IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-780
Filed: 7 April 2020
Union County, Nos. 16 CRS 53661-63
STATE OF NORTH CAROLINA
v.
MARK DOUGLAS DUDLEY, Defendant.
Appeal by Defendant from judgments entered 24 January 2019 by Judge
Jeffery K. Carpenter in Union County Superior Court. Heard in the Court of Appeals
4 February 2020.
Attorney General Joshua H. Stein, by Special Deputy Attorney General
Scott Stroud, for the State.
Richard Croutharmel for Defendant-Appellant.
COLLINS, Judge.
Defendant Mark Douglas Dudley appeals from the trial court’s judgments
entered upon his convictions for: (1) trafficking in methamphetamine by
transportation; (2) trafficking in methamphetamine by possession; (3) maintaining a
vehicle to keep or sell controlled substances; and (4) possession of drug
paraphernalia. Defendant contends that the trial court erred by declining to sanction
the State for failing to comply with its discovery obligations and by denying
STATE V. DUDLEY
Opinion of the Court
Defendant’s motion to dismiss the maintaining-a-vehicle charge. We affirm in part
and discern no error in part.
I. Background
The evidence presented at Defendant’s trial tended to show the following: early
in the morning on 1 September 2016, Deputy Brad Belk of the Union County Sheriff’s
Office received a call from Officer Stephen Goodwin of the Town of Wadesboro Police
Department. Goodwin told Belk that he had spotted a black Chevrolet Camaro IROC
parked outside of a “known drug house[.]” Belk relayed the make, model, and license-
plate number to Officer James Pedersen of the Town of Wingate Police Department,
who began looking out for the vehicle.
A black Camaro IROC with a license-plate number matching that relayed by
Belk soon passed Pedersen while he was sitting at a gas station with, among others,
Deputy Tommy Gallis of the Union County Sheriff’s Office, who was in his own
vehicle with his canine. Pedersen began to follow the vehicle and ran the license-
plate number through a vehicle-registration database, which showed that Defendant
was the registered owner of the vehicle. Pedersen also noticed that the vehicle had
an obscured inspection sticker and did not have a rear-view mirror, and soon initiated
a traffic stop. The vehicle, driven by Defendant, pulled into a gas station.
Pedersen approached the vehicle and asked Defendant for his driver’s license
and registration. Pedersen noticed that Defendant had open sores on his left arm
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Opinion of the Court
which, based upon his training and experience, Pedersen believed were consistent
with drug use. Gallis had his canine at the vehicle, and the officers asked Defendant
to step out of the vehicle, or to turn off the ignition, in the interest of officer safety.
Defendant refused to heed the officers’ request, and Gallis reached into the vehicle
and removed the keys from the ignition. Gallis then ran the canine around the
vehicle, and the canine alerted on the driver’s side where Defendant was seated. The
officers again asked Defendant to step out of the vehicle, and eventually Defendant
did so. Pedersen asked Defendant whether he had anything incriminating on his
person, and Defendant stated that he had a pipe for using methamphetamine in his
pocket. Pedersen seized the pipe and placed Defendant under arrest.
The officers then searched the vehicle. They found a tire-sealant can with a
false bottom that contained a plastic baggie holding a clear crystalline substance.
One of the officers conducted a field test of the substance, which tested positive for
methamphetamine. The officers then seized the can and the substance, cited
Defendant for the trafficking violations, and took Defendant to jail in connection with
the suspected drug activity. Analysis by the State Bureau of Investigation
determined that the substance was approximately 28.29 grams of methamphetamine.
On 24 April 2017, Defendant was indicted by a Union County grand jury for:
(1) trafficking in more than 28 but less than 200 grams of methamphetamine by
transportation; (2) trafficking in more than 28 but less than 200 grams of
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Opinion of the Court
methamphetamine by possession; (3) maintaining a vehicle to keep or sell controlled
substances; (4) possession with intent to sell or deliver methamphetamine; and
(5) possession of drug paraphernalia. On 19 June 2018, Defendant filed a motion to
suppress all evidence seized from his vehicle during the traffic stop, arguing that his
rights under the Fourth and Fourteenth Amendments to the United States
Constitution and Article I, section 20 of the North Carolina Constitution had been
violated when the officers searched his vehicle. In his motion to suppress, Defendant
argued that Pedersen had only cited an “unknown source” of the information he had
received from Belk which eventually led to Defendant’s arrest, and therefore there
were no “objective, specific, or articulable facts” to justify any suspicion that
Defendant was in possession of any controlled substance at the time Defendant’s car
was searched. Defendant’s motion to suppress came on for hearing on 28 August
2018. At the motion-to-suppress hearing, Belk testified that Goodwin was the source
of his tip to Pedersen, and that Goodwin had told him that the Camaro was parked
outside of a known drug house, but Belk admitted that he had not so specified in the
report he created for the district attorney’s office. Defendant’s trial counsel argued
that Defendant had not been made aware of Goodwin’s identity prior to the hearing,
saying that “[a]ll of a sudden we’re hearing about law enforcement officers who may
well be credible, names that had never been provided in two years.”
