State v. Tsilimos

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1369
NORTH CAROLINA COURT OF APPEALS

Filed: 31 December 2014

STATE OF NORTH CAROLINA

v. Mecklenburg County
No. 10 CRS 242533
VICTORIA GUTIERREZ TSILIMOS,
Defendant.

Appeal by defendant from judgment entered 31 May 2013 by

Judge Richard L. Doughton in Mecklenburg County Superior Court.

Heard in the Court of Appeals 23 April 2014.

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

Arnold & Smith, PLLC, by Laura M. Cobb, for defendant-
appellant.

GEER, Judge.

Defendant Victoria Gutierrez Tsilimos appeals from her

conviction of driving while impaired. On appeal, defendant

contends that the trial court erred in denying her motion to

suppress evidence obtained during a checkpoint stop. She

challenges the trial court's finding that the primary

programmatic purpose of the stop was DWI detection and argues
 -2-
that the checkpoint was not tailored to address the stated

purpose and was, therefore, unreasonable. In support of this

contention, defendant argues that the supervising Sergeant's

testimony that the location and timing of the checkpoint was

chosen due to a high rate of DWI arrests and accidents was not

corroborated by documented statistics. This argument addresses

only the credibility of and the weight that should be given to

the Sergeant's testimony -- questions that are solely within the

domain of the trial court. Because the trial court's findings

are supported by competent evidence and those findings support

the court's conclusion that the primary programmatic purpose of

the checkpoint was proper and the checkpoint was reasonable, we

hold that the trial court did not err in denying defendant's

motion to suppress. We find defendant's remaining arguments

also unpersuasive and, therefore, hold that defendant received a

trial free from prejudicial error.

Facts

The State's evidence tended to show the following facts.

Beginning at 11:00 p.m. on 2 September 2010, the Charlotte-

Mecklenburg Police Department ("CMPD") conducted a checkpoint at

the intersection of 5th Street and Caldwell Street and the

intersection of 7th Street and Caldwell Street near downtown

Charlotte, North Carolina. Marked patrol cars and orange
 -3-
reflective signs were posted in both directions of travel at

each checkpoint location to warn approaching motorists of the

upcoming checkpoint. All officers wore police uniforms and

reflective traffic vests.

The purpose of the checkpoint was DWI detection. Sergeant

David Sloan of the CMPD was the supervisor of the checkpoint and

had selected the location in advance. Sergeant Sloan chose the

location because there are close to 100 bars and drinking

establishments in the area and because several impaired driving

related crashes and numerous DWI arrests had occurred in that

area on Thursday, Friday, and Saturday nights. Additionally,

the CMPD had conducted four other checkpoints in the same

location during the previous three to four years, which had

resulted in double digit DWI arrests.

Pursuant to the checkpoint plan, officers were directed to

stop each vehicle, engage the driver in conversation, ask for a

driver's license, and look for signs of impairment. In the

event of an emergency or when traffic became severely congested,

only Sergeant Sloan was authorized to deviate from the directive

to stop every vehicle. Before the checkpoint began, Sergeant

Sloan briefed the 37 participating officers on the plan for the

checkpoint and provided each of them with a written copy of the

plan.
 -4-
At around 2:30 a.m., Officer Charles G. Jamieson of the

CMPD stopped defendant's vehicle. He smelled a very strong odor

of alcohol coming from defendant and observed that her eyes were

red and watery. When asked, defendant admitted that she had

been drinking before operating the vehicle. Officer Jamieson

asked defendant to step out of her vehicle, and he performed a

series of field sobriety tests. Based upon her performance on

the tests, as well as the results of a portable breath test,

Officer Jamieson believed that she had consumed a sufficient

quantity of alcohol to be impaired.

Officer Jamieson arrested defendant and took her to a

portable processing unit called the "BAT mobile," which was a

bus containing an EC/IR II intoxilyzer. At 2:53 a.m., Officer

Jamieson read defendant her chemical analysis rights and

provided her with a written copy of her rights. Defendant did

not exercise her right to contact an attorney or a witness to

view the testing procedure. At 3:08 a.m., defendant submitted

to a breath test and registered a .08 alcohol concentration.

On 8 February 2011, the district court found defendant

guilty of impaired driving. Defendant appealed to superior

court where she filed a motion to suppress. On 29 May 2013,

after a hearing, the trial court entered an order denying the

motion. Defendant's case was tried before a jury on 30 and 31
 -5-
May 2013. On 31 May 2013, the jury returned a verdict of guilty

of driving while impaired, and the defendant was sentenced to a

presumptive-range term of six months imprisonment. The trial

court suspended defendant's sentence and placed her on

supervised probation for 24 months. Defendant timely appealed

to this Court.

