State v. Henry

• Decision Date: 18 November 2014
• Docket Number: No. COA14–561.,COA14–561.
• Citation: 765 S.E.2d 94,237 N.C.App. 311
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Dexter Durane HENRY.

237 N.C.App. 311

765 S.E.2d 94

STATE of North Carolina

v.Dexter Durane HENRY.

No. COA14–561.

Court of Appeals of North Carolina.

Nov. 18, 2014.

Attorney General Roy Cooper, by Assistant Attorney General Teresa M. Postell, for the State.

William D. Spence, Kinston, for Defendant.

STEPHENS, Judge.

Defendant Dexter Durane Henry was convicted in Johnston County Superior Court of one count of possession of cocaine and one count of resisting a public officer. He then pled guilty to having attained habitual felon status. Defendant appeals from the trial court's denial of his motion to suppress evidence that he alleges was obtained in violation of his Fourth Amendment rights, as well as from the trial court's denial of his motions to dismiss the charges against him for insufficient evidence and fatal variances between the indictment and the evidence presented at trial. After careful review, we hold that the trial court did not err in denying Defendant's motion to suppress or either of his motions to dismiss.

Facts and Procedural History

On 5 March 2012, Defendant was indicted on one count of possession of cocaine and one count of resisting a public officer, arising from an altercation that ensued after Defendant's vehicle was stopped for a safe movement violation along Buffalo Road in Johnston County on 1 February 2012. The evidence introduced at Defendant's trial, which began on 28 October 2013, tended to show that, at approximately 10:00 a.m. on 1 February 2012, Johnston County Sheriff's Deputy Greg Collins ("Deputy Collins") was patrolling for traffic violations when he saw a gray Hyundai suddenly come to a complete stop in the middle of a blind curve. The posted speed limit was 45 miles per hour, and Deputy Collins later testified that he and three or four other motorists behind the Hyundai were forced to stop abruptly to avoid hitting it. While the cars were stopped, Deputy Collins watched as a female ran out from a cemetery beside the road and climbed into the Hyundai's passenger seat. At that point, Deputy Collins ran a check on the vehicle's license plate, which "came back to a leased vehicle" from Charlotte. When the Hyundai continued driving north, Deputy Collins followed it for about a mile, then activated his blue lights to conduct a traffic stop as the car turned into a driveway.

As Deputy Collins approached the driver's side of the vehicle, he looked around at his surroundings to ensure his own safety and confirmed that nothing had been thrown on the ground from the vehicle. Then Deputy Collins reached the driver's side door and recognized Defendant as the driver, based on "a lot of involvement dealing with him" on multiple occasions involving narcotics during Deputy Collins's previous employment with the Selma Police Department. Deputy Collins noticed Defendant "seemed nervous" and "was sitting there shaking." When Deputy Collins asked Defendant for his license and registration, Defendant reached over with his left hand to open the vehicle's glove box while keeping his right arm in a position where Deputy Collins could not see it. Then Deputy Collins asked Defendant where he and his female passenger were going; Defendant said nothing but his passenger said they were headed to an ATM, which struck Deputy Collins as odd, given that the car had been traveling in the opposite direction of the closest available ATM. The passenger replied that Defendant was driving her to pick up her ATM card, but Deputy Collins noticed that although they claimed to be friends, neither Defendant nor his passenger appeared to know each other's names.

After Deputy Collins asked Defendant to step out of the vehicle, he "noticed there was something in [Defendant's] right hand, [but] couldn't tell what it was" because Defendant had his right hand "closed with his thumb and index finger rubbing it together" in a clinched fist. Deputy Collins asked Defendant if he was holding his car keys, but Defendant said they were still in his car, which Deputy Collins confirmed. Deputy Collins asked Defendant multiple times to open his hand, but Defendant repeatedly refused. This led Deputy Collins to suspect Defendant might be carrying a weapon, so he ordered Defendant to turn around and place his hands on top of the vehicle in order to conduct a Terry -style frisk. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). When Defendant partially complied with this order but still refused to drop what was in his hand, a scuffle ensued, which was captured by the video camera in Deputy Collins's patrol car and during which Deputy Collins "was able to get both [Defendant's] hands up above the car and pin [Defendant] against the car." At that point Defendant "started lunging across the cab of the vehicle and extending his right hand" but still refused to open it and "kept saying there's nothing in my hand." Eventually, Deputy Collins "took [Defendant] off his balance, spun him around and dropped him, put him on the ground[,]" where the two men continued to struggle. After refusing still more requests to open his hand, Defendant stated, "there's a tissue in my hand," but nevertheless refused to drop it until Deputy Collins "had to force [Defendant's] right hand behind his back and forcibly removed the item that was in his hand." The item Defendant had been holding was, in fact, a tissue.

