Appeal by defendant from judgments entered 14 February 2007 by
Judge Lindsay R. Davis, Jr., in Randolph County Superior Court.
Heard in the Court of Appeals 29 November 2007.
Attorney General Roy Cooper, by Special Deputy Attorney
General Thomas J. Pitman, for the State.
Carol Ann Bauer, for defendant-appellant.
Kelly Gwen Hill Kidd (defendant) appeals from judgments
entered after a jury found her to be guilty of: (1) carrying a
concealed weapon pursuant to N.C. Gen. Stat. § 14-269(a); (2)
felony possession of cocaine pursuant to N.C. Gen. Stat. § 90-
95(d)(2); (3) simple possession of a schedule IV controlled
substance pursuant to N.C. Gen. Stat. § 90-95(d)(2); and (4)
possession of drug paraphernalia pursuant to N.C. Gen. Stat. § 90-
113.22. We find no error.
On 9 September 2004, Detective Arthur Heaton (Detective
Heaton) responded to a call, which reported a black male in
possession of a large handgun, who was seen inside several jewelrystores in the Randolph County Mall. Detective Heaton and Officer
Donovan Young (Officer Young) located Greg Fisher (Fisher) at
the jewelry counter inside the Belk Department Store and asked
Fisher to place his hands on the countertop. Fisher complied and
Detective Heaton and Officer Young handcuffed him.
Officer Young searched Fisher. Officer Young recovered a
concealed large caliber handgun and a pill bottle, which contained
several pills and some powder cocaine. Fisher was placed under
arrest. Upon Fisher's arrest, Jonathan Clay (Clay) approached
the officers and identified himself as a friend of Fisher's.
Fisher asked if he could give his car keys to Clay so that Clay
could pick up the girls. Detective Heaton agreed and gave
Fisher's keys to Clay.
Detective Heaton walked with Clay to Fisher's car and asked
Clay for permission to search the car. Clay stated the car was not
his. Detective Heaton explained to Clay that he could consent to
the search because the car was under his control. Clay then asked
if he would get in trouble for anything that may be inside the
car. Detective Heaton told Clay he did not believe Clay would be
held responsible for anything contained in the car because he had
just taken possession of the keys. Clay consented to a search of
Detective Heaton recovered two purses located inside Fisher's
car. One purse contained an Altoids mint tin, a blue colored pipe,
digital scales, a pill bottle with several pills inside, a pack of
cigarettes with several straws inside, and defendant'sidentification card. The Altoids tin contained a plastic bag with
white powder and several razor blades. After Detective Heaton
finished searching Fisher's car, he asked another officer to go
into the mall and locate the girls. The officer returned with
defendant. Defendant was handcuffed and placed under arrest. As
defendant and the officers were standing next to Fisher's car,
defendant told Officer William Brown (Officer Brown) she had a
handgun in her pants. Defendant claimed the gun belonged to
Fisher. Defendant explained that she was carrying the handgun
because she did not want it to be stolen from the car.
A magistrate's order was issued charging defendant with
possession with intent to sell or deliver cocaine, felony
possession of cocaine, carrying a concealed weapon, simple
possession of a schedule IV controlled substance, and possession of
drug paraphernalia. Defendant was indicted on one count of
possession with intent to manufacture, sell, and deliver cocaine.
Defendant's felonious possession of cocaine charge was dismissed
due to the possession with intent to manufacture, sell, and deliver
Prior to trial, defendant moved to suppress all evidence
seized as a result of the warrantless search of [Fisher's] vehicle
. . . Defendant's motion to suppress was denied. Defendant was
convicted of carrying a concealed weapon in district court.
Defendant appealed the conviction to the superior court.
At the close of the State's evidence, defendant moved to
dismiss all charges. The trial court dismissed the charge ofpossession with intent to sell or deliver cocaine and denied
defendant's motion to dismiss the remaining charges.
A jury found defendant to be guilty of: (1) possession of
cocaine, (2) carrying a concealed handgun, (3) possession of
diazepam, and (4) possession of drug paraphernalia. Defendant was
sentenced to forty-five days incarceration for carrying a concealed
weapon. This sentence was suspended and defendant was placed on
supervised probation for twenty-four months. The remaining charges
were consolidated for sentencing. Defendant received a consecutive
sentence of a minimum of six and a maximum of eight months
incarceration. This sentence also was suspended and defendant was
placed on supervised probation for twenty-four months. Defendant
Defendant argues the trial court erred by: (1) denying her
motion to suppress and (2) denying her motion to dismiss.
III. Motion to Suppress
Defendant argues the trial court erred by denying her motion
to suppress because the warrantless search of her purse was without
any lawful authority. We disagree.
A. Standard of Review
The standard of review for a motion to suppress is whether
the trial court's findings of fact are supported by the evidence
and whether the findings of fact support the conclusions of law.
State v. Cockerham
, 155 N.C. App. 729, 736, 574 S.E.2d 694, 699
(citation omitted), disc. rev. denied
, 357 N.C. 166, 580 S.E.2d 702(2003). The court's findings are conclusive on appeal if
supported by competent evidence, even if the evidence is
. (quotation omitted). [T]he trial court's
conclusions of law must be legally correct, reflecting a correct
application of applicable legal principles to the facts found.
State v. Fernandez
, 346 N.C. 1, 11, 484 S.E.2d 350, 357 (1997).
