An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.


                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                       No. COA14-1324

                                 Filed: 15 September 2015

Forsyth County, Nos. 12 CRS 55869-71, 12 CRS 59535-37, 39

STATE OF NORTH CAROLINA

               v.

MICHEAL ANTONY1 PAIGE


        Appeal by defendant from judgment entered 26 February 2014 by Judge Edwin

G. Wilson in Forsyth County Superior Court. Heard in the Court of Appeals 5 May

2015.


        Roy Cooper, Attorney General, by Marc X. Sneed, Assistant Attorney General,
        for the State.

        Staples Hughes, Appellate Defender, by Kathryn L. VandenBerg, Assistant
        Appellate Defender, for defendant-appellant.


        DAVIS, Judge.


        Michael Anthony Paige (“Defendant”) appeals from his convictions for (1)

possession with intent to sell or deliver cocaine; (2) three counts of possession with

intent to sell or deliver heroin; (3) possession of marijuana up to one half of an ounce;




        1Both Defendant and the State spell Defendant’s name “Michael Anthony Paige” in their
briefs. However, Defendant’s name is spelled “Micheal Antony Paige” in the trial court’s judgment.
Both spellings refer to the same person.
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                                   Opinion of the Court



(4) possession of a firearm by a felon; (5) driving with a revoked license; (6) carrying

a concealed gun; (7) maintaining a vehicle for the purpose of selling a controlled

substance; (8) two counts of selling heroin; (9) two counts of delivering heroin; (10)

trafficking in opium or heroin by possession; and (11) trafficking in opium or heroin

by transportation. On appeal, he contends that the trial court erred in (1) denying

his motion to suppress; and (2) admitting evidence inadmissible under Rule 404(b) of

the North Carolina Rules of Evidence. After careful review, we reverse the trial

court’s denial of Defendant’s motion to suppress, vacate the trial court’s judgment in

part, and remand for resentencing.

                                Factual Background

      The State presented evidence at trial tending to establish the following facts:

From 9:00 p.m. on 14 June 2012 through the early morning hours of 15 June 2012,

Detective Kimberly Williams (“Detective Williams”), a detective with the Winston-

Salem Police Department’s Special Investigations Unit, was performing surveillance

of Combs Barber Shop (“the Shop”), an establishment located on Waughtown Street

in Winston-Salem, North Carolina, after having received an anonymous telephone

tip one to three months earlier that a man named Shae Collins (“Collins”) — who had

recently been released from prison — was selling drugs out of the Shop. Detective

Williams was familiar with both Collins and the Shop as she had arrested Collins for




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trafficking in cocaine while executing a search warrant at the Shop twelve years

earlier in 2000.

      Detective Williams observed the Shop from her Jeep Cherokee, which was

parked across the street approximately 40-50 feet away. She noted that the Shop’s

“Open” sign was not illuminated but that Collins was inside. During the course of

her surveillance, she saw several individuals go into the Shop and exit shortly

thereafter without appearing to have received haircuts.

      At 10:59 p.m., Detective Williams saw Defendant arrive in a silver Pontiac

Vibe. She observed “[Defendant] got out of his car, and . . . walk[ ] into the hair salon,

which [Collins] was in . . . at this time, not in the Combs Barber Shop. And they went

inside and, you know, spoke or whatever they were doing. I couldn’t see inside the

business.” Collins then came outside and began speaking with two men standing on

the corner by the Shop. Shortly thereafter, Defendant exited the hair salon and joined

the conversation. He then got back into his Pontiac Vibe and drove away from the

Shop in the direction of the intersection of South Martin Luther King Road and

Thomasville Road.

      Detective Williams called Detective R.J. Santiago (“Detective Santiago”), who

at the time was several blocks away from the Shop in an unmarked patrol vehicle,

and ordered him to follow Defendant’s vehicle.            Detective Santiago then began




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pursuing Defendant as he crossed the intersection of South Martin Luther King Road

and Thomasville Road.

