Opinion
No. COA10-457
Filed 15 March 2011 This case not for publication
Appeal by defendant from judgment entered 14 October 2009 by Judge Russell J. Lanier, Jr. in Duplin County Superior Court. Heard in the Court of Appeals 27 October 2010.
Attorney General Roy Cooper, by Assistant Attorney General John P. Barkley, for the State. Michael J. Reece, for defendant-appellant.
Duplin County No. 09 CRS 51133.
Jamar Marquez Goodman ("defendant") appeals from a judgment entered upon a jury verdict finding him guilty of robbery with a dangerous weapon. We find no error.
I. Background
On 21 May 2009, an armed African-American male wearing all black clothing robbed Andy's restaurant in the town of Faison, North Carolina. At the time of the robbery, Captain Tim Jones ("Capt. Jones") of the Duplin County Sheriff's Department ("the Sheriff's Department") was working as a security guard in an off-duty capacity at the nearby Piggly Wiggly store. Capt. Jones received a call from Deputy Kevin Ryan ("Deputy Ryan"), also of the Sheriff's Department, notifying him that Andy's had been robbed. Deputy Ryan described the robber as a black male wearing all black clothing and armed with a weapon and also informed Capt. Jones that the robber was last seen exiting Andy's towards Cousin Fannie Road. Cousin Fannie Road is located one block behind Andy's and intersects with Highways 117 and 403. Highways 117 and 403 are the only two roads that allow travelers to drive into and out of Faison.
After receiving the robbery report, Capt. Jones immediately left the Piggly Wiggly and arrived at the intersection of Highway 403 and Fremont Street ("the intersection"). From the time Capt. Jones received the initial call from Deputy Ryan until the time he arrived at the intersection, which was approximately one-half mile from Andy's, only one minute had elapsed.
Upon his arrival at the intersection, Capt. Jones saw a black Ford Ranger truck ("the truck") stop at a stop sign and then wait at the intersection for approximately 5 to 10 seconds. Based upon his training and experience, Capt. Jones considered the length of the truck's stop to be suspicious. Capt. Jones observed that the driver of the truck was a black male and that there was an additional passenger in the truck. Although Capt. Jones could not see the passenger clearly, he believed the passenger was also a black male. The passenger was later identified as defendant.
Capt. Jones made an investigatory stop of the truck. According to Capt. Jones, he stopped the truck based on the truck's proximity in time and location to the scene of the reported robbery, the description of the robbery suspect, and the vehicle's extended stop at the intersection. During the investigatory stop, Capt. Jones found U.S. currency loosely scattered behind the passenger seat. As a result, Capt. Jones placed the driver and defendant in custody.
An arrest warrant was issued for defendant on 22 May 2009. Defendant was indicted for felony conspiracy to commit robbery with a dangerous weapon and robbery with a dangerous weapon on 20 July 2009. On 12 October 2009, defendant was indicted by superseding indictment for the same charges.
On 12 October 2009, defendant filed a motion to suppress the evidence seized from the investigatory stop in Duplin County Superior Court. Defendant's motion argued that the investigatory stop and subsequent search of the truck were not supported by reasonable suspicion and violated defendant's constitutional rights. A suppression hearing on defendant's motion was held on 13 October 2009. After the hearing, the trial court denied defendant's motion.
Defendant was tried by a jury beginning 13 October 2009. At trial, the State presented the evidence that defendant had unsuccessfully attempted to suppress. Defendant did not object to the State's evidence. On 14 October 2009, the jury returned a verdict finding defendant guilty of robbery with a dangerous weapon. The trial court sentenced defendant to a minimum of 46 months to a maximum of 65 months in the North Carolina Department of Correction. Defendant appeals.
II. Motion to Suppress
Defendant argues that the trial court erred in denying his motion to suppress, contending that the evidence was illegally obtained through a traffic stop that was not supported by reasonable suspicion. We disagree.
Initially, we note that defendant failed to object when the challenged evidence was admitted at trial.
Our Courts have consistently held that [a] motion in limine is insufficient to preserve for appeal the question of the admissibility of evidence if the defendant fails to further object to that evidence at the time it is offered at trial. Rulings on motions in limine are preliminary in nature and subject to change at trial, depending on the evidence offered, and thus an objection to an order granting or denying the motion is insufficient to preserve for appeal the question of the admissibility of evidence.
State v. Leach, 166 N.C. App. 711, 714, 603 S.E.2d 831, 833-34 (2004) (internal quotations, citations, and footnote omitted). Acknowledging his failure to object, defendant specifically and distinctly argues the denial of the motion to suppress was plain error. Consequently, we review this assignment of error only for plain error. See id.
"Plain error is error so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached." State v. Wilkerson, 363 N.C. 382, 412, 683 S.E.2d 174, 193 (2009) (internal quotations and citation omitted). Accordingly, "[t]o prevail, the defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result." State v. Haselden, 357 N.C. 1, 13, 577 S.E.2d 594, 602 (2003) (internal quotations and citation omitted). Thus, we first determine whether the trial court properly denied defendant's motion to suppress.
Our review of a motion to suppress is limited to whether competent evidence supports the trial court's findings of fact and whether the findings of fact support the trial court's conclusions of law. State v. Hernandez, 170 N.C. App. 299, 304, 612 S.E.2d 420, 423 (2005). "[T]he trial court's findings of fact are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting." State v. Barden, 356 N.C. 316, 332, 572 S.E.2d 108, 120-21 (2002) (internal quotation and citation omitted). However, the trial court's "conclusions of law regarding whether the officer had reasonable suspicion . . . to detain a defendant [are] reviewable de novo." State v. Hudgins, 195 N.C. App. 430, 432, 672 S.E.2d 717, 718 (2009) (internal quotations and citations omitted).
