State v. Johnson
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-368 NORTH CAROLINA COURT OF APPEALS Filed: 19 November 2013 STATE OF NORTH CAROLINA v. Harnett County Nos. 11 CRS 50593, 51033 DONALD EDWARD JOHNSON and JESSICA WILLIAMS Appeal by defendants from judgments entered 16 January 2013 by Judge Michael R. Morgan in Harnett County Superior Court. Heard in the Court of Appeals 26 September 2013. Attorney General Roy Cooper, by Special Deputy Attorney General James M. Stanley, Jr., for the State v. Donald Edward Johnson. Attorney General Roy Cooper, by Assistant Attorney General Alexandra M. Hightower, for the State v. Jessica Williams. Andrew L. Johnson. Farris for Richard Croutharmel Williams. defendant-appellant for Donald defendant-appellant Edward Jessica BRYANT, Judge. Where there was competent evidence to support the finding that defendant Donald Edward Johnson consented to the entry of -2law enforcement officers to his home, we find no error in the trial court s denial of Johnson s motion to suppress. evidence error established in the incriminating trial court s possession against Johnson. custodial interrogation, findings of fact failure to we no charges dismiss find of Where there was no evidence of a and conflict in the evidence, circumstances, Where where there was no material the trial court s failure to make regarding defendant Jessica Williams contention of a Fifth Amendment violation was not error. Where the trial court allowed testimony referring to Williams prior criminal conviction, we find no plain error. Defendants together at County. Johnson and Williams 626 On Heritage Way in 25 October 2011, were Cameron, a Harnett married a town County and in Harnett grand returned separate indictments against each defendant. lived jury Johnson was charged with possession with intent to sell and deliver marijuana, maintaining a controlled substances, and dwelling for possession of keeping drug and selling paraphernalia. Williams was indicted for possession with intent to sell and deliver marijuana. On 4 April 2012, the State moved for an order to join the offenses and defendants for trial. was granted on 14 January 2013. The motion -3On 5 April 2012, Johnson filed a motion to suppress evidence seized without a search warrant. On 16 April 2012, Williams In filed defendants enforcement without a argued motion that officers probable to their without cause suppress. or property a warrant, exigent was both motions, searched without by law consent, and circumstances. Williams further contended that her Fifth Amendment right against selfincrimination was violated when law enforcement failed to advise her of her Miranda rights during a custodial interrogation. The matters raised in the individual motions to suppress were heard on 8 October 2012, in Harnett County Superior Court, before the Honorable C. Winston Gilchrist, Judge presiding. 2013, the trial court entered an order On 11 January denying Johnson and Williams respective motions to suppress. Defendants were brought to trial in Harnett County Superior Court on 14 January 2013, the Honorable Michael R. Morgan, Judge presiding. The evidence presented tended to show that on 14 February 2011, Sergeant Dwayne Council along with Agent Thomas Parker, both working with the Harnett County Sheriff s Department, Narcotics Division, received a report that a student at Overhills marijuana. High School had distributed cookies containing Sergeant Council went to the school that same day -4and interviewed the student, eighteen year old Mark Budran. Budran admitted to distributing cookies containing marijuana and admitted that he had more marijuana at home, 626 Heritage Way, in Cameron. Sgt. Council, Agent Parker, and Heritage Way at approximately 1:00 p.m. Budran arrived at 626 Sgt. Council and Agent Parker, wearing badges identifying themselves as law enforcement officers escorted Budran to the front door of his residence and knocked. Budran attempted to open the door, but it was locked. Sgt. Council announced himself as a member of the Harnett County Sheriff s Department. Sgt. Council heard movement inside the residence and three to four minutes later, Johnson opened the front door. Sgt. Council testified that [he] could tell that they were smoking marijuana, or been smoking recently. Sgt. Council again identified himself and Agent Parker and stated that there was an incident at Budran s school. asked if incident. they could enter the residence and Sgt. Council talk about the Once inside, Sgt. Council and Agent Parker spoke to Johnson and Williams. Budran was allowed to go to his room but returned saying that he could not find the marijuana. Budran informed the officers that he kept marijuana in a metal chewing gum canister that was now missing. Johnson and Williams denied -5the presence of marijuana in the residence and asked the law enforcement officers to leave. Sgt. Council announced that he would conduct a seize and freeze wherein the officers would seize the house and apply for a warrant to search the house for marijuana. Johnson suddenly ran to