Appeal by defendant from an order dated 9 February 2005,
signed
nunc pro tunc 28 April 2005, by Judge W. Allen Cobb, Jr. in
New Hanover County Superior Court. Heard in the Court of Appeals
7 June 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Martin T. McCracken, for the State.
Duncan B. McCormick for defendant.
BRYANT, Judge.
Carl Antonio Scott (defendant) appeals from an order dated 9
February 2005 consistent with a jury verdict convicting him of
felony possession of cocaine. The order was signed nunc pro tunc
on 28 April 2005.
On 30 January 2004, Wilmington Police Department Detectives
Chris Mayo and David Pellegrino entered an apartment complex, in
which several drug-related arrests occurred weekly, to investigate
pervasive drug trafficking. As Detective Mayo went around the
corner of one building, he saw a group of three or four men
standing on the sidewalk, including defendant. Defendant turned
and started walking in the opposite direction as soon as he noticed
Detective Mayo approaching. Detective Mayo followed defendant, andwas twenty yards behind defendant when Detective Pellegrino
intercepted defendant.
Once defendant saw Detective Pellegrino, he stopped walking.
Detective Pellegrino approached defendant and observed the muscles
in defendant's jaws flexing and making chewing motions. Detective
Pellegrino asked defendant if he resided in that area, but
defendant did not respond and continued to make chewing motions.
The detective inquired as to whether defendant had anything in his
mouth. Defendant again failed to respond and attempted to swallow
the items in his mouth. After asking defendant a second time what
was in his mouth, Detective Pellegrino grabbed defendant's lower
jaw to prevent him from swallowing what the officer believed to be
contraband. As he held defendant's jaw, Detective Pellegrino told
him several times to spit out the contraband, but defendant
continued chewing. Detective Mayo assisted Detective Pellegrino
and forced defendant to the ground. Defendant's mouth opened
slightly and Detective Mayo observed a white rock-like substance
therein, which, based on his training and experience, he believed
to be crack cocaine. Detective Pellegrino also saw several pieces
of a white rock-like substance in defendant's mouth and believed
the substance to be crack cocaine. Detective Pellegrino then swept
his little finger through the front of defendant's mouth to
dislodge the rock-like substance and watched the substance fall to
the ground. The rock-like substance was picked up, placed in a
plastic bag and subsequently identified as cocaine by the State
Bureau of Investigation. At trial, during the testimony of the first trial witness,
Detective Mayo, defendant renewed his objection to evidence seized
from his person by the detectives. Judge Cobb excused the jury and
conducted a voir dire hearing in which the State introduced the
testimony of Detective Mayo and Detective Pellegrino, and in which
defendant chose not to testify and did not offer evidence. Judge
Cobb denied the motion to suppress from the bench and made written
findings of fact and conclusions of law in an Order signed 28 April
2005.
Defendant testified he was standing with a group of young men
who were gambling with dice when the police officers arrived.
Defendant stated when he saw the officers, he walked toward the men
who were gambling and was stopped by one of the officers.
According to defendant, although he was standing still, Detective
Pellegrino came up to him saying “spit it out” and grabbed
defendant by the throat, and the two officers then threw him to the
ground. Defendant further testified he did not have drugs in his
mouth or anywhere on his person and speculated that a rock of crack
cocaine was already on the ground next to where he fell. Defendant
was convicted of a single count of possession of cocaine and placed
on supervised probation for thirty-six months. Defendant appeals.
_________________________
Defendant raises five issues on appeal: whether the trial
court erred in (I) denying defendant's motion to suppress the crack
cocaine seized from defendant; (II) making findings of fact which
recited the testimony of the arresting officers; (III) concludingthe officers observed “defendant engaged in behavior that they
suspected to be a drug transaction” and concluding the officers
appropriately stopped defendant from “unprovoked flight”; (IV)
denying defendant's motion to dismiss the charge of felony
possession; and (V) overruling defendant's objection to the
admission of expert opinion testimony by Agent Wagner.
I
Defendant first argues the trial court erred in denying
defendant's motion to suppress the crack cocaine seized from
defendant. We disagree.
“The standard of review in evaluating a trial court's ruling
on a motion to suppress is that the trial court's findings of fact
are conclusive on appeal if supported by competent evidence, even
if the evidence is conflicting.”
State v. Smith, 160 N.C. App.
107, 114, 584 S.E.2d 830, 835 (2003) (internal quotation marks and
citations omitted). If the trial court's conclusions of law are
supported by its factual findings, we will not disturb those
conclusions on appeal.
