              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-860

                             Filed: 19 September 2017

Johnston County, No. 14 CRS 050399

STATE OF NORTH CAROLINA, Plaintiff,

             v.

CATHY MANGUM SAULS, Defendant.


      Appeal by defendant from order entered 5 February 2016 by Judge Thomas H.

Lock and judgment entered 4 March 2016 by Judge Robert F. Floyd in Superior Court,

Johnston County. Heard in the Court of Appeals 23 February 2017.


      Attorney General Joshua H. Stein, by Assistant Attorney General Lee J. Miller,
      for the State.

      The Law Office of Sterling Rozear, PLLC, by Sterling Rozear, for defendant-
      appellant.


      STROUD, Judge.


      Defendant appeals the order denying her motion to suppress based upon her

contention that the evidence obtained from the stop of her vehicle should have been

suppressed because the deputy lacked reasonable suspicion for the traffic stop and

the judgment convicting her of driving while impaired (“DWI”) because the trooper

involved should not have been allowed to testify on the results of the horizontal gaze

nystagmus test (“HGN test”) because the State did not formally tender him as an
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                                   Opinion of the Court



expert witness. We affirm the order and determine there was no error as to the

judgment.

                                  I.       Background

      In January of 2014, a citation was issued against defendant for operating a

vehicle while impaired.   The case made its way through district court, and in

September of 2017 defendant filed a motion in superior court

            for an order suppressing and excluding the evidence seized
            . . . for the reason that . . . Deputy Thomas Sewell of the
            Johnston County Sheriff’s Department and Trooper M.D.
            Williams of the State Highway Patrol stopped the
            defendant in her motor vehicle on January 25, 2014
            without reasonable suspicion that defendant had violated
            a criminal or traffic offense[.]

Defendant sought to suppress the evidence resulting from the stop of her vehicle,

including various field sobriety tests. In February of 2016, the trial court denied

defendant’s motion to suppress. Ultimately, defendant’s case went to trial, and the

jury convicted her of driving while impaired. The trial court entered judgment, and

defendant appeals both the order denying her motion to suppress and the judgment.

                            II.         Motion to Suppress

      Defendant first argues that the trial court committed plain error by denying

her motion to suppress. Defendant admits that she failed to properly preserve her

appeal of her motion to suppress because she failed to object when the evidence was

introduced. To be clear, defendant is actually challenging the denial of her motion



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to suppress as plain error and is not challenging the evidence admitted at trial

because of the denial. Our Court recently addressed a case in the same posture:

                   Here, defendant filed a pretrial motion to suppress
            evidence of his arrest alleging that there was not sufficient
            evidence to establish probable cause for his arrest. That
            motion was decided after an evidentiary hearing and
            denied. Thereafter, the record is silent as to any further
            objection from defendant to the introduction of the same
            evidence at the trial of this case. Therefore, defendant has
            waived any objection to the denial of his motion to
            suppress, and it is not properly preserved for this Court’s
            review. Defendant, however, attempts to cure this defect
            by arguing that the trial court committed plain error
            instead.
                   In criminal cases, an issue that was not
                   preserved by objection noted at trial and that
                   is not deemed preserved by rule or law
                   without any such action nevertheless may be
                   made the basis of an issue presented on
                   appeal when the judicial action questioned is
                   specifically and distinctly contended to
                   amount to plain error.
            The North Carolina Supreme Court has elected to review
            unpreserved issues for plain error when they involve either
            (1) errors in the judge’s instructions to the jury, or (2)
            rulings on the admissibility of the evidence. Under the
            plain error rule, defendant must establish that a
            fundamental error occurred at trial and that absent the
            error, it is probable the jury would have returned a
            different verdict.
                   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 exclusively
            binding on appeal, and whether those factual findings in
            turn support the judge’s ultimate conclusions of law. The
            trial court's conclusions of law are fully reviewable on
            appeal.


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State v. Williams, ___ N.C. App. ___, ___, 786 S.E.2d 419, 424-25 (2016) (citations

quotation marks, and ellipses omitted). Ultimately, this Court concluded that the

trial court did not commit plain error in denying the motion to suppress without

considering the evidence actually presented at trial because the only issue on appeal

was whether the trial court had plainly erred in denying the motion to dismiss to

suppress. See id. at ___, 786 S.E.2d at 425.

      The unchallenged and binding findings of fact, see id., establish:

             1.    On 24 January 2014, at approximately 1:00 AM,
                   Deputy Thomas Sewell of the Johnston County
                   Sheriff’s Office was in uniform and on duty in
                   Johnston County, North Carolina.

             2.    The time was very late at night, sometime after
                   midnight.

             3.    The temperature was approximately twelve (12)
                   degrees Fahrenheit with a negative wind chill.

             4.    Deputy Sewell was on patrol in the area of Don Lee’s
                   Store, a gas station and convenience store located on
                   North Carolina Highway 50 in Johnston County,
                   North Carolina.