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Opinion of the Court
The prosecutor stated at the hearing that “there ha[d] been a little bit of
difficulty in getting all the information to” Defendant’s trial counsel, noting that she
had followed up with Belk regarding the source of his information and that Belk had
told her it was an officer with the Town of Wadesboro Police Department, but that
she had not received a name from Belk and had requested that Belk provide a
supplemental report to her. The prosecutor said she had “relayed that information
that [she] had”—i.e., that the source was an officer with the Town of Wadesboro Police
Department—to Defendant’s trial counsel, and Defendant’s trial counsel told the trial
court that “that was not an issue with the district attorney’s office.” But the
prosecutor argued that the traffic violations provided the bases for the traffic stop,
and that the canine was “already present at the time of the stop” and therefore that
its sniff of the vehicle, which provided the officers probable cause to search, did not
implicate constitutional concerns. The trial court entered an order denying
Defendant’s motion to suppress on 8 October 2018.
Defendant pled not guilty to all charges on 9 November 2018, and the matter
came on for trial on 23 January 2019. At the close of State’s evidence on 24 January
2019, Defendant moved to dismiss all of the charges for insufficient evidence. The
trial court granted the motion to dismiss the possession-with-intent-to-sell-or-deliver
charge, but denied the motions to dismiss the four other charges. The defense rested,
and the jury returned guilty verdicts on the remaining charges later that afternoon.
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Opinion of the Court
Also that afternoon, the trial court entered judgment upon the convictions, and
sentenced Defendant to: (1) 70 to 93 months’ imprisonment for each trafficking
offense (along with a fine and costs to be imposed as a civil judgment), to run
concurrently; and (2) 6 to 17 months’ imprisonment for the maintaining-a-vehicle and
paraphernalia offenses, to run at the expiration of the earlier sentence, and the trial
court suspended that sentence and instead placed Defendant on supervised probation
for 24 months at the conclusion of his incarceration for the trafficking offenses.
Defendant gave oral notice of appeal in open court.
II. Discussion
A. Discovery Sanction
Defendant first argues that the trial court erred by declining to sanction the
State for failing to comply with its discovery obligations.
N.C. Gen. Stat. § 15A-903 generally states that upon motion of a defendant,
the State must provide the defendant with, inter alia, the “complete files of all law
enforcement agencies, investigatory agencies, and prosecutors’ offices involved in the
investigation of the crimes committed or the prosecution of the defendant[,]”
including “witness statements, investigating officers’ notes . . . or any other matter or
evidence obtained during the investigation of the offenses alleged to have been
committed by the defendant.” N.C. Gen. Stat. § 15A-903(a) (2017). That statute also
provides that “[o]ral statements shall be in written or recorded form, except that oral
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Opinion of the Court
statements made by a witness to a prosecuting attorney outside the presence of a law
enforcement officer or investigatorial assistant shall not be required to be in written
or recorded form unless there is significantly new or different information in the oral
statement from a prior statement made by the witness.” Id. at § 15A-903(a)(1)(C).
Pursuant to N.C. Gen. Stat. § 15A-903(b), if discovery is provided by the State
voluntarily pursuant to a written request rather than upon the defendant’s motion
(as contemplated by N.C. Gen. Stat. § 15A-902), such discovery must conform to the
same standards as if a motion had been made.1 Finally, N.C. Gen. Stat. § 15A-907 is
an evergreen provision that requires, inter alia, that once it provides discovery to a
defendant, the State must thereafter notify the defendant of any new developments
in evidence it discovers prior to or during trial.
N.C. Gen. Stat. § 15A-910 sets forth as follows, in relevant part:
(a) If at any time during the course of the proceedings the
court determines that a party has failed to comply with this
Article or with an order issued pursuant to this Article, the
court in addition to exercising its contempt powers may:
(1) Order the party to permit the discovery or
inspection, or
(2) Grant a continuance or recess, or
(3) Prohibit the party from introducing evidence
not disclosed, or
(3a) Declare a mistrial, or
1 The record contains no motion by Defendant seeking discovery, but the exhibits appended to
Defendant’s motion to suppress indicate either that (1) Defendant made a motion seeking discovery
pursuant to N.C. Gen. Stat. § 15A-903 or (2) the State provided discovery voluntarily pursuant to N.C.
