                               NO. COA13-694

                    NORTH CAROLINA COURT OF APPEALS

                            Filed: 15 April 2014


STATE OF NORTH CAROLINA

    v.                                   Buncombe County
                                         Nos. 11 CRS 6952-55
                                              11 CRS 60583-86
ERADIO VELAZQUEZ-PEREZ
and
EDGAR AMPELIO-VILLALVAZO



    Appeal by Defendants from order entered 16 October 2012 and

judgments entered 13 November 2012 by Judge Marvin P. Pope in

Superior Court, Buncombe County.         Heard in the Court of Appeals

7 January 2014.


    Attorney General Roy Cooper, by Special Deputy Attorney
    General Phillip K. Woods and Assistant Attorney General
    Stuart M. (Jeb) Saunders, for the State.

    Anne Bleyman      for    Defendant-Appellant       Eradio    Velazquez-
    Perez.

    Goodman Carr, PLLC, by W. Rob                 Heroy,   for   Defendant-
    Appellant Edgar Ampelio-Villalvazo.


    McGEE, Judge.


    Henderson County Sheriff’s Deputy David McMurray (“Deputy

McMurray”) was working with a special unit that involved both

Henderson   and   Buncombe    Counties    along    Interstate    40   on   4
                                           -2-
September 2011.        That day he was working in Buncombe County.

Defendant Edgar Ampelio-Villalvazo (“Villalvazo”) was driving a

tractor-trailer (“the truck”) on 4 September 2011 that was owned

by    Defendant      Eradio        Velazquez-Perez          (“Perez”)          (together,

“Defendants”).       Perez was also in the truck at the time.                       Deputy

McMurray was sitting in an unmarked SUV (“the SUV”) parked at a

commercial vehicle weigh station, facing the exit ramp, when he

observed the truck exiting Interstate 40 headed into the weigh

station.      Deputy       McMurray,      who     had    been    trained       in   visual

estimation of speed, testified that he estimated the truck to be

travelling    at    approximately          fifty    miles       per   hour     where   the

posted recommended speed was thirty miles per hour.

      After   the    truck       had    exited     the   scales,      Deputy    McMurray

stopped    the     truck    at    the     weigh     station.          Deputy    McMurray

positioned his SUV facing the truck and activated the                                SUV’s

dashboard camera.          The camera simultaneously recorded video of

the truck and the interior of Deputy McMurray’s SUV.                          The camera

also recorded audio inside the SUV, and had the capability to

record audio from a receiver that Deputy McMurray could wear on

his   person,    but   Deputy          McMurray    either       forgot   to     wear   the

receiver or failed to activate it.                   Deputy McMurray approached

the cab of the truck, spoke with Defendants, and returned to his

SUV with some documentation.                Villalvazo then exited the truck
                                           -3-
and   walked    back    to     the   SUV    with       additional        documentation.

Villalvazo     sat      in    the    passenger         seat     of       the     SUV        for

approximately forty-nine minutes, while Deputy McMurray wrote a

warning citation and conducted certain records checks related to

the stop, including checking the driver’s licenses of Villalvazo

and Perez, the truck registration, insurance information, log

books, and other documentation related to the load then being

transported on the truck.

      During the stop, Deputy McMurray asked Villalvazo a number

of questions, and on several occasions left the SUV, returning

to the truck to ask Perez additional questions.                         Deputy McMurray

completed    the     warning    citation         and   handed      it     to    Villalvazo

approximately        twelve     minutes      into      the     stop       and     informed

Villalvazo     that    the    documentation        check     was     ongoing,         and    so

Villalvazo remained in the SUV.

      During this process, Deputy McMurray became suspicious that

criminal activity, such as drug trafficking, might be occurring.