             5.    Deputy Sewell was familiar with this area because
                   it was his regular, assigned patrol district.

             6.    Deputy Sewell knew that Don Lee’s Store was closed
                   because he had patrolled the area several times
                   prior to this occasion.

             7.    There is an automobile repair shop across the road
                   from Don Lee’s Store.


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8.    There are several residential homes in the area of
      Don Lee’s Store.

9.    Deputy Sewell had performed several business
      checks in the area including business checks at both
      Don Lee’s Store and the automobile repair shop
      across the road from Don Lee’s Store.

10.   Deputy Sewell had personal knowledge of several
      break-ins that had occurred at Don Lee’s Store prior
      to 24 January 2014.

11.   Deputy Sewell recalled that the area surrounding
      Don Lee’s Store was a “decently high break-in area.”

12.   While on routine patrol, Deputy Sewell saw the
      Defendant’s vehicle close to the gasoline pumps in
      the parking lot of Don Lee’s Store.

13.   The Defendant’s vehicle was the only vehicle in the
      parking lot at that time.

14.   Deputy Sewell observed that the Defendant’s
      vehicle’s engine was running and that its headlights
      were on.

      ....

16.   When Deputy Sewell drove into the parking lot, he
      positioned his patrol vehicle directly behind the
      Defendant’s vehicle.

17.   The Defendant’s vehicle attempted to leave the
      scene immediately upon Deputy Sewell’s arrival.

18.   When Deputy Sewell saw the Defendant’s vehicle
      drive away, he immediately became concerned and
      felt that something must be wrong.



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      19.    As soon as the vehicle began to move, Deputy Sewell
             activated his emergency vehicle lighting.

      20.    The vehicle traveled approximately ten to fifteen
             feet before it stopped.

      21.    The Defendant did not exit her vehicle at any time
             and the Defendant committed no traffic or
             equipment violations prior to Deputy Sewell
             initiating the stop.

      22.    When Deputy Sewell drove into the parking lot of
             Don Lee’s Store, he had no intentions of turning on
             his emergency vehicle lighting; his only intent was
             to perform a welfare check on the Defendant’s
             vehicle.

      23.    When Deputy Sewell drove up behind the
             Defendant’s vehicle, he intended to get out [of] his
             patrol vehicle, walk to the driver’s side window of
             the    vehicle, check on the occupant(s) and ensure
             each was in good health, verify there were no
             mechanical problems with the vehicle, and then
             continue on with his regularly assigned patrol
             duties for that     night.

      24.    Deputy Sewell did not think about turning on his
             emergency vehicle lighting until the moment that
             the Defendant’s vehicle began to drive away.

Based upon the binding findings of fact the trial court concluded:

      2.     The facts of this case and the evidence presented by
             the State of North Carolina at this hearing are
             sufficient to establish a reasonable articulable
             suspicion to justify the investigative traffic stop of
             the Defendant’s vehicle for Driving While Impaired.

      3.     The investigative traffic stop of the Defendant’s
             vehicle for Driving While Impaired did not


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                    constitute any violation of the            Defendant’s
                    Constitutional or statutory rights.

             4.     Under the totality of the circumstances, including
                    the time of day, Deputy Sewell’s personal knowledge
                    concerning break-ins at Don Lee’s Store, the
                    automobile repair shop across the road from Don
                    Lee’s Store, the residential homes in the area
                    (Deputy Sewell’s regular patrol district), the manner
                    in which the Defendant’s vehicle was stopped
                    (immediately adjacent to and parallel to the
                    highway so that traffic on the highway would have
                    been visible to occupants of the vehicle), and the fact
                    that the Defendant’s vehicle attempted to leave the
                    scene immediately upon Deputy Sewell’s arrival,
                    Deputy Sewell had a reasonable and articulable
                    suspicion to stop the Defendant’s vehicle.

      Defendant contends these conclusions of law are not supported by the evidence

because the trial court’s “findings of fact are insufficient to give rise to anything more

than a generalized, inchoate and unparticularized suspicion or hunch that there was”

criminal activity. Defendant heavily relies on the finding that the deputy’s “only

intent was to perform a welfare check on the Defendant’s vehicle[,]” and the only

reason he actually stopped her vehicle was because she pulled away when he

approached which is not enough to validate the stop. While defendant’s argument

makes logical sense, it simply does not reflect the law as it exists: “[T]he Fourth

Amendment does not include a consideration of the officer’s subjective intent, and his

motive will not invalidate the action taken as long as the circumstances, viewed

objectively, justify that action.” State v. Icard, 363 N.C. 303, 318, 677 S.E.2d 822, 832



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(2009) (citations and quotation marks omitted); see also State v. Johnson, ___ N.C.

App. ___, 783 S.E.2d 753 (2016) (“[I]f sufficient objective evidence exists to

demonstrate reasonable suspicion, a Terry stop is justified regardless of a police

officer’s subjective intent.” (citation and quotation marks omitted).

