{ "id": 8955879, "name": "STATE OF NORTH CAROLINA v. DON RAY REYNOLDS", "name_abbreviation": "State v. Reynolds", "decision_date": "2003-11-04", "docket_number": "No. COA03-18", "first_page": "144", "last_page": "150", "citations": [ { "type": "official", "cite": "161 N.C. App. 144" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "N.C. Gen. Stat. \u00a7 90-95.3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "548 S.E.2d 157", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 396", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135841, 135938, 135760, 135894, 135895 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0396-04", "/nc/353/0396-05", "/nc/353/0396-03", "/nc/353/0396-01", "/nc/353/0396-02" ] }, { "cite": "543 S.E.2d 160", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "165" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 698", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9443057 ], "year": 2001, "pin_cites": [ { "page": "706" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0698-01" ] }, { "cite": "549 S.E.2d 908", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "910" } ], "opinion_index": 0 }, { "cite": "145 N.C. App. 483", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11438686 ], "year": 2001, "pin_cites": [ { "page": "485" } ], "opinion_index": 0, "case_paths": [ "/nc-app/145/0483-01" ] }, { "cite": "517 S.E.2d 128", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "131" }, { "page": "132" } ], "opinion_index": 0 }, { "cite": "350 N.C. 630", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132043 ], "year": 1999, "pin_cites": [ { "page": "635" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0630-01" ] }, { "cite": "539 S.E.2d 5", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 847", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 131976, 132299, 132174, 132007 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0847-02", "/nc/350/0847-03", "/nc/350/0847-04", "/nc/350/0847-01" ] }, { "cite": "510 S.E.2d 165", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "167" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 22", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11236837 ], "year": 1999, "pin_cites": [ { "page": "26" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0022-01" ] }, { "cite": "579 S.E.2d 98", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "356 N.C. 693", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511440, 1511321, 1511593, 1511206 ], "year": 2003, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0693-04", "/nc/356/0693-01", "/nc/356/0693-03", "/nc/356/0693-02" ] }, { "cite": "574 S.E.2d 93", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2002, "pin_cites": [ { "page": "97" }, { "page": "97-98" }, { "page": "97" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 89", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249037 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "94" }, { "page": "94" } ], "opinion_index": 0, "case_paths": [ "/nc-app/155/0089-01" ] }, { "cite": "559 S.E.2d 828", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "829", "parenthetical": "citation omitted" }, { "page": "829" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 702", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9368144 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "704", "parenthetical": "citation omitted" }, { "page": "704" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0702-01" ] } ], "analysis": { "cardinality": 663, "char_count": 14573, "ocr_confidence": 0.771, "pagerank": { "raw": 2.0311576660504927e-07, "percentile": 0.7466178530099631 }, "sha256": "42cde29c327b717aa8bf4cd0372db9a2412e5ecec36f84d09e418394c6843c2d", "simhash": "1:d07b7762ff2b6667", "word_count": 2343 }, "last_updated": "2023-07-14T20:10:07.642184+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MCCULLOUGH and BRYANT concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DON RAY REYNOLDS" ], "opinions": [ { "text": "TYSON, Judge.\nA jury convicted Don Ray Reynolds (\u201cdefendant\u201d) of possession with the intent to sell and deliver marijuana on 17 September 2002.\nI. Facts\nOn 16 September 2001, Reidsville Police Department Detective Cathy Owens (\u201cDetective Owens\u201d) arranged for a confidential informant to purchase marijuana from defendant. The. informant had purchased marijuana from defendant prior to becoming an informant in August, 2001. Detective Owens monitored the sale on 16 September 2001 but did not arrest or charge defendant.