State v. Rouse, COA21-580

• Docket Number: COA21-580
• Decision Date: 19 July 2022
• Citation: 284 N.C.App. 473,876 S.E.2d 107
• Parties: STATE of North Carolina v. Steven Ray ROUSE, Defendant.
• Court: North Carolina Court of Appeals

284 N.C.App. 473

876 S.E.2d 107

STATE of North Carolina

v.Steven Ray ROUSE, Defendant.

No. COA21-580

Court of Appeals of North Carolina.

Filed July 19, 2022

Attorney General Joshua H. Stein, by Assistant Attorney General Kathryne E. Hathcock, for the State.

Dunn, Pittman, Skinner & Cushman, PLLC, by Rudolph A. Ashton, III, New Bern, for defendant-appellant.

STROUD, Chief Judge.

¶ 1 Defendant Steven Ray Rouse appeals from a judgment for habitual impaired driving entered following a jury trial. On appeal, Defendant contends the trial court erred when it (1) denied Defendant's motion to suppress an eyewitness identification, (2) denied Defendant's motion to dismiss for insufficiency of the evidence, and (3) instructed the jury on flight as evidence of guilt over Defendant's objection. Because the trial court's unchallenged Findings of Fact support its Conclusions of Law that the eyewitness identification did not violate Defendant's due process rights or the relevant eyewitness identification statute, we affirm the trial court's denial of the motion to suppress. Further, because the State presented sufficient evidence Defendant drove a vehicle, fled the scene, and took steps to avoid apprehension, we find no error in the trial court's rulings on the sufficiency or jury instruction issues.

I. Background

¶ 2 The State's evidence at trial tended to show that on 29 November 2019, Charles Randy Hewett was outside behind his mother's house in Bolivia, North Carolina, when he heard a crash at about 4:40 p.m. Hewett ran to the front yard, arrived at the crash scene "less than a minute" later, and found Defendant sitting with "his nose ... bleeding a little bit" in the driver's seat of a pickup truck that had crashed nose-first into a ditch alongside the road. No one other than Hewett's family members were around the scene of the crash. Police later determined the truck was registered to Defendant.

¶ 3 After coming upon Defendant at the crash scene, Hewett talked with Defendant and called a phone number at his request. Defendant asked Hewett to assist in pulling the truck out of the ditch, but Hewett declined, and someone called 911. At this point, Defendant grew increasingly "aggravated," and left down the main road toward Highway 17, walking in a "wobbly" manner before he appeared to head down a dirt road into the woods.

¶ 4 Law enforcement arrived on the scene about ten to fifteen minutes after Defendant left. Hewett gave an officer on the scene, State Highway Patrol Trooper James Ballard, a written description of "a white male [with a] green jacket [and] long sandy brown hair" who had exited the truck and walked up the main road. Sergeant Keith Bowling of the Brunswick County Sheriff's Office arrived a short time later with a police canine and started to search where Hewett had indicated. About 15 minutes after arriving, the sergeant said, his K-9 found Defendant "behind a bush" that was three or four feet tall. Defendant was "laying on the ground" and appeared to be "hiding." The sergeant estimated Defendant was found "probably within a couple hundred feet" of where Hewett had indicated and about "a quarter mile" from the crash site. While interacting with Defendant, Sergeant Bowling "noticed a strong odor of alcohol and slurred speech." Officers also found the keys to Defendant's truck in Defendant's pocket. After the police dog found Defendant, Sheriff's Deputy Gary Green handcuffed Defendant and eventually put him into the back of his patrol car. Deputy Green observed Defendant "seemed to be very impaired" and "had trouble walking" because he was "stumbling [and] tripping."

¶ 5 Deputy Green drove Defendant back to the crash site, where the witness, Hewett, was waiting roadside with Trooper Ballard. The deputy pulled up and rolled down the rear passenger-side window where Defendant was sitting. In response to Trooper Ballard asking, "Is this the person?", Hewett responded that he was "[a] hundred percent" sure the man in the police car was the same man from the crashed truck. Around the same time as this identification, Trooper Ballard noticed Defendant had "a very strong odor of alcohol coming from his breath," "droopy eyelids

," and "slurred speech."

¶ 6 Defendant was then taken to a hospital for a "pretty minor" dog bite he sustained when the police dog found him, as Defendant had made "no attempts to warn [police] of his presence." While at the hospital, Defendant refused to consent to a blood test. Trooper Ballard then took Defendant to the Brunswick County jail, obtained a warrant, and had the jail nurse draw the blood sample. A subsequent State Crime Laboratory analysis found Defendant had a blood-alcohol concentration of 0.22.