      Just before Defendant arrived at the Old Lexington Road intersection, he took

a sharp turn into the parking lot of a closed business, and Detective Santiago,

believing that Defendant was engaging in a counter-surveillance tactic, continued to

drive past the business. Detective Santiago reestablished pursuit shortly thereafter

and observed Defendant approach the Highway 421/52 interchange and merge “onto

the on-ramp to go onto 421 northbound and then g[et] back on the on-ramp to go to

52 southbound, and then g[et] back on the on[-]ramp to go to 421 southbound, and

then g[et] back on the on[-]ramp to go to 52 northbound to continue to go up north.”

      Based on his belief that Defendant was once again engaging in counter-

surveillance tactics, Detective Santiago radioed other officers in the area, including

Detective Williams, and reported Defendant’s actions.       Upon hearing Detective

Santiago’s report, Detective Williams issued a general order over the radio that

Defendant’s car be stopped, and Corporal J.P. Timberlake (“Corporal Timberlake”),

who was also in the vicinity, pulled over Defendant’s vehicle on University Parkway.

      Corporal Timberlake instructed Defendant to move his vehicle to a nearby

parking lot for safety reasons.   Corporal Timberlake then exited his patrol car,

approached the driver’s side of Defendant’s vehicle, and asked Defendant for his




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driver’s license. Defendant told Corporal Timberlake that the Pontiac Vibe belonged

to his aunt.

      As Corporal Timberlake proceeded to perform a computer check on Defendant’s

driver’s license, other patrol officers arrived at the scene. One of the officers — a K-

9 officer who was not identified by name at trial — had his canine conduct an “exterior

sniff” of Defendant’s vehicle. While the canine was doing so, Corporal Timberlake

asked Defendant if he could search his vehicle. Defendant denied this request.

      The canine then alerted to the presence of narcotics at which point Corporal

Timberlake informed Defendant that he was going to search both his vehicle and his

person and asked him if there was “anything illegal in the car[.]” Defendant told

Corporal Timberlake that he had a .25-caliber Titan handgun in his back right pants

pocket, which Corporal Timberlake secured. Corporal Timberlake then placed

Defendant under arrest for carrying a concealed gun.

      Upon searching Defendant’s vehicle, Corporal Timberlake discovered and

seized two clear bags containing a white powder — later identified as cocaine —

wedged between the driver’s seat and the center console. Corporal Timberlake also

discovered a “single bud of marijuana” and a prescription pill bottle containing 13




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                                         Opinion of the Court



unknown pills as well as several “bindles”2 of a substance later identified as heroin

under the front passenger seat.

        Approximately three months later3, on 12 September 2012, Detective Matt

Ridings (“Detective Ridings”) with the Kernersville Police Department’s Vice

Narcotics Unit was ordered by his supervising officer, Detective Blair Osborne

(“Detective Osborne”), to meet with a confidential informant who would introduce

him to an individual known as “Mike” who, in turn, would sell heroin to Detective

Ridings.     The sale was scheduled to take place at 9:00 p.m. that evening at a

prearranged location in Kernersville.

        Detective Ridings and the informant drove in Detective Ridings’ Dodge

Durango to the meeting place.             After parking and waiting for several minutes,

Defendant arrived by himself in the same silver Pontiac Vibe that he had been driving

during the 15 June 2012 incident in Winston-Salem. Defendant got out of the vehicle

and approached the passenger side of the Durango.                     The informant introduced

Defendant and Detective Ridings to each other, identifying Defendant as “Mike.”

After a brief conversation, Defendant gave Detective Ridings a plastic bag containing




        2 Corporal Timberlake explained that “[a] bindle is a small piece of paper that’s folded up, and
it’s a common thing for where -- how heroin is stored. If you’re familiar with, like, a BC powder, like
that, you know how they’re folded up in that -- it’s the same nature, but they’re called bindles, and
that’s how heroin is commonly packaged.”

        3The details surrounding Defendant’s release after his arrest on 15 June 2012 are unclear
from the record. It appears, however, that he was released on bond.

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five bindles of individually packaged doses of heroin in exchange for $120.00.

Detective Ridings was wearing a recording device that recorded the entire

transaction. Defendant was not arrested at that time in accordance with the plan

governing the undercover operation.

