Heard in the Court of Appeals 8 October 2014.
Appeal by defendant from judgments entered 15 January 2013 by Judge Reuben F. Young in Johnston County Superior Court,
No. 13 CRS 52989, 52990.
Attorney General Roy Cooper, by Special Deputy Attorney General E. Burke Haywood, for the State.
McCOTTER ASHTON, P.A., by Rudolph A. Ashton, III, for defendant.
ELMORE, Judge. Judges BRYANT and ERVIN concur.
On 14 January 2014, a jury unanimously found defendant guilty of misdemeanor possession of marijuana, possession of cocaine with the intent to sell and/or deliver (PWISD cocaine), and conspiracy to sell and/or deliver cocaine (conspiracy). The trial court sentenced defendant to consecutive active prison terms of 15-27 months based on the PWISD cocaine conviction and 15-27 months based on the conspiracy conviction. For the possession of marijuana conviction, defendant received a suspended sentence of 20 days imprisonment and was placed on supervised probation for 8 months to be served upon his release from prison. Defendant appeals. After careful consideration, we vacate the conspiracy conviction and remand for resentencing.
On 11 June 2013, Johnston County Deputy Sheriff Billy Britt was on patrol duty at the intersection of N.C. 96 North and N.C. 42 West when he noticed a vehicle cross the center line of the road on two separate occasions. As a result of the traffic violation, Deputy Britt conducted a traffic stop of the vehicle. Deputy Britt approached the vehicle, and he smelled a strong odor of marijuana emanating from the vehicle. He asked the occupants whether any marijuana was inside the vehicle, and Phabien Darrell McClaude (defendant), who was located in the front passenger seat, indicated that he and the driver, Jonathan Hall, had previously smoked marijuana in the car. Upon Deputy Britt's request, defendant and Hall exited the vehicle, and Deputy Britt conducted a protective search of defendant's person. Deputy Britt found a small bag of marijuana in defendant's trouser pocket and subsequently handcuffed defendant. Both Hall and defendant became visibly nervous, but they indicated that nothing else was inside the vehicle.
Thereafter, Deputy Britt conducted a search of the vehicle. As he began to search the center of the vehicle, Hall appeared increasingly discomposed as he " wring[ed] and twist[ed] . . . all around," and shuffled and tapped his feet. Deputy Britt then pulled
out the ashtray and could see the floor panel beneath the center console. Deputy Britt found a black box underneath the console, and after opening the box, he found 7.2 grams of a substance that was later determined to be powder cocaine. At this point, Hall started to walk away from the scene, forcing another deputy to place him in handcuffs.
Deputy Britt re-approached defendant, who then began to make voluntary statements. Defendant proceeded to inform Deputy Britt that he had outstanding child support warrants, concealed marijuana in his underwear, and was " just trying to make a [sic] enough money to pay for . . . child support[.]" Deputy Britt then placed defendant under arrest and transported him to the Johnston County Jail. In relevant part, the State charged defendant with PWISD marijuana, PWISD cocaine, and conspiracy.
At trial, defendant made motions to dismiss these charges for insufficient evidence, each of which was denied by the trial court. Defendant also attempted to present evidence by calling Hall as a witness but was unable to locate him. Defendant requested that he be given additional time to locate Hall, but the trial court denied the request. During jury deliberations, defendant found Hall and made a motion to the trial court to reopen the evidence so that Hall could testify, but the trial court denied ...