a back door. Agent Parker chased Johnson but briefly lost sight of him when Johnson exited the house. Johnson was subsequently apprehended, handcuffed, and placed in a law enforcement vehicle. Meanwhile, Williams, Budran, and a second child were on the porch with Sgt. Council. Sgt. Council testified that Williams informed him that there was marijuana in the house and if she was allowed to Johnson, she could find out where he had hidden it. was allowed informed to Sgt. sit and Council talk that with Johnson. marijuana could talk Williams Williams be to found then in a trashcan in the master bathroom. A warrant was issued to search the property located at 626 Heritage Way. Pursuant to a search of the house, Sgt. Council discovered a total of 132 grams of marijuana at the rear of the house, outside near the backdoor in a metal Doublemint chewing gum container containing seventeen bags of marijuana and in a trashcan in the master bathroom containing four large bags -6of marijuana. At trial, both Sgt. Council and Agent Parker testified as experts in the identification of the marijuana. Following the close of the evidence, the jury returned verdicts finding Johnson guilty of possession with intent to sell and deliver marijuana, intentionally keeping and maintaining a building for the purposes of unlawfully keeping or selling a controlled paraphernalia. substance, and possession of drug The jury returned a verdict finding Williams guilty of possession with intent to sell and deliver marijuana. The trial court sentenced Johnson to consecutive active terms of 7 to 9 months for possession with intent to sell and deliver marijuana and maintaining unlawfully keeping concurrent term paraphernalia. or of a dwelling selling 120 a for controlled days for the purposes substance, possession of and of a drug For possession with intent to sell and deliver marijuana, the trial court sentenced Williams to an active term of 4 to 5 months but suspended the sentence supervised probation for a period of 24 months. Williams appeal. __________________________________ and imposed Johnson and -7On appeal, Donald Johnson raises the following issues: whether the trial court erred by (I) denying Johnson s motion to suppress; and (II) failing to dismiss the possession charges. Jessica Williams raises the following issues: whether the trial court erred in (III) failing to make written findings in its order denying Williams motion to suppress; and (IV) allowing testimony of Williams out-of-court statement. Appeal by Donald Johnson I Johnson first argues that the trial court erred in denying his motion to suppress evidence obtained as a result of the search of his home. Specifically, Johnson argues that the entry of law enforcement officers into his home amounted to a search to which he did not consent, that Budran lacked authority or even apparent exigent authority circumstances Johnson s home. to to consent, justify and a that there warrantless were no search of For these reasons, Johnson contends that he is entitled to a new trial. We disagree. In reviewing the denial of a motion to suppress our Court is strictly limited to a determination of whether the court's findings are supported by competent evidence, even if the evidence is conflicting, and in turn, whether those findings support the court's conclusions of law. [I]f so, the trial court's conclusions -8of law are binding on appeal. If there is a conflict between the [S]tate's evidence and defendant's evidence on material facts, it is the duty of the trial court to resolve the conflict and such resolution will not be disturbed on appeal. . . . We review the conclusions of law de novo. trial court's State v. Brown, ___ N.C. App. ___, ___, 720 S.E.2d 446, 450 (2011), petition for disc. review dismissed, ___ N.C. ___, 724 S.E.2d 910, and temporary stay dissolved, disc. review denied, 365 N.C. 541, 742 S.E.2d 187 (2012). Consent to enter the residence Johnson argues that he did not consent to the entry of Sgt. Council and Agent Parker into his home and that the entry of law enforcement officers into his home absent his consent amounted to a violation of his rights under the Fourth Amendment to the United States Constitution. The Fourth Amendment to the United States Constitution protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. State v. Rhodes, 151 N.C. App. 208, 213, 565 S.E.2d 266, 269 (2002) (citation and quotations omitted). [G]enerally speaking, an intrusion into a residence is a search within the meaning of the Fourth Amendment, for physical entry of the home -9is the chief evil against Amendment is directed. 