{
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  "name_abbreviation": "State v. Earhart",
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    "judges": [
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    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. ERIC JASON EARHART"
    ],
    "opinions": [
      {
        "text": "WALKER, Judge.\nDefendant was convicted of trafficking by possession of more than 28 but less than 200 grams of cocaine, trafficking by transportation of more than 28 but less than 200 grams of cocaine, and carrying a concealed weapon. He was sentenced to an active term of 35 to 42 months for the trafficking convictions and was given a suspended sentence for the concealed weapon conviction.\nThe State\u2019s evidence at trial tended to show the following: On 27 April 1997, Deputy Joey Davidson received a telephone call at the Currituck County Sheriffs Department from an anonymous male. The caller informed Deputy Davidson that a white Trans Am would be traveling to a residence on North Spot Road in Powell\u2019s Point sometime between 27 April and 28 April and that it might be accompanied by a blue Subaru. The caller stated that the white Trans Am would be transporting approximately a pound of marijuana. The caller did not identify himself and Deputy Davidson did not recognize the voice. The caller hung up, but he called back a few minutes later and told Deputy Davidson that the suspects in the vehicles had scanners and that the information should not be broadcast over police radio.\nDeputy Davidson then notified Detective Don Nichols and Deputy Richard Shaw of the anonymous tip. Detective Nichols informed Deputy Davidson that he had received information from the SBI about the owner of a white Trans Am who lived on North Spot Road and who was being investigated for suspicion of drug dealing. Detective Nichols also told Deputy Davidson that the suspect was reportedly armed with a Desert Eagle handgun.\nShortly after 6:00 p.m. on 27 April 1997, Deputy Shaw began a surveillance for the described vehicles along North Spot Road. Detective Nichols contacted him there and informed him that a license check he had performed revealed that the white Trans Am would have license number KPA-1083 and would be driven by a person named Earhart who was known to carry weapons. Soon after that conversation, Deputy Shaw observed a blue Subaru, matching the description given by the informant, pull into the driveway of a residence along North Spot Road. Deputy Shaw pulled in behind the vehicle and asked the driver whose residence this was. The driver stated that it was her friend Tammy Taylor\u2019s house and that she was visiting Tammy while Tammy\u2019s boyfriend was out of town. Deputy Shaw told the driver he had information that a blue Subaru had been involved in a crime and asked permission to search the vehicle. The driver agreed to the search. No contraband was found in the blue Subaru. Deputy Shaw then asked the name of Tammy Taylor\u2019s boyfriend and what type of car he drove. The driver stated that his name was Earhart and that he drove a white Trans Am. Deputy Shaw then returned to his surveillance.\nDetective Nichols testified that on 10 April 1997, he had received a telephone call from Donnie Varnell, an agent with the SBI, who informed him that a person whose name sounded like \u201cAirhart\u201d was selling cocaine and marijuana from his home on North Spot Road and that he drove a white Trans Am, a blue Chevrolet Cavalier, and a rust Jeep. Varnell also told him that the SBI had received this information from an individual who had been inside Earhart\u2019s residence. Detective Nichols used this information to run the license check which revealed the information he later gave to Deputy Shaw on North Spot Road. After he called Deputy Shaw, Detective Nichols joined him on North Spot Road and suggested that they move farther north to watch for the white Trans Am. As they drove north, Detective Nichols radioed Deputy Shaw that the white Trans Am had passed him. Deputy Shaw then pulled over the Trans Am.