¶ 7 On 29 November 2019, the same day as the incident, Defendant was charged with driving while impaired "and other related offenses." On 2 March 2020, those charges were dismissed after the State's motion to continue was denied. The State refiled charges for the same conduct the same day but charged Defendant with habitual impaired driving; he was indicted for habitual impaired driving on or about 1 June 2020.¹

¶ 8 On 30 April 2020, Defendant filed a motion to suppress "all evidence and statements obtained as the result of a ‘show-up’ performed in violation of N.C.G.S. § 15-A-284.52(c1)." On 16 November 2020, the trial court held a hearing on Defendant's motion to suppress Hewett's eyewitness identification. At the hearing, Hewett testified about the crash, his interactions with Defendant, and the identification process. Trooper Ballard, Sergeant Bowling, and Deputy Green testified about tracking down Defendant, procuring Hewett's eyewitness identification, and testing Defendant's blood-alcohol concentration. Defendant and the State then argued both the statutory issue² and whether the "suggestive procedure" violated constitutional due process.

¶ 9 Following the hearing, the trial court denied Defendant's motion to suppress. The trial court made the following Findings of Fact: Defendant was driving before Hewett heard a crash, ran to the road, and found Defendant behind the steering wheel of a truck in a ditch; "Hewett spent approximately 25-30 minutes at a minimum with the Defendant," who sought help pulling his truck from the ditch; Defendant walked away toward Highway 17 before law enforcement responded; Hewett told officers about "a white man with stringy brown hair wearing what appeared to be a green jacket or hoodie" who "was heading towards Highway 17, and ... appeared to head through a gate into the woods"; Sergeant Bowling arrived with a police canine who searched and found Defendant behind a bush in the "area consistent with the direction" Hewett had indicated; Defendant was handcuffed, placed in the back of a police vehicle, and taken back to the crash scene for a show-up identification by Hewett that was recorded by police body cameras and dashboard camera; Trooper Ballard performed a show-up identification because he "was concerned with the rapid metabolism and dissipation of alcohol as it related to this Defendant" and the driving while impaired investigation such that he "felt" a show-up identification "was necessary"; and finally Hewett said he was "one hundred percent certain" Defendant was the same man from the truck that had crashed about 80 minutes earlier.

¶ 10 Based on those Findings, the trial court concluded that "proper procedure was followed pursuant to North Carolina General Statute 15A-284.52 [(c1)]"; "there was no Due Process violation in regard to the identification procedure"; and "based on the totality of the circumstances, the witness's identification was reliable even if the confrontation procedure was in fact suggestive." The trial court also concluded the identification procedure generally "did not violate the Defendant's rights under the United States Constitution and the North Carolina Constitution." Based on these conclusions, the trial court denied Defendant's motion to suppress.

¶ 11 Defendant's trial started 8 March 2021 after delays primarily due to COVID-19 shutdowns. Before the trial started, Defendant raised a motion to dismiss due to speedy trial violations, which he had originally filed on 13 April 2020. The trial court denied Defendant's motion to dismiss due to speedy trial violations, noting the COVID-19 enforced delays, Defendant's consent to the only continuance not related to COVID-19, and Defendant's custody on an unrelated charge in another county since October 2020. Defendant raises no issues regarding the speedy trial motion dismissal on appeal.

¶ 12 After jury selection but outside the presence of the jury, Defendant admitted to three prior impaired driving offenses within ten years of the 2019 incident, satisfying one statutory element of habitual impaired driving. N.C. Gen. Stat. § 20-138.5 (2019). The only issue for the jury was whether Defendant was guilty of driving while impaired on 29 November 2019. See id. (listing driving while impaired as the other statutory element of habitual impaired driving).

¶ 13 The trial included testimony from Hewett about his interactions with and identification of Defendant. As part of Hewett's testimony, the State introduced Hewett's written statement to police the night of the incident, which recounted his description of Defendant and the direction he saw Defendant go when Defendant left the scene. Trooper Ballard, Sergeant Bowling, and Deputy Green once again testified for the State about tracking down Defendant, procuring Hewett's eyewitness identification, and testing Defendant's blood-alcohol concentration. As part of his testimony, Trooper Ballard described the crash diagram he had sketched based on his observations at the scene, and the State introduced that diagram into evidence. A forensic scientist from the North Carolina State Crime Laboratory also testified about testing Defendant's blood. As part of this testimony, the State introduced the lab report documenting Defendant's...