State v. McLendon

• Court: Court of Appeals of North Carolina
• Decided: April 15, 2014
• Docket: 13-915
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-915 NORTH CAROLINA COURT OF APPEALS

Filed: 15 April 2014

STATE OF NORTH CAROLINA

v. Iredell County No. 11CRS050709 WILLIE E. MCLENDON

Appeal by defendant from judgment entered 9 January 2013 by

Judge Joseph Crosswhite in Iredell County Superior Court. Heard

in the Court of Appeals 5 February 2014.

Attorney General Roy Cooper, by Assistant Attorney General John F. Oates, Jr., for the State.

C. Scott Holmes for defendant-appellant.

HUNTER, Robert C., Judge.

Willie E. McLendon (“defendant”) appeals from a judgment

entered 9 January 2013 by Judge Joseph Crosswhite in Iredell

County Superior Court sentencing him to 175 to 219 months

imprisonment for one count of trafficking in cocaine by

transportation of 400 or more grams and one count of trafficking

in cocaine by possession of 400 or more grams. On appeal,

defendant argues that the trial court: (1) erred by failing to -2- enter findings of fact regarding the voluntariness of his

consent to a vehicle search when denying his motion to suppress

evidence; and (2) committed plain error by permitting law

enforcement witnesses for the State to express lay opinions

improperly commenting on his guilt. After careful review, we

find no prejudicial error.

BACKGROUND

The evidence presented at trial tended to establish the

following facts: On 1 February 2011, Sergeant Dow Hawkins

(“Sgt. Hawkins”) of the Iredell County Sheriff’s Office (“ICSO”)

stopped defendant for speeding on Interstate 77. Upon Sgt.

Hawkins’s request for license and registration, defendant

provided Sgt. Hawkins with his valid Pennsylvania driver license

and a rental agreement for the vehicle he was driving. When

Sgt. Hawkins asked defendant who had rented the vehicle, he

answered that his cousin had, but when asked what his cousin’s

name was, defendant appeared unable to recall it and said only

that it was listed on the rental agreement. The rental

agreement showed that the car had been rented at the Atlanta

International Airport to Kimberly Trent. Defendant told Sgt.

Hawkins that he was travelling to Pennsylvania from North

Carolina. While polite and cooperative, defendant appeared to -3- Sgt. Hawkins to be nervous.

Sgt. Hawkins testified that he was inclined to issue

defendant a warning citation and end the traffic stop, but as he

was returning to his patrol car, defendant reminded him that

they had met previously. On 25 January 2011, Sgt. Hawkins was

on the scene after another ICSO officer, Sergeant Randy Cass

(“Sgt. Cass”), had stopped defendant for speeding. A passenger

accompanied defendant that day, and they were found to be

carrying $11,000.00 in cash between them. In the course of this

stop, the officers learned that the passenger had a prior

federal drug conviction. However, neither defendant nor his

passenger was arrested or charged with any crime, and the money

was not seized.

After being reminded of the circumstances surrounding the

previous traffic stop, Sgt. Hawkins contacted his supervisor,

ICSO Lieutenant Chad Elliott (“Lt. Elliott”), for backup. When

Lt. Elliott arrived, he and Sgt. Hawkins discussed the matter in

Sgt. Hawkins’s patrol car. Footage from Sgt. Hawkins’s dash-

mounted video camera shows that Sgt. Hawkins then asked

defendant to get out of his vehicle, and while still holding

onto defendant’s license and rental agreement, Sgt. Hawkins

requested consent to search the vehicle. Defendant consented to -4- the search, and Sgt. Hawkins returned defendant’s paperwork to

him.

Thereafter, Sgt. Hawkins and Lt. Elliott searched

defendant’s vehicle. A Ziploc bag containing cocaine was found

concealed in a black travel bag stowed in the trunk. Personal

items belonging to defendant were also found in the black bag.

Defendant was then arrested for trafficking cocaine by

possession and transportation.

Defendant filed a motion to suppress on 4 January 2013.

Trial began on 8 January 2013 with a hearing on defendant’s

motion. Sgt. Hawkins, Lt. Elliott, and Sgt. Cass testified

for the State in opposition to defendant’s motion. The State’s

witnesses testified to the circumstances precipitating both

stops, defendant’s behavior and demeanor at both stops, unusual

circumstances that occurred during both stops that prompted

suspicion in the minds of the officers, and the officers’

request for consent to search defendant’s vehicle during the

second stop. Specifically, Sgt. Hawkins testified that “after

returning all of his items to him, his driver’s license, his

rental agreement, telling him that, you know, he could have a

good day, basically, releasing him from the traffic stop, yes, I

did ask for consent to search the vehicle.” Defendant did not -5- offer the video footage from Sgt. Hawkins’s patrol car or any

other evidence at this hearing; rather, the video footage was

admitted into evidence at trial. The trial court denied the

motion to suppress by written order entered 14 January 2013.