610, 582 S.E.2d 313, which the wording of the Fourth State v. Barnes, 158 N.C. App. 606, 317 (2003) (citation and quotations omitted). Consent, however, has long been recognized as a special situation excepted from the warrant requirement, and a search is not unreasonable within the meaning of the Fourth Amendment when lawful consent to the search is given. For the warrantless, consensual search to pass muster under the Fourth Amendment, consent must be given and the consent must be voluntary. Whether the consent is voluntary is to be determined from the totality of the circumstances. State v. Smith, 346 N.C. 794, 798, 488 S.E.2d 210, 213 (1997) (citations omitted). well as words. Consent may be inferred from actions as United States v. Hylton, 349 F.3d 781, 786 (4th Cir. 2003) (citing United States v. Wilson, 895 F.2d 168, 170 (4th Cir. 1990) (finding consent where defendant raised his arms after agent asked permission to pat him down, a request made without threats, force, or physical intimidation ); United States v. Wesela, 223 F.3d 656, 661 (7th Cir. 2000) ( The fact that there was no direct verbal exchange between [the officer and the third party] in which [the third party] explicitly said it's o.k. with me for you to search the apartment is immaterial, as the events indicate her implicit consent[.] Had -10[the law enforcement officer] conducted an all-out search of the [residence], everything he perhaps did was the result narrowly would confined be to different. finding But evidence related to the events of that evening . . . . ); United States v. Buettner Janusch, 646 F.2d 759, 764 (2d Cir. 1981) ( [I]t is well settled that consent may be inferred from an individual's words, gestures, or conduct. )). In its 11 January 2013 order denying Johnson s motion to suppress, the trial court made the following unchallenged findings of fact: 2. Upon receiving the report, Council went to the school and met with Budran . . . . He agreed to take Council and Agent Parker of the Harnett County Sheriff s Office to his house to retrieve the marijuana. 3. Upon arriving at the house the officers and Budran walked to the front door, which was locked. Budran knocked on the door. . . . Council then stated to those inside that he was with the sheriff s office [sic] and he wanted to talk to them. Johnson challenges finding of fact number four in as much as he argues that his action in response to the officer s request to enter the residence did not amount to consent to search. 4. After about 4-5 minutes Defendant Johnson came to the door and asked why they were there. Council explained the -11situation at school and asked if they could come in. Johnson stepped back from the door and indicated by action and/or words that the officers and Budran could enter. No one blocked their entrance or told them not to enter. (emphasis added). The trial court then made findings of fact stating that Budran produced only marijuana residue and Sgt. Council and Agent Parker then conducted a seize and freeze, whereby the occupants of the house were seized and removed from the residence while the officers applied for a search warrant. As to the challenged finding of fact, we look to the evidence presented to the trial court during the hearing on Johnson s motion to suppress. We must first determine whether there to was competent evidence support the trial court s finding of fact describing Johnson s words and actions to law enforcement officers and then de novo consider whether the finding supports the conclusion that Johnson consented to the entry of law enforcement officers into his home. Sgt. Council gave the following testimony: Q. And then after four or five minutes, someone came to the door. Who was that? A. It was Mr. Johnson and Mrs. Williams. Q. All right. And is that Mr. Johnson -who came to the door first? -12A. Mr. -- I believe it was came to the door first. Q. And is he the Defendant over here? A. Yes. Q. When he happened? A. They asked why we were here, and that s when I told them that their son had brought some marijuana cookies to school on Friday, and a child got sick and was taken to the hospital and we re investigating it. Q. And then did you say anything to him about entering the house? A. I asked him could we come in and talk to him, I said because their son stated that he had some marijuana in his room that we come to confiscate. And we re - we re not here to search the house. We re just here to get what he said was in his house. Q. All right. And then what happened? A. They stepped back, which -- stepped back from the door. So myself and Agent Parker, along with Mark, we just walked in the residence and we stood right there at the -- by the threshold of the door, the front door. Q. At that time, did anybody tell you that you could not come in? A. No, no. Q. And did anyone going in? came to the block Mr. Johnson door, your way what from -13A. No, no. Q. Did they say anything to you, either one of them, about coming into the house? A. No. We find that competent evidence supports the trial court s finding of fact number 4: that Johnson opened the door and asked the officers why they were there; that Sgt. Council gave an explanation and asked if they could come in; that Johnson stepped back from the door and that when the law enforcement officers entered no one blocked their entry or told them not to enter. Based on the totality of the circumstances, as reflected in the findings, we hold that Johnson voluntarily gave his consent to law enforcement officers, Sgt. Council and Agent