State v. Burleson ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA23-212
Filed 17 October 2023
McDowell County, Nos. 21CRS050486, 21CRS000336-37
STATE OF NORTH CAROLINA
v.
TOMMY LYNN BURLESON
Appeal by Defendant from judgment entered 3 May 2022 by Judge Peter B.
Knight in McDowell County Superior Court. Heard in the Court of Appeals 20
September 2023.
Attorney General Joshua H. Stein, by Special Deputy Attorney General G. Mark
Teague, for the State-Appellee.
Shawn R. Evans for Defendant-Appellant.
COLLINS, Judge.
Defendant Tommy Lynn Burleson appeals from the trial court’s judgment
entered upon guilty verdicts of drug-related crimes and having obtained habitual
felon status. Defendant argues that the trial court erred by denying his motion to
suppress and his motion to dismiss the substantive charges. The trial court did not
err by denying Defendant’s motion to suppress because the trial court’s findings of
fact resolved the material conflicts in the evidence and are supported by competent
evidence, and those findings of fact support its conclusions of law. Furthermore, the
STATE V. BURLESON
Opinion of the Court
trial court did not err by denying Defendant’s motion to dismiss because there was
sufficient evidence from which the jury could find that Defendant constructively
possessed the controlled substances. Accordingly, we find no error.
I. Background
On 6 April 2021, Defendant and Wesley Rogers were driving from Fairview
Road towards Harmony Grove Road in a burgundy truck when they approached a
driver’s license checkpoint conducted by the McDowell County Sheriff’s Department.
Rogers was in the driver’s seat, and Defendant was in the front passenger seat.
McDowell County Sheriff’s Deputy Robert Watson asked Rogers if he had a driver’s
license, and Rogers stated that he did not. Watson told Rogers to pull off into a thrift
store parking lot where another officer would issue Rogers a citation.
As the citation was being issued, Watson approached the truck and spoke with
Rogers and Defendant. Watson asked if either Rogers or Defendant were on
probation; Rogers stated that he was on probation, and Defendant stated that he was
not. Watson asked Rogers “if there was anything in the vehicle that was illegal that
he should not have and for consent to search the vehicle.” Rogers gave Watson verbal
consent to search the truck. Watson directed Rogers to exit the truck and Watson
conducted a pat down of Rogers for weapons.
Watson then directed Defendant to exit the truck. As Defendant was exiting
the truck, Watson noted the odor of marijuana. Watson asked to conduct a pat down
of Defendant, and Defendant consented. Defendant then began reaching into his
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Opinion of the Court
pocket, and Watson observed that Defendant’s right hand was cupped. Watson asked
Defendant to “open his hands up flat where [he] could see that there was nothing in
them.” Defendant turned away from Watson and “made a throwing motion with [his]
right hand.” At that point, Watson detained Defendant “for the safety of officers and
other persons on and around the scene.” Watson asked Defendant if he had thrown
anything, and Defendant stated that he had thrown a marijuana blunt. Watson
placed Defendant in front of his patrol car located behind the truck.
McDowell County Sheriff’s Deputy Jonathan Carter watched Rogers and
Defendant while Watson searched the truck. Watson discovered a small bag of a leafy
green substance between the passenger seat and center console; a small bag of a leafy
green substance in the top of the center console; and a bag of a white crystalline
substance, which was confirmed to be approximately 38 grams of methamphetamine,
underneath the center console. Watson advised Defendant that he was under arrest
and placed him in the back seat of Carter’s patrol vehicle. Defendant told Carter on
the way to the magistrate’s office that he and Rogers were going to pick up the drugs
and sell them but asserted that the drugs belonged to Rogers.
Defendant was indicted for trafficking in methamphetamine by possession,
trafficking in methamphetamine by transportation, possession with intent to sell or
deliver methamphetamine, and for having obtained habitual felon status. Defendant
filed a motion to suppress, alleging that “[t]he detention, questioning and search of
the Defendant on the alleged date were conducted by law enforcement officers
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Opinion of the Court
without valid consent of the owner or any occupant of the vehicle and without
reasonable suspicion[.]” After a hearing, the trial court denied the motion by written
order entered 28 April 2022.
The matter came on for trial on 2 May 2022. At the close of the State’s
evidence, Defendant moved to dismiss the charges for insufficient evidence. The trial
court denied the motion. The jury returned guilty verdicts on all charges, and the
trial court sentenced Defendant to an active term of 117 to 153 months of
imprisonment. Defendant appealed.
II. Discussion
A. Motion to Suppress
Defendant argues that the trial court erred by denying his motion to suppress.
