State v. Bradley

• Court: Court of Appeals of North Carolina
• Decided: March 15, 2022
• Docket: 20-873
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-163

No. COA20-873

Filed 15 March 2022

Moore County, No. 18 CRS 52027; 19 CRS 52656

STATE OF NORTH CAROLINA

v.

CONNOR ORION BRADLEY, Defendant.

Appeal by Defendant from judgments entered 29 July 2020 by Judge James M.

Webb in Moore County Superior Court. Heard in the Court of Appeals 7 September

2021.

Attorney General Joshua H. Stein, by Assistant Attorney General Ebony J. Pittman, for the State.

Stephen G. Driggers, for Defendant-Appellant.

WOOD, Judge.

¶1 Defendant Connor Orion Bradley (“Defendant”) appeals two judgments

revoking his probation. On appeal, Defendant argues the trial court erred by

revoking his probation based on the findings he (1) possessed Schedule II and

Schedule IV controlled substances and (2) maintained a place for a controlled

substance. For the reasons stated herein, we affirm the trial court’s revocation of

Defendant’s probation. STATE V. BRADLEY

Opinion of the Court

I. Factual and Procedural Background

¶2 On September 5, 2019, Defendant entered a guilty plea to one count of indecent

liberties with a child in 18 CRS 052027. The trial court sentenced Defendant to a

term of 16 to 29 months in confinement, suspended the sentence, and placed

Defendant on 30 months of supervised probation.

¶3 On September 30, 2019, Defendant’s probation officer, Ilissa Epps, filed a

probation violation report. In the report, Epps attested under oath

1. The Defendant committed the offense of driving while his . . . license was revoked . . . . The Defendant also committed the criminal offenses of driving a vehicle with no registration, no inspection, and [fictitious title / registration card and tag] . . . .

2. The Defendant committed the criminal offense of failure to register his address within 3 business days of change of address. . . . This is in violation of . . . [N.C. Gen. Stat. §] 14-208.9(A).

¶4 On November 6, 2019, Defendant entered another guilty plea to one count of

failing to register his new address as a sex-offender in file number 19 CRS 052656.

That same day, the trial court entered an order finding Defendant had violated the

terms and conditions of his probation as set out in the violation report. Defendant

was sentenced to an intermediate punishment of 38 days in prison and was given

credit for 38 days served. Also, on November 6, 2019, the trial court entered judgment

against Defendant sentencing him to 17 to 30 months in confinement. The trial court

suspended this sentence and placed Defendant on 30 months of supervised probation STATE V. BRADLEY

under the same conditions set forth in 18 CRS 052027.

¶5 After Defendant was placed on probation for failure to register his address as

a sex offender, he submitted to a risk assessment. The risk assessment found

Defendant to be a “high risk offender.” As a result, the Division of Community

Corrections amended the conditions of Defendant’s probation by requiring he submit

to a curfew and wear an electronic monitoring device.

¶6 Less than five months after Defendant’s probation began, Epps once again filed

a probation violation report in each case. The violation report for 18 CRS 052027

alleged Defendant had 1) failed to pay any money since being placed on probation, 2)

failed to pay any supervision fees since being placed on probation, and 3) committed

the criminal offense of possession with the intent to deliver a schedule IV controlled

substance, maintaining a place for a controlled substance, simple possession of a

scheduled II controlled substance, and simple possession of a schedule IV controlled

substance. The violation report for 19 CRS 052656 alleged Defendant 1) failed to pay

any money since being placed on probation and 2) committed the criminal offense of

possession with the intent to deliver a schedule IV controlled substance, maintaining

a place for a controlled substance, simple possession of a scheduled II controlled

substance, and simple possession of a schedule IV controlled substance.

¶7 The trial court held a hearing on these violation reports on July 29, 2020. At

the hearing, Defendant denied he had “knowingly and willfully and without legal STATE V. BRADLEY

justification violated the terms and conditions of his probation.”