\nThe white Trans Am was occupied by two individuals. The driver was identified as the defendant and the passenger was identified as Ellsworth Burrus Midgett. Detective Nichols informed defendant of the information they had received regarding his vehicle and asked him if there were any drugs or weapons in the car. Defendant denied possessing any drugs in the car, but admitted that he had a pistol in the Trans Am. Detective Nichols then testified that he asked for defendant\u2019s consent to search the vehicle and that defendant consented. Detective Nichols then used his canine partner, Aris, to search the vehicle for drugs. Aris alerted to the back seat area of the vehicle and Detective Nichols recovered a plastic bag containing approximately 50 grams of a white powder substance, later determined to be cocaine, which was located under the upper portion of the back seat which had been folded down onto the seat. Aris then recovered a cigarette box containing several \u201cjoints\u201d of marijuana. Detective Nichols also found a Desert Eagle handgun containing six rounds of ammunition in the back seat hidden in a similar manner to the cocaine.\nPrior to trial, defendant filed a motion to suppress the evidence recovered from his vehicle. At a voir dire hearing on the motion, defendant testified that he did not give consent to search his vehicle. The State presented substantially the same evidence later presented at trial. The trial court denied the defendant\u2019s motion to suppress and indicated its intent to make appropriate findings of fact, but the record contains no order.\nDefendant first contends that the trial court erred in denying his motion to suppress the evidence seized from his vehicle and erred in failing to make appropriate findings regarding the evidence presented at the voir dire hearing. Defendant argues that the search of his vehicle and his ensuing arrest violated his Fourth Amendment rights because the officers did not have probable cause to conduct the search.\nA search of a vehicle on a public roadway or public vehicular area is properly conducted without a warrant as long as probable cause exists for the search. State v. Isleib, 319 N.C. 634, 356 S.E.2d 573 (1987). \u201cProbable cause exists where \u2018the facts and circumstances within their [the officers\u2019] knowledge and of which they had reasonable trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that\u2019 an offense has been or is being committed.\u201d State v. Zuniga, 312 N.C. 251, 261, 322 S.E.2d 140, 146 (1984) (quoting Brinegar v. United States, 338 U.S. 160, 175, 93 L. Ed. 1879, 1890, rehearing denied, 338 U.S. 839, 94 L. Ed. 513 (1949)). In utilizing an informant\u2019s tip, probable cause is determined using a \u201ctotality-of-the-circumstances\u201d analysis which \u201cpermits a balanced assessment of the relative weights of all the various indicia of reliability (and unreliability) attending an informant\u2019s tip.\u201d Illinois v. Gates, 462 U.S. 213, 234, 76 L. Ed. 2d 527, 545, rehearing denied, 463 U.S. 1237, 77 L. Ed. 2d 1453 (1983). In Gates, the United States Supreme Court abandoned the \u201ctwo-prong test\u201d elaborated in Aguilar v. Texas, 378 U.S. 108, 12 L. Ed. 2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 21 L. Ed. 2d 637 (1969). The \u201ctwo-prong test\u201d emphasized the need for independent indices or facts supporting the informant\u2019s \u201cbasis of knowledge\u201d for his tip and the \u201cveracity\u201d or \u201creliability\u201d of the tip. Gates, 462 U.S. at 228-29, 76 L. Ed. 2d at 542. These factors remain relevant to the determination of the value of the informant\u2019s report; however, the totality-of-the-circumstances test allows a less rigid evaluation. Id. Further, in making the probable cause determination, independent police corroboration of the facts given by the informant are important in evaluating the reliability of the informant\u2019s tip. See Draper v. United States, 358 U.S. 307, 3 L. Ed. 2d 327 (1959). Thus, all of these factors must be considered in evaluating whether probable cause exists to conduct a search based in part on an informant\u2019s tip.\nIn this case, in addition to the informant\u2019s tip which provided the description of the two vehicles and the time they would be driving along North Spot Road, the officers involved were able to use separate information obtained from the SBI and from an independent investigation to corroborate the information received. This included the type of vehicle driven by the defendant, the name of the defendant, and information that the defendant was known to sell drugs including marijuana and cocaine. Detective Nichols had received information about defendant from the SBI and Deputy Shaw learned from the driver of the blue Subaru that defendant was away for the weekend. The officers were able to independently verify all of the anonymous informant\u2019s tip except for the presence of drugs in the vehicle prior to the vehicle stop. Based on all this information, the officers had reasonable grounds to believe the tip was accurate and reliable and that drugs were in the vehicle. See State v. Smith, 118 N.C. App. 106, 454 S.E.2d 680, reversed on other grounds, 342 N.C. 407, 464 S.E.2d 45 (1995), cert. denied, 517 U.S. 1189, 134 L. Ed. 2d 779 (1996). Considering the totality-of-the-circumstances and the factors listed above, we conclude that probable cause existed to search defendant\u2019s vehicle and this assignment of error is overruled.