\nOn 18 November 2001, Detective Owens asked the informant to again contact defendant and seek to purchase marijuana. The informant called defendant from a phone at the Reidsville Police Station and requested to purchase two ounces of marijuana. Detective Owens wanted to determine if defendant could obtain that quantity of marijuana. Defendant told the informant that he did not have two ounces but would try to obtain it by the following day. The informant called defendant the next evening. Defendant told the informant that he could obtain the marijuana and set a meeting at 6:30 p.m. at a Food Lion parking lot where they had previously met.\nReidsville Police Department Sergeant Jason Purguson (\u201cSergeant Purguson\u201d) supervised the operation after Detective Owens informed him that the informant and defendant had arranged a transaction. Sergeant Purguson told Officer Jimmy Hutchens (\u201cOfficer Hutchens\u201d) about the operation, gave him a description of defendant\u2019s vehicle, and asked him to patrol the area. Sergeant Purguson and Detective Owens staked out the Food Lion parking lot and observed defendant drive his vehicle enter the parking lot. Officer Hutchens drove by the Food Lion and saw defendant exit the parking lot onto Highway 14 at a high rate of speed. Officer Hutchens followed defendant\u2019s car. He testified that defendant changed lanes without signaling and began traveling about 70 to 75 miles-per-hour in a 55 miles-per-hour speed zone.\nOfficer Hutchens stopped defendant based on these traffic violations and asked for his license and registration. Officer Hutchens testified that he detected the odor of marijuana coming from inside the car and asked defendant to step out of the vehicle. When Officer Hutchens told defendant that he could smell marijuana, defendant told him that a bag of marijuana was located in the driver\u2019s side door. Officer Hutchens located the bag of marijuana. He continued to search defendant\u2019s vehicle and found two additional bags of marijuana between the driver\u2019s seat and console, two postal scales, and plastic bags. Officer Hutchens then placed defendant under arrest.\nDefendant moved to suppress the evidence seized during Officer Hutchens\u2019 search. He filed an affidavit: (1) denying that he was speeding; (2) denying that he admitted to having marijuana; and (3) denying that he granted Officer Hutchens permission to search his car. The court denied defendant\u2019s motion and concluded that Officer Hutchens had an \u201cindependent, reasonable, and articulable basis for the traffic stop and detention of the Defendant.\u201d\nA jury convicted defendant of possession with the intent to sell and deliver marijuana. He was sentenced to a minimum of six months and a maximum of eight months imprisonment. The court suspended his sentence and entered judgment placing defendant on supervised probation for forty-eight months. Defendant was also ordered to serve an active term of sixty days in jail and pay $2,430.00 in fines and restitution with a requirement that five hundred dollars be paid before release from jail. The judgment included restitution of thirty dollars, to reimburse the cost of the controlled buy that occurred on 16 September 2001. Defendant appealed.\nII. Issues\nDefendant contends the trial court erred by: (1) denying his motion to suppress; (2) denying his request to instruct the jury on entrapment; (3) requiring defendant to provide restitution for conduct other than the offense of the conviction; and (4) requiring defendant, an indigent, who was sentenced to the maximum allowable split sentence, to pay five hundred dollars before being released from jail.\nIII. Motion to Suppress\nDefendant asserts the trial court should have granted his motion to suppress the evidence, seized in the traffic stop, and argues that no probable cause existed for the stop. \u201cOur review of a trial court\u2019s denial of a motion to suppress is strictly limited to a determination of whether it\u2019s [sic] findings are supported by competent evidence, and in turn, whether the findings support the trial court\u2019s ultimate conclusion.\u201d State v. Allison, 148 N.C. App. 702, 704, 559 S.E.2d 828, 829 (2002) (citation omitted).\nA. Probable Cause\nDefendant argues that this Court should repudiate precedent that permits minor traffic violations to be used as \u00e1 pretext for stopping cars to search for drugs. \u201cA traffic stop made on the basis of a readily observed traffic violation such as speeding or running a red light is governed by probable cause.\u201d State v. Wilson, 155 N.C. App. 89, 94, 574 S.E.2d 93, 97 (2002), disc. rev. denied, 356 N.C. 693, 579 S.E.2d 98 (2003) (citations omitted). \u201cProbable cause is \u2018a suspicion produced by such facts as indicate a fair probability that the person seized has engaged in or is engaged in criminal activity.