Heard in the Court of Appeals 23 April 2014.
Appeal by defendant from judgments entered 17 April 2013 by Judge Mark E. Klass in Davidson County Superior Court,
Nos. 12 CRS 2644, 12 CRS 52622-23.
Attorney General Roy Cooper, by Assistant Attorney General Donald W. Laton, for the State.
Kimberly P. Hoppin for defendant-appellant.
GEER, Judge. Judges STEPHENS and ERVIN concur.
Defendant Derrick OBrian Carter appeals from a judgment sentencing him, as a habitual felon, based on convictions for maintaining a dwelling to sell a controlled substance, possession of cocaine, possession of drug paraphernalia, resisting a public officer, and possession of marijuana. On appeal, defendant primarily challenges his conviction for resisting a public officer that arose out of defendant's refusal to allow an officer to search him pursuant to a search warrant. Because the uncontradicted evidence showed that the officer who arrested defendant for resisting a public officer did not read or produce a copy of the warrant to defendant prior to seeking to search defendant's person -- thereby violating N.C. Gen. Stat. § 15A-252 (2013) -- the arresting officer was not engaged in lawful conduct. The State, therefore, failed to present evidence sufficient to support a conviction of resisting a public officer. Because we find defendant's remaining arguments unpersuasive, we reverse only defendant's conviction for resisting a public officer and remand for resentencing.
The State's evidence tended to show the following facts. On 11 April 2012, Detective
K.N. Harvey and Investigator Michael Burns, deputies with the Davidson County Sheriff's Office, met with a confidential source and arranged for a controlled drug purchase. The confidential source agreed to make a controlled purchase of crack cocaine at 286 Shirley Road (the " Shirley Road residence" ), which is a mobile home where defendant lived. Investigator Burns knew defendant previously from " numerous dealings."
The confidential source and a person accompanying the source made the controlled purchase at the Shirley Road residence as planned. After the transaction, the deputies met the confidential source at a prearranged location and took possession of a quantity of crack cocaine obtained as a result of the controlled buy.
The following day, on 12 April 2012, the deputies applied for and obtained a search warrant authorizing a search of defendant's person and the Shirley Road residence. After obtaining the warrant, the deputies planned to " go to the residence, secure it, and basically conduct a search." Investigator Burns was the first to leave to conduct the search, but on his way to the Shirley Road residence, he passed a car going the opposite direction and noticed that defendant was riding in the passenger seat. Investigator Burns turned around, caught up with the vehicle, which was being driven by defendant's friend Perry Goble, and stopped it.
Investigator Burns approached Mr. Goble and asked him for his license. When Mr. Goble produced no license, Investigator Burns wrote him a citation. Investigator Burns then walked to the passenger side of the car where he informed defendant that defendant was the named subject of a search warrant. Investigator Burns ordered defendant out of the car multiple times to allow the officer to search him. Because defendant repeatedly refused to leave the car, Investigator Burns radioed for backup and informed defendant that he was under arrest.
Shortly after several other officers arrived, defendant got out of Mr. Goble's vehicle, and Investigator Burns handcuffed him and took him into custody for resisting a public officer. A search of defendant's person yielded only a cell phone and $406.00 in cash. Defendant was given the option of being taken to the Davidson County Sheriff's Office for processing or back to the Shirley Road residence to be present as officers searched the mobile home. Defendant chose to go to the Sheriff's Office.
Several deputies conducted a search of the Shirley Road residence, which included two bedrooms, a kitchen, and a living room. The deputies seized items they believed were controlled substances or drug paraphernalia, took photographs and notes, tested for the presence of cocaine with narcotics indicator field test kits (" NIKs" ), and catalogued all the property they seized.
On top of a glass table in the kitchen, deputies found a box of small plastic bags, a utility knife, and a set of black digital scales that were all sitting next to each other. There were white crumbs on the glass tabletop as well as on the scale's plate. In the kitchen sink, deputies found a Pyrex bowl three-quarters full of water. Deputies also observed a white " splatter" on the stove next to a burner. On top of a glass table in defendant's living room, deputies found two plastic bags that they believed to contain marijuana. Also in the living room, deputies found a wooden box that contained the remains of a marijuana " roach" and an identification card for defendant issued by the Department of Correction.
After deputies finished their search of the Shirley Road residence, they sent some of the material believed to be marijuana and some of the " off white rock substances" found sitting atop one of the scales to the Iredell Crime Lab for analysis. The deputies did not send the Pyrex bowl, the scales, or the knife for testing. The Crime Lab concluded that the material they received amounted to 5.1 grams of marijuana and 0.03 grams of cocaine.
Defendant was indicted for possession of cocaine with the intent to manufacture, sell, or deliver, maintaining a dwelling to sell a controlled substance, possession of marijuana, possession of drug paraphernalia, resisting a public officer, and being a habitual felon. The State elected at trial to proceed on a charge of possession of cocaine rather
than possession of cocaine with the intent to sell and deliver.
The jury found defendant guilty of each of the tried charges and determined that defendant is a habitual felon. The trial court sentenced defendant to a presumptive-range term of 33 to 52 months imprisonment for the possession of cocaine conviction and to a consecutive presumptive-range term of 33 to 52 months imprisonment for the consolidated charges of maintaining a dwelling to sell a controlled substance, possession of drug ...