The jury returned a verdict of guilty against defendant on both

counts, and he was sentenced to 175 to 219 months imprisonment.

Counsel for defendant gave notice of appeal in open court.

DISCUSSION

I. The Motion to Suppress

Defendant first argues that the trial court erred in

denying his motion to suppress. Specifically, he contends that

the trial court failed to enter any findings of fact regarding

the voluntariness of his consent to the vehicle search in

contravention of N.C. Gen. Stat. § 15A-977(f). We find no

error.

Appellate review of the denial of a motion to suppress is limited to determining whether the trial judge’s underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge’s ultimate conclusions of law.

State v. Williams, 195 N.C. App. 554, 555, 673 S.E.2d 394, 395

(2009) (internal quotation marks and citations omitted).

Nevertheless, “[t]he trial court’s conclusions of law are -6- subject to de novo review on appeal.” State v. Simmons, 201

N.C. App. 698, 701, 688 S.E.2d 28, 30 (2010).

N.C. Gen. Stat. § 15A-977(f) provides that, when ruling on

a motion to suppress, “[t]he judge must set forth in the record

his findings of facts and conclusions of law.” “The [trial

court’s] findings of fact must include findings on the issue of

voluntariness.” State v. Johnson, 304 N.C. 680, 683, 285 S.E.2d

792, 795 (1982). However, “the trial court does not err in

failing to issue specific findings of fact when there is no

material conflict in the evidence.” State v. Malunda, __ N.C.

App. __, __, 749 S.E.2d 280, 283 (2013).

Here, the trial court entered a written order denying

defendant’s motion to suppress which set out findings of fact

and conclusions of law. However, it did not enter findings of

fact pertaining to the voluntariness of defendant’s consent to

the search. Thus, the trial court’s failure to enter such

findings may only be excused if there was no material conflict

in the evidence on that issue. See Malunda, __ N.C. at __, 749

S.E.2d at 283. “[A] material conflict in the evidence exists

when evidence presented by one party controverts evidence

presented by an opposing party such that the outcome of the

matter to be decided is likely to be affected.” State v. Baker, -7- 208 N.C. App. 376, 384, 702 S.E.2d 825, 831 (2010).

Here, the State was the only party to put on evidence at

the hearing on defendant’s motion to suppress. Sgt. Hawkins

testified that when he asked defendant for his consent to the

vehicle search, “[h]is response was yeah, you can.” Upon

further questioning by defense counsel, Sgt. Hawkins testified

as follows:

Q: But I think you already testified that once you concluded . . . the traffic stop portion of this investigation, you gave [defendant] his things back, his items back, and . . . basically told him he was free to go, and you couldn’t stop him if he didn’t want to. So you already testified you concluded that much?

A: I can’t -- once the traffic stop is over, I can’t detain him. I’m not going to hold the items from him. I’m not going to hold his driver’s license. I’m not going to hold the rental agreement. I’m not going to hold those things and grill him about other avenues and ask him for consent to search. I’m going to give them back to him.

Q: That’s correct. The stop was over at that point for the traffic investigation, agreed?

A: Yes.

Q: At that point, once that was over, you then on your own said, “oh, by the way, do you mind -- would you give me consent to search?”

A: Yes. -8-

Q: And that’s when you contend my client consented to search at that point?

A: He did.

Similarly, Lt. Elliott testified that: “After I started walking

up to Mr. McLendon, I asked him if he would give me consent to

search the vehicle. He consented to the search.”

Although the video evidence defendant presented at trial

does materially conflict with this testimony in that it shows

Sgt. Hawkins asking for consent to search the vehicle while

still holding defendant’s license and rental agreement,

defendant failed to present this video at the hearing on the

motion to suppress. The only evidence that the trial court

could have considered when it entered its findings of fact was

produced by the State. Thus, because defendant failed to put on

any evidence at the suppression hearing, there could not have

been a material conflict in the evidence on the issue of

voluntariness.

The trial court found as fact that:

[Sgt.] Hawkins . . . returned to [defendant] the rental agreement and his driver’s license . . . and asked for permission to search the vehicle. [Sgt.] Hawkins indicated that . . . [d]efendant did give him permission to search, at which time he motioned to [Lt.] Elliott who did exit the vehicle to assist in the search. [Lt.] -9- Elliott did indicate that he also asked . . . [d]efendant for consent to search, and this was given as well.