      Our Supreme Court has stated,

                      Reasonable suspicion is a less demanding standard
               than probable cause and requires a showing considerably
               less than preponderance of the evidence. Only some
               minimal level of objective justification is required. This
               Court has determined that the reasonable suspicion
               standard requires that the stop 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.
               Moreover, a court must consider the totality of the
               circumstances—the whole picture in determining whether
               a reasonable suspicion exists.

State v. Barnard, 362 N.C. 244, 247, 658 S.E.2d 643, 645 (2008) (citations, quotation

marks, brackets, and ellipses omitted). The objective “totality of the circumstances”

showed: (1) it was very late at night; (2) defendant’s vehicle was idling in front of a

closed business; (3) the business and surrounding properties had experienced several

break-ins; and (4) defendant pulled away when the deputy approached her car. Id.

Thus, the evidence together provides an “objective justification” for stopping

defendant. See id. Therefore, the trial court did not err in denying defendant’s motion

to suppress.

                            III.   Testimony on HGN Test


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         Defendant next argues that the trial court committed plain error by allowing

the trooper to testify at trial about the HGN test he administered on defendant during

the stop. Specifically, defendant argues that the State never formally tendered the

trooper as an expert witness under Rule 702 of the North Carolina Rules of Evidence.

Again, defendant requests this Court to review for plain error because she failed to

preserve the issue for appellate review by objecting to the results of the HGN test at

trial.

         Rule 702(a1) includes specific provisions for expert witnesses who testify

regarding results of HGN tests:

               A witness, qualified under subsection (a) of this section and
               with proper foundation, may give expert testimony solely
               on the issue of 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 by a person who
                     has successfully completed training in HGN.

North Carolina General Statute § 8C-1, Rule 702(a1) (2013).

         During the pendency of this appeal, our Supreme Court addressed the specific

issue before us: “In this appeal we consider whether North Carolina Rule of Evidence

702(a1) requires a law enforcement officer to be recognized explicitly as an expert

witness pursuant to Rule 702(a) before he may testify to the results of a Horizontal

Gaze Nystagmus (HGN) test.” State v. Godwin, ___ N.C. ___, ___ 800 S.E.2d 47, 48

(2017). The Supreme Court ultimately reversed this Court’s decision in Godwin,



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which defendant had relied upon here, to conclude that a law enforcement officer need

not explicitly be tendered under Rule 702 to testify to the results of a HGN test. See

id. at ___, 800 S.E.2d at 54. The Court in Godwin reasoned that because the officer

had been tendered as an expert regarding his law enforcement knowledge, testified

he had completed training on how to administer the HGN test and other follow-up

courses, had experience with impaired driving investigations, was found to be reliable

upon the trial court’s voir dire, and the defendant’s only contention was not that the

officer was unqualified to testify as an expert regarding HGN testing but merely that

he had to formally be tendered as an expert, the State was correct in asserting that

the officer had been implicitly recognized as an expert witness in HGN testing and

did not need to be formally tendered as such. See id. at ___, 800 S.E.2d at 50-53. This

case is controlled by Godwin. Compare id., __ N.C. __, 800 S.E.2d 47.

      Here, Trooper Williams testified that he had been a trooper with the North

Carolina State Highway Patrol since 2004 and that he had training in field sobriety

testing, including the HGN test. Trooper Williams specifically testified about his

training and qualifications to administer the HGN test, including refresher courses

in standardized field sobriety testing every year. Over his career, Trooper Williams

had participated in hundreds of DWI investigations. During voir dire, defendant’s

counsel agreed “[t]he evidence rule says that he can certainly talk about the HGN if

he has been trained in HGN, but I’m – my objection is that this – the trooper’s not



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qualified to testify about the medical effect of pupil dilation or the medical effect of

these drugs.”1 This portion of the transcript along with defendant’s brief parallels

Godwin, since the defendant was not arguing the officer was not qualified to testify

as an HGN testing expert, but only that he had to be formally tendered as such. See

id. at __, 800 S.E.2d at 52. Defendant does not argue that Trooper Williams was not

properly trained and qualified to testify regarding HGN testing, and the evidence

shows he “ha[d] successfully completed training in HGN.” N.C. Gen. Stat. § 8C-1,

Rule 702(a1). Under Godwin, it was simply unnecessary for the State to make a

formal tender of the trooper as an expert on HGN testing, and the trial court

committed no error, much less plain error, in allowing the testimony. See id.

                                      IV.    Conclusion

       We conclude defendant received a fair trial, free from reversible error.

       AFFIRM AND NO ERROR.

       Judge DILLON concurs.

       Judge MURPHY concurs in result only.




       1    Based upon the voir dire, the trial court sustained defendant’s objection to Trooper
Williams’s testimony regarding defendant’s possible impairment by drugs other than alcohol.

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