Deputy Collins placed Defendant under arrest for resisting a public officer, then conducted a search incident to arrest to ensure that Defendant had no weapons. Once the immediate area was secured, Deputy Collins continued his search and found a plastic baggie containing an off-white rocky substance near the left rear driver's side of the vehicle where he and Defendant had been struggling. Subsequent SBI testing showed the substance to be approximately 0.55 grams of crack cocaine.

Before his trial, Defendant filed a motion to suppress the evidence against him, alleging it was the fruit of an unreasonable search that violated his Fourth Amendment rights. Although he did not object to the constitutionality of the traffic stop, Defendant contended Deputy Collins lacked reasonable suspicion to conduct a Terry frisk, arguing primarily that the mere fact of his previous drug convictions was insufficient to justify a search for contraband. However, at a hearing on 29 October 2013, Deputy Collins testified that he had initiated a Terry frisk out of concern for officer safety because, in addition to Defendant's suspicious behavior inside the car, he knew Defendant was a convicted felon, he knew Defendant's prior convictions involved drug offenses, and he knew, based on his training and experience, that drug offenders often possess weapons. Deputy Collins further testified that he knew, based on his training and experience, that "[w]eapons come in all different sizes and shapes ... [,] a lot of times they [are] conceal[ed,]" and "[a] weapon is most dangerous in a person's hand."

In addition to Deputy Collins's testimony about his concern for officer safety, the trial court also considered this Court's decision in State v. Summey, 150 N.C.App. 662, 564 S.E.2d 624 (2002). In Summey, we held that officers who stopped a vehicle reported to have just been involved in a drug transaction did not violate the Fourth Amendment when they forced a passenger who had suspiciously hidden her hand underneath a piece of fabric to open her hand, based in part on their training that "until [the officers] see an open palm they have reason to believe a suspect could be armed with a weapon." Id. at 667, 564 S.E.2d at 628. Here, given the totality of the circumstances, the trial court concluded that Deputy Collins did have reasonable suspicion to conduct a Terry frisk and, accordingly, denied Defendant's motion to suppress.

Later that same day, a jury found Defendant guilty of the Class I felony of possession of cocaine and the Class 2 misdemeanor of resisting, delaying, or obstructing a public officer. On 30 October 2013, Defendant pled guilty to having attained habitual felon status, thereby enhancing his punishment for the felony possession conviction from Class I to Class E.¹ Defendant was sentenced within the presumptive range for a Class E habitual felon at his prior record level to an active term of 38 months minimum and 58 months maximum imprisonment, with the sentence for his Class 2 misdemeanor conviction consolidated therein. Defendant gave timely oral notice of appeal.

I. Motion to Suppress

Defendant first argues that the trial court erred in denying his motion to suppress the crack cocaine, which he alleges Deputy Collins obtained as the result of an unreasonably intrusive search. Specifically, Defendant alleges his Fourth Amendment rights were violated because Deputy Collins used excessive force in taking Defendant to the ground and opening his hand, which resulted in an unreasonable seizure. We disagree.

This Court has set forth the appropriate standard of review for a motion to suppress as follows:

It is well established that 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. In addition, findings of fact to which [the] defendant failed to assign error are binding on appeal. Once this Court concludes that the trial court's findings of fact are supported by the evidence, then this Court's next task is to determine whether the trial court's conclusions of law are supported by the findings. The trial court's conclusions of law are reviewed de novo and must be legally correct.

State v. Campbell, 188 N.C.App. 701, 704, 656 S.E.2d 721, 724, appeal dismissed, – –– N.C. ––––, 664 S.E.2d 311 (2008) (citations, internal quotation marks, and brackets omitted). However, our Supreme Court has made clear that, "[i]n order to preserve a question for appellate review, a party must have presented the trial court with a...