Defendant does not challenge the trial court's findings of fact. As a result, these findings "are deemed to be supported by competent evidence and are binding on appeal." Id. (internal quotations and citation omitted). Thus, our review of the trial court's order denying the motion to suppress is limited to a determination of whether the findings of fact support the legal conclusion that the totality of the circumstances provided Capt. Jones reasonable suspicion to stop and search defendant.
A traffic stop may be initiated if the officer has reasonable, articulable suspicion that criminal activity is afoot. State v. Styles, 362 N.C. 412, 414, 665 S.E.2d 438, 439 (2008). Further, the 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." Id. The trial court must consider "the totality of the circumstances . . . in determining whether a reasonable suspicion exists." Id. at 414, 665 S.E.2d at 440 (internal quotations and citation omitted). "[I]ndividually, any of the factors cited [in articulating reasonable suspicion] might not justify a search, but one cannot piecemeal this analysis. One piece of sand may not make a beach, but courts will not be made to look at each grain in isolation and conclude there is no seashore." State v. Crenshaw, 144 N.C. App. 574, 577, 551 S.E.2d 147, 150 (2001) (internal quotations and citation omitted).
In the instant case, the trial court's unchallenged findings of fact include, in relevant part:
6. Deputy Ryan testified that he relayed to
Captain Jones that a black male, wearing all black, armed with a weapon, robbed the Andy's in Faison and ran out the back door towards Cousin Fannie Road.
7. Captain Jones testified that Deputy Ryan relayed this same information to him.
. . .
12. Captain Jones is very familiar with the streets in Faison. Further, he knows that there are only two ways into and out of Faison-traveling north/south on US 117, and traveling east/west on Highway 403.
. . .
17. Within approximately 60 seconds of receiving the call from Deputy Ryan, Captain Jones was at a spot on Highway 403 sitting stationary watching traffic in an attempt to apprehend anyone involved in this robbery.
18. Almost simultaneously to Captain Jones arriving at this stationary position, he noticed that a black Ford Ranger pickup truck came to the intersection and sat there for about 5 to 10 seconds before proceeding. Captain Jones testified that in his training and experience considering what was happening he found the vehicle's remaining stationary at the intersection for 5 to 10 seconds to be suspicious.
19. Further, Captain Jones saw that the driver of the vehicle was a black male, and that there was a passenger in the vehicle whose seat was in the reclined position. Because the seat was in the reclined position, Captain Jones could not clearly see him but believed the passenger to be a black male.
. . .
22. Based on (1) the proximity in time and place to the scene of the reported robbery, (2) the occupant(s) of the vehicle matching the description relayed to him, and (3) the vehicle's staying stationary for 5 to 10 seconds when it came to the intersection, Captain Jones made an investigatory stop of the vehicle.
As a result of its findings, the trial court concluded that "Captain Jones testified to specific, articulable facts which, when taken together with rational inferences from those facts, from the perspective of a reasonable and cautious police officer, and considering the totality of the circumstances" supported reasonable suspicion to conduct the investigatory stop.
Defendant argues that the truck was "on a public road at an unspecified distance from Andy's" and "[Capt.] Jones . . . stopped the car simply because he was able to identify the driver as being black." However, this characterization oversimplifies the trial court's findings of fact.
The factors relied upon by the trial court in its findings of fact have previously been used by our Courts as elements which may be used to establish reasonable suspicion. These include (1) the suspect's proximity to a crime scene, State v. Campbell, 188 N.C. App. 701, 708, 656 S.E.2d 721, 726-27 (2008); (2) that the suspect matched the description of the perpetrator with regard to such factors as clothing, age, race, or physical build, State v. Huey, ___ N.C. App. ___, ___, 694 S.E.2d 410, 415-16 (2010); and (3) that the suspect was stopped along the perpetrator's likely escape route. State v. Wrenn, 316 N.C. 141, 147, 340 S.E.2d 443, 497 (1983).
The trial court found that Capt. Jones was very familiar with the roads of Faison because he had been employed with the Sheriff's Department for 22 years and had also been a resident of Faison for that same length of time. Based on his personal knowledge of the area, Capt. Jones drew a rational inference, guided by his experience and training, that the robbery suspect would only have two choices if he attempted to leave town. The robber would have to use either Highway 117 or Highway 403. Additionally, Capt. Jones drew a reasonable inference, based on the timing of the call from Deputy Ryan, that if the suspect drove along Highway 403, he would pass Capt. Jones's car.
Morever, the trial court specifically found that defendant was traveling out of Faison on one of the only two available roads leaving town, that the truck was stopped less than one-half mile from where the crime occurred, that Capt. Jones observed the truck stopped at the intersection for a suspicious amount of time, that the passengers of the truck were the same race as the suspect, and that while the truck was stopped, defendant was slouching down in the passenger seat of the truck, as if hiding. Considering the totality of the circumstances, the trial court's findings of fact support its conclusion of law that the investigatory stop of the truck conducted by Capt. Jones was supported by reasonable suspicion. Thus, the trial court properly denied defendant's motion to suppress. This argument is overruled.
III. Conclusion
Based upon the totality of the circumstances, Capt. Jones possessed reasonable, articulable suspicion to stop the truck in which defendant was a passenger. Consequently, the trial court properly denied defendant's motion to suppress.
No error.
Judges HUNTER, Robert C. and GEER concur.
Report per Rule 30(e).