¶8 The State presented evidence which tended to show the following: On March

19, 2020, Amanda Gooch (“Gooch”) was driving her grandmother’s vehicle in which

Defendant was a passenger in the front passenger seat. While driving, Gooch was

pulled over by Officer McKenzie for careless and reckless driving. Officer McKenzie

then conducted a traffic stop during which time Corporal Faulk and Officer Lucas

arrived. Corporal Faulk walked up to the vehicle, retrieved Gooch’s driver’s license,

and ran the vehicle’s registration. Upon observing Defendant to be moving

excessively in the passenger seat while the traffic stop was ongoing, Officer Lucas

pulled Defendant out of the vehicle. The officers next asked Gooch and Defendant for

permission to search the vehicle but were denied consent.

¶9 An officer then shined his flashlight into the vehicle’s passenger side and

observed a plastic container with marijuana on the floorboard. A search of the vehicle

ensued. The officers additionally discovered Alprazolam (Xanax) and Oxycodone

inside the glove box and Clonazepam, a glass marijuana pipe, and one Cigarillo in

the center console. Defendant denied owning any of these substances and alleged the

substances belonged to Gooch. Gooch at first claimed all the substances belonged to

herself; then claimed the substances belonged to nobody; and thereafter claimed half

of the substances belonged to herself and the other half belonged to Defendant.

¶ 10 Defendant remained outside of the vehicle while the search was conducted. STATE V. BRADLEY

Corporal Faulk testified that during the search Defendant appeared “unsteady on his

feet” and was “falling in and out.” Due to Defendant’s appearance and conduct, the

officers called Emergency Medical Services to treat Defendant. Defendant refused

medical treatment; and, furthermore, at no point was a blood test performed on

Defendant to determine what substance, if any, caused Defendant’s appearance of

impairment.

¶ 11 After conducting a hearing on the probation violations, the trial court revoked

Defendant’s probation for 18 CRS 052027 and 19 CRS 052656 by written judgments

entered July 29, 2020. Defendant gave oral notice of appeal in open court at the

hearing.

II. Discussion

¶ 12 In North Carolina, a court may revoke a defendant’s probation when the

defendant commits a criminal offense in any jurisdiction in violation of N.C. Gen.

Stat. § 15A-1343(b)(1); violates a condition of his probation when the defendant has

previously “received a total of two periods of confinement” under N.C. Gen. Stat. §

15A-1344(d2) (2021); or “absconds by willfully avoiding supervision or willfully

making the defendant’s whereabouts unknown to the supervising probation officer”

in violation of N.C. Gen. Stat. § 15A-1343(b)(3a) (2021). N.C. Gen. Stat. § 15A-1344(a)

(2021). Upon revocation of probation, the sentence the defendant “may be required

to serve is the punishment for the crime of which he had previously been found STATE V. BRADLEY

guilty.” State v. Hewett, 270 N.C. 348, 352, 154 S.E.2d 476, 479 (1967) rev’d on other

grounds, Hewett v. North Carolina, 415 F.2d 1316 (1969).

¶ 13 In reviewing a trial court’s decision to revoke a defendant’s probation, we

review for abuse of discretion. State v. Murchison, 367 N.C. 461, 464, 758 S.E.2d 356,

358 (2014). An abuse of discretion occurs when “a ruling ‘is manifestly unsupported

by reason or is so arbitrary that it could not have been the result of a reasoned

decision.’ ” State v. Maness, 363 N.C. 261, 279, 677 S.E.2d 796, 808 (2009) (quoting

State v. Peterson, 361 N.C. 587, 602, 652 S.E.2d 216, 227 (2007)). Generally, “when

judgment is suspended in a criminal action upon good behavior or other conditions,

the proceedings to ascertain whether or not the conditions have been violated are

addressed to the sound discretion of the judge . . . .” State v. Guffey, 253 N.C. 43, 45,

116 S.E.2d 148, 150 (1960).

¶ 14 Although Defendant would have us find “substantial evidence” is the standard

for evidence in a probation hearing, our Supreme Court established in State v. Guffey

the evidentiary standard in a probation hearing is “competent evidence.” Id., 253

N.C. at 45, 116 S.E.2d at 150 (citations omitted); see Hewett, 270 N.C. at 353, 154

S.E.2d at 480 (“[T]he alleged violation of a valid condition of probation need not be

proven beyond a reasonable doubt.”). Competent evidence is evidence that is

admissible or otherwise relevant. Competent Evidence BLACK’S LAW DICTIONARY (7th

ed. 1999)). STATE V. BRADLEY

A. Competent Evidence to Support a Judgment of Simple Possession

¶ 15 Defendant first contends the evidence was insufficient for the trial court to find

he possessed Oxycodone, Xanax, and Clonazepam. We disagree.