Deputy   McMurray’s          suspicions      were      based       on     a     number      of

observations, including concerns he had about the log books,

what he perceived as nervous behavior on the part of Villalvazo,

and certain discrepancies between answers given by Villalvazo

and Perez.     Both Villalvazo and Perez told Deputy McMurray that

Villalvazo     had     not    been   working       for    Perez         for    very    long.
                                          -4-
Villalvazo told Deputy McMurray that he had not                          known Perez

before he began working for him, and that this was Villalvazo’s

first out-of-state trip since he began working for Perez.                              The

log books were consistent with this statement.

       Once Deputy McMurray completed checking the documents, he

returned the documents to Villalvazo and Perez, and asked them

both if they would consent to a search of the truck.                                  Both

agreed and signed voluntary consent forms authorizing a search

of the truck.         Deputy McMurray used a hammer to tap on various

areas of the interior of the cab, and located several places

that    he    believed     might   contain      hidden    compartments.             Deputy

McMurray used a knife to cut through or remove upholstery, and

to remove sheet metal beneath the upholstery.                          In so doing,

Deputy McMurray uncovered several hidden compartments, two of

which   contained      a     combined    twenty-four      kilograms      of     cocaine.

Only    one    fingerprint      was     recovered      from     inside    the       hidden

compartments, and it matched neither Villalvazo nor Perez.                               A

duffel bag containing Perez’s clothes and personal items was

also located inside the cab of the truck and $5,000.00 in cash

was    recovered      from    inside     the    lining    of    that     duffel      bag.

Several mobile phones belonging to Perez were also recovered.

Villalvazo      had   one    mobile     phone   with     him,   and    only     a   small

amount of cash.
                                         -5-
      Villalvazo       and   Perez   were      arrested      and     tried    together.

Each was found guilty of two counts of trafficking cocaine in

excess of 400 grams (based upon possession and transportation),

one count of possession with intent to sell or deliver cocaine,

and     one   count     of     conspiracy        to   traffic        in     cocaine   by

transporting     and    possessing       cocaine      in    excess    of     400   grams.

Both Defendants appealed, and we address both of their appeals

in this opinion.

                                          I.

      In Villalvazo’s first argument, he contends the trial court

erred    in   denying    his    motions     to    dismiss     the     two    counts    of

trafficking cocaine (based upon possession and transportation),

and the one count of possession with intent to sell or deliver

cocaine,      because    the     State    failed       to    produce        substantial

evidence of each essential element of those charges.                        We agree.

              A motion to dismiss is properly denied if
              “there is substantial evidence (1) of each
              essential element of the offense charged and
              (2) that defendant is the perpetrator of the
              offense.”    “Substantial evidence is such
              relevant evidence as a reasonable mind might
              accept as adequate to support a conclusion.”
              “When ruling on a motion to dismiss, all of
              the evidence should be considered in the
              light most favorable to the State, and the
              State   is   entitled   to   all    reasonable
              inferences which may be drawn from the
              evidence.”   If substantial evidence exists,
              whether direct, circumstantial, or both,
              supporting  a   finding   that   the   offense
              charged was committed by the defendant, the
                                       -6-
            case must be left for the jury.

State v. Tisdale, 153 N.C. App. 294, 296-97, 569 S.E.2d 680, 682

(2002)    (citations       omitted).         “Trafficking    in   cocaine   by

possession   and    trafficking     in   cocaine    by    transportation,   in

violation of N.C. Gen. Stat. § 90–95(h)(3) (2001), require the

State to prove that the substance was knowingly possessed and

transported.”       State v. Baldwin, 161 N.C. App. 382, 391, 588

S.E.2d 497, 504 (2003) (citation omitted).

            “[I]n   a   prosecution   for   possession   of
            contraband materials, the prosecution is not
            required to prove actual physical possession
            of the materials.”     Proof of nonexclusive,
            constructive    possession    is    sufficient.
            Constructive possession exists when the
            defendant,    “while    not    having    actual
            possession,    . . . has    the   intent    and
            capability to maintain control and dominion
            over” the narcotics.     “Where 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.”    “However, 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.”

Tisdale, 153 N.C. App. at 297, 569 S.E.2d at 682 (citations

omitted).     Knowledge of the existence of the contraband                  was

necessary    to    prove    the   trafficking     and    possession   charges.