Parker, to enter his home. See Smith, 346 N.C. at 798, 488 S.E.2d at 213 ( Whether the consent is voluntary is to be determined from the totality of the circumstances. ); see also Hylton, 349 F.3d at 786 ( Consent may be inferred from actions as well as words. ). Therefore, the officers entry into Johnson s residence did not violate any Fourth Amendment protections to which Johnson may have been entitled. C.f. Barnes, 158 N.C. App. 606, 582 S.E.2d 313 (holding that the entry into a residence by law enforcement -14officers violated the defendant s Fourth Amendment rights where the officers followed the defendant into his residence after he ran from his porch when startled). Johnson challenges the trial court s denial of his motion to suppress solely on the grounds upon which law enforcement officers entered his residence. Because we have determined that the officers entered Johnson s residence with his consent, we need not address Johnson s remaining arguments on this issue. Accordingly, Johnson s argument challenging the trial court s denial of his motion to suppress is overruled. II Next, Johnson argues that the trial court erred in denying his motion to dismiss the charge of possession with intent to sell and deliver marijuana and possession of drug paraphernalia. Specifically, Johnson argues that because he was not in exclusive possession of the house he shared with his wife and two teenage children and because there was insufficient evidence of incriminating circumstances to support an inference of constructive possession, the trial court erred in failing to dismiss the possession charges.1 1 We disagree. Johnson was charged with possession with intent to sell and deliver marijuana and possession of drug paraphernalia. In his brief to this Court, Johnson does not individually address -15When ruling on a motion to dismiss for insufficient evidence, the trial court must consider the evidence in the light most favorable to the State, drawing all reasonable inferences in the State's favor. Any contradictions or conflicts in the evidence are resolved in favor of the State, and evidence unfavorable to the State is not considered. The trial court must decide only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. State v. Miller, 363 N.C. 96, 98-99, 678 S.E.2d 592, 594 (2009) (citations and quotations omitted). The denial of a motion to dismiss for insufficient evidence is a question of law which we review de novo. State v. Rouse, 198 N.C. App. 378, 381-82, 679 S.E.2d 520, 523 (2009) (citations omitted). To show constructive possession, i.e., that the defendant had the the intent and capability to maintain control and dominion over the item possessed, the State must show either a) the defendant had exclusive possession, incriminating circumstances existed. or b) other Miller, 363 N.C. at 99, 678 S.E.2d at 594 (quoting State v. Beaver, 317 N.C. 643, 648, either charge but asserts there was no evidence he actually possessed the marijuana or paraphernalia on his person . . . . Johnson s argument challenges only whether there were incriminating circumstances to support a theory of constructive possession; therefore, we address his argument as presented. -16346 S.E.2d 476, 480 (1986)); see also State v. Allen, 279 N.C. 406, 408, 183 S.E.2d 680, 682 (1971), as discussed by State v. Bradshaw, 366 N.C. 90, 95, 728 S.E.2d 345, 348 (2012) (Allen presented sufficient evidence of constructive possession where law enforcement officers found heroin in a bedroom along with an Army identification defendant's name card on them, and personal the house papers utilities with were in the the defendant's name, and a witness testified that the defendant had told him where the heroin was located.). In Allen, unlawfully unlawfully the defendant dispensing possessing was narcotics a quantity convicted (heroin) of Allen, 279 N.C. 406, 183 S.E.2d 680. to narcotic on charges of minor and a drugs (heroin). The defendant appealed to our Supreme Court arguing that the trial court erred in failing to grant his motion for non-suit at the close of the State s evidence and at the close of all evidence. The evidence presented at trial showed that law enforcement officers in the Fayetteville Police Department obtained a search warrant for 900 Gillis Street after receiving reports that a person known as Snake occupied that residence and was selling narcotics. at 408, 183 S.E.2d at 682. Id. At the time the officers executed the search warrant, sixteen-year-old Leslie Carl Scott occupied -17the house along with two other people. The defendant was not present. Id. The search of the residence revealed fifteen capsules containing heroin. Six of the under a mattress in the master bedroom. law enforcement officers also found capsules were found In the master bedroom, a wallet containing an United States Army identification card with the defendant s name on it and several other items bearing the defendant s name. The State later produced evidence that the public utility services for the residence were in the defendant s name. At trial, Scott testified