An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1204
NORTH CAROLINA COURT OF APPEALS
Filed: 3 June 2014
STATE OF NORTH CAROLINA
v. Guilford County
No. 12 CRS 74220
CURTIS MARIO BENTON
Appeal by Defendant from judgment entered 15 May 2013 by
Judge David L. Hall in Guilford County Superior Court. Heard in
the Court of Appeals 19 February 2014.
Attorney General Roy Cooper, by Associate Attorney General
J. Rick Brown, for the State.
Mark L. Hayes for Defendant.
DILLON, Judge.
While reserving the right to appeal the denial of his
motion to suppress, see N.C. Gen. Stat. § 15A-979(b) (2011),
Defendant pled guilty on 6 May 2013 to possession with intent to
sell or deliver marijuana and to possession of marijuana on the
premises of a local confinement facility. In a judgment signed
6 May 2013 and filed 15 May 2013, the trial court consolidated
Defendant’s offenses for judgment, suspended a prison sentence
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of seven to eighteen months, and placed him on thirty-six months
of supervised probation.
We note that Defendant has filed a petition for writ of
certiorari with this Court, acknowledging a possible
jurisdictional defect in his notice of appeal. The State has
not moved to dismiss Defendant’s appeal, nor does it oppose
review by writ of certiorari pursuant to N.C.R. App. P.
21(a)(1). We elect to grant Defendant’s petition for writ of
certiorari and review the merits of his appeal.
* * * *
This case is a companion of State v. Jackson, No. COA13-743
(May 20, 2014). Defendant and Tijoun Jackson, the Jackson
defendant, were stopped by Officer T.D. Brown of the Greensboro
Police Department on the evening of 9 April 2012 in front of a
convenient store as they were parting company. Incident to
Officer Brown’s investigatory stop, he determined that Mr.
Jackson had a gun. Another police officer, who arrived on the
scene shortly after Officer Brown made the initial stop, found
marijuana during a search of Defendant.
On 4 January 2013, Defendant filed a motion to suppress the
marijuana found on his person, arguing, in part, that Officer
Brown’s investigatory stop violated his constitutional rights.
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On 25 April 2013, the trial court denied Defendant’s motion. On
6 May 2013, Defendant entered an Alford plea and was sentenced
to seven to eighteen months of active imprisonment, with the
execution of the sentence suspended and Defendant placed on
supervised probation for thirty-six months. Defendant appeals.
* * * *
On appeal, Defendant argues, inter alia, that the trial
court erred in denying his motion to suppress because Officer
Brown did not have reasonable suspicion that he was involved in
criminal activity when he made his investigatory stop of
Defendant and Mr. Jackson. See State v. Watkins, 337 N.C. 437,
441, 446 S.E.2d 67, 70 (1994). Similarly, Mr. Jackson filed a
motion to suppress in his case based on this same issue, a
motion which was also denied by the trial court and which formed
the basis of his appeal to this Court in Jackson.
In the present case, we are bound by our decision in
Jackson, where this Court, by a 2-1 vote, held that Officer
Brown’s investigatory stop was invalid. In re Civil Penalty,
324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). Though Defendant
and Mr. Jackson were ultimately searched by different officers,
they were both initially stopped by the same officer, at the
same time, under the same circumstances. Therefore, consistent
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with our mandate in Jackson, we reverse the trial court’s order
denying Defendant’s motion to dismiss and vacate Defendant’s
conviction entered following his Alford plea.
REVERSED in part; VACATED in part.
Judges BRYANT and STEPHENS concur.
Report per Rule 30(e).