Specifically, Defendant argues that the trial court erred by failing to address
conflicting testimony between him and Watson in its findings of fact.
We review a trial court’s denial of a motion to suppress to determine “whether
competent evidence supports the trial court’s findings of fact and whether the
findings of fact support the conclusions of law.” State v. Jackson, 368 N.C. 75, 78, 772
S.E.2d 847, 849 (2015) (quotation marks and citation omitted). “When supported by
competent evidence, the trial court’s factual findings are conclusive on appeal, even
where the evidence might sustain findings to the contrary.” State v. Hall, 268 N.C.
App. 425, 428, 836 S.E.2d 670, 673 (2019) (citation omitted). Unchallenged findings
of fact are binding on appeal. State v. Fizovic, 240 N.C. App. 448, 451, 770 S.E.2d
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717, 720 (2015). A trial court is only required to make findings of fact resolving
material conflicts in evidence; a conflict is material if it affects the outcome of the
suppression motion. See State v. Bartlett, 368 N.C. 309, 312, 776 S.E.2d 672, 674
(2015).
We review the trial court’s conclusions of law de novo. State v. Wiles, 270 N.C.
App. 592, 595, 841 S.E.2d 321, 325 (2020). Under de novo review, this Court considers
the matter anew and freely substitutes its own judgment for that of the lower court.
State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011).
Here, the trial court made the following findings of fact:
8. The court finds the testimony of both Deputy Watson
and Deputy Carter to be credible.
....
10. On April 6, 2021, the Defendant was a passenger in a
vehicle driven by Wesley Rogers and that vehicle was
stopped pursuant to a checkpoint . . . .
11. Deputy Watson operated the checkpoint according to
the checkpoint plan . . . .
12. The driver, Wesley Rogers, acknowledged to Deputy
Watson that he did not have a valid driver’s license.
13. Deputy Watson asked Wesley Rogers to pull his vehicle
over to the side of the road where they engaged in
conversation about the search of the vehicle.
14. Deputy Watson asked if either Mr. Rogers or the
Defendant were on probation, to which Mr. Rogers
responded that he was, and the Defendant responded that
he was not.
15. Wesley Rogers gave Deputy Watson verbal consent to
search the vehicle.
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Opinion of the Court
16. Mr. Rogers was asked to exit the vehicle and was
patted down for weapons, which Mr. Rogers gave Deputy
Watson consent to do.
17. Due to the search of the vehicle, Deputy Watson asked
the Defendant to exit the vehicle.
18. At that time, Deputy Watson noted the odor of
marijuana.
19. The Defendant then consented to a search of his
person.
20. Deputy Watson observed the Defendant putting his
hands into his garment pockets and that the Defendant’s
right hand was cupped.
21. Deputy Watson asked the Defendant to open his hand
and then the Defendant threw a marijuana blunt onto the
ground.
22. At that time, the Defendant was then detained by
Deputy Watson for the safety of officers and other persons
on and around the scene.
23. The Defendant was then placed in front of Deputy
Watson’s patrol car.
24. Deputy Watson then continued to search the vehicle
pursuant to the consent given by Wesley Rogers.
25. Marijuana was found in the vehicle as well as what
appeared to be 38 grams of what appeared to be
methamphetamine.
26. At that point, Wesley Rogers was placed under arrest
and contested his arrest and placement into custody. Mr.
Rogers indicated that the drugs were not his and that he
should not be arrested.
....
28. Deputy Carter came to the area where the Defendant
was standing in front of the patrol car due to officer safety.
....
30. Deputy Carter heard Wesley Rogers state that he had
given consent to the search, allegedly, because “he did not
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Opinion of the Court
know the drugs were in there”.
31. Deputy Watson advised the Defendant that he was
being placed under arrest and then placed the Defendant
into Deputy Carter’s patrol vehicle.
32. On the way to the magistrate’s office and without
questioning from Deputy Carter, the Defendant made the
statement to Deputy Carter that he and Mr. Rogers picked
up the drugs and were going to sell them, but that the
drugs belonged to Mr. Rogers.
33. However, Deputy Carter did not ask the Defendant any
questions to elicit the above statement.
34. The Defendant testified that he heard the deputies ask
Mr. Rogers for consent to search the pickup truck driven by
Mr. Rogers and occupied by the Defendant.
35. The Defendant testified that Mr. Rogers never gave
consent for the officers to search the vehicle, however the
court finds his testimony to be noncredible.
