State v. Stephens, No. COA05-1218 (N.C. App. 7/5/2006)

Page 1

Unpublished Opinion

STATE OF NORTH CAROLINA, v. PARIS LAMONT STEPHENS, Defendant

No. COA05-1218

Court of Appeals of North Carolina.

Filed July 5, 2006

This case not for publication

Forsyth County Nos. 04 CRS 57426, 35977.

Appeal by Defendant from judgment entered 10 May 2005 by Judge Lindsay R. Davis, Jr., in Superior Court, Forsyth County. Heard in the Court of Appeals 9 May 2006.

Attorney General Roy Cooper, by Assistant Attorney General Karen Ousley Boyer, Assistant Attorney General, for the State.

Anne Bleyman, for defendant-appellant.

WYNN, Judge.

Section 15A-401(b)(1) of the North Carolina General Statutes permits an officer to arrest without a warrant any person the officer has probable cause to believe has committed a criminal offense in the officer's presence.¹ Defendant argues that the trial court erred by not finding probable cause based on the offense for which he was arrested, consuming alcohol where the business did not have an on-premise consumption permit. Because there was objective probable cause to arrest Defendant for attempting to flee from an officer, we uphold the trial court's conclusions of law.

The evidence presented at trial tended to show that on 15 June 2004, Officer R.J. Paul, a detective assigned to the Winston-Salem Police Department's vice and narcotics unit, observed Michael Rayvon Williams, who had an outstanding warrant for his arrest, and Defendant Paris Lamont Stephens sitting in the parking lot of a gas station in a known drug area. Officers J.D. McCready and C.N. Kiser assisted Officer Paul in taking Williams into custody. Because Officer Paul knew Defendant "possibly had outstanding warrants, due to his arrests in this known high drug sales area and being around Mr. Williams who has a past drug arrest," he advised Officers McCready and Kiser to speak with Defendant regarding what he was doing in the area, and ask Defendant to consent to search of his person.

Officers McCready and Kiser approached Defendant, who was sitting in a chair with an open beer in a plastic bag on the ground between his feet. Officer Kiser asked Defendant whether the bottle was open. Defendant responded that the beer did not belong to him and that he had "just sat down in the chair." Officer McCready asked Defendant whether he had any identification, and Defendant refused to provide identification.

Defendant asked the officers why they were "messing with him" since "he hadn't done anything wrong." Defendant stood up and "began to look around as if he was looking for a route to escape." Defendant continued scanning the area, looking over the officers' shoulders, to the sides and avoiding eye contact. Based on the officers' training and experience, they knew Defendant was looking for an "avenue of escape" and that he "was going to eventually run."

Defendant suddenly took off running around the left side of the officers toward the road. The uniformed officers chased Defendant and ordered him to stop. After running about fifteen or twenty feet, the officers caught Defendant. Defendant was placed under arrest for consuming an alcoholic beverage where the business did not have an on-premises consumption permit, in violation of section 18B-300(b) of the North Carolina General Statutes.

Officer Paul conducted a search of Defendant incident to the arrest. He found approximately twenty packaged "dime bags" of marijuana and a larger sandwich bag of loose marijuana in Defendant's pockets. The total weight of the marijuana seized from Defendant was 30.3 grams.

Defendant was charged with felony possession of marijuana with the intent to sell and deliver and consumption of a malt beverage on premises with an off-premises permit. On 8 November 2004, a grand jury issued two separate indictments charging Defendant with possession with intent to sell and deliver marijuana and with being an habitual felon.

On 10 May 2005, a jury returned a verdict finding Defendant guilty of possession with intent to sell and deliver marijuana. The State then presented evidence to show that Defendant was an habitual felon, and the jury returned a guilty verdict. Defendant was sentenced as an habitual felon for the possession with intent to sell and deliver marijuana to a term of eighty-four to 110 months imprisonment.

On appeal to this Court, Defendant contends the trial court erred by: (I) denying his motion to suppress evidence obtained as a result of his arrest, (II) finding that there was probable cause to arrest Defendant, (III) denying his motion to dismiss the charge of possession with intent to sell and deliver, and (IV) denying his motion to dismiss based on insufficiency of the evidence.

I.