These findings were supported by the State’s evidence in the

form of Sgt. Hawkins’s and Lt. Elliott’s testimony as set forth

above. Thus, because these findings are supported by competent

evidence, they are binding on appeal. See Williams, 195 N.C.

App. at 555, 673 S.E.2d at 395. Furthermore, these findings

support the trial court’s conclusion “that the . . . consent

search of the car was proper.”

Because defendant failed to present any evidence at the

hearing on his motion to suppress, there was not a material

conflict in the evidence that would have required the trial

court to enter findings as to the voluntariness of defendant’s

consent to the vehicle search. The trial court’s findings of

fact are supported by evidence presented at the hearing, and

those findings support the trial court’s conclusions of law.

Accordingly, defendant’s argument is overruled.

II. Officer Testimony

Next, defendant argues the trial court committed plain

error by permitting law enforcement witnesses for the State to

express lay opinions improperly commenting on his guilt. After

careful review, we find no plain error. -10- We review this issue for plain error because trial counsel

failed to object to the officers’ testimony. See State v.

Lawrence, 365 N.C. 506, 512, 723 S.E.2d 326, 330 (2012).

[T]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a “fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,” or “ where [the error] is grave error which amounts to a denial of a fundamental right of the accused,” or the error has “resulted in a miscarriage of justice or in the denial to appellant of a fair trial” or where the error is such as to “seriously affect the fairness, integrity or public reputation of judicial proceedings” or where it can be fairly said “the instructional mistake had a probable impact on the jury’s finding that the defendant was guilty.”

Id. at 516-17, 723 S.E.2d at 333 (alterations in original)

(quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378

(1983)).

North Carolina Rule of Evidence 701 provides:

If a witness is not testifying as an expert, his or her testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.

N.C. Gen. Stat. § 1A-1, Rule 701 (2013). The testimony of a lay -11- witness is improper to the extent that it “invade[s] the

province of the jury, . . . dr[a]w[ing] inferences from the

evidence—a task reserved for the jury—to express an opinion as

to [a d]efendant’s guilt.” State v. Turnage, 190 N.C. App. 123,

129, 660 S.E.2d 129, 133, rev’d on other grounds, 362 N.C. 491,

666 S.E.2d 753 (2008).

This case is comparable to State v. Carrillo, 164 N.C. App.

204, 209-10, 595 S.E.2d 219, 223 (2005), where a law enforcement

officer testifying as a lay witness (1) offered his opinion that

the defendant knew he was transporting a package of drugs and

was not caught up in trafficking by mere happenstance and (2)

testified regarding training he had received on how drugs are

distributed and the relevance of that training to the

defendant’s case. The officer’s testimony in both regards was

found to have improperly expressed an opinion of guilt and was

thus erroneously admitted. Id. at 210, 595 S.E.2d at 224.

However, because the defendant was unable to satisfy his burden

of showing that, absent the improper testimony, the jury

probably would have reached a different verdict, the plain error

standard was not met. Id. at 211, 595 S.E.2d at 224.

Specifically, additional evidence at trial showed that:

[T]he package was intercepted by the U.S. Customs agents and contained three ceramic -12- turtles with a substantial amount of cocaine concealed inside. The package was mailed from a location in Mexico that U.S. Customs agents had identified as a mail origination point for cocaine sent to the United States. The package was addressed to defendant at his residence. Defendant accepted the package. It was found inside his residence minutes after he had taken possession of it. Broken pieces of similar turtles containing traces of cocaine were also found inside his apartment.

Id. at 210-11, 595 S.E.2d at 224.

Here, like the officer in Carrillo, Sgt. Cass improperly

expressed his opinion as to defendant’s guilt when he responded

“absolutely” after having been asked by the prosecutor, “Did you

consider Mr. McLendon a [drug] mule on January 25th?”

Similarly, like the Carrillo officer’s testimony regarding his

training on drug distribution and its relevance to the case then

at bar, Lt. Elliott’s testimony regarding his training on what

constitutes a “criminal indicator” and his statement that a

“mountain full of [criminal] indicators” was present at the

second traffic stop was also impermissible.

However, given the similarities between the present case

and Carillo and the absence of any indication that but for this

improper testimony the jury probably would have reached a

different verdict, defendant has failed to satisfy the high

standard of plain error. See Carrillo, 164 N.C. at 211, 595 -13- S.E.2d at 224. Even in the absence of the officers’ improper

testimony, the State presented evidence sufficient to convict

defendant of trafficking in cocaine by possession and

transportation.