36. Paragraph six of the affidavit filed December 6, 2021,
signed by the Defendant under oath before the clerk of
court, states “Defendant was made to exit the vehicle by
Deputy Watson. Without consent of the Defendant,
Defendant was patted down and searched by Deputy
Watson. Defendant, as well as Wesley Adam Rogers were
charged by Deputy Watson with multiple criminal
offenses.”
37. The testimony of the Defendant is contradictory to the
sworn affidavit in that the defendant stated under oath at
this hearing that he gave Deputy Watson consent to search
his person.
Defendant does not challenge any findings of fact and they are thus binding on
appeal. See Fizovic, 240 N.C. App. at 451, 770 S.E.2d at 720. Rather, Defendant
argues that the trial court erred by failing to make additional findings of fact
resolving conflicting testimony between Watson and himself.
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Opinion of the Court
Watson testified that he asked Rogers or Defendant if either were on probation
and whether “there was anything in the vehicle that was illegal that he should not
have and for consent to search the vehicle.” Defendant testified that while he was
still in the truck, Watson asked him, “Are there anything I need to know about in the
truck?” Defendant argues that “[t]he trial court made no findings about this, making
it impossible for this Court to properly analyze this issue to determine of (sic) Mr.
Burleson was detained and whether he was questioned without a Miranda warning.”
However, the trial court found that Watson’s testimony was credible and, in doing so,
resolved any testimonial conflicts in Watson’s favor. Moreover, even assuming
arguendo that Watson asked Defendant whether there was “anything [he] need[ed]
to know about in the truck[,]” neither Defendant nor Watson testified that Defendant
made incriminating statements in response to this question. Rather, Defendant’s
statement that “he and Mr. Rogers picked up drugs and were going to sell them” was
made spontaneously and without questioning from Watson after Watson had
searched the truck. See State v. Burton, 251 N.C. App. 600, 607, 796 S.E.2d 65, 70-71
(2017) (“It is well established that spontaneous statements made by an individual
while in custody are admissible despite the absence of Miranda warnings.” (quotation
marks, brackets, and citation omitted)).
The trial court’s findings of fact resolved the material conflicts in the evidence
and support the trial court’s conclusions of law that “[t]he stop of the vehicle driven
by Wesley Rogers and occupied by Tommy Burleson, the Defendant, was lawful” and
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Opinion of the Court
that “[t]he search of the vehicle by Deputy Watson was authorized and lawful.”
Accordingly, the trial court did not err by denying Defendant’s motion to suppress.
B. Motion to Dismiss
Defendant argues that the trial court erred by denying his motion to dismiss
because the State “failed to present sufficient incriminating circumstances which
would have allowed a jury to make an inference of constructive possession.”
We review a trial court’s denial of a motion to dismiss de novo. State v. Chavis,
278 N.C. App. 482, 485, 863 S.E.2d 225, 228 (2021). “In ruling on a motion to dismiss,
the trial court need determine only whether there is substantial evidence of each
essential element of the crime and that the defendant is the perpetrator.” State v.
Chekanow, 370 N.C. 488, 492, 809 S.E.2d 546, 549 (2018) (quotation marks and
citations omitted). “Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” State v. Rivera, 216 N.C.
App. 566, 568, 716 S.E.2d 859, 860 (2011) (quotation marks and citation omitted).
“In making its determination, the trial court must consider all evidence
admitted, whether competent or incompetent, in the light most favorable to the State,
giving the State the benefit of every reasonable inference and resolving any
contradictions in its favor.” Chekanow, 370 N.C. at 492, 809 S.E.2d at 549-50(quotation marks and citation omitted). Any contradictions or discrepancies in the
evidence are for the jury to decide. State v. Wynn, 276 N.C. App. 411, 416, 856 S.E.2d
919, 923 (2021).
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Here, Defendant was convicted of possession with intent to sell or deliver
methamphetamine pursuant to N.C. Gen. Stat. § 90-95(a)(1), and trafficking in
methamphetamine by possession and by transportation pursuant to N.C. Gen. Stat.
§ 90-95(h)(3b). To convict a defendant of possession with intent to sell or deliver
methamphetamine, the State must prove that the defendant (1) possessed,
(2) methamphetamine, (3) with intent to sell or deliver methamphetamine. State v.
Blagg, 377 N.C. 482, 489, 858 S.E.2d 268, 274 (2021). To convict a defendant of
trafficking in methamphetamine, the State must prove that the defendant
(1) knowingly possessed or transported methamphetamine, and (2) that the amount
possessed was greater than 28 grams. State v. Shelman, 159 N.C. App. 300, 305, 584
S.E.2d 88, 93 (2003).
