State v. Goodwin

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-569 NORTH CAROLINA COURT OF APPEALS Filed: 19 November 2013 STATE OF NORTH CAROLINA v. Johnston County No. 11 CRS 55516 MELISSA MOODY GOODWIN Appeal by Defendant from order entered 22 October 2012 by Judge Thomas H. Lock and judgments entered 16 November 2012 by Judge County. William Douglas Parsons in Superior Court, Johnston Heard in the Court of Appeals 22 October 2013. Attorney General Roy Cooper, by Assistant Attorney General Steven Armstrong, for the State. Reece & Reece, by Michael J. Reece, for Defendant. McGEE, Judge. The vehicle driven by Melissa Moody Goodwin ( Defendant ) was stopped on ( Officer Department. 10 September 2011 Cutchins ) with the by Officer Jordan Cutchins Town of Smithfield Police Officer Cutchins requested a drug dog from Officer Kenneth Hundley ( Officer Hundley ), and, shortly thereafter, Officer Hundley arrived with a drug dog. Defendant stepped out -2of the vehicle with her dog, shrimp sandwich wrapped in aluminum foil, and a Styrofoam white cup with a top in hand. After the alerted, while vehicle dog Officer Officer Cutchins Hundley stood searched next Defendant s to Defendant. Defendant then threw the foil-wrapped sandwich and Styrofoam cup into a nearby trash can. Officer Hundley was behind [Defendant] when she threw away her sandwich and cup. Officer Hundley picked up the items from the trash can and saw small plastic sandwich[.] bags tucked in between the foil and the He found Ziploc bags with a clear crystally (sic) substance inside testified that of four the bags. of the SBI bags Agent contained Brittany Dewell methamphetamine. Another of the bags contained dimethyl sulphone, which is a common cutting agent or diluent for methamphetamine. When Officer Hundley removed the lid from the cup, a methamphetamine smoking pipe floated to the top. Defendant was convicted of possession with intent to sell or deliver methamphetamine and possession of drug paraphernalia. Defendant appeals. I. Motion to Suppress Defendant first argues the trial court erred in denying her motion to suppress all evidence procured after the illegal and -3unconstitutional search and/or seizure of [D]efendant[.] We disagree. A. Standard of Review Our standard of review in evaluating a ruling on a motion to suppress is well settled. determining whether the Our review is strictly limited to 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. Sellars, ___ N.C. App. ___, ___, 730 S.E.2d 208, 209 (2012), appeal dismissed and disc. review denied, 366 N.C. 428, 736 S.E.2d 489 (2013) (internal quotation marks omitted). The trial court s conclusions of law are fully reviewable on appeal. State v. Leach, 166 N.C. App. 711, 715, 603 S.E.2d 831, 834 (2004). B. Analysis Defendant makes only one argument challenging the denial of her motion to suppress. She contends that, [a]lthough Cutchins had not issued the citation when he began searching the car, the ten-minute delay was longer than the de minimis delay permitted in Sellars. Defendant contends that the delay went beyond the time necessary to issue a citation for driving while license revoked. -4In Sellars, the issue was whether the officers had reasonable suspicion to continue to detain [the] defendant once the original purpose of the stop was concluded. N.C. App. at ___, 730 S.E.2d at 210. Sellars, ___ The original purpose of the stop was to investigate whether the defendant was driving while impaired. Id. at ___, 730 S.E.2d at 209. Upon stopping the defendant, the officer was immediately able to determine that [the] defendant was not suffering from any impairment that would inhibit his ability to safely operate his motor vehicle. Nonetheless, license. the Id. officer at ___, requested 730 the Id. at ___, 730 S.E.2d at 209. S.E.2d defendant s at 209. driver s Upon entering [the] defendant s identifying information into his on-board computer, [the officer] found an alert posted by the Burlington Police Department indicating that [the] defendant was a drug dealer and a known felon. Id. at ___, 730 S.E.2d at 209. The officer determined that he would have the drug dog conduct an open-air sniff of the vehicle. Id. at ___, 730 S.E.2d at 209. After issuing a warning ticket and returning the license, four minutes and thirty-seven seconds elapsed before [the drug dog] alerted on [the] defendant s vehicle. at 209. Id. at ___, 730 S.E.2d -5This Court concluded that the original purpose of the stop was concluded at the issuance of the warning ticket[.] ___, 730 S.E.2d at 213. Id. at It further concluded that the delay of four minutes and thirty-seven seconds for the dog sniff was a de minimis delay that did not rise to the level of a violation of [the] defendant s Amendment[.] constitutional rights under the Fourth Id. at ___, 730 S.E.2d at 213. The facts in the present case are distinguishable from the facts in Sellars. present revoked. case In The original purpose of the stop in the concerned contrast the to offense of Sellars, driving Officer while Cutchins license had not returned Defendant s