      The following day, Defendant called Detective Ridings and informed him that

he had more heroin to sell.     On 19 September 2012, Detective Ridings called

Defendant and arranged to purchase more heroin from him. Detective Ridings then

traveled to a previously arranged location in Kernersville and waited for Defendant

to arrive. After waiting approximately seven minutes, Defendant arrived in the same

silver Pontiac Vibe. On this occasion, a younger male later identified as Justin

Washington (“Washington”), was riding in the passenger seat of Defendant’s vehicle.

      Defendant exited his vehicle and approached the passenger side of Detective

Ridings’ Durango. Defendant then sold Detective Ridings 11 white envelopes held

together by rubber bands — several containing heroin and several containing a

mixture of heroin and morphine — in exchange for $230.00. Once again, the entire

transaction was captured on a recording device worn by Detective Ridings.

      Defendant got back into his vehicle and began driving away from the parking

lot. Detective Osborne, who was nearby in an unmarked vehicle, began following

Defendant’s Pontiac Vibe. Detective Osborne radioed a marked patrol vehicle and

issued a directive that Defendant’s vehicle be stopped. Defendant was pulled over on



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South Main Street, approximately two blocks away from the site of his meeting with

Detective Ridings.    Defendant was arrested for sale of a controlled substance.

Washington was detained and searched, but because no narcotics were found on his

person he was released.     Upon a subsequent search of Defendant’s vehicle, law

enforcement officers recovered 40 “dosage units” of hydrocodone in the center console.

      On 18 November 2013, Defendant was indicted in connection with the 15 June

2012 incident on charges of (1) possession with intent to sell and deliver cocaine (12

CRS 55869); (2) possession with intent to sell and deliver heroin (12 CRS 55869); (3)

possession of marijuana up to one half of an ounce (12 CRS 55869); (4) possession of

a firearm by a felon (12 CRS 55870); (5) driving with a revoked license (12 CRS

55871); (6) carrying a concealed gun (12 CRS 55871); and (7) maintaining a vehicle

for the purpose of selling a controlled substance (12 CRS 55871).

      That same day, Defendant was also indicted in connection with the 12

September 2012 incident on charges of (1) selling heroin (12 CRS 59535); (2)

delivering heroin (12 CRS 59535); and (3) possession with intent to sell and deliver

heroin (12 CRS 59536). Defendant was also simultaneously indicted on charges

stemming from the 19 September 2012 incident for (1) selling heroin (12 CRS 59537);

(2) delivering heroin (12 CRS 59537); (3) possession with intent to sell and deliver

heroin (12 CRS 59537); (4) maintaining a vehicle for the purpose of selling a controlled

substance (12 CRS 59538); (5) trafficking in opium or heroin by possession (12 CRS



                                          -8-
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59359); (6) trafficking in opium or heroin by transportation (12 CRS 59359); and (7)

obtaining the status of an habitual felon. The State moved to join all of these offenses,

and the trial court granted the State’s motion.

      A jury trial was held on 24 February 2014 in Forsyth County Superior Court

before the Honorable Edwin G. Wilson. Prior to trial, Defendant filed a motion to

suppress the evidence seized during the 15 June 2012 traffic stop. The trial court

denied Defendant’s motion before trial, and Defendant then pled guilty to the offenses

arising from the 15 June 2012 incident, reserving the right to appeal the denial of his

motion to suppress. Defendant was then tried on the remaining charges.

      At the close of all of the evidence, the trial court dismissed the charge of

maintaining a vehicle for the purpose of selling a controlled substance as well as the

habitual felon charge. The jury found Defendant guilty of all remaining charges. The

trial court consolidated the convictions, and Defendant was sentenced to 90-117

months imprisonment. Defendant gave oral notice of appeal in open court.

                                       Analysis

I. Denial of Motion to Suppress

      Defendant’s first argument is that the trial court erred in denying his motion

to suppress the evidence seized during the 15 June 2012 traffic stop. Specifically,

Defendant asserts that because law enforcement officers did not possess the requisite

reasonable suspicion necessary to initiate the traffic stop, any evidence seized as a



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                                   Opinion of the Court



result of the subsequent search of his vehicle constituted “fruit of the poisonous tree.”