Gen. Stat. § 15A-902 in this case.
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Opinion of the Court
(3b) Dismiss the charge, with or without prejudice,
or
(4) Enter other appropriate orders.
N.C. Gen. Stat. § 15A-910(a) (2017).
Defendant’s argument that the trial court erred by declining to apply a
discovery sanction against the State focuses upon the uncontested fact that
Defendant was not made aware that the source of Belk’s tip to Pedersen was
Goodwin2 until the hearing on Defendant’s motion to suppress. Defendant argues
that this was a failure by the State to comply with its discovery obligations under
N.C. Gen. Stat. §§ 15A-902 to -910 (as set forth in relevant part above), and that the
trial court erred by concluding that the State had not violated these statutes and
declining to apply some sanction against the State as a result.
“Whether a party has complied with discovery and what sanctions, if any,
should be imposed are questions addressed to the sound discretion of the trial court.”
State v. East, 345 N.C. 535, 552, 481 S.E.2d 652, 664 (1997). We will reverse for abuse
of discretion “only upon a showing by a litigant that the challenged actions are
2 Although Defendant argues in his brief on appeal that Defendant “learned for the first time
at the motion to suppress hearing that the person providing the tip that led to Officer Pedersen’s stop
of his car was a Wadesboro police officer rather than an ‘unknown source[,]’” the transcript from the
motion-to-suppress hearing reveals that Defendant’s trial counsel there agreed that the prosecutor
had made her aware prior to the hearing that the source was an officer with the Town of Wadesboro
Police Department, albeit not Goodwin, specifically.
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Opinion of the Court
manifestly unsupported by reason.” Clark v. Clark, 301 N.C. 123, 129, 271 S.E.2d 58,
63 (1980).
The record reflects that: (1) the prosecutor followed up with Belk regarding the
source of the tip; (2) Belk told the prosecutor that the source was an officer with the
Town of Wadesboro Police Department; (3) the prosecutor requested that Belk
provide a supplemental report to her with more information; and (4) the prosecutor
told Defendant’s trial counsel that the source was an officer with the Town of
Wadesboro Police Department. Although it appears that Belk never provided the
prosecutor with Goodwin’s identity, and accordingly that Defendant was never
apprised of Goodwin’s identity prior to Belk’s testimony that Goodwin was the source
on the stand at the motion-to-suppress hearing, the State did provide Defendant with
Belk’s supplemental report—which Defendant introduced as Exhibit 1/E at the
hearing on his motion to suppress—and the record does not reflect that Defendant
took any steps to seek to ascertain the identity of the specific officer thereafter. On
these facts, we cannot conclude that the trial court abused its discretion in
determining that the State had complied with discovery or by declining to apply
sanctions against the State for failing to provide him with Goodwin’s identity.
B. Maintaining-a-vehicle Charge
Defendant next argues that the trial court erred by denying his motion to
dismiss the charge of maintaining a vehicle to keep or sell controlled substances,
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Opinion of the Court
because the State presented insufficient evidence that Defendant’s vehicle was used
for storing or selling controlled substances.
This Court reviews a trial court’s denial of a motion to dismiss de novo. State
v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). In ruling on a motion to
dismiss, “the trial court need determine only whether there is substantial evidence of
each essential element of the crime and that the defendant is the perpetrator.
Substantial evidence is that amount of relevant evidence necessary to persuade a
rational juror to accept a conclusion.” State v. Winkler, 368 N.C. 572, 574, 780 S.E.2d
824, 826 (2015) (internal quotation marks and citation omitted). In reviewing the
trial court’s decision on appeal, the evidence must be viewed “in the light most
favorable to the State, giving the State the benefit of all reasonable inferences.” State
v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993) (citation omitted).
Defendant was convicted of keeping or maintaining a car which is used for the
keeping or selling of a controlled substance, in violation of N.C. Gen. Stat.
§ 90-108(a)(7). That provision states, in pertinent part, that “[i]t shall be unlawful
for any person . . . [t]o knowingly keep or maintain any . . . vehicle . . . which is used
for the keeping or selling of [controlled substances] in violation of this Article.” N.C.
Gen. Stat. § 90-108(a)(7) (2019).
To prove a defendant guilty under this portion of
subsection 90-108(a)(7), the State must prove that the
defendant
(1) knowingly
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Opinion of the Court
(2) kept or maintained
(3) a vehicle
(4) which was used for the keeping or selling
(5) of controlled substances.