State v. Logner, 148 N.C. App. 135, 138,
557 S.E.2d 191, 193-94 (2001).
The decision to stop defendant is justifiable if “specific and
articulable facts, taken together with the rational inferences from
those facts, created a reasonable suspicion of criminal activity.”
State v. Harrell, 67 N.C. App. 57, 61, 312 S.E.2d 230, 234 (1984).
The only requirement in deciding to stop defendant is a minimal
level of objective justification, something more than an
“unparticularized suspicion or hunch.”
State v. Watkins, 337 N.C.437, 442, 446 S.E.2d 67, 70 (1994) (citing
United States v.
Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 10 (1989)).
In this case, the detectives'
voir dire testimony established
the officers had reasonable suspicion of criminal activity at the
time they detained and searched defendant. The detectives made, on
average, several drug-related arrests weekly at this particular
apartment complex. At 6:00 p.m. on 30 January 2004, defendant was
observed standing in a group of men outside this apartment complex.
When defendant saw one detective coming toward the group, he made
eye contact with the detective, stopped for a moment and
immediately walked in the opposite direction, around the building,
where he was met by another detective. When he was asked whether
he lived in the apartments, he did not respond, and was observed
chewing and attempting to swallow items in his mouth. The
detective asked him what was in his mouth, but he again did not
respond and continued to chew. The officers' suspicions at that
point were based on their observation of defendant for a period of
time prior to an actual seizure and would lead any reasonable and
cautious officer, with the requisite training and experience, to
believe criminal activity was afoot.
See State v. Watson, 119 N.C.
App. 395, 398, 458 S.E.2d 519, 522 (1995) (holding the officer was
justified (1) in detaining the defendant where he reasonably
suspected criminal activity because defendant was standing near a
store where multiple recent drug arrests had occurred and took
evasive action; (2) in applying pressure to the defendant's throat
so that he would spit out the items where the evidence was inimminent danger of being lost; and (3) in arresting the defendant
where there was probable cause) (citation omitted));
see also State
v. Willis, 125 N.C. App. 537, 542, 481 S.E.2d 407, 411 (1997)
(holding when defendant left suspected drug house on foot and took
evasive action when he knew he was being followed, sufficient
incriminating circumstances existed to create a reasonable
suspicion defendant was engaged in criminal conduct). Competent
evidence supports the trial court's findings of fact which support
the trial court's conclusions of law. Defendant's motion to
suppress was properly denied. This assignment of error is
overruled.
II & III
Defendant next argues the trial court erred in making findings
of fact which recited the testimony of the arresting officers and
in concluding the officers observed “defendant engaged in behavior
that they suspected to be a drug transaction” and concluding the
officers appropriately stopped defendant from “unprovoked flight.”
We disagree.
“In reviewing the trial court's ruling on a suppression
motion, [we determine] only whether the trial court's findings of
fact are supported by competent evidence, and whether these
findings of fact support the court's conclusions of law.”
State v.
Tarlton, 146 N.C. App. 417, 553 S.E.2d 50, 53 (2001). Only if
there is a material conflict in the evidence on
voir dire, must the
trial court make findings of fact to resolve the conflict.
State
v. Vick, 341 N.C. 569, 580, 461 S.E.2d 655, 661 (1995) (citationsomitted). If there is no material conflict in the evidence on
voir
dire, it is not error to admit the challenged evidence without
making specific findings of fact.
State v. Riddick, 291 N.C. 399,
230 S.E.2d 506 (1976);
State v. Biggs, 289 N.C. 522, 223 S.E.2d 371
(1976). In that event, the necessary findings are implied from the
admission of the challenged evidence.
State v. Whitley, 288 N.C.
106, 215 S.E.2d 568 (1975).
In the present case, the trial court was not required to make
findings of fact because there was no material conflict of the
evidence.
State v. Phillips, 300 N.C. 678, 685, 268 S.E.2d 452,
457 (1980) (holding no prejudicial error where the sole finding
made by the trial court was a recitation of the officer's testimony
and the trial court specifically concluded that the officer had
probable cause to effect the arrest -- a conclusion based upon the
State's undisputed, uncontroverted evidence). If there is no
conflict in the evidence on
voir dire, it is not error to admit the
challenged evidence without making specific findings of fact.
Id.
Defendant presented no evidence at the motion to suppress hearing,
therefore the trial court's findings did not materially conflict
with defendant's evidence. The trial court's findings were not
error.