that on five or six occasions he had sold stuff for the defendant. He further testified that the day before the search residence of the by law enforcement officers, the defendant invited him to 900 Gillis Street; told him that he (the defendant) was going away for a few days; and the stuff was under the mattress. Id. Scott testified that the defendant told him that he wanted him to sell some scagg (a term Scott used interchangeably with heroin). Scott testified that on the day law enforcement officers came to search the residence at 900 Gillis Street, he sold heroin to a man who was accompanied by a law enforcement officer, and the heroin that he sold was supplied by the defendant, who had told him to sell it. Id. On these facts, our Supreme Court reasoned that there was -18sufficient evidence for a jury to conclude that the heroin seized was subject to the defendant s dominion and control. The Court held that the evidence indicated the defendant had both the power and intent to control the disposition and use of the heroin so as to have it in his constructive possession. Id. at 412, 183 S.E.2d at 685. Here, the evidence admitted at trial indicates that Sgt. Council and Agent Johnson shared Parker with his went wife to Johnson s and their residence, two which children, after Johnson s oldest child, Burdan, admitted to the officers that he had marijuana in his room at home. When Johnson opened the door, Sergeant Council noted the strong order of recently smoked marijuana. Sgt. Council informed Johnson that the officers were there to confiscate marijuana Burdan admitted to keeping in his room. Sgt. informed him container. the Council the testified marijuana was that kept Burdan in a had metal previously chewing gum When Burdan returned from his room, unable to locate marijuana, both Johnson marijuana in the house. and Williams denied there was Johnson became agitated, and Williams told the officers to leave. Sgt. Council testified that when he informed Johnson and Williams that he smelled marijuana upon his entry into the home and that he would perform a seize and -19freeze, wherein the officers would seize the residence and apply for a search warrant, Johnson made a dash to the back door. He took off running. Agent Parker testified that he chased Johnson through the back of the house. Johnson made it through a back door before Parker reached the door, opened it, and seized Johnson. Q A And then, as best you can tell, what did Mr. Johnson attempt to do then? A issued, Yes. Q Sgt. Were you completely -was he completely outside by the time you got to the back door? He tried to come back in. That's why I was holding the door, and he kept ramming the door, trying to run back inside the house. I didn't know what he had. I didn't know what he went outside for. There was no reason to just take off running out the door. Council law testified enforcement Doublemint metal tin Johnson ran. that after officers a search discovered outside of the back door warrant a was Wrigley s through which In the tin were seventeen bags of marijuana. While law enforcement officers searched the house, Johnson was placed in the back of a patrol car and Williams and her two children stood on the porch. Sgt. Council testified that during this time Williams approached him and expressed to him that she -20did not want cooperative. to go Sgt. to jail Council and that testified she that wanted Williams to told be him there was marijuana in the house and that if he placed her in the patrol car with Johnson, she could find out where Johnson had hidden it. Council When Williams was removed from the car, Sgt. testified that she informed him exactly where the marijuana was located: in a trashcan in the master bathroom. Pursuant to Williams direction, Sgt. Council found four bags, maybe four big bags, and looks like some smaller bags that's in part of a ziplock bag or sandwich bag that's packaged. Sgt. Council testified that aggregated together, he discovered 132 grams of marijuana at the residence. This evidence is more than sufficient to provide the incriminating circumstances necessary to support an inference and from which the jury could find that at the time of the search, Johnson asserted dominion and control over the marijuana found in the Doublemint chewing gum tin as well as the marijuana found in the master bathroom trashcan. evidence exists constructively to support possessed the marijuana Therefore, sufficient conclusion that and paraphernalia. drug Accordingly, we overrule Johnson s argument. Appeal by Jessica Williams Johnson -21III Williams argues that the trial court erred in failing to enter proper findings of fact and conclusions of law in its 11 January 2013 order denying her motion to suppress evidence and statements. Specifically, Williams contends that the trial court failed to consider whether her incriminating statements to law enforcement officers were coerced in violation of her Fifth Amendment rights under the United States Constitution.2 We disagree. For our standard of review, we again refer to State v. Brown, ___ N.C. App. at ___, 720 S.E.2d at motions to suppress, as stated in issue I. 450, discussing If the motion [to suppress] is not determined summarily the judge must make the determination after a hearing and finding of facts. Stat. ยง 15A-977(d) (2011). N.C. Gen. The judge must set forth in the record his findings of facts and conclusions of law. Id. ' 15A-977(f). Pursuant Constitution, 2 to the [n]o Fifth person Amendment . . . of shall be the United compelled States in any Williams does not challenge the trial court s denial of her motion to suppress the physical evidence collected by law enforcement officers at the time of her arrest. -22criminal case to be a witness against himself[.] U.S. CONST. amend. V. As a constitutional prerequisite to the admissibility of statements obtained from an accused during custodial interrogation, Miranda [v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)] requires that the suspect be advised in unequivocal terms (1) that he has a right to remain silent; (2) that anything he says can and will be used against him in court; (3) that he has a right to consult with a lawyer and to have a lawyer present during interrogation; and (4) that if he is indigent and unable to employ a lawyer, counsel will be appointed to represent him. State v. Steptoe, 296 N.C. 711, 716, 252 S.E.2d 707, 710 (1979) (citation omitted). Williams cites State v. Buchanan, 353 N.C. 332, 543 S.E.2d 823 (2001), for the proposition that the United States Supreme Court has interpreted the Miranda decision as holding that failure to administer Miranda warnings in custodial situations creates a presumption of statements of a defendant. (citation omitted). compulsion which would exclude Id. at 336-37, 543 S.E.2d at 826 We acknowledge the sentence Williams quotes from Buchanan, and also note that the Buchanan Court went on to say [t]herefore, the initial inquiry in determining whether Miranda warnings were required is whether an individual was in custody. Id. at 337, 543 S.E.2d at 826. -23Williams asserts that at the time she made statements to law enforcement officers she was handcuffed, standing on her front porch wearing only overalls on a cold February day, possibly visible to her neighbors for perhaps up to two hours. She was in custody but had not been advised of her Miranda rights by Sheriff s law enforcement Department officers Williams of the contends Harnett that County [t]he only question left [is] whether her statements were the product of police coercion. Williams argues that the trial court s failure to make findings of fact resolving this issue amounts to a failure to consider the totality of the circumstances leading up to her incriminating statements to Sgt. Council. Williams cites Rhode Island v. Innis, 446 U.S. 291, 64 L. Ed. 2d 297 (1980), for the proposition that any words or actions on the part of law enforcement that the officers should know are likely to elicit an incriminating response definition of interrogation under Miranda. Ed. 2d at 308. since [law accountable actions, the fall within the Id. at 300-01, 64 L. However, the Innis decision further states that enforcement for the officers] unforeseeable definition of surely results interrogation cannot be held of their words or can extend only to words or actions on the part of police officers that they should -24have known were reasonably likely to elicit an incriminating response. Id. at 301-02, 64 L. Ed. 2d at 308. The pertinent evidence presented to the trial court during the suppression hearing was given by Sgt. Council, who testified as follows: A. . . . Mrs. Williams had made a comment to me that she did not want to go to jail, and she had stated that she had been to jail before for trafficking marijuana. Q. Now, was arrived? A. Yes. Q. Okay. A. Okay. And Ms. Williams made the comment that her husband hid some marijuana in the house when we arrived, and she said she didn t know where it was at. And then she said, well, if you put me in the car with him, I can find out where he hid the marijuana. Q. And all this arrived--- A. Yes, it was. this was before before the the warrant warrant . . . Q. And when she gave you that information that -- was that in response to any questions you asked her? A. No, no. This is her -- didn t want to go to jail. She kept stating that she -25did not want to go to jail and leave her kids. Q. At that point in time, did you know anything about her criminal background? A. No, I did not. No. Q. And was Mr. Johnson, in fact, in the patrol car--- A. Yes. Q. ---or the law enforcement car there? A. Yes, sir. He was in deputies patrol cars. one of the . . . A. I instructed one of the deputies to come and place Ms. Williams, as well, in the car with her husband. And he placed her in there. Within five or ten minutes, I instructed him to bring her out, and that s when she said that her husband had stated that he had put the marijuana in the trash can in the bathroom. Q. And where that? was she when A. I placed her back steps of her house. Q. As a result of the information she gave you, did you conduct a search at