I

Defendant first argues that the trial court erred in

denying her motion to suppress because the checkpoint

constituted an unconstitutional seizure. Our review of a trial

court's denial of a motion to suppress is limited to "whether

the trial court's findings of fact are supported by competent

evidence, and whether these findings of fact support the court's

conclusions of law." State v. Pulliam, 139 N.C. App. 437, 439-

40, 533 S.E.2d 280, 282 (2000). "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).

It is well established that

"[w]hen considering a challenge to a
checkpoint, the reviewing court must
undertake a two-part inquiry to determine
whether the checkpoint meets constitutional
requirements. First, the court must
determine the primary programmatic purpose
of the checkpoint. . . . Second, if a court
finds that police had a legitimate primary
programmatic purpose for conducting a
checkpoint . . . [the court] must judge its
 -6-
reasonableness, hence, its
constitutionality, on the basis of the
individual circumstances."

State v. Jarrett, 203 N.C. App. 675, 677, 692 S.E.2d 420, 423

(2010) (quoting State v. Veazey, 191 N.C. App. 181, 185-86, 662

S.E.2d 683, 686-87 (2008)).

Defendant argues that the trial court erred in concluding

that the primary programmatic purpose of the checkpoint was the

detection of impaired driving. In support of this conclusion,

the trial court found, in pertinent part, that:

3. Sgt. David B. Sloan testified that he
was the supervising officer on scene
and he developed the written checkpoint
plan (State's Exhibit #1) for the
evening. This location was chosen
several weeks before the checkpoint was
conducted[.]

4. Sgt. Sloan testified that the purpose
of the checkpoint was DWI detection.

. . . .

7. Sgt. Sloan testified that the location
was chosen due to the high vehicle
crash rate, and high number of DWI
arrests in that immediate area. There
are also over 100 restaurants and bars
in that area.

8. Sgt. Sloan testified that this area had
previously been used for checkpoints
approximately four times with double
digit DWI arrests per checkpoint.

Defendant argues that findings 7 and 8 are not supported by

competent evidence because Sergeant Sloan's testimony was based
 -7-
only on his personal knowledge and is not corroborated by

documentary statistical evidence. Defendant points to CMPD

crime statistics reports submitted into evidence during Sergeant

Sloan's cross-examination that listed only three DWIs in the

vicinity of the checkpoint in the year prior to the checkpoint.

Defendant cites no authority, and we have found none,

requiring an officer to corroborate his testimony with

documentary statistical evidence. This Court has, in fact, held

that comparable testimony based on personal knowledge and

experience as a police officer constitutes competent evidence of

a checkpoint's programmatic purpose. See State v. Dippel, ___

N.C. App ___, ___ S.E.2d. ___, 2014 N.C. App. LEXIS 1260, *10,

2014 WL 6907567, *4 (2014) (unpublished) (holding Sergeant's

testimony that he chose DWI checkpoint location based on his

personal knowledge of prior DWI arrests and crashes in area

constituted competent evidence in support of trial court's

finding that primary programmatic purpose of checkpoint was DWI

detection).

Further, Sergeant Sloan explained that the CMPD reports

included only incidents reported by 911 dispatch and by calls

for service -- the reports did not include officer-generated

arrests. Therefore, Sergeant Sloan explained, the reports were

not an accurate representation of the total number of DWI
 -8-
arrests. To the extent that the documentary statistical

evidence conflicted with Sergeant Sloan's testimony regarding

the frequency of DWI arrests and vehicle crashes in the

checkpoint area, it is well settled that "[i]f there is a

conflict between the state's evidence and defendant's evidence

on material facts, it is the duty of the trial court to resolve

the conflict and such resolution will not be disturbed on

appeal." State v. Chamberlain, 307 N.C. 130, 143, 297 S.E.2d

540, 548 (1982). Here, Sergeant Sloan's failure to produce

supporting statistical documents presented a question of the

weight and credibility to be given his testimony, which was

solely for the trial court to determine.

Next, defendant argues that this case is materially

indistinguishable from State v. Rose, 170 N.C. App. 284, 612

S.E.2d 336 (2005). In Rose, this Court held that the trial

court erred in accepting at face value the officers' stated

purpose of a checkpoint stop without conducting a closer review

of all the evidence presented. Id. at 289, 612 S.E.2d at 340.