\nNext, we address the trial court\u2019s failure to make findings in support of its order denying defendant\u2019s motion to suppress. N.C. Gen. Stat. \u00a7 15A-977(d) requires that if a motion to suppress is not summarily denied the trial court \u201cmust make the determination after a hearing and finding of facts.\u201d N.C. Gen. Stat. \u00a7 15A-977(d) (1997). Further, subparagraph (f) requires that the trial court place its findings and conclusions in the record. N.C. Gen. Stat. \u00a7 15A-977(f) (1997). However, this Court and our Supreme Court have held that when there is no material conflict in the evidence presented at voir dire, the omission of findings is not error. State v. Phillips, 300 N.C. 678, 268 S.E.2d 452 (1980); State v. Futrell, 112 N.C. App. 651, 436 S.E.2d 884 (1993). In this case, the only contradictory evidence presented by defendant was that he did not give consent to search his vehicle. As we have concluded that probable cause existed to search defendant\u2019s vehicle, evidence as to whether defendant gave consent to search his vehicle is not relevant and the trial court\u2019s failure to make findings and conclusions is not prejudicial error.\nDefendant next contends that the trial court erred in allowing the testimony contained in the following exchange between Detective Nichols and the prosecution during direct examination:\nMr. Trivette (prosecutor): All right. Based upon the information you got from Deputy Shaw and Deputy Davidson, the information you had already gotten from Special Agent Donnie Varnell, what did you do? Did you make a call?\nA: Yes, sir. I contacted Donnie Varnell back at that time and tried to gain information again if this was the subject.\u2014\nMr. Lamb (defense counsel): Objection.\nMr. Trivette: Telling what he did.\nThe Court: Tell us what you did.\nA: I contacted Special Agent Varnell and asked him was this the subject we had talked about in the past.\nMr. Lamb: Objection, motion to strike.\nThe Court: Overruled. Motion denied.\nMr. Trivette: After you had that conversation with Agent Varnell, what did you do?\nA: I contacted \u2014 I attempted to locate the license plate number of the vehicle.\nDefendant argues that, as a result of the conversation with Agent Varnell, Detective Nichols checked the license plate number of defendant\u2019s vehicle. Defendant contends that this testimony constitutes hearsay and was inadmissible.\nHearsay is inadmissible unless allowed by an exception. N.C. Gen. Stat. \u00a7 8C-1, Rule 802 (1992). Hearsay is a statement made by one not testifying at trial which is offered in evidence to prove the truth of the matter asserted. N.C. Gen. Stat. \u00a7 8C-1, Rule 801(c) (1992). A statement is an \u201coral or written assertion\u201d or \u201cnonverbal conduct of a person, if it is intended by him as an assertion.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 801(a) (1992).\nThe substance of the conversation with Agent Varnell was not inadmissible hearsay because it was admitted for the purpose of explaining Detective Nichols\u2019 subsequent conduct of checking the license plate number and thus not for the truth of the matter asserted. See, e.g., State v. Reid, 335 N.C. 647, 440 S.E.2d 776 (1994); State v. Coffey, 326 N.C. 268, 389 S.E.2d 48 (1990). This assignment of error is overruled.\nFinally, defendant contends that the trial court erred in denying his motion to dismiss the charges against him. Defendant argues that there was insufficient evidence that he knowingly possessed the cocaine. In ruling on a motion to dismiss for insufficient evidence, \u201cthe trial court must consider the evidence in the light most favorable to the State and give the State every reasonable inference to be drawn therefrom.\u201d State v. Davidson, 131 N.C. App. 276, 282, 506 S.E.2d 743, 747 (1998) (quoting State v. Elliot, 344 N.C. 242, 266, 475 S.E.2d 202, 212 (1996), cert. denied, 520 U.S. 1106, 137 L. Ed. 2d 312 (1997)), disc. review denied, 350 N.C. 312,-S.E.2d-(1999). There must be substantial evidence of each element of the offense charged and evidence that the defendant was the perpetrator of the offense. State v. Mlo, 335 N.C. 353, 440 S.E.2d 98, cert. denied, 512 U.S. 1224, 129 L. Ed. 2d 841 (1994).