Defendant first argues that the trial court erred in denying his motion to suppress evidence obtained as a result of his arrest. Specifically, Defendant contends the trial court's determination that probable cause existed with respect to N.C. Gen. Stat. § 14-223 (2005) was not sufficient to support its order because the trial court did not conclude that there was probable cause to arrest him based on N.C. Gen. Stat. § 18B-300(b) (2005), the violation for which he was, in fact, arrested and charged. Defendant argues that because the arrest was unlawful, the trial court should have granted his motion to suppress the evidence obtained incident to the unlawful arrest. We disagree.

This Court's review of a denial of a motion to suppress is limited to determining whether the trial court's findings of fact are supported by competent evidence, in which case they are binding on appeal, and whether the findings of fact in turn support the conclusions of law. State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). If the trial court's conclusions of law are supported by its factual findings, this Court will not disturb those conclusions on appeal. State v. Logner, 148 N.C. App. 135, 138, 557 S.E.2d 191, 193-94 (2001).

Here, Defendant did not challenge on appeal the trial court's findings of fact. Thus, our review is limited to "whether the trial court's findings of fact, which are presumed to be supported by competent evidence, support its conclusions of law and judgment." State v. Downing, 169 N.C. App. 790, 794, 613 S.E.2d 35, 38 (2005) (citation omitted). Therefore, the sole question for our consideration is whether these conclusions of law are supported by the undisputed findings of fact and are legally correct. State v. Coplen, 138 N.C. App. 48, 52, 530 S.E.2d 313, 317, cert. denied, 352 N.C. 677, 545 S.E.2d 438 (2000).

A warrantless arrest is lawful if based upon probable cause, Brinegar v. United States, 338 U.S. 160, 174, 93 L. Ed. 1879, 1889-90 (1949); State v. Phillips, 300 N.C. 678, 683-84, 268 S.E.2d 452, 456 (1980), and permitted by state law. State v. Wooten, 34 N.C. App. 85, 88, 237 S.E.2d 301, 304 (1977). Section 15A-401(b)(1) of the North Carolina General Statutes permits an officer to arrest without a warrant any person the officer has probable cause to believe has committed a criminal offense in the officer's presence. N.C. Gen. Stat. . 15A-401(b)(1); Brooks, 337 N.C. at 145, 446 S.E.2d at 588; Trapp, 110 N.C. App. at 587, 430 S.E.2d at 486. The facts to establish probable cause must be sufficient to justify the issuance of an arrest warrant even though one has not been requested prior to the arrest. See Phillips, 300 N.C. at 684, 268 S.E.2d at 456.

In Brinegar, the United States Supreme Court discussed the concept of probable cause, stating:

[p]robabilities . . . are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved. . . . Probable cause exists where the facts and circumstances within [the officers'] knowledge, and of which they had reasonably trustworthy information, [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.

338 U.S. at 175-76, 93 L. Ed. at 1890 (internal quotations and citation omitted). In State v. Zuniga, 312 N.C. 251, 322 S.E.2d 140 (1984), the North Carolina Supreme Court explained that

while a reviewing court must, of necessity view the action of the law enforcement officer in retrospect, our role is not to import to the officer what in our judgment, as legal technicians, might have been a prudent course of action; but rather our role is to determine whether the officer has acted as a man of reasonable caution who, in good faith and based upon practical consideration of everyday life, believed the suspect committed the crime for which he was later charged.

Id. at 262, 322 S.E.2d at 147 (citations omitted) (emphasis added).

To determine whether probable cause existed to arrest, a court may consider the following non-exclusive factors:

(1) the time of day; (2) the defendant's suspicious behavior; (3) flight from the officer or the area; and (4) the officer's knowledge of defendant's past criminal conduct.

State v. Mills, 104 N.C. App. 724, 729, 411 S.E.2d 193, 196 (1991) (internal citations omitted). Moreover, "information given by one officer to another is reasonably reliable information to provide probable cause." State v. Thomas, 127 N.C. App. 431, 433, 492 S.E.2d 41, 42 (1997) (citations omitted).

In this case, the trial court judge found that the officers had probable cause to arrest Defendant based on the following findings of fact, which are presumed correct and supported by competent evidence:

On June 15, 2004 officers of the Winston-Salem Police Department were serving criminal process in the vicinity of Glenn and Greenway within the City; in the process of doing so they observed the Defendant sitting outside of the Bi-Lo gas station at that intersection. Officer Paul of the Winston-Salem Police Department informed Officers McCready and Kiser that the Defendant may have warrants outstanding, and that he had...