license or issued a citation at the point that he decided to obtain a drug dog to sniff the vehicle. Thus, the original purpose of the stop had not yet concluded. Even assuming arguendo, without deciding, that the original purpose of the stop had concluded when Officer Cutchins decided to obtain a drug dog, Officer Hundley arrived with the dog in less than one minute[.] The dog alerted within one and a half minutes of arriving on the scene[.] This period of time is substantially less than the delay of four minutes and thirtyseven seconds in Sellars. Defendant asserts as error a ten-minute delay that Defendant says encompasses the time from the stop until the -6officer made the decision to search Defendant s vehicle. The trial and court made no finding as to a ten-minute delay, Defendant does not challenge any of the trial court s findings. The trial court did not err in denying the motion to suppress. II. Motions to Dismiss Defendant next argues the trial court erred in denying her motions to dismiss. We disagree. A. Standard of Review We review the 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). The trial court must determine whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense. 347 (2012) State v. Bradshaw, 366 N.C. 90, 93, 728 S.E.2d 345, (internal quotation marks omitted). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. The trial court must consider the evidence in the light most favorable to the State, drawing all reasonable inferences in the State s favor. Id. at 92, 728 S.E.2d at 347. All evidence, competent or incompetent, must be considered. contradictions or conflicts in the evidence are resolved Any in favor of the State, and evidence unfavorable to the State is not -7considered. Id. at 93, 728 S.E.2d at 347 (internal citations and quotation marks omitted). B. Analysis It is unlawful for any person to possess with intent to manufacture, sell or deliver, a controlled substance. Gen. Stat. § 90-95(a)(1) controlled substance. (2011). N.C. Methamphetamine is N.C. Gen. Stat. § 90-90(3)(c) (2011). a It is also unlawful for any person to possess drug paraphernalia. N.C. Gen. Stat. § 90-113.22 (2011). Defendant argues there was insufficient [Defendant] possessed the methamphetamine[.] evidence that Officer Hundley arrived with a drug dog, at the request of Officer Cutchins. When Officer Hundley arrived, he noticed Defendant was holding a small dog as well as a -- a sandwich wrapped in foil and a full cup of tea, Styrofoam cup of tea. the drug dog around Defendant s vehicle, alerted on the driver s side door. Defendant s vehicle, Defendant. Officer while Hundley Officer Hundley walked Officer stated and the drug dog Officer Cutchins searched Hundley that stood Defendant next to became agitated, [and] real nervous acting[.] Defendant asked Officer Hundley several times if she could throw her food away because she didn t have an appetite. refused his offer to throw the food away for her. She Defendant -8then turned around and started walking to the trash can. When asked to stop, she stepped it up and started going even faster to the trash can. Officer Hundley was right there behind her when she threw away her sandwich and cup. He observed the sandwich and the drink go into the trash can[.] He never lost sight of the items. Officer Hundley picked up the items from the trash can and observed small plastic bags tucked in between the foil and the sandwich[.] When he investigated further, he found Ziploc bags with a clear crystally (sic) substance inside of the bags. Four bags contained methamphetamine, and one bag contained dimethyl sulphone, which is a common cutting agent or diluent for methamphetamine. When the lid was removed from the cup, a methamphetamine smoking pipe floated to the top. Viewing the evidence in the light most favorable to the State, the evidence suggests Defendant had actual possession of the methamphetamine. sandwich containing Furthermore, the inference methamphetamine and plastic that bags the that Officer Hundley observed Defendant put in the trash can was the same sandwich that he retrieved from the trash can just moments later is a reasonable inference. The trial court did not err in denying Defendant s motions to dismiss. -9III. Correction of Clerical Errors in the Judgments Defendant argues that, according to her worksheet, she has one prior misdemeanor conviction, making her a prior record level I for felony sentencing purposes and a prior conviction level II for misdemeanor sentencing purposes. However, the felony judgment indicates Defendant is a prior record level II, and the misdemeanor judgment indicates Defendant has two prior misdemeanor convictions. In accordance with State v. Smith, 188 N.C. App. 842, 656 S.E.2d 695 (2008) and State v. Lark, 198 N.C. App. 82, 678 S.E.2d 693 (2009), we remand for the limited purpose of correcting these two clerical errors. Affirmed in part, no error in part; remanded for correction of clerical errors in judgments. Judges BRYANT and STROUD concur. Report per Rule 30(e).

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