Furthermore, the evidence presented at the
voir dire hearing
supports the trial court's conclusions that “defendant engaged in
behavior that they suspected to be a drug transaction” and
concluding the officers appropriately stopped defendant from
“unprovoked flight.” As stated above, the detective had reasonablesuspicion defendant was engaged in criminal activity when he met
defendant coming around the corner of the building. Detective Mayo
specifically testified on
voir dire that defendant's instant
departure around the building, away from Detective Mayo, raised his
suspicion. Both officers' suspicion of criminal conduct was
heightened when they saw what they reasonably believed to be crack
cocaine in defendant's mouth. It is reasonable on these facts for
the trial court to properly conclude the officers observed
defendant engaged in a drug transaction and was attempting to leave
the scene. These assignments of error are overruled.
IV
Defendant argues the trial court erred in denying defendant's
motion to dismiss the charge of felony possession of cocaine. We
disagree.
“In ruling upon a motion to dismiss, the trial court must
determine if the State has presented substantial evidence of each
essential element of the offense.”
State v. Reid, 151 N.C. App.
379, 565 S.E.2d 747 (2002) (citation omitted). “Whether the
evidence presented is substantial is a question of law for the
court.”
State v. Siriguanico, 151 N.C. App. 107, 564 S.E.2d 301
(2002) (citation omitted). “Evidence is substantial if it is
relevant and adequate to convince a reasonable mind to accept a
conclusion.”
State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245,
255 (2002) (citing
Vick at 583-84, 461 S.E.2d at 663),
cert.
denied, 537 U.S. 1006, 154 L. Ed. 2d 404. When considering a
criminal defendant's motion to dismiss, the trial court must viewall of the evidence presented “in the light most favorable to the
State, and the State is entitled to all reasonable inferences which
may be drawn from the evidence.”
State v. Davis, 130 N.C. App.
675, 679, 505 S.E.2d 138, 141 (1998) (citation omitted). If there
is substantial evidence, whether direct, circumstantial, or both,
to support a finding that the offense charged has been committed
and that the defendant was the perpetrator, the case is for the
jury; and the motion to dismiss should be denied.
State v.
Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 382-83 (1988). North
Carolina General Statutes, Sections 90-95(a)(3) and (d)(2) provide
that it shall be unlawful to possess cocaine, which is a Schedule
II controlled substance. N.C. Gen. Stat. §§ 90-95(a)(3) and (d)(2)
(2005).
In this case, Detective Pellegrino testified he swept a
rock-like substance from defendant's mouth, picked it up, placed it
in a plastic bag, and delivered it to the evidence locker at the
police station. An SBI analyst, Special Agent Richard Wagner, was
tendered and accepted, without objection from defendant, as an
expert in the field of forensic chemistry and in the analysis of
controlled substances. Agent Wagner subsequently testified that in
his opinion, the material provided for testing by Detective
Pellegrino was cocaine base, commonly known as crack cocaine. This
is substantial evidence of felony possession of cocaine. This
assignment of error is overruled.
V
Defendant argues the trial court erred in overruling
defendant's objection to the admission of expert opinion testimony
by Agent Wagner regarding the opinion of another SBI agent that the
State's Exhibit three, seized from defendant's mouth, consisted of
one-tenth of a gram of cocaine. Defendant contends that expert
testimony based on analyses conducted by someone other than the
testifying expert violated his right to confrontation under the
rationale of
Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177
(2004).
However, defendant concedes in his brief that
State v. Bunn
___ N.C. App. ___, 619 S.E.2d 918 (2005) is controlling and admits
that he brings forth this issue for preservation purposes. In
Bunn, this Court found that:
after a recitation of his credentials, Special
Agent Robert Evans was tendered and accepted,
without objection by Defendant, as an expert
in forensic drug examination. Special Agent
Evans, after a thorough review of the
methodology undertaken by his colleague,
relied on his colleague's analyses in forming
his opinion that the substance sold to the
undercover officers was cocaine, and his
opinion was based on data reasonably relied
upon by others in the field.
Id. at ___, 619 S.E.2d at 920. The Court noted that “it is well
established that an expert may base an opinion on tests performed
by others in the field and [d]efendant was given an opportunity to
cross-examine Special Agent Evans on the basis of his opinion[,]”
Id. at ___, 619 S.E.2d at 920-21, thereby concluding that
Crawford
did not apply and there was no violation of the defendant's right
of confrontation.
See also State v. Lyles, 172 N.C. App. 323, 325-27, 615 S.E.2d 890, 892-94 (2005) (no error in the admission of
laboratory reports prepared by a non-testifying analyst as the
basis for an expert witness' opinion). The trial court did not err
in denying defendant's motion to dismiss the charge of felony
possession of cocaine. This assignment of error is overruled.
No error.
Judges HUNTER and CALABRIA concur.
Report per Rule 30(e).
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