\nPossession may consist of either physical or constructive possession. State v. Morris, 102 N.C. App. 541, 402 S.E.2d 845 (1991). Evidence of constructive possession is sufficient if it would allow a reasonable mind to conclude that the defendant had the intent and capability to maintain control and dominion over the contraband. State v. Beaver, 317 N.C. 643, 346 S.E.2d 476 (1986). \u201cWhere such materials are found on the premises under the control of an accused, this fact, in and of itself, gives rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury on a charge of unlawful possession.\u201d State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972). Unless the person has exclusive possession of the place where the narcotics are found, the State must show other incriminating circumstances before constructive possession may be inferred. State v. Davis, 325 N.C. 693, 697, 386 S.E.2d 187, 190 (1989).\nIn this case, the evidence showed that the cocaine was found in the back seat of a vehicle owned by the defendant who was operating it at the time he was stopped. Although there was a passenger in the vehicle, the cocaine was found behind defendant\u2019s seat to which he had direct access. Further, the cocaine was hidden in a similar manner to the handgun \u2014 under the folded back seat \u2014 which defendant admitted was there. Therefore, we conclude there was sufficient evidence from which the jury could find that defendant knowingly possessed the cocaine. This assignment of error is overruled.\nDefendant received a fair trial, free of prejudicial error.\nNo error.\nJudges McGEE and EDMUNDS concur.",
        "type": "majority",
        "author": "WALKER, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Michael F. Easley, by Special Deputy Attorney General Gayl M. Manthei, for the State.",
      "Nora Henry Hargrove for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. ERIC JASON EARHART\nNo. COA98-1148\n(Filed 6 July 1999)\n1. Search and Seizure\u2014 automobile \u2014 cocaine\u2014probable cause\nThe trial court did not err in a prosecution for trafficking in cocaine by denying defendant\u2019s motion to suppress evidence seized from his vehicle where the officers were able to use separate information obtained from the SBI and an independent investigation to corroborate information received from an informant and had reasonable grounds to believe that the tip was accurate and reliable and that drugs were in the vehicle.\n2. Evidence\u2014 motion to suppress \u2014 denied without findings\nThere was no prejudicial error in a prosecution for trafficking in cocaine where the trial court denied defendant\u2019s motion to suppress without making findings. The only contradictory evidence presented by defendant was that he did not give consent to search his vehicle. Since probable cause existed for the search, evidence of defendant\u2019s consent is not relevant and the failure to make findings and conclusions is not prejudicial.\n3. Evidence\u2014 hearsay \u2014 conversation between officers\u2014 explanation of subsequent conduct\nThe trial court did not err in a cocaine trafficking prosecution by allowing testimony of a conversation between two officers which led to one officer checking the license plate number of defendant\u2019s vehicle. The substance of the conversation was not inadmissible hearsay because it was admitted for the purpose of explaining subsequent conduct.\n4. Drugs\u2014 constructive possession \u2014 automobile\nThere was sufficient evidence in a trafficking prosecution from which the jury could find that defendant knowingly possessed cocaine where the cocaine was found in the back seat of a vehicle owned and driven by defendant; there was a passenger in the vehicle but defendant had direct access to the cocaine, which was found behind his seat; and the cocaine was hidden in a similar manner to a handgun which defendant admitted was there.\nAppeal by defendant from judgment entered 3 February 1998 by Judge William C. Griffin, Jr. in Currituck County Superior Court. Heard in the Court of Appeals 20 May 1999.\nAttorney General Michael F. Easley, by Special Deputy Attorney General Gayl M. Manthei, for the State.\nNora Henry Hargrove for defendant-appellant."
  },
  "file_name": "0130-01",
  "first_page_order": 162,
  "last_page_order": 169
}