¶ 16 “Possession of any item may be actual or constructive.” State v. Alston, 131

N.C. App. 514, 519, 508 S.E.2d 315, 318 (1998), superseded by statute on other

grounds, Act of Aug. 12, 2004, ch. 186, 2004 N.C. Sess. Laws 186; see State v. Perry,

316 N.C. 87, 96, 340 S.E.2d 450, 456 (1986) (stating when a defendant is prosecuted

for contraband “the prosecution is not required to prove actual physical possession of

the materials[,]” rather, “[p]roof of constructive possession is sufficient and that

possession need not always be exclusive” ); see also See State v. Harvey, 281 N.C. 1,

187 S.E.2d 706 (1972); State v. Fuqua, 234 N.C. 168, 66 S.E.2d 667 (1951). Actual

possession occurs when the party has “physical or personal custody of the item.”

Alston, 131 N.C App. at 519, 508 S.E.2d at 318. Constructive possession occurs when

the accused “has both the power and intent to control its disposition or use.” Harvey,

281 N.C. at 12, 187 S.E.2d at 714 (1972); see Alston, 131 N.C. App. at 519, 508 S.E.2d

at 318. Circumstances which are sufficient to support a finding of constructive

possession include “close proximity to the controlled substance and conduct indicating

an awareness of the drugs, such as efforts at concealment or behavior suggesting a

fear of discovery . . . .” State v. Turner, 168 N.C. App. 152, 156, 607 S.E.2d 19, 22-23

(2005). STATE V. BRADLEY

¶ 17 In State v. Turner, our Supreme Court held there was sufficient evidence for

constructive possession when the defendant appeared agitated and nervous, his

hands were jumbling around, and he appeared to be passing a tube back and forth

underneath a blanket. Id. The tube was discovered to contain cocaine and though

the defendant denied possession of the tube and did not have exclusive control over

the premises, our Supreme Court held that a totality of the circumstances constituted

“sufficient evidence of constructive possession of cocaine.” Id. at 154-57, 607 S.E.2d

at 21-23.

¶ 18 Here, the trial court found Defendant was in simple possession of Oxycodone,

Xanax, and Clonazepam from the evidence presented at the hearing. The State’s

evidence tended to show Gooch was pulled over for careless and reckless driving and

Defendant was seated in the passenger side of the vehicle. While Officer McKenzie

was conducting the traffic stop, Defendant, like the defendant in Turner, exhibited

behavior suggesting his fear of discovery of the drugs therein because he continued

to move “a lot . . . in the passenger side.” Indeed, Defendant’s movement was to the

extent that Corporal Faulk ultimately had to remove Defendant from the vehicle. A

search ensued when an officer observed marijuana in a clear container on the

floorboard of the passenger side. The fruits of this search showed Defendant was in

“close proximity to the controlled substance” as a pill bottle containing Xanax,

Oxycodone, and Clonazepam was found inside the glove box located directly in front STATE V. BRADLEY

of the passenger’s seat. Id. at 156, 607 S.E.2d at 22.

¶ 19 In addition to Defendant being in “close proximity to the controlled substance”

and exhibiting “behavior suggesting a fear of discovery[,]” Defendant also showed

obvious signs of impairment. Id. at 156, 607 S.E.2d at 22-23. Corporal Faulk stated

Defendant was “unsteady on his feet” and “falling in and out” while standing outside

of the vehicle. Due to concerns for Defendant because of the signs of obvious

impairment, Emergency Medical Services were called “to come check him out[] [and]

make sure he did not need to go to the hospital.” Notably, most of the State’s evidence

was admitted by the trial court without objection from Defendant.

¶ 20 In light of the evidence presented by the State, we find competent evidence

existed to support the trial court’s finding of simple possession of a controlled

substance. As such, the trial court’s activation of Defendant’s previously suspended

sentences “are not reviewable on appeal, unless there is a manifest abuse of

discretion.” Guffey, 253 N.C. at 45, 116 S.E.2d at 150; see Pelley, 221 N.C. 487, 500,

20 S.E.2d 850, 858 (1942). There is no evidence of abuse of discretion by the trial

court in this proceeding. We therefore hold the trial court did not err by revoking

Defendant’s probation based upon its finding that Defendant committed the offense

of simple possession of Oxycodone, Xanax, and Clonazepam while on probation.