State v. Wiggins, 185 N.C. App. 376, 386, 648 S.E.2d 865, 872

(2007).
                                -7-
    The State argues that the facts in this case              regarding

Villalvazo’s knowledge of the cocaine are analogous to those in

Tisdale and State v. Munoz, 141 N.C. App. 675, 541 S.E.2d 218

(2001).   We disagree.   In Tisdale, this Court found sufficient

additional incriminating circumstances where the defendant was

driving alone in an automobile that had been rented by another

person, Harold Leak (“Leak”).      Tisdale, 153 N.C. App. at 295,

569 S.E.2d at 681.

          Just before defendant was pulled over, he
          had accelerated from 0 to 60 miles per hour
          in a 35 mile per hour speed zone with a
          police officer directly behind him.           The
          officer noticed the cocaine in plain view in
          the car door handle on the driver's side of
          the vehicle, well within reach of defendant.
          While talking with the officer, defendant
          was “sweating profusely” and was nervous.
          In the officer's opinion, defendant “was
          under    the    influence    of     something[,]”
          although   the    officer   did    not   consider
          defendant to be so impaired that he could
          not drive.       A subsequent search of the
          vehicle uncovered more cocaine located under
          the driver's seat.      This second baggie of
          cocaine was also well within defendant's
          reach. Although Cosby [a carwash employee],
          [and] an admitted cocaine addict, testified
          he placed or dropped cocaine in the car
          while cleaning it, Leak testified he did not
          notice any cocaine in the vehicle following
          the cleaning.       Taken in the light most
          favorable    to   the   State,    this   evidence
          supports     a   reasonable     inference    that
          defendant was aware of the presence of
          cocaine in the vehicle and had the power and
          intent to control its disposition.

Tisdale, 153 N.C. App. at 298-99, 569 S.E.2d at 683.
                                    -8-
    In Munoz, regarding the defendant’s knowledge of cocaine

recovered from a vehicle the defendant had been driving, this

Court   held   that   “it   could   be    inferred   [from   the   attendant

circumstances] that defendant had knowledge of the presence of

[] cocaine.”    Munoz, 141 N.C. App. at 686, 541 S.E.2d at 224.

           An inference that defendant had knowledge of
           the presence of the cocaine can be drawn
           from   defendant's   power to    control   the
           Sentra.      The   Sentra  had    been   under
           defendant's exclusive control since it was
           loaded onto the car carrier in Houston,
           Texas six days prior to defendant's arrest,
           and Trooper Gray testified that he had to
           obtain keys from defendant to unlock the
           cars to be able to search them.             In
           addition, the State presented other evidence
           from which an inference of defendant's
           knowledge could be drawn.   First, defendant
           presented the troopers with bills of lading
           for the Aerostar and the other vehicles
           which he had transported, but had no such
           document for the Sentra.       Each bill of
           lading contained an inspection checklist.
           Defendant explained that he had no such
           inspection checklist for the Sentra because
           it was raining when he picked up the car in
           Houston, Texas; however, a certified copy of
           a report by the National Climatic Data
           Center was introduced into evidence showing
           that there was no precipitation in the
           Houston area on that date.     Trooper Gray's
           testimony regarding the lack of rear tags,
           the absence of a trunk lock, the grease-like
           odor and the displacement of the rear seat
           indicates that defendant could have found
           the cocaine had he inspected the Sentra in a
           manner consistent with the inspection he
           conducted on the Aerostar.   Second, the FAX
           indicated that the Sentra was to be shipped
           to Junior City, New Jersey and provided a
           contact number with an area code of 917.
                                      -9-
              Agents    from   the    State   Bureau    of
              Investigation testified that Junior City,
              New Jersey does not exist and that 917 is a
              New York City area code. Finally, defendant
              told the agents that he did not know Mr.
              Angel and that Mr. Angel would not be able
              to contact defendant directly; however, a
              call was received on defendant's pager from
              the number identified as Mr. Angel's on the
              FAX.   Taking the facts in the light most
              favorable   to   the   State  and    leaving
              discrepancies and inconsistencies in the
              testimony for the jury to resolve, we
              conclude there was sufficient evidence from
              which it could be inferred that defendant
              had knowledge of the presence of the
              cocaine.

