An unpublished opinion of the North Carolina Court of Appeals does not constitute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
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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
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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
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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
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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
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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,
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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.
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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.]
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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.
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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
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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
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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
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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.
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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,
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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
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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).