Defendant asserts that "[t]he only thing that distinguishes this

case from Rose is the identity of the officer who testified

regarding the primary purpose -- a supervisor as opposed to

'individual officers acting at the scene.'" (Quoting id. at

290, 612 S.E.2d at 340.) We disagree.
 -9-
Defendant misconstrues the holding in Rose. In Rose,

although the officers at the checkpoint testified that the

purpose of the stop was to check licenses and registrations, the

officers also testified that the checkpoint was spontaneous, and

no plan had been created ahead of time. Id. at 291, 612 S.E.2d

at 341. In addition, there was no evidence presented as to why

the specific location for the checkpoint was chosen or if that

area had a problem with unlicensed or unregistered drivers. Id.

at 294, 612 S.E.2d at 342-43. Additionally, four of the five

officers involved in the checkpoint were narcotics detectives,

and the defendant had been arrested for possession of drugs and

a weapon and not for a faulty license or registration. Id. at

285, 290, 612 S.E.2d at 338, 340. In conducting the checkpoint,

one officer would check the drivers' licenses and registrations

while a second officer would "scan the inside of the vehicle and

walk around it." Id. at 292, 612 S.E.2d at 341. This Court

noted that this evidence suggested that "the function of the

second officer may have been to scan for possible criminal

activity." Id.

As explained by this Court in State v. Burroughs, 185 N.C.

App. 496, 501, 648 S.E.2d 561, 565 (2007), "our holding in Rose

was that where contradictory evidence exists as to the actual

primary purpose of a checkpoint program, the trial court must
 -10-
examine the available evidence to determine the actual purpose,

because bare assertions of a constitutional purpose cannot be

allowed to mask actual purposes that are unconstitutional." As

this Court further explained in Burroughs, in Rose,

this Court was forced to closely examine the
facts surrounding the checkpoint's purpose
because its alleged purpose -- to check
licenses and registrations, which the
Supreme Court has held to be constitutional
-- was belied by substantial evidence to the
contrary showing the checkpoint's actual
purpose was almost certainly to check for
narcotics, which the Supreme Court has
expressly held to be unconstitutional.
This, then, is why this Court held in Rose
that the trial court was required to make
findings of fact as to the checkpoint's
purpose: Not because every trial court in
every case must make such findings of fact,
but because in this specific case, bare
statements that the checkpoint had a
constitutional purpose were unreliable.

Id. at 502, 648 S.E.2d at 565.

In this case, unlike in Rose, there was no evidence

presented that suggests that the checkpoint was for any purpose

other than to detect DWIs. Thus, we conclude that the trial

court did not err in concluding that the primary programmatic

purpose for the checkpoint was DWI detection. See Burroughs,

185 N.C. App. at 503, 648 S.E.2d at 565-66 (holding that

evidence was sufficient to establish constitutional purpose when

no evidence suggested that stated purpose of checkpoint --
 -11-
checking for sobriety -- was a mask for another,

unconstitutional purpose).

"After finding a legitimate programmatic purpose, the trial

court must determine whether the roadblock was reasonable and,

thus, constitutional." State v. Townsend, ___ N.C. App. ___,

___, 762 S.E.2d 898, 907 (2014). In analyzing the

reasonableness of a checkpoint, this Court balances the public's

interest and the individual's privacy interest by applying the

three-prong test set out in Brown v. Texas, 443 U.S. 47, 50-51,

61 L. Ed. 2d 357, 362, 99 S. Ct. 2637, 2640 (1979). "Under

Brown, the trial court must consider '[1] the gravity of the

public concerns served by the seizure[;] [2] the degree to which

the seizure advances the public interest[;] and [3] the severity

of the interference with individual liberty.'" Jarrett, 203

N.C. App. at 679, 692 S.E.2d at 425 (quoting Rose, 170 N.C. App.

at 293-94, 612 S.E.2d at 342).

"The first Brown factor -- the gravity of the public

concerns served by the seizure -- analyzes the importance of the

purpose of the checkpoint. This factor is addressed by first

identifying the primary programmatic purpose . . . and then

assessing the importance of the particular stop to the public."

Rose, 170 N.C. App. at 294, 612 S.E.2d at 342 (internal citation

omitted). This Court has held that the first Brown factor is
 -12-
satisfied where the purpose of the stop is DWI detection. See

Townsend, ___ N.C. App. at ___, 762 S.E.2d at 908. Accordingly,

we hold that the first Brown factor is met in this case.

