STATE OF NORTH CAROLINA
v. Guilford County
Nos. 01 CRS 106228
KEVIN MCKENZIE DAWKINS 02 CRS 69648
Attorney General Roy Cooper, by Assistant Attorney General
John P. Scherer, II, for the State.
Thorsen Law Office, by Haakon Thorsen for defendant-appellant.
ELMORE, Judge.
On 19 August 2002, defendant was indicted on charges of
felonious possession of a controlled substance and misdemeanor
possession of stolen goods. On 7 October 2002, defendant was
indicted as an habitual felon. The case was tried at the 27 May
2003 Criminal Session of Guilford County Superior Court.
The evidence presented at the defendant's suppression hearing
and trial tended to show the following: On 11 December 2001,
Officers Steve Gianella and Scott Gordon of the High Point Police
Department were assisting in a narcotics surveillance operation at
the Travelodge Express motel in High Point, North Carolina.
Officers had information that a particular room at the motel wasinvolved in distributing narcotics. At approximately 9:00 p.m., a
1994 blue Honda Accord drove up to the room, one person got out and
entered the room under surveillance, stayed about thirty seconds
and then left. Officer Gordon testified that this was consistent
with narcotics activity. Officer Gianella was instructed to follow
the vehicle and get a tag number. The vehicle drove away at a high
rate of speed, and Officer Gianella attempted to catch up. As the
Honda made a turn, Officer Gianella noted that the car was far left
of center and half the vehicle was in the oncoming lane of traffic.
Officer Gianella activated his blue lights and stopped the vehicle.
Officer Gianella approached the vehicle and noted three
occupants. He asked the driver, Michael Leach, for his driver's
licence, and Leach told him his license had been revoked. Officer
Gianella then arrested Leach for driving while license revoked.
Once Leach was handcuffed, Officer Gordon, who was providing safety
support, asked defendant to step out of the car. Defendant
complied, and Officer Gordon asked, before he frisked defendant, if
he had any weapons or narcotics on his person. Defendant turned to
him and told him he had something in his mouth. Officer Gordon
told him to spit it out, and defendant spit out onto the trunk a
clear plastic bag with a white object in it. Officer Gordon
believed the substance to be crack cocaine, and defendant was
placed under arrest.
On 29 May 2003, defendant was convicted of felony possession
of cocaine and being an habitual felon and was sentenced to a term
of 108 to 139 months imprisonment. Defendant appeals. Defendant first argues that the trial court erred by denying
his motion to suppress. Defendant notes that he was removed from
the vehicle and frisked after the driver was arrested, and that the
traffic stop had ended. Thus, defendant argues that his removal
from the car and subsequent search was not for officer safety, and
was not for the purposes of searching the vehicle incident to the
arrest of the driver.
After careful review of the record, briefs and contentions of
the parties, we find no error. “The scope of review on appeal of
the denial of a defendant's motion to suppress is strictly limited
to determining whether the trial court's findings of fact are
supported by competent evidence, in which case they are binding on
appeal, and in turn, whether those findings support the trial
court's conclusions of law.” State v. Corpening, 109 N.C. App.
586, 587-88, 427 S.E.2d 892, 893 (1993) (citations omitted).
Here, the trial court found that while conducting narcotics
surveillance, police observed a blue Honda Accord pull up to the
motel, an occupant of the vehicle went into the room, stayed about
thirty seconds, and left. Police followed the vehicle and stopped
it when it committed the offense of driving left of center. After
the car was stopped, the driver was arrested. Officer Gordon asked
defendant to exit the vehicle so it could be searched incident to
the driver's arrest. Officer Gordon told defendant he was going to
pat him down, and asked him if he had any weapons or drugs. Prior
to any frisk, defendant volunteered that he had something in his
mouth and spit out the drugs. We find sufficient evidence tosupport these findings of fact.
Based on the evidence and its findings, the trial court
properly concluded that the stop of the vehicle was justified
because the driver had committed the offense of driving left of
center. After the car was stopped, “[a]s a passenger, defendant
was obliged to exit the vehicle for safety reasons during the
search thereof, despite the absence of probable cause or a
reasonable suspicion of criminal activity.” State v. Pulliam, 139
N.C. App. 437, 441, 533 S.E.2d 280, 283 (2000).
Once defendant exited the vehicle, and upon being informed
that he was subject to a pat-down, he voluntarily spit the drugs
out of his mouth. This Court need not address whether there was a
reasonable suspicion based on articulable facts under the
circumstances that defendant was armed and dangerous to justify the
frisk, because he volunteered the drugs before he was frisked.
Furthermore, even if he was going to be frisked, his mouth would
not have been subject to the frisk, and the drugs would not likely
be discovered during a limited, protective pat-down search for
weapons. Accordingly, we find no error.
Defendant next argues that the trial court erred by sentencing
him as an habitual felon because the offense he was convicted of,
possession of cocaine, was a misdemeanor, not a felony. However,
defendant's argument fails in light of the North Carolina Supreme
Court's decision in State v. Jones, 358 N.C. 473, 598 S.E.2d 125
(2004), that possession of cocaine is a felony. Accordingly, the
assignment of error is overruled. We finally consider whether defendant's sentence constituted
cruel and unusual punishment. Defendant contends that he was an
addict, had serious health problems, and was in possession of only
0.4 grams of crack cocaine, a very small amount. Thus, defendant
asserts that his sentence in excess of nine years imprisonment was
grossly disproportionate to the offense. We are not persuaded.
N.C. Gen. Stat. §§ 14-7.1 to 7.6 provide that a person who has
three prior felony convictions may be sentenced as an habitual
felon. Defendant contends that here, however, his sentence as an
habitual felon was “grossly disproportionate” to the crime of
possessing 0.4 grams of crack cocaine. This Court has stated that
“'[o]nly in exceedingly unusual non-capital cases will the
sentences imposed be so grossly disproportionate as to violate the
Eighth Amendment's proscription of cruel and unusual punishment.'”
State v. Clifton, 158 N.C. App. 88, 94, 580 S.E.2d 40, 45
(2003)(citations omitted).
We conclude that the facts here “do not meet the standard of
an 'exceedingly rare' and 'extreme' case, in which the 'grossly
disproportionate' principle would be violated.” Id. The sentence
in the presumptive range for defendant's conviction of possession
of cocaine in violation of N.C. Gen. Stat. § 90-95(d)(2), a Class
I felony, without consideration of the Habitual Felon Act, is a
minimum of 6 to 8 months to a maximum of 8-10 months, given a prior
record level of IV. See N.C. Gen. Stat. § 15A-1340.17. Under the
North Carolina Habitual Felon Act, defendant's sentence would be as
a Class C felon, and the sentence in the presumptive range fordefendant's convictions would be a minimum of 107 to 133 months to
a maximum of 138 to 169 months, given a prior record level of IV.
This Court has upheld the sentence of a defendant as an habitual
felon where the defendant was convicted of an underlying Class I
felony. See State v. Hairston, 137 N.C. App. 352, 528 S.E.2d 29
(2000)(where the underlying felony was felonious breaking and
entering a motor vehicle, a Class I felony under N.C. Gen. Stat. §
14-56). Moreover, “when deciding whether a sentence is grossly
disproportionate, 'we must place on the scales not only
[defendant's] current felon[ies], but also his . . . history of
felony recidivism.'” Clifton, 158 N.C. App. at 96, 580 S.E.2d at
46 (quoting Ewing v. California, 538 U.S. 11, ___, 155 L. Ed. 2d
108, 122 (2003)). Accordingly, we find no error.
No error.
Judges HUNTER and STEELMAN concur.
Report per Rule 30(e).
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