\u2019 \u201d Id. at 94, 574 S.E.2d at 97-98 (quoting State v. Schiffer, 132 N.C. App. 22, 26, 510 S.E.2d 165, 167, disc. rev. denied, 350 N.C. 847, 539 S.E.2d 5 (1999)). Our Supreme Court has held that \u201cpolice action related to probable cause should be judged in objective terms, not subjective terms. Provided objective circumstances justify the action taken, any \u2018ulterior motive\u2019 of the officer is immaterial.\u201d State v. McClendon, 350 N.C. 630, 635, 517 S.E.2d 128, 131 (1999). In McClendon, the Court concluded that police officers had probable cause and were justified in stopping the defendant\u2019s vehicle due to a speeding violation, despite the subsequent investigation for illegal drugs. Id. at 636, 517 S.E.2d at 132.\nHere, Officer Hutchens observed defendant commit two traffic offenses, including exceeding the posted speed limit and failure to use a signal, when changing lanes. Officer Hutchens had probable cause to stop defendant\u2019s vehicle. This assignment of error is overruled.\nB. Evidence of Acquittal\nDefendant contends that he was entitled to present evidence of his acquittal regarding the alleged traffic violations. He argues that depriving him of the opportunity to show his acquittal effectively strips him of his presumption of innocence. In order to be convicted of the crime charged, the State must prove its case \u201cbeyond a reasonable doubt.\u201d State v. Graham, 145 N.C. App. 483, 485, 549 S.E.2d 908, 910 (2001). This standard clearly imposes a higher burden of proof than the \u201csuspicion\u201d and \u201cfair probability\u201d required to show probable cause. Wilson, 155 N.C. App. at 94, 574 S.E.2d at 97.\nThe trial court is not required to receive evidence of defendant\u2019s acquittal on the traffic offenses in order to find probable cause for the traffic stop. The findings of fact and conclusions of law will be upheld as long as the \u201cfindings support the trial court\u2019s ultimate conclusion.\u201d Allison, 148 N.C. App. at 704, 559 S.E.2d at 829. Here, the court made specific findings to support its conclusion that the officer had an \u201cindependent, reasonable, and articulable basis for the traffic stop and detention of the Defendant.\u201d We have affirmed this conclusion of law. Evidence of the acquittal is not determinative to finding probable cause for the stop. This assignment of error is overruled.\nIV. Entrapment\nDefendant assigns error to the trial court\u2019s failure to instruct the jury on entrapment. To be entitled to an entrapment instruction, the defendant must \u201cpresent credible evidence tending to support a defense of entrapment before a trial court may submit the question to a jury.\u201d State v. Thompson, 141 N.C. App. 698, 706, 543 S.E.2d 160, 165, disc. rev. denied, 353 N.C. 396, 548 S.E.2d 157 (2001). A defendant has the burden of showing that:\n(1) law enforcement officers or their agents engaged in acts of persuasion, trickery or fraud to induce the defendant to commit a crime, and (2) the criminal design originated in the minds of those officials, rather than with the defendant. The defense is not available to a defendant who was predisposed to commit the crime charged absent the inducement of law enforcement officials.\nId.\nHere, the State presented evidence tending to show that defendant was predisposed to commit the crime. The informant testified that defendant had sold drugs to the informant on two separate occasions before becoming a confidential informant. The informant had met defendant several years prior to the crime charged and had purchased marijuana at that time as a result of defendant\u2019s actions not those of law enforcement officers. Defendant was predisposed to sell marijuana and has failed to meet his burden showing \u201cpersuasion, trickery or fraud.\u201d Id. This assignment of error is overruled.\nV. Restitution\nDefendant contends the trial court erred by requiring him to pay thirty dollars in restitution for the money used to purchase marijuana on 16 September 2001. Defendant did not object to his sentence following the sentencing phase of his trial. N.C.R. App. P. 10(b)(1) (2003) permits appellate review of issues that \u201cby rule or law are deemed preserved.\u201d We review this assignment of error under N.C. Gen. Stat. \u00a7 15A-1446(d)(18) which allows for review of sentencing errors where there was no objection at trial.\n\u201cA defendant may be required to make restitution or reparation to an aggrieved party or parties who shall be named by the court for the damage or loss caused by the defendant arising out of the offense or offenses committed by the defendant.\u201d N.C. Gen. Stat. \u00a7 15A-1343(d) (2001). N.C. Gen. Stat. \u00a7 90-95.3(a) allows courts to require defendants to make restitution to law enforcement agencies for undercover purchases. This statute states that \u201c[w]hen any person is convicted of an offense under this Article, the court may order him to make restitution to any law-enforcement agency for reasonable expenditures made in purchasing controlled substances from him or his agent as part of an investigation leading to his conviction.