Possession of a controlled substance may be either actual or constructive. State
v. Nettles, 170 N.C. App. 100, 103, 612 S.E.2d 172, 174 (2005); see also State v. Diaz,
155 N.C. App. 307, 313, 575 S.E.2d 523, 528 (2002). “A person has actual possession
of a substance if it is on his person, he is aware of its presence, and either by himself
or together with others he has the power and intent to control its disposition or use.”
State v. Ferguson, 204 N.C. App. 451, 459, 694 S.E.2d 470, 477 (2010) (quotation
marks and citations omitted). “Constructive possession occurs when a person lacks
actual physical possession, but nonetheless has the intent and power to maintain
control over the disposition and use of the substance.” State v. Acolatse, 158 N.C.
App. 485, 488, 581 S.E.2d 807, 810 (2003) (quotation marks and citation omitted).
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Opinion of the Court
“Constructive possession depends on the totality of the circumstances in each
case.” State v. Taylor, 203 N.C. App. 448, 459, 691 S.E.2d 755, 764 (2010) (citation
omitted). “Unless a defendant has exclusive possession of the place where the
contraband is found, the State must show other incriminating circumstances
sufficient for the jury to find a defendant had constructive possession.” State v.
Miller, 363 N.C. 96, 99, 678 S.E.2d 592, 594 (2009) (citation omitted). When
determining whether other incriminating circumstances exist to support a finding of
constructive possession, we consider, among other things: (1) “the defendant’s
ownership and occupation of the property”; (2) “the defendant’s proximity to the
contraband”; (3) “indicia of the defendant’s control over the place where the
contraband is found”; (4) “the defendant’s suspicious behavior at or near the time of
the contraband’s discovery”; and (5) “other evidence found in the defendant’s
possession that links the defendant to the contraband.” Chekanow, 370 N.C. at 496,
809 S.E.2d at 552 (citations omitted).
As Defendant did not have exclusive possession of the truck in which the drugs
were found, the State was required to provide evidence of other incriminating
circumstances. Miller, 363 N.C. at 99, 678 S.E.2d at 594.
When viewed in the light most favorable to the State, the following other
incriminating circumstances were sufficient to support a finding of constructive
possession: Watson testified at trial that, after Rogers gave consent to search the
truck, he directed Defendant to exit the truck and asked for consent to conduct a pat
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Opinion of the Court
down. Defendant “gave consent and then he immediately began reaching in his
pockets.” Watson told Defendant to put his hands on the truck and noticed that
Defendant’s “right hand was in the cupped form folded over like he was trying to hide
something.” Watson asked Defendant to put his hands flat, and Defendant “turned
away and made a throwing motion with his right hand and threw something.”
At that time, Watson detained Defendant. Watson asked Defendant what he
threw, and Defendant “stated that he threw a blunt.” Watson placed Defendant in
front of his patrol car and began searching the truck. Watson began his search on
the passenger side of the truck and “located a small bag of marijuana, a very small
bag of marijuana, on top of the center console area.” Watson also found a “small bag
of a green leafy substance, believed to be marijuana, that was in between the
passenger seat and the center console area[.]” Furthermore, “underneath that
console there was a plastic bag with a white crystal like substance that weighed out
to be 38 grams believed to be methamphetamine.”
Defendant’s actions of cupping his hand, making a throwing motion with his
back turned, and admitting to throwing a marijuana blunt, when viewed in
conjunction with the subsequent discovery of marijuana and methamphetamine in
the center console next to the passenger seat in which Defendant was sitting,
constitute sufficient incriminating circumstances to support a finding of constructive
possession. See State v. Butler, 147 N.C. App. 1, 12-13, 556 S.E.2d 304, 312 (2001)
(holding that there were incriminating circumstances supporting an inference of
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constructive possession where the defendant acted suspiciously by fleeing after seeing
police, moving around like he was “struggling” at the location where the drugs were
later found, and bending down “so that his arms and hands were not visible to the
officers”).
Accordingly, the trial court did not err by denying Defendant’s motion to
dismiss.
III. Conclusion
The trial court did not err by denying Defendant’s motion to suppress because
the trial court’s findings of fact resolved the material conflicts in the evidence and are
supported by competent evidence, and those findings of fact support its conclusions
of law. Furthermore, the trial court did not err by denying Defendant’s motion to
dismiss because there was sufficient evidence from which the jury could find that
Defendant constructively possessed the controlled substances. Accordingly, we find
no error.
NO ERROR.
Judges TYSON and WOOD concur.
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