Id. at 685-86, 541 S.E.2d at 224.

      We note that not only was Villalvazo’s control over the

truck not exclusive, the owner of the truck was Perez, the co-

driver.   The cocaine was secreted in hidden compartments that

were not accessible to Villalvazo.            Because the truck belonged

to Perez, Perez was the one with the authority to cut open the

truck, hide the cocaine, and seal the compartments with sheet

metal   and    upholstery.      The   State   argues   there    were    other

incriminating circumstances sufficient to submit to the jury the

charges   of     trafficking    and    possession   against     Villalvazo.

Specifically, the State cites Deputy McMurray’s “review of the

logbooks and other documentation [that] caused him to question

the   economic    feasibility   of    the   trip,   which   supported    his

overall suspicion of illegal narcotics activity.”              If, in fact,
                                      -10-
Perez’s     trucking    company     was    operating     in   an   economically

unsound manner, that would be evidence the jury could consider

in    its   deliberations     concerning     Perez.       Evidence     suggested

Villalvazo had not been working very long for Perez, there was

no evidence that Villalvazo had any stake or control in Perez’s

trucking     company,    or   any     authority    to    countermand     Perez’s

authority.      Deputy McMurray’s suspicions concerning the logbooks

and    other    documentation       are    not   particularly      relevant   to

Villalvazo in this matter.

       The State contends that “as the             driver of the vehicle,

[Villalvazo]     had    the   power   to    control     the   contents   of   the

vehicle.”      No evidence was presented that Villalvazo had the

power to control the cocaine hidden inside secret compartments

that Deputy McMurray had to cut through upholstery and sheet

metal to discover.       The State also argues: “[Villalvazo] did not

testify, and indeed presented no evidence as to his lack of

access.”       It is improper for the State to base arguments at

trial on a defendant’s decision not to testify, and it is at

least inappropriate to do so on appeal.                   The State contends

Villalvazo “was in essence the borrower of the vehicle” which,

based upon State v. Glaze, 24 N.C. App. 60, 210 S.E.2d 124

(1974), allowed

             an inference of knowledge and possession
             which may be sufficient to carry the case to
                                        -11-
              the jury.   The inference is rebuttable, and
              if the owner of a vehicle loans it to an
              accused   without   telling  him   what   is
              contained within the vehicle, the accused
              may offer evidence to that effect and
              thereby rebut the inference.

Id. at 64, 210 S.E.2d at 127.              We disagree with the State that a

hired employee of a trucking company, who has been instructed to

drive   by    his     employer,    is   “in    essence      the    borrower    of   the

vehicle[.]”          We find this analogy especially tenuous when the

employer and owner of the vehicle was in the vehicle and would

have been driving the vehicle had it been stopped at another

time during the trip.

       The    State        also   refers      to    Deputy        McMurray’s     “many

suspicions” concerning Villalvazo.                  These    suspicions       included

Villalvazo clearing his throat and “kind of coughing” several

times   during       the    approximately     fifty    minutes      Villalvazo       was

sitting in Deputy McMurray’s SUV, Deputy McMurray’s testimony

that    Villalvazo         sometimes    avoided       eye    contact,     and       that

Villalvazo’s “heart” was beating in his neck.                          In its order

denying Defendants’ motions to suppress, the trial court found

as fact: “The Court observed the demeanor of [Villalvazo] in the

video    to     be    somewhat    apprehensive        and    nervous    during      the

investigation by Officer McMurray[.]”                  We agree with the trial

court    that    Villalvazo’s      demeanor        could    be    characterized      as

“somewhat apprehensive and nervous during the investigation[.]”
                                        -12-
       The State contends that Villalvazo “presented no evidence

as     to   his    lack   of   access     [to   the    hidden    compartments].”