“The elements the State must prove beyond a reasonable

doubt to support a conviction of trafficking in cocaine . . . by

possession is that defendant: ‘(1) knowingly possess[ed] cocaine

. . . and (2) that the amount possessed was [the requisite

statutory amount].’” State v. Cardenas, 169 N.C. App. 404, 409,

610 S.E.2d 240, 243-44 (2005) (quoting State v. White, 104 N.C.

App. 165, 168, 408 S.E.2d 871, 873 (1991)). “Possession of a

controlled substance may be actual or constructive.

Constructive possession exists when a person, while not having

actual possession, has the intent and capability to maintain

control and dominion over a controlled substance.” State v.

Graham, 90 N.C. App. 564, 568, 369 S.E.2d 615, 618 (1988)

(internal quotation marks and citations omitted).

An inference of constructive possession can . . . arise from evidence which tends to show that a defendant was the custodian of the vehicle where the controlled substance was found. . . . Moreover, power to control the automobile where a controlled substance was found is sufficient, in and of itself, to give rise to the inference of knowledge and possession sufficient to go to the jury. -14- State v. Dow, 70 N.C. App. 82, 85, 318 S.E.2d 883, 886 (1984).

“To establish . . . trafficking by transportation the State

must show that defendant knowingly . . . transported . . . the

requisite amount of cocaine.” State v. Lopez, __ N.C. App. __,

__, 723 S.E.2d 164, 172 (2012). “Transportation is defined as

‘any real carrying about or movement from one place to

another.’” State v. Doe, 190 N.C. App. 723, 730, 661 S.E.2d

272, 277 (2008) (quoting State v. Outlaw, 96 N.C. App. 192, 197,

385 S.E.2d 165, 168 (1989)).

[T]o convict an individual of drug trafficking the State is not required to prove that defendant had knowledge of the weight or amount of [the controlled substance] which he knowingly possessed or transported. Instead, the statute requires only that the defendant knowingly possess or transport the controlled substances; if the amount exceeds [the requisite statutory amount], then a conviction for trafficking may be obtained.

State v. Shelman, 159 N.C. App. 300, 306, 584 S.E.2d 88, 93

(2003).

Here, while the vehicle defendant was driving was a rental

vehicle that had been rented to someone other than defendant, he

was nevertheless the custodian of the vehicle at the time

immediately preceding the traffic stop and vehicle search.

Thus, as the custodian of a vehicle found to contain cocaine, -15- the jury was able to infer that defendant constructively

possessed that cocaine. See Dow, 70 N.C. App. at 85, 318 S.E.2d

at 886. Further, the cocaine was found in defendant’s black

travel bag also containing defendant’s personal possessions,

indicating an intent on his behalf to exert dominion and control

over the contraband, and thus also supporting an inference by

the jury that defendant constructively possessed the cocaine.

See Graham, 90 N.C. App. at 568, 369 S.E.2d at 618.

There is also ample evidence apart from the challenged

testimony whereby the jury could have reached its guilty verdict

on the transportation element. First, Sgt. Hawkins testified

that he observed defendant travelling north on Interstate 77

before pulling him over for speeding; thereafter, cocaine was

discovered in the vehicle’s trunk. Based on this information,

the jury could find there had been a “carrying about or movement

[of the cocaine] from one place to another” and thus that

defendant had transported cocaine within the meaning of the

statute. See Outlaw, 96 N.C. App. at 197, 385 S.E.2d at 168.

Finally, the amount of cocaine exceeded the requisite

statutory amount. After it was seized, the cocaine was analyzed

and weighed by the ICSO crime lab. The total weight of the

seized cocaine was found to be 1,374.7 grams, an amount well in -16- excess of the statutory threshold of 400 grams.

Accordingly, although the admission of the officers’

testimony was erroneous, defendant has failed to demonstrate

that this error had a probable impact on the jury, and thus, it

did not rise to the level of plain error.

CONCLUSION

We conclude that the trial court did not err by failing to

enter findings of fact regarding the voluntariness of

defendant’s consent to the vehicle search because there was no

material conflict in the evidence submitted at the hearing on

defendant’s motion to suppress. Additionally, we conclude that

the trial court’s admission of Sgt. Cass’s and Lt. Elliott’s

improper testimony does not rise to the level of plain error.

NO PREJUDICIAL ERROR.

Judges GEER and MCCULLOUGH concur.

Report per Rule 30(e).