¶ 21 While our dissenting colleague correctly identifies that a finding of

constructive possession requires more than a defendant merely being present within STATE V. BRADLEY

a vehicle in which drugs are found, State v. Ferguson, 204 N.C. App. 451, 459-60, 694

S.E.2d 470, 477 (2010), other incriminating circumstances existed in the case sub

judice to support the trial court’s finding that Defendant violated the terms of his

probations by committing the offenses of possessing a schedule II and IV substance.

See id. (“As a general rule, mere proximity to persons or locations with drugs about

them is usually insufficient, in the absence of other incriminating circumstances, to

convict for possession.” (internal quotation marks omitted)).

B. Competent Evidence of Maintaining a Vehicle for Sale of a Controlled Substance

¶ 22 Defendant next argues there was no substantial evidence to support the trial

court’s finding Defendant willfully maintained a vehicle for the sale of a controlled

substance. We agree, but hold this error was not prejudicial.

¶ 23 Section 90-108(a)(7) of our general statutes states, in relevant parts,

[i]t shall be unlawful for any person . . . [t]o knowingly keep or maintain any . . . vehicle . . . which is resorted to by persons using controlled substances . . . for the purpose of using such substances, or which is used for the keeping or selling of the same . . . .

¶ 24 N.C. Gen. Stat. § 90-108(a)(7) (2021). The word “keep” in Section 90-108(a)(7)

“refers to possessing something for at least a short period of time—or intending to

retain possession of something in the future—for a certain use.” State v. Rogers, 371

N.C. 397, 402, 817 S.E.2d 150, 154 (2018). When determining if a defendant kept a STATE V. BRADLEY

vehicle, the “focus of the inquiry is on the use, not the contents, of the vehicle.” State

v. Mitchell, 336 N.C. 22, 34, 442 S.E.2d 24, 30 (1994), overruled in part by State v.

Rogers, 371 N.C. 397, 817 S.E.2d 150 (2018). “Maintain” as used in Section 90-

108(a)(7) means to “bear the expense of; carry on . . . hold or keep in an existing state

or condition.” State v. Allen, 102 N.C. App. 598, 608, 403 S.E.2d 907, 913 (1991)

(quoting Black’s Law Dictionary 859 (5th ed. 1979)), rev’d on other grounds, 332 N.C.

123, 418 S.E.2d 225 (1992).

¶ 25 Although the definitions of “keep” and “maintain” differ, “they do not describe

separate offenses[] . . . [and are] often used interchangeably . . . .” State v. Weldy, 271

N.C. App. 788, 791, 844 S.E.2d 357, 361 (2020). When deciding if a defendant violated

Section 90-108(a)(7), this court looks to circumstances such as “defendant’s use of the

vehicle, title to or ownership of the vehicle, property interest in the vehicle, payment

toward the purchase of the vehicle, and payment for repairs to or maintenance of the

vehicle.” Id.; see also State v. Alvarez, 260 N.C. App. 571, 575, 818 S.E.2d 178, 182

(2018).

¶ 26 In this case, the violation reports purported, amongst other allegations,

Defendant had committed the criminal offense of “maintaining a place for a controlled

substance.” At the hearing, Corporal Faulk’s testimony tended to show Gooch was

pulled over for careless and reckless driving, Defendant was merely Gooch’s

passenger, and that the vehicle belonged to neither Gooch nor Defendant, but rather STATE V. BRADLEY

belonged to Gooch’s grandmother. The State presented no competent evidence that

Defendant possessed any ownership interest in the vehicle, paid for any expenses in

connection with the vehicle, or used the vehicle aside from this instance where he was

a passenger. Accordingly, no evidence supports the trial court’s finding Defendant

violated a condition of his probation by “maintaining a place for a controlled

substance.”