However,      on   cross-examination      of    the    State’s   witnesses,     the

defense attorneys elicited testimony that none of Villalvazo’s

fingerprints were recovered from inside the compartments or from

the packaged cocaine, that cutting and removing upholstery and

sheet metal to uncover the compartments was labor intensive, and

that    the   compartments      would    not    have    been    visible   “to   the

average-civilian naked eye.”            When Deputy McMurray was asked how

Villalvazo reacted to hearing there had been cocaine recovered

from the truck, Deputy McMurray testified that Villalvazo was

“surprised,” and that Villalvazo responded: “Cocaine?                     Cocaine

in the truck?”

       The State’s evidence in support of the required element

that Villalvazo had knowledge of the cocaine hidden within the

structure of the truck was that Villalvazo was in the truck, was

driving the truck at the time of the stop, and that Deputy

McMurray believed Villalvazo showed some signs of nervousness

during the stop.          The State presented no evidence that Perez

actually communicated with Villalvazo in any manner concerning

hidden      compartments       or   any     cocaine      within     the    hidden

compartments.        The evidence presented ‒ that Villalvazo knew

Perez only because Perez had hired Villalvazo as a driver and
                                         -13-
they had only known each other only for a short period of time ‒

does not establish a relationship between the two as indicative

of   the    trust     one   would   expect      when   admitting      to   a    serious

felony.         We can think of no good reason why Perez would want, or

need,      to     share   that    information     with    one    in    Villalvazo’s

position.         The level of nervousness demonstrated by Villalvazo

in this instance is also of limited value to the State’s case.

As   our    Supreme       Court   has   stated:    “[M]any      people     do    become

nervous when stopped by [a law enforcement officer].”                          State v.

McClendon, 350 N.C. 630, 638, 517 S.E.2d 128, 134 (1999).                          Some

degree of nervousness is common when a person is stopped and

detained by law enforcement, even for minor traffic violations.

      We hold that the evidence presented to support the required

element that Villalvazo knew there was cocaine secreted within

the body of the truck was not substantial, in that it did not

constitute “‘such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.’”                   Tisdale, 153 N.C.

App. at 296, 569 S.E.2d at 682 (citation omitted).                     We make this

holding even considering “all of the evidence . . . in the light

most favorable to the State[.]”                 Id. at 296-97, 569 S.E.2d at

682 (citation omitted).             We vacate Villalvazo’s convictions for

trafficking in cocaine by transportation, trafficking in cocaine
                                  -14-
by possession, and possession of cocaine with intent to sell or

deliver.

                                   II.

      Both Villalvazo and Perez argue the State failed to present

substantial evidence in support of the charges of “conspir[acy]

to   traffic   in   cocaine   . . . by   transporting   and   possessing

[cocaine] in excess of 400 grams[.]”       We agree.

           A   criminal   conspiracy  is   an   agreement
           between two or more people to do an unlawful
           act or to do a lawful act in an unlawful
           manner.   In order to prove conspiracy, the
           State need not prove an express agreement;
           evidence tending to show a mutual, implied
           understanding will suffice.        Nor is it
           necessary    that   the   unlawful    act   be
           completed.    “As soon as the union of wills
           for the unlawful purpose is perfected, the
           offense of conspiracy is completed.”

State v. Morgan, 329 N.C. 654, 658, 406 S.E.2d 833, 835 (1991)

(citations omitted).

           While conspiracy can be proved by inferences
           and circumstantial evidence, it “cannot be
           established by a mere suspicion, nor does a
           mere relationship between the parties or
           association show a conspiracy.”      Instead
           “[i]f the conspiracy is to be proved by
           inferences drawn from the evidence, such
           evidence   must  point   unerringly to   the
           existence of a conspiracy.”