that time? A. By that time, I told her that the search warrant hadn t got there yet. It was on its way. I said, well, thank you on she the told you porch, the -26and, you know. And I did tell her that I would not arrest her. I ll let her turn herself in to find suitable means for her kids. Williams did not testify at the suppression hearing. There was no evidence presented that Sgt. Council or any other law enforcement officer elicited the statements made by Williams, nor was there evidence that the manner in which Williams was detained created a coercive environment such that the officers should have known was reasonably likely to elicit an incriminating response. All of the evidence shows Williams statements were freely and voluntarily given. Further, they were prompted by her desire to not go to jail and leave her children, as opposed to any words or actions by law enforcement officers that would lead to an incriminating response. Therefore, Miranda warnings were not required. Williams further contends it was error for the court to fail to enter findings of fact and conclusions of law in denying her motion to suppress. Per General Statutes, section 15A- 977(d) and (f) the trial court must make written findings of fact and conclusions of law. However, where there is no material conflict in the evidence presented at the suppression hearing, specific findings of fact are not required. See, e.g., State v. Parks, 77 N.C. App. 778, 781, 336 S.E.2d 424, 426 -27(1985) ( Specific findings of fact are not required . . . where there is no material conflict in the evidence presented at the suppression hearing. State v. Phillips, 300 N.C. 678, 268 S.E.2d 452 (1980)[.] ). suppression Williams, who presented no evidence at the hearing, cannot now challenge the trial court s finding that her remarks were unsolicited and that there was a material conflict in the evidence. Accordingly, Williams erred argument is overruled. IV Lastly, allowing statement Williams Sgt. Council concerning argues to her that the trial testify to Williams prior criminal court in out-of-court conviction. We disagree. Williams Council s acknowledges testimony during that, though trial, she she objected did not arguments that she now raises on appeal. to preserve Sgt. the Therefore, she asks that this Court review the admission of testimony regarding her out-of-court statement concerning a prior criminal conviction for plain error. [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 -28elements 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. State v. Lawrence, 365 N.C. 506, 516-17, 723 S.E.2d 326, 333 (2012) (citation and quotations omitted). At trial, Sgt. Council testified as follows: Q Prior to the search warrant arriving, what did you do? A We were outside, got everybody out of the house, and we were just outside, waiting for the search warrant. At that point in time, Mrs. Williams engaged me in conversation. Q What did she say to you? [Defense counsel Objection. THE COURT: for Jessica Williams]: Grounds? [Defense counsel for Jessica Williams]: Again, your Honor, it's part of the ongoing objection that was already previously heard in the previous motion. That's all. THE COURT: Overruled. A continuing objection is noted for the record. -29MS. BEAMAN: Thank you, your Honor. Q What did she say? A She stated to me that she didn't want to go to jail, that she was on probation for trafficking a hundred pounds of cocaine, I'm sorry, a hundred pounds of marijuana out of Virginia, I believe, and she also stated that she didn't want to leave her boys and she really loved her boys. Williams argues that the trial court erred in allowing the testimony because Sgt. Council s testimony failed to qualify for admission undoubtedly Williams under used was any the guilty rule of information of the evidence to current infer offense previously committed a similar offense. and the that jury Defendant- because she had We are unpersuaded. Per Lawrence, [f]or error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty. Id. at 518, 723 S.E.2d at 334 (citation and quotations omitted). Even presuming statement regarding the her admission prior of Williams conviction for out-of-court trafficking marijuana was error, we cannot hold that such amounts to plain -30error. The record evidence indicates that Sgt. Council and Agent Parker noted the strong odor of marijuana when Johnson opened the door to the home he shared with Williams. Williams was present, inside the home at that time, and admitted to Sgt. Council that she knew there was marijuana in the house. enforcement officers Williams residence. admission of discovered 132 grams of marijuana Law in Given this, we cannot hold that that the evidence regarding Williams prior trafficking conviction had a probable impact on the jury s verdict finding Williams guilty of possession with intent to sell and deliver marijuana. Accordingly, we overrule Williams argument. No error; no plain error. Judges HUNTER, Robert C., and STEELMAN concur. Report per Rule 30(e).
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