The second Brown factor "requires the trial court to

determine whether '[t]he police appropriately tailored their

checkpoint stops to fit their primary purpose.'" Id. at ___,

762 S.E.2d at 908 (quoting Veazey, 191 N.C. App. at 191, 662

S.E.2d at 690).

"Our Court has previously identified a
number of non-exclusive factors that courts
should consider when determining whether a
checkpoint is appropriately tailored,
including: whether police spontaneously
decided to set up the checkpoint on a whim;
whether police offered any reason why a
particular road or stretch of road was
chosen for the checkpoint; whether the
checkpoint had a predetermined starting or
ending time; and whether police offered any
reason why that particular time span was
selected."

Id. at ___, 762 S.E.2d at 908 (quoting Veazey, 191 N.C. App. at

191, 662 S.E.2d at 690).

Here, the trial court found that the checkpoint was

scheduled to run from 11:00 p.m. until 3:30 a.m.; that the

location was chosen in advance; the location was selected due to

a high vehicle crash rate and high number of DWI arrests in the

area, and because there are over 100 restaurants and bars in the

area; and that the area had previously been used for checkpoints
 -13-
approximately four times with double digit DWI arrests per

checkpoint. As we have already concluded, these findings are

supported by competent evidence in the record.

Defendant, however, points to evidence that the timing and

placement of the checkpoints -- two per year in each of 13

divisions throughout the city -- is linked to the availability

of the BAT mobile and the timing of the "Booze it or Lose it"

campaign. We fail to see how those circumstances conflict with

the above findings or otherwise further defendant's argument

that the checkpoint was not appropriately tailored to detect

impaired driving. Indeed, the BAT mobile allows the officers to

conduct the checkpoint more efficiently.

We hold that the trial court's findings "indicate that the

trial court considered appropriate factors to determine whether

the checkpoint was sufficiently tailored to fit its primary

purpose, satisfying the second Brown prong." Jarrett, 203 N.C.

App. at 680-81, 692 S.E.2d at 425. See also Townsend, ___ N.C.

App. at ___, 762 S.E.2d at 908 (second Brown prong satisfied

where trial court found that DWI checkpoint had fixed starting

and ending times, checkpoint was located near shopping area

where alcohol was served, location was selected based on

impaired driving statistics, and checkpoint was conducted

according to written plan).
 -14-
Defendant concedes that the third Brown factor -- the

severity of the interference with individual liberty -- is met.

Consequently, we conclude that the trial court's order contained

adequate findings of fact, supported by competent evidence, to

identify the primary programmatic purpose of the checkpoint and

to satisfy the three factors of the Brown reasonableness test.

These findings in turn support the trial court's conclusion that

the checkpoint was constitutional. Accordingly, we affirm the

suppression order.1

II

Defendant next argues that the trial court erred by failing

to declare a mistrial after the arresting officer testified that

he performed a portable breath test on defendant. We review a

trial court's decision whether to declare a mistrial for abuse

of discretion. State v. McCarver, 341 N.C. 364, 383, 462 S.E.2d

25, 36 (1995).

This issue is controlled by State v. Fuller, 176 N.C. App.

104, 626 S.E.2d 655 (2006). In Fuller, the arresting officer

was asked during the defendant's DWI trial what he relied upon
1
Defendant additionally argued that various other findings
of fact were not supported by sufficient evidence, but, even
accepting without deciding the validity of defendant's
arguments, she has failed to show that any of these other
findings of fact are material to the trial court's determination
of the primary programmatic purpose of the stop and that the
roadblock was reasonable. We, therefore, need not address those
arguments.
 -15-
to determine that the defendant was impaired prior to arresting

her. He testified that he relied upon "'[a] strong odor of

alcohol . . . red glassy eyes, her speech, and then also with

the backings of an Alco-Sensor test that was performed.'" Id.

at 109, 626 S.E.2d at 658. The trial court sustained the

defendant's objection to the officer's reference to the Alco-

Sensor test and instructed the jury to disregard the statement,

but denied defendant's motion for a mistrial. Id. at 106, 626

S.E.2d at 657.

On appeal, this Court held that the admissibility of

portable alcohol screening tests is governed by N.C. Gen. Stat.