State v. Benardello, 164 N.C. App. 708, 711, 596 S.E.2d 358, 360

(2004) (citations omitted).      Though not dispositive, the fact we

held above that there was not substantial evidence indicating
                                        -15-
Villalvazo knew there was cocaine secreted in the truck factors

into our analysis.            The State submitted no evidence directly

implicating Villalvazo and Perez in a conspiracy.                           The   only

evidence presented was that Villalvazo worked for Perez, and

that   they   were     both    involved    in    driving      the   truck   while   it

contained the cocaine.              In the present case, “[t]he evidence

. . . does not point unerringly toward conspiracies [to traffic

in cocaine by transporting and possessing cocaine in excess of

400 grams] and is insufficient to support convictions on those

charges.”     Id.    We hold there was not substantial evidence of a

conspiracy presented at trial, and we vacate Villalvazo’s and

Perez’s   convictions         for   conspiracy     to    traffic    in   cocaine    by

transporting and possessing.

                                        III.

       Because   our    holdings      above     result   in    vacating     all   four

convictions against Villalvazo, we do not address Villalvazo’s

remaining arguments.

                                          IV.

       In Perez’s second argument, he contends the trial court

erred in denying his motion to suppress the cocaine seized based

upon his argument that the stop was unconstitutionally extended.

We disagree.

       Perez contends:
                                        -16-
              Once Deputy McMurray issued the warning
              citation to . . . Villalvazo for speeding,
              the justification for the initial stop was
              completed.      Deputy  McMurray then  told
              . . . Villalvazo he was going to run more
              checks.    Deputy McMurray had not obtained
              any evidence up to that point that would
              justify prolonging the detention beyond the
              time it took to investigate the initial
              traffic stop.

Perez’s      argument   is    limited   to     contending    that,       once   Deputy

McMurray handed Villalvazo the warning citation, the purpose of

the stop was over, and anything that occurred after that time

constituted      an     unconstitutional         prolongation      of     the     stop.

However, Perez provides no citation to authorities upon which he

relies in support of the proposition that the purpose of the

stop    was    necessarily      completed      once   the    citation       for    the

infraction justifying the stop had been given to the person who

committed      the    infraction.         Failure     to    cite    to    supporting

authority is a violation of Rule 28(b)(6) of the North Carolina

Rules   of    Appellate      Procedure,    and    constitutes      abandonment       of

this argument.        N.C.R. App. P. 28(b)(6).

       In addition, we find no such authority.                     Law enforcement

officers routinely check relevant documentation while conducting

traffic stops.        This Court has recognized that

              an initial traffic stop concludes and the
              encounter becomes consensual only after an
              officer returns the detainee's driver's
              license and registration.    See State v.
              Kincaid, 147 N.C. App. 94, 100, 555 S.E.2d
                                         -17-
            294, 299 (2001) (holding that because a
            reasonable person would have felt free to
            leave when his documents were returned, the
            initial seizure concluded when the officer
            returned the documents to defendant)[.]

State v. Jackson, 199 N.C. App. 236, 243, 681 S.E.2d

492, 497 (2009).

       In the present case, though Deputy McMurray had completed

writing the warning citation, he had not completed his checks

related to the licenses, registration, insurance, travel logs,

and invoices of Perez’s commercial vehicle.                        Perez does not

argue    that    investigation         into   any    of    these     documents    was

improper.       The    purpose    of    the   stop   was    not    completed     until

Deputy McMurray finished a proper document check and returned

the documents to Villalvazo and Perez.                    Because Perez does not

argue this issue, we do not make any holding regarding which

documents       may    be    properly     investigated          during   a   routine

commercial vehicle stop.

       The trial court found as fact that: “The actual time for

this    traffic       stop   of   []    Defendants        was     approximately    53

minutes[;]” that Deputy McMurray asked both Villalvazo and Perez

for consent to search the truck, and consent was given by both;

that both Villalvazo and Perez signed consent to search forms;

and that “[d]uring the course of the consent search,” the hidden

compartments were located, and the cocaine was recovered from
                                      -18-
two   of    those    compartments.      Perez     does   not   challenge    these

findings of fact, and they are therefore binding on appeal.

