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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA11-1489 NORTH CAROLINA COURT OF APPEALS Filed: 21 August 2012 STATE OF NORTH CAROLINA v. EARVIN EUGENE HOWELL, JR. Johnston County No. 10 CRS 52025

Appeal by Defendant from judgment entered 7 July 2011 by Judge Thomas H. Lock in Superior Court, Johnston County. in the Court of Appeals 5 June 2012. Attorney General Roy Cooper, by Assistant Attorney General Kathryne E. Hathcock, for the State. The Robinson Law Firm, P.A., by Leslie S. Robinson, for Defendant-Appellant. McGEE, Judge. Earvin Eugene Howell, Jr. (Defendant) appeals the trial Heard

court's denial of his motion to suppress. At approximately 10:15 p.m. on the evening of 6 April 2010, Officer William Parker (Officer Parker) of the Kenly Police

Department received a call from dispatch involving a possible impaired driver. An unidentified driver had called the police

-2to report erratic driving, and Officer Parker responded.

Officer Parker intercepted the suspect vehicle, which was being driven by Defendant and was still being followed by the

anonymous tipster. and pulled in

Officer Parker passed the tipster's vehicle

directly behind Defendant, who was driving on Defendant stopped at a

South Gardner Avenue, a public highway.

stop sign, then made a right-hand turn onto a road (the road) identified by Officer Parker as South Church Street. suppression hearing, Officer Parker testified that At the the

"[a]s

vehicle made the turn, the vehicle turned very wide and went into the oncoming travel lane." The road ran perpendicular to

South Gardner Avenue and connected South Gardner Avenue with Highway 301 (also known as South Church Street). At the hearing, conflicting evidence was presented

concerning whether the road was a part of South Church Street. It was uncontroverted that a portion of the road was privately maintained by a Food Lion shopping center. It was also

uncontroverted that a portion of the road connecting to Highway 301/South Church Street was publicly maintained. Defendant drove along the road in the direction of Highway 301/South Church Street, with Officer Parker following.

Defendant entered a curve in the road and, according to Officer Parker, approximately half of Defendant's vehicle crossed the

-3center line in the road. According to testimony and evidence,

there is a center line just before the beginning of this curve in the road, and a center line at the end of this curve, but the central portion of the curve does not have markings. Parker testified that Defendant remained partially Officer in the

oncoming lane of traffic throughout Defendant's negotiation of this curve. Defendant Defendant then "swerved" back into the proper lane. at a light and turned right onto Highway

stopped

301/South Church Street, a four-lane road with an additional central turn lane. According to Officer Parker, Defendant made

a wide right turn and crossed into the second lane of traffic before moving back into the far right lane. Defendant then made

a right turn into a gas station where Officer Parker initiated a stop. Defendant was arrested for driving while impaired.

Defendant is not contesting on appeal that he was impaired. Defendant filed a pre-trial motion to suppress evidence of his impairment on 14 June 2010, arguing that Officer Parker The suppression

lacked a reasonable suspicion to make the stop.

hearing occurred on 7-8 April 2011, and the trial court denied Defendant's motion to suppress by order filed 6 May 2011.

Defendant preserved his right to appeal the denial of his motion to suppress, and entered into a plea agreement with the State. Judgment suspending Defendant's driving privileges and imposing

-4a suspended sentence of sixty days in jail was entered against Defendant on 7 July 2011. Defendant appeals. I. The issues on appeal are whether the trial court (1) made findings of fact not supported by competent evidence, and (2) erroneously concluded that reasonable suspicion existed to

support Officer Parker's stop of Defendant.

Defendant argues

that his motion to suppress should have been granted. II. Defendant first argues that the trial court erred in making its fifth finding of fact because that finding was not supported by competent evidence. We disagree.

"'Our review of a trial court's denial of a motion to suppress is strictly limited to a determination of whether it's [sic] findings are supported by competent evidence, and in turn, whether the findings support the trial court's ultimate conclusion.'" However, the trial court's conclusions of law are reviewed de novo and must be legally correct. State v. Hernandez, 170 N.C. App. 299, 304, 612 S.E.2d 420, 423 (2005) (citations omitted). The trial court's finding of fact number five states:

"Officer Parker further observed half of the black Impala go left of center and to the left of the double yellow lines in a curve [on the road] going toward Church St/US 301. This portion

-5of the service road is marked with double yellow lines and is state maintained." Officer Parker testified that Defendant crossed over onto the left-hand side of the road as he was traversing a curve in the road, then "swerved" back onto the right-hand side of the road. The State asked Officer Parker: "Q. Well, point out where swerved back into [the] lane?" Officer Parker

[Defendant]

indicated on an aerial photograph where this occurred, and the State asked: Q. So you're pointing to the second driveway right here? A. Yes. Q. And that's after the yellow line begins; is that correct? A. Yes. Q. So [Defendant] continued

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