§ 20-16.3(d) (2003). Fuller, 176 N.C. App. at 109, 626 S.E.2d

at 658. Pursuant to N.C. Gen. Stat. § 20-16.3(d) (2003),

[t]he results of an alcohol screening test
or a driver's refusal to submit may be used
by a law-enforcement officer, a court, or an
administrative agency in determining if
there are reasonable grounds for believing
that the driver has committed an implied-
consent offense under G.S. 20-16.2.
Negative or low results on the alcohol
screening test may be used in factually
appropriate cases by the officer, a court,
or an administrative agency in determining
whether a person's alleged impairment is
caused by an impairing substance other than
alcohol. Except as provided in this
subsection, the results of an alcohol
screening test may not be admitted in
evidence in any court or administrative
proceeding.
 -16-
The Court in Fuller reasoned that the officer's testimony

did not violate N.C. Gen. Stat. § 20-16.3(d) because he "did not

testify regarding the results of the Alco-Sensor test, only that

one was administered." 176 N.C. App. at 109, 626 S.E.2d at 658.

Because "[t]he results of an alcohol screening test may be used

by an officer to determine if there are reasonable grounds to

believe that a 'driver has committed an implied-consent offense

under G.S. 16.2[,]'" the officer's "testimony that he relied on

the alcohol screening in making the determination that he had

reasonable grounds to arrest defendant for DWI was properly

admissible." Id. (quoting N.C. Gen. Stat. § 20-16.3(d) (2003)).

Subsequent to Fuller, our General Assembly amended N.C.

Gen. Stat. § 20-16.3(d). See 2006 N.C. Sess. Law 253 § 7. N.C.

Gen. Stat. § 20-16.3(d) (2013) provides, in relevant part, that:

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 . . . in determining if there are
reasonable grounds for believing:

(1) That the driver has committed an
implied-consent offense under G.S.
20-16.2; and

(2) That the driver had consumed
alcohol and that the driver had in
his or her body previously
consumed alcohol, but not to prove
a particular alcohol
concentration.
 -17-
The amended statute is consistent with Fuller's holding

that the fact that an Alco-Sensor test was administered is

admissible to show that the arresting officer had reasonable

grounds to believe that the defendant had committed an implied-

consent offense.

Here, Officer Jamieson testified that he believed that

defendant was impaired "based on the [field sobriety] tests, the

odor, and a portable breath test." Defendant argues that

Officer Jamieson's testimony is distinguishable from the

testimony in Fuller because "[u]nlike in Fuller, where the

testimony regarding the Alco-Sensor was made in the probable-

cause context, Officer Jamieson's testimony occurred at the

close of the State's case, at a point at which the Prosecutor's

questions appeared to lead Officer Jamieson to communicate to

the jury that, inter alia, Defendant was guilty." The testimony

in both cases, however, was made in the presence of the jury and

in response to a question regarding what the officer relied upon

in determining that the defendant was impaired prior to arrest.

See Fuller, 176 N.C. App. at 109, 626 S.E.2d at 658. Officer

Jamieson's testimony, therefore, like the testimony in Fuller,

addressed the question of probable cause and was admissible

under N.C. Gen. Stat. § 20-16.3(d).
 -18-
Even assuming that Officer Jamieson's testimony was

inadmissible, defendant has failed to show that she was

prejudiced. Immediately after Officer Jamieson's testimony, the

trial court instructed the jury to dismiss the statement and not

consider it in its deliberations. Additionally, there was

substantial evidence of defendant's guilt. Officer Jamieson

testified that defendant had a very strong odor of alcohol

coming from her person; that she had red, watery eyes; that she

admitted to drinking prior to driving; and that she performed

poorly on all three field sobriety tests. Significantly, the

Intoximeter breath test indicated that defendant had an alcohol

concentration of .08.

The Intoximeter breath test alone constituted sufficient

evidence to convict defendant of DWI. See N.C. Gen. Stat. § 20-

138.1(a)(2) (2013) (providing that person is guilty of DWI if

she drives a vehicle "[a]fter having consumed sufficient alcohol

that [s]he has, at any relevant time after the driving, an

alcohol concentration of 0.08 or more" and that "[t]he results

of a chemical analysis shall be deemed sufficient evidence to

prove a person's alcohol concentration"). In light of this

evidence, defendant has failed to show that there is a

reasonable possibility that had the portable breath test not

been mentioned, a different result would have been reached at
 -19-
trial. See N.C. Gen. Stat. § 15A-1443 (2013). We hold that the

trial court did not abuse its discretion by failing to declare a

mistrial.

Affirmed.

Judges STEPHENS and ERVIN concur.

Report per Rule 30(e).