[A] law-enforcement officer may conduct a search and make
seizures, without a search warrant or other authorization, if
consent to the search is given. N.C. Gen. Stat. § 15A-221(a)
(2005). The consent needed to justify a search and seizure under
G.S. 15A-221 must be given: . . . (3) By a person who by ownership
or otherwise is reasonably apparently entitled to give or withhold
consent to a search of premises. N.C. Gen. Stat. § 15A-222
(2005). Evidence obtained pursuant to the search of an automobile
with the permission of the one in possession is competent against
him and the occupants
. State v. Faison
, 17 N.C. App. 200, 202,
193 S.E.2d 334, 336 (1972) (emphasis supplied) (citation omitted),
, 283 N.C. 258, 195 S.E.2d 690 (1973).
Defendant has failed to specifically except or assign error to
any of the trial court's findings of fact relating to the motion to
suppress. [W]hen no exceptions are made to separate findings of
fact they are presumed to be supported by competent evidence.
State v. Perry
, 316 N.C. 87, 107, 340 S.E.2d 450, 462 (1986)
(citation omitted). This Court's review is limited to whether the
trial court's findings of fact support its conclusions of law. State v. Cheek
, 351 N.C. 48, 63, 520 S.E.2d 545, 554 (1999), cert.
, 530 U.S. 1245, 147 L. Ed. 2d 965 (2000). Based upon its
findings of fact, the trial court concluded:
1.  Clay had the apparent authority to
consent to the search of the vehicle
operated by  Fisher.
2. The consent of  Clay was not coerced by
the Asheboro City Police Department.
3.  Defendant had a lessened expectation
of privacy for her purse in  Fisher's
car, and her Fourth Amendment Rights were
not violated by the search.
Here, Clay's consent allowed the officers to conduct a
warrantless search under N.C. Gen. Stat. § 15A-221. Clay was a
person reasonably apparently entitled to give or withhold consent
to a search of [Fisher's car]. N.C. Gen. Stat. § 15A-222(3). The
[e]vidence obtained pursuant to the search . . . is competent
against . . . [defendant]. Faison
, 17 N.C. App. at 202, 193
S.E.2d at 336 (citation omitted). The trial court's conclusions of
law reflect a correct application of applicable legal principles to
the facts found from the evidence. Fernandez
, 346 N.C. at 11, 484
S.E.2d at 357. The trial court's conclusions of law are supported
by the findings of fact and are legally correct. Id
. The trial
court properly denied defendant's motion to suppress the search of
her purse by Detective Heaton. This assignment of error is
IV. Motion to Dismiss
Defendant argues the trial court erred by denying her motion
to dismiss because the State failed to present any evidence thatthe items found were for use with any controlled substances . .
. . We disagree.
A. Standard of Review
The standard for ruling on a motion to dismiss
is whether there is substantial evidence (1)
of each essential element of the offense
charged and (2) that defendant is the
perpetrator of the offense. Substantial
evidence is relevant evidence which a
reasonable mind might accept as adequate to
support a conclusion. In ruling on a motion to
dismiss, the trial court must consider all of
the evidence in the light most favorable to
the State, and the State is entitled to all
reasonable inferences which may be drawn from
the evidence. Any contradictions or
discrepancies arising from the evidence are
properly left for the jury to resolve and do
not warrant dismissal.
State v. Wood
, 174 N.C. App. 790, 795, 622 S.E.2d 120, 123 (2005)
(internal citations and quotations omitted).
N.C. Gen. Stat. § 90-113.22(a) (2005) provides:
It is unlawful for any person to knowingly
use, or to possess with intent to use, drug
paraphernalia to plant, propagate, cultivate,
grow, harvest, manufacture, compound, convert,
produce, process, prepare, test, analyze,
package, repackage, store, contain, or conceal
a controlled substance which it would be
unlawful to possess, or to inject, ingest,
inhale, or otherwise introduce into the body a
controlled substance which it would be
unlawful to possess.
The State must present substantial evidence that defendant
possessed drug paraphernalia with the intent to use it in
connection with controlled substances.
Here, the State presented evidence tending to show that
defendant's purse contained: an Altoids tin with 0.5 grams of
cocaine and several razor blades located inside, several straws
with cocaine residue present inside them, a pill bottle containinga schedule IV controlled substance, a digital scale, and a pipe.
Considering all evidence in the light most favorable to the State
and drawing all reasonable inferences therefrom, the State
presented substantial evidence that defendant possessed drug
paraphernalia with the intent to use it in connection with the
controlled substances. Wood
, 174 N.C. App. at 795, 622 S.E.2d at
123 (internal citations and quotations omitted); N.C. Gen. Stat. §
90-113.22(a). The trial court properly denied defendant's motion
to dismiss the possession of drug paraphernalia charge. This
assignment of error is overruled.
The trial court's unchallenged findings of fact in its order
denying defendant's motion to suppress are supported by competent
evidence. The trial court's conclusions of law are legally
correct [and] reflect a correct application of applicable legal
principles to the facts found. Fernandez
, 346 N.C. at 11, 484
S.E.2d at 357.
The State presented substantial evidence tending to show that
defendant possessed drug paraphernalia with the intent to use it in
connection with controlled substances. When viewed in the light
most favorable to the State, the trial court properly denied
defendant's motion to dismiss the charge of possession of drug
paraphernalia. We find no error in the verdicts returned or the
judgments entered thereon.
Judges JACKSON and ARROWOOD concur.
Report per Rule 30(e).
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