¶ 27 However, the absence of competent evidence to support the trial court’s finding

Defendant maintained a place for a controlled substance does not necessarily mean

the trial court abused its discretion by revoking Defendant’s probation. The plain

text of N.C. Gen. Stat. § 15A-1343 states the “defendant must[] [c]ommit no criminal

offense.” N.C. Gen. Stat. § 15A-1343(b)(1) (2021). The word “offense” in Section 15A-

1343 is singular, denoting a singular new criminal offense is sufficient to revoke

probation. See N.C. Gen. Stat. § 15A-1344(a) (2021); see also State v. Coltrane, 307

N.C. 511, 516, 299 S.E.2d 199, 202 (1983) (“The evidence in a probation revocation

hearing must satisfy the court that defendant has willfully or without lawful excuse

violated a condition of probation.” (emphasis omitted)).

¶ 28 The trial court is not required under the language of N.C. Gen. Stat. § 15A-

1344(a) and N.C. Gen. Stat. § 15A-1343(b)(1) to find more than one new criminal

offense exists in order to revoke a defendant’s probation. Here, the trial court found

Defendant committed multiple probation violations. In its judgment revoking STATE V. BRADLEY

Defendant’s probation for 18 CRS 052027, the trial court found Defendant violated

his probation by failing to pay any money since being placed on probation; failing to

pay any supervision fees; possessing with the intent to deliver a schedule IV

substance; maintaining a place for a controlled substance; and simple possession of a

schedule II and IV substance. Likewise, in its judgment revoking Defendant’s

probation for 19 CRS 052656, the trial court found Defendant violated his probation

by failing to pay any money since being placed on probation; possessing with the

intent to deliver a schedule IV substance; maintaining a place for a controlled

substance; and simple possession of a schedule II and IV substance.

¶ 29 As discussed supra, sufficient competent evidence existed to support the trial

court’s finding that Defendant committed the criminal offense of simple possession of

a controlled substance. Thus, despite the lack of competent evidence that Defendant

maintained a vehicle for sale of a controlled substance, the trial court did not abuse

its discretion by revoking Defendant’s probation and activating his suspended

sentences.

III. Conclusion

¶ 30 After a careful review of the record and applicable law, we hold the trial court

did not abuse its discretion by revoking Defendant’s probation and activating his

sentences. Accordingly, the judgments of the trial court are affirmed.

AFFIRMED. STATE V. BRADLEY

Judge GORE concurs.

Judge HAMPSON dissents by separate opinion. No. COA20-873 – State v. Bradley

HAMPSON, Judge, dissenting.

¶ 31 The majority correctly concludes no evidence supports the trial court’s Finding

Defendant violated a condition of his probation by “maintaining a place for a

controlled substance.” However, the evidence in this case is also insufficient to

establish Defendant violated a condition of his probation by committing the criminal

offense(s) of simple possession of Schedule II and IV controlled substances. Thus, the

evidence does not support the trial court’s determination Defendant willfully violated

the condition of his probation that Defendant not commit any criminal offense as

alleged in the violation report(s). Therefore, the trial court abused its discretion in

revoking Defendant’s probation on this basis. Consequently, the trial court’s

Judgments revoking Defendant’s probation should be reversed. Accordingly, I

dissent.

I.

¶ 32 It is important to first make clear the criminal offense(s) Defendant was

alleged to have committed and what offense was not alleged. Defendant was alleged

to be in simple possession of Schedule II and IV controlled substances. These offenses

apparently correspond to the pill bottle containing alprazolam (Schedule IV), the

oxycodone pill (Schedule II), and the clonazepam (Schedule IV) pill found in the glove

box of the car. See N.C. Gen. Stat. § 90-90(1)(13) (listing oxycodone in Schedule II);

N.C. Gen. Stat. § 90-92(a)(1)(a),(i) (listing alprazolam and clonazepam in Schedule

IV). Defendant was not alleged to have been in possession of the marijuana found on STATE V. BRADLEY

HAMPSON, J., dissenting

the passenger side floorboard.1 See N.C. Gen. Stat. § 90-94(1) (listing marijuana in

Schedule VI).

¶ 33 The fact Defendant was not alleged to have committed the offense of possession

of the marijuana is significant. This is because the State hinged much of its case—if

not the majority—on the marijuana. Indeed, after the conclusion of the evidence, the

State’s argument in full heavily relied on the marijuana:

Your Honor, I believe Corporal Faulk testified that there was what is believed to be marijuana in the passenger floorboard where Mr. Bradley was seated. Furthermore, that he was unsteady on his feet, and they were concerned for him such that they called EMS, despite the fact that he refused EMS.

