary that it could not have been the result of a reasoned decision.”

State v. Elliott, 360 N.C. 400, 419, 628 S.E.2d 735, 748 (quotation marks omitted),

cert. denied, 549 U.S. 1000, 166 L. Ed. 2d 378 (2006).

             2. Evidentiary Rule 403

      “Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues,

or misleading the jury, or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” N.C. Gen. Stat. § 8C-1, Rule 403 (2019). The

official comment to Rule 403 provides that “unfair prejudice” is “an undue tendency

to suggest decision on an improper basis, commonly, though not necessarily, as an

emotional one.” Id. cmt.

      Admissibility of evidence in driving-while-impaired cases is covered under

Chapter 20 of our General Statutes. Where the suspect has been stopped, “[a] law-



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enforcement officer may require the driver of a vehicle to submit to an alcohol

screening test.” Id. § 20-16.3(a). “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.” Id. § 20-16.3(d).

      In the present case, Defendant first asserts that “the admission of positive

results . . . unduly prejudiced his defense.” However, Trooper Stewart only testified

to the positive test results, without revealing the actual alcohol concentration. The

testimony was therefore in accordance with § 20-16.3(d), and was not erroneously

admitted.

      Defendant next contends that the State’s reference in its closing argument to

alcohol “circulating in [Defendant’s] system” was prejudicial. A prosecutor is afforded

a generous latitude in argument. State v. Covington, 290 N.C. 313, 327, 226 S.E.2d

629, 640 (1976).    Counsel “may argue to the jury the facts in evidence and all

reasonable inferences to be drawn therefrom together with the relevant law so as to

present his side of the case.” Id. at 327-28, 226 S.E.2d at 640.

      Here, the State’s closing argument was aptly based on facts in evidence, as well

as reasonable inferences drawn from those facts. The State recounted (1) the strong

odor of alcohol coming from the car; (2) Defendant’s admission to having consumed

alcohol; and (3) the positive results from the portable breath tests conducted at the

scene of the stop. Taken together, and in light of the wide discretion prosecutors are



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permitted in closing arguments, we conclude that the trial court did not err in

allowing the prosecutor to assert that alcohol was “circulating in [Defendant’s]

system,” and that Defendant did not suffer any resultant prejudice.

      C.     Trooper Stewart’s Qualification as an Expert

      Finally, Defendant argues that the trial court “abused its discretion in granting

the State’s motion to qualify [Trooper Stewart] as an expert, and thereafter admitting

testimony regarding HGN testing.” We disagree.

             1. Standard of Review

      This Court reviews the admissibility of expert testimony for abuse of

discretion. State v. Barker, 257 N.C. App. 173, 176, 809 S.E.2d 171, 174 (2017).

             2. HGN Testing

      Evidentiary Rule 702 provides, in pertinent part, that “a witness qualified as

an expert by knowledge, skill, experience, training, or education, may testify thereto

in the form of an opinion[.]” N.C. Gen. Stat. § 8C-1, Rule 702(a). Expert testimony

is appropriate where (1) it is based upon sufficient facts or data, (2) it is based upon

reliable principles and methods, and (3) the witness has applied the principles and

methods reliably to the facts of the case. Id. Although our General Statutes broadly

characterize admissible expert testimony as “scientific, technical or other specialized

knowledge,” the statute specifically provides that:

             (a1) Notwithstanding any other provision of law, a witness
             may give expert testimony solely on the issue of


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             impairment and not on the issue of specific alcohol
             concentration level relating to the following:

                    (1) The results of a Horizontal Gaze Nystagmus
                    (HGN) Test when the test is administered in
                    accordance with the person’s training by a person
                    who has successfully completed training in HGN.

Id. § 8C-1, Rule 702(a1)(1).

      In the case at bar, Trooper Stewart testified to his successful completion of

HGN training with the North Carolina State Highway Patrol, and the State tendered

him as an expert in “the administration and interpretation of horizontal gaze and

nystagmus testing.” Accordingly, pursuant to N.C. Gen. Stat. § 8C-1, Rule 702(a1)(1),

the trial court did not err in qualifying Trooper Stewart as an expert based on his

training and professional experience administering the test, or in admitting his

testimony regarding HGN testing.

                                     Conclusion

      We affirm the trial court’s denial of Defendant’s motion to suppress, and

dismiss Defendant’s unpreserved arguments found in Parts I(C) and II(A) of this

opinion. Our examination of Defendant’s remaining arguments and our review of the

record lead us to conclude that Defendant received a fair trial, free from error.

      AFFIRMED IN PART; DISMISSED IN PART; NO ERROR IN PART.

      Judges STROUD and MURPHY concur.




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