State v. Rogers, 371 N.C. 397, 401, 817 S.E.2d 150, 153 (2018) (internal brackets and
citation omitted). “[T]he keeping . . . of” drugs referred to in this subsection means
“the storing of drugs.” Id. at 403, 817 S.E.2d at 155.
“The determination of whether a vehicle . . . is used for keeping or selling
controlled substances will depend on the totality of the circumstances.” State v.
Mitchell, 336 N.C. 22, 34, 442 S.E.2d 24, 30 (1994). Circumstances our courts have
considered relevant to this determination include: the amount of controlled
substances found, the presence of drug paraphernalia, the presence of large amounts
of cash, and whether the controlled substances were hidden in the vehicle. See
Rogers, 371 N.C. at 403, 817 S.E.2d at 155; State v. Alvarez, 818 S.E.2d 178, 182 (N.C.
Ct. App. 2018), aff’d per curiam, 372 N.C. 303, 828 S.E.2d 154 (2019); State v.
Dunston, 256 N.C. App. 103, 106, 806 S.E.2d 697, 699 (2017); State v. Frazier, 142
N.C. App. 361, 366, 542 S.E.2d 682, 687 (2001). While no factor is dispositive, “[t]he
focus of the inquiry is on the use, not the contents, of the vehicle.” Mitchell, 336 N.C.
at 34, 442 S.E.2d at 30 (emphasis omitted).
In Rogers, the State presented sufficient evidence that defendant used a car to
keep illegal drugs where law enforcement officers found two purple plastic baggies
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Opinion of the Court
containing cocaine in a small space behind the door covering the vehicle’s gas cap; a
marijuana cigarette and $243 in the vehicle’s passenger compartment; and similar
purple plastic baggies containing larger amounts of cocaine, a digital scale, and small
zip-lock bags in defendant’s hotel room. Rogers, 371 N.C. at 403, 817 S.E.2d at 155.
Similarly, in Dunston, the State presented sufficient evidence that defendant used a
car to keep illegal drugs where officers observed defendant in the car engaging in
activities consistent with those commonly used in distributing marijuana, and
officers discovered in the car a travel bag containing a 19.29-gram mixture of heroin,
codeine, and morphine; plastic baggies; two sets of digital scales; and three cell
phones. Dunston, 256 N.C. App. at 106, 806 S.E.2d at 699. Likewise, in Alvarez, the
State presented sufficient evidence that defendant used a car to keep illegal drugs
where officers discovered one kilogram of cocaine wrapped in plastic and oil to evade
detection by canine units in a false-bottomed compartment on defendant’s truck bed
floor. Alvarez, 818 S.E.2d at 182.
In this case, as in Rogers and Alvarez, Defendant attempted to hide the
methamphetamine. “[A] defendant who wants to store contraband will, all other
things equal, want to store it in a hidden place, which is exactly what putting the”
methamphetamine in the false-bottomed tire-sealant can would accomplish. Rogers,
371 N.C. at 404, 817 S.E.2d at 155. Moreover, similar to the trafficking amounts of
controlled substances found in Rogers, Dunston, and Alvarez, the tire-sealant can
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Opinion of the Court
contained more than 28 grams of methamphetamine—an amount consistent with
trafficking, not personal use. Additionally, as in Rogers and Dunston, officers also
discovered drug paraphernalia in Defendant’s possession.
While “merely having drugs in a car . . . is not enough to justify a conviction
under subsection 90-108(a)(7)[,]” Rogers, 371 N.C. at 406, 817 S.E.2d at 157, viewing
the evidence in this case in the light most favorable to the State and drawing all
reasonable inferences from that evidence, a reasonable jury could find that Defendant
used the Camaro to store the methamphetamine. The trial court thus correctly
denied Defendant’s motion to dismiss the charge of keeping or maintaining a vehicle
which is used for the keeping or selling of controlled substances.
III. Conclusion
The trial court did not abuse its discretion in determining that the State had
complied with its discovery obligations or by declining to apply sanctions against the
State. The trial court thus did not err by denying Defendant’s motion to suppress.
As the State presented substantial evidence that Defendant’s vehicle was used for
the keeping or selling of controlled substances, the trial court correctly denied
Defendant’s motion to dismiss the charge. The trial court’s order denying Defendant’s
motion to suppress is affirmed, and the trial court did not err by denying Defendant’s
motion to dismiss.
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Opinion of the Court
AFFIRMED IN PART AND NO ERROR IN PART.
Judges STROUD and BERGER concur.
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Combined Opinion