Additionally that there were controlled substances in the glove box, that while Ms. Gooch went back and forth about whether or not it was hers, she did implicate that some of them were the defendant’s, and that there were -- there was marijuana paraphernalia also found in the vehicle.

Your Honor, I think that there’s sufficient evidence that the defendant was constructively in possession of the marijuana, given that it was on the floorboard in a seat where he was sitting.

The State did so despite the fact the State never alleged Defendant committed this

offense in violation of his probation.

1 A critical reviewer of this case may well wonder why—if the State was going to allege

possession of anything on a “constructive possession” theory on these facts—it didn’t allege constructive possession of marijuana. STATE V. BRADLEY

¶ 34 Compounding this confusion as to what offense or offenses Defendant was

alleged to have committed, in rendering its decision, the trial court did not specifically

identify what offenses it found Defendant had committed in violation of his probation,

stating: “The Court finds the respondent has unlawfully, willfully and without legal

justification violated the terms and conditions of his probation as is alleged in the

violation reports, and the Court specifically finds that he’s committed subsequent

offenses.” The trial court’s Judgments also do not independently identify the offenses

found to have been committed instead reciting violations of paragraph numbers of

the violation reports. As such, there is a legitimate question on the existing record

as to whether the trial court relied on a non-alleged offense of possession of

marijuana, in whole or in part, to find grounds to revoke Defendant’s probation. If

the trial court—as a result of the State’s representations—was acting under a

misapprehension Defendant was alleged to have possessed the marijuana, this would

constitute an abuse of discretion. At a minimum, this would require a remand to the

trial court to clarify its ruling and determine whether the evidence supported a

finding Defendant committed the offenses he was actually alleged to have committed.

II.

¶ 35 Indeed, the majority opinion focuses its analysis of whether the evidence

supports the trial court’s Judgments revoking probation—quite correctly—only on

possession of the Schedule II and IV substances. As the majority articulates: STATE V. BRADLEY

“Possession of any item may be actual or constructive.” State v. Alston, 131 N.C. App.

514, 519, 508 S.E.2d 315, 318 (1998). The evidence here does not support a theory of

actual possession of the Schedule II and IV substances by Defendant. Nobody in this

case argues it does.

¶ 36 Instead, the State contends—and the majority agrees—the evidence was

adequate to support a finding Defendant constructively possessed the Schedule II and

IV substances. The law related to constructive possession applicable to this case was

well-summarized by our prior decision in State v. Ferguson:

“A person is in constructive possession of a thing when, while not having actual possession, he has the intent and capability to maintain control and dominion over that thing.” State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 480 (1986) (citing State v. Williams, 307 N.C. 452, 455, 298 S.E.2d 372, 374 (1983)). “Unless a defendant has exclusive possession of the place where the contraband is found, the State must show other incriminating circumstances sufficient for the jury to find a defendant had constructive possession.” State v. Miller, 363 N.C. 96, 99, 678 S.E.2d 592, 594 (2009) (citing State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 271 (2001)). As a general rule, “ ‘mere proximity to persons or locations with drugs about them is usually insufficient, in the absence of other incriminating circumstances, to convict for possession.’ ” State v. Weems, 31 N.C. App. 569, 570, 230 S.E.2d 193, 194 (1976) (citations omitted). Accordingly, “the mere presence of the defendant in an automobile in which illicit drugs are found does not, without more, constitute sufficient proof of his possession of such drugs.” Weems, 31 N.C. App. at 571, 230 S.E.2d at 194.

204 N.C. App. 451, 459–60, 694 S.E.2d 470, 477 (2010). STATE V. BRADLEY

¶ 37 In this case, the evidence, without more, simply does not support a finding

Defendant was in constructive possession of the Schedule II and IV substances found

inside of a pill bottle inside of a glove box of a car not owned nor operated by

Defendant.2 In its analysis, the majority correctly summarizes the salient evidence

offered by the State: Gooch was pulled over for suspected driving while impaired and

Defendant was Gooch’s passenger; Defendant was removed from the vehicle due to

“a lot of excessive moving in the passenger side”; Defendant was characterized as

“unsteady on his feet” and “falling in and out”; after Defendant was removed from the

car, a search of the vehicle revealed a pill bottle containing Xanax, Clonazepam, and

Oxycodone inside the glove box.3 Additionally, the evidence showed the car was not

registered to Defendant but rather Gooch’s grandmother and there was no evidence

Defendant had or exercised any ownership of the car.