\u201d N.C. Gen. Stat. \u00a7 90-95.3(a) (2001).\nDefendant was not charged with or arrested for the sale that took place on 16 September 2001. In sentencing defendant for the 19 November 2001 offense, the court ordered defendant to pay the sum of thirty dollars, the amount used to purchase the marijuana from defendant in September, as restitution to the Reidsville Police Department Drug Fund. The purchase in September was part of an ongoing \u201cinvestigation leading to his conviction\u201d for an offense committed 19 November 2001. N.C. Gen. Stat. \u00a7 90-95.3 (2001). The money defendant was ordered to pay is a \u201closs . . . arising out of the offense or offenses committed by the defendant.\u201d N.C. Gen. Stat. \u00a7 15A-1343(d) (2001). This assignment of error is overruled.\nVI. Fines\nDefendant argues the trial court erred by requiring him to pay five hundred dollars as a condition of his release from jail. The court\u2019s order states that \u201cdefendant [to remain] in custody until $500 paid or service of full sentence. Defendant to be returned to Rockingham County Jail upon completion of split sentence unless $500 paid.\u201d He contends the court\u2019s sentence requires him to serve a sentence beyond what N.C. Gen. Stat. \u00a7 15A-1351(a) allows. This statute provides that \u201cthe total of all periods of confinement imposed as an incident of special probation, but not including an activated suspended sentence, may not exceed six months or one fourth the maximum sentence of imprisonment imposed for the offense.\u201d N.C. Gen. Stat. \u00a7 15A-1351(a) (2001).\nHere, the court\u2019s sentence afforded defendant an opportunity to avoid active jail time by paying the fine. There is no evidence in the record that defendant has served more than sixty days confinement, much less that his imprisonment exceeded six months. Defendant has failed to show error in the court\u2019s sentence. This assignment of error is overruled.\nVII. Conclusion\nThe trial court properly denied defendant\u2019s motion to suppress and his request for a jury instruction on entrapment. We also find no error in the trial court\u2019s order requiring defendant to pay thirty dollars in restitution and a five hundred dollar fine as a condition to his release from jail.\nNo Error.\nJudges MCCULLOUGH and BRYANT concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General John R. Come, for the State.", "Bryan Gates, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DON RAY REYNOLDS\nNo. COA03-18\n(Filed 4 November 2003)\n1. Search and Seizure\u2014 traffic stop \u2014 probable cause\nAn officer had probable cause to stop a marijuana defendant\u2019s car where the officer observed defendant speeding and not using a turn signal when changing lanes.\n2. Evidence\u2014 traffic stop \u2014 marijuana discovered \u2014 acquittal of traffic offense \u2014 not admissible\nA marijuana defendant arrested after a traffic stop was not entitled to present evidence of his acquittals on the traffic violations. The court made specific findings to support its conclusion that the officer had an independent, reasonable, and articulable basis for the traffic stop, and evidence of acquittal is not determinative to finding probable cause for the stop.\n3. Criminal Law\u2014 entrapment instruction not given \u2014 evidence of predisposition\nThe trial court did not err in a prosecution for possession of marijuana with intent to sell and deliver by not instructing the jury on entrapment. The State presented evidence tending to show that defendant was predisposed to commit the crime in that an informant testified about buying drugs from defendant before becoming an informant.\n4. Sentencing\u2014 restitution \u2014 undercover marijuana purchase\nThere was no error in requiring a marijuana defendant to pay thirty dollars in restitution for .the money used for an earlier marijuana purchase for which he was not charged. The first purchase was part of an ongoing investigation leading to defendant\u2019s conviction for the second offense.\n5. Sentencing\u2014 further active jail time \u2014 avoided by fine\nThere was no error in a marijuana sentence which allowed the defendant to avoid a portion of his active jail time by paying a fine.\nAppeal by defendant from judgment entered 17 September 2002 by Judge A. Moses Massey in Rockingham County Superior Court. Heard in the Court of Appeals 15 October 2003.\nAttorney General Roy Cooper, by Special Deputy Attorney General John R. Come, for the State.\nBryan Gates, for defendant-appellant." }, "file_name": "0144-01", "first_page_order": 174, "last_page_order": 180 }