Heard in the Court of Appeals October 6, 2014
Appeal by Defendant from judgment entered 30 October 2013 by Judge Thomas H. Lock in Johnston County Superior Court, Nos. 12 CRS 50721, 735.
Attorney General Roy Cooper, by Assistant Attorney General Teresa M. Postell, for the State.
William D. Spence for Defendant.
STEPHENS, Judge. Chief Judge MCGEE and Judge DIETZ concur.
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 ...