¶ 38 First, the mere fact Defendant was a passenger in the car is, by itself,

2 Additionally, I am not convinced there is any difference between Defendant’s proffered “substantial evidence” standard and the majority’s “any competent evidence standard,” but to the extent there is any daylight between the two, I reach the same conclusion: there is no competent evidence to support a finding of constructive possession. 3 I note with appreciation that the majority does not rely on the evidence of the out-

of-court statements from Gooch concerning who owned the substances in the car. The State offering those out-of-court statements to prove the substances belonged, in whole or part, to Defendant constitutes inadmissible hearsay testimony. Even though Defendant did not object to these statements, we also presume the trial court did not rely on them either. See State v. Allen, 322 N.C. 176, 185, 367 S.E.2d 626, 631 (1988) (“The presumption in non-jury trials is that the court disregards incompetent evidence in making its decision.”). STATE V. BRADLEY

insufficient to establish constructive possession. Id. Second, the two additional

incriminating circumstances were: (1) Defendant was removed from the car for

“excessive moving” and (2) he was unsteady on his feet and appeared to be “falling in

and out.”

¶ 39 Here, there was no evidence Defendant’s “excessive moving” had any

connection to the pill bottle or was an attempt to conceal the substances. In prior

cases, the suspicious or nervous behavior conduct indicated “an awareness of the

drugs, such as efforts at concealment or behavior suggesting a fear of discovery.”

State v. Turner, 168 N.C. App. 152, 156, 607 S.E.2d 19, 22–23 (2005) (evidence two

suspects were passing a tube later determined to contain cocaine between each other

under a blanket); see also State v. McNeil, 359 N.C. 800, 801–02, 617 S.E.2d 271, 272–

73 (2005) (defendant acted nervous, ran from police, and admitted possession of some

of the drugs that police found); State v. Butler, 356 N.C. 141, 147–48, 567 S.E.2d 137,

141 (2002) (taxicab driver felt defendant “struggling” in the backseat behind him and

pushing against the front seat, and the police found drugs under the seat 12 minutes

later); State v. Harrison, 14 N.C. App. 450, 450–51, 188 S.E.2d 541, 542 (1972) (officer

noticed the defendant moving around on the back seat and partially concealing a

brown envelope with his hand). In this case, there was no evidence that Defendant’s

excessive moving indicated any awareness of the Schedule II or IV substances in the

glove box or that he was attempting to conceal the Schedule II and IV substances. STATE V. BRADLEY

Nor was there evidence Defendant was evasive or non-compliant with law

enforcement.

¶ 40 Next, the evidence Defendant was unsteady on his feet and “falling in and out”

appears to be used as circumstantial evidence that Defendant was impaired.

However, there is no evidence Defendant’s impairment was the result of ingesting

Schedule II or IV substances. For example: there was no evidence of a blood test, no

evidence Defendant’s behavior was consistent with one impaired by the Schedule II

and/or IV substances, or any evidence from which such impairment might be inferred.

Any speculation Defendant was impaired by the Schedule II and IV substances and

thus, Defendant was “in possession” of those substances is just that: speculation. See

State v. Angram, 270 N.C. App. 82, 87, 839 S.E.2d 865, 868 (2020) (“Although

circumstantial evidence may be sufficient to prove a crime, pure speculation is not,

and the State's argument is based upon speculation.”).

¶ 41 Thus, because the evidence of Defendant’s “constructive possession” of

Schedule II or IV substances is nothing more than speculative, there is no competent

evidence to support a finding Defendant committed the offenses of possession of a

Schedule II and Schedule IV substances. Thus, the trial court erred in finding

Defendant violated conditions of his probation by committing the subsequent offenses

alleged in the violation reports. Consequently, the trial court erred in entering its

Judgments, revoking Defendant’s probation, and activating his sentences. STATE V. BRADLEY

Accordingly, the trial court’s Judgments should be reversed.