State v. McLeod, 197 N.C. App. 707, 711, 682 S.E.2d 396, 398

(2009).

      The    trial     court   concluded      that   Villalvazo     and    Perez

“voluntarily consented and agreed to additional questioning once

the purpose of the traffic stop was completed.”                  Because these

unchallenged        findings   of    fact     support    the    trial     court’s

conclusion that Villalvazo and Perez voluntarily consented to

the   search   of    the   truck    after   the   approximately    fifty-three

minute stop concluded, we have nothing further to review.

             “An appellate court accords great deference
             to the trial court's ruling on a motion to
             suppress   because   the   trial   court  is
             entrusted with the duty to hear testimony
             (thereby observing the demeanor of the
             witnesses) and to weigh and resolve any
             conflicts in the evidence.” “‘Our review of
             a trial court's denial of a motion to
             suppress   is    strictly   limited    to  a
             determination of whether it's [sic] findings
             are supported by competent evidence, and in
             turn, whether the findings support the trial
             court's ultimate conclusion.’”

State v. Hernandez, 170 N.C. App. 299, 303-04, 612 S.E.2d 420,

423 (2005) (citations omitted).              The fact that the trial court

also included findings of fact and conclusions of law relating

to Defendants’ reasonable suspicion argument at the hearing is

of no moment.        The 16 October 2012 order contains unchallenged
                                       -19-
findings of fact supporting the trial court’s conclusion that

the search was a legal search based on the voluntary consent of

both Villalvazo and Perez.           This argument is without merit.

                                        V.

       In Perez’s third argument, he contends his trial counsel

was ineffective due to his “failure to renew the objection to

the    admission     of   evidence    that     was   fruits    of    the    improper

extension     of    the   traffic    stop.”        Having   held     that    Perez’s

argument in Section IV. fails, this argument also fails.

                                        VI.

       In Perez’s fourth argument, he contends the trial court

erred “in ordering costs for fingerprint examination as lab fees

as    part   of    [Perez’s]   sentence       in   violation    of   a     statutory

mandate.”     We agree.

       N.C. Gen. Stat. § 7A-304 (2013) covers costs in criminal

prosecutions, and allows certain lab costs to be assessed to a

defendant who is convicted.

             For the services of any crime laboratory
             facility operated by a local government or
             group of local governments, the district or
             superior court judge shall, upon conviction,
             order payment of the sum of six hundred
             dollars ($600.00) to be remitted to the
             general fund of the local governmental unit
             that operates the laboratory to be used for
             law enforcement purposes. The cost shall be
             assessed only in cases in which, as part of
             the investigation leading to the defendant's
             conviction, the laboratory has performed DNA
                                        -20-
           analysis of the crime, test of bodily fluids
           of the defendant for the presence of alcohol
           or controlled substances, or analysis of any
           controlled   substance   possessed  by   the
           defendant or the defendant's agent.

N.C. Gen. Stat. § 7A-304(a)(8) (2013).

    The State agrees with Perez that N.C.G.S. § 7A-304(a)(8)

does not allow recovery of lab costs for fingerprint analysis,

“and therefore the State does not object to [Perez’s] request

that $600 be vacated from the $1,200 costs ordered by the trial

court.”        The    trial   court     erred     in   assessing    $600.00   for

fingerprint analysis done by the Charlotte-Mecklenburg Police

Department.     We reverse and remand for correction of this error.

                                        VII.

    In    conclusion,         we    vacate      all    four   of    Villalvazo’s

convictions.         We vacate Perez’s conviction for conspiracy to

traffic   in    cocaine.       We     find   no   error   related    to   Perez’s

remaining convictions.             We reverse and remand for the trial

court to delete the $600.00 it assessed as costs for fingerprint

examination as lab fees as part of Perez’s sentence, and enter a

corrected judgment.

    Vacated in part, no error in part, reversed and remanded in

    part.

    Judges HUNTER, Robert C. and ELMORE concur.