We agree.

      “When a motion to suppress is denied, this Court employs a two-part standard

of review on appeal: The standard of review in evaluating the denial of a motion to

suppress is 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, __ N.C.

__, __, 772 S.E.2d 847, 849 (2015) (citation and quotation marks omitted). In the

present case, the trial court made only oral findings of fact and conclusions of law in

denying Defendant’s motion to suppress, which stated, in pertinent part, as follows:

             THE COURT: All right. Thank you. I’m going to deny the
             motion to suppress, make the following findings -- it seems
             to me this is just, basically, good detective work.

             ....

             [Detective Williams] knew that Shae Collins was out of
             prison, and she had information, she had a tip that he was
             conducting business again at the Combs Barber Shop.
             Shae Collins was, in fact, the target.

             ....

                   About 9:49, a white Buick arrived, and a person
             entered the business. There had been a person in a Lexus
             who entered at the same time as the person who was in the
             Buick. This Lexus had also been parked there.

             ....

             About 10:59, a Buick [sic] Vibe arrives, which the
             defendant was driving. Shae, at this time, was in the salon.


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                    Opinion of the Court



The detective, from her training and experience at this
time, had the feeling that what was going on was a
narcotics transaction. Two people left and went to the
corner. These were the two people other than Shae and the
defendant.

      Shae locked the barber shop.       Shae and the
defendant went in the hair salon. Shae then went to the
corner and met the two people who had been in the Buick
and the Lexus. The conversation ensued.

       The defendant then exited the hair salon, came to
the corner where the four people talked. At that point, the
defendant left in the Buick [sic].

      Aware that this seemed to have all the makings of a
drug transaction, the detective called for surveillance on
the Buick [sic].

....

      Detective Santiago is called. . . . He followed the
defendant[.]

....

The defendant went on to Waughtown Street, took a sharp
turn into a moped area, and Santiago began to notice that
the defendant was conducting what’s called counter-
surveillance technically. The defendant went onto 52
North and began using the cloverleafs in a suspicious
manner. . . . He told Detective Williams this, and conveyed
this suspicious driving to Detective Williams, asked for a
marked car to stop the defendant.

....

       Looking at the totality of the circumstances, the
training of these officers, the behavior indicative of drug
dealing, the previous association with the defendant and


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                                    Opinion of the Court



             with Shae Collins, as well as the counter-surveillance and
             the suspicious driving, there is reasonable articulable
             suspicion for the stop.

      It is well established that

             [t]he Fourth Amendment protects the right of the people
             against unreasonable searches and seizures.         It is
             applicable to the states through the Due Process Clause of
             the Fourteenth Amendment. It applies to seizures of the
             person, including brief investigatory detentions such as
             those involved in the stopping of a vehicle.

                    Only unreasonable investigatory stops are
             unconstitutional. An investigatory stop must be justified
             by a reasonable suspicion, based on objective facts, that the
             individual is involved in criminal activity.

                     A court must consider the totality of the
             circumstances — the whole picture in determining whether
             a reasonable suspicion to make an investigatory stop
             exists. The stop must be based on specific and articulable
             facts, as well as the rational inferences from those facts, as
             viewed through the eyes of a reasonable, cautious officer,
             guided by his experience and training.             The only
             requirement is a minimal level of objective justification,
             something more than an unparticularized suspicion or
             hunch.

State v. Watkins, 337 N.C. 437, 441-42, 446 S.E.2d 67, 69-70 (1994) (internal citations,

quotation marks, and ellipses omitted).

      When determining whether a law enforcement officer’s stop of an individual

was reasonable, “the requisite degree of suspicion must be high enough to assure that

[the] individual’s reasonable expectation of privacy is not subject to arbitrary

invasions solely at the unfettered discretion of officers in the field.” State v. Murray,


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192 N.C. App. 684, 687, 666 S.E.2d 205, 208 (2008) (citation and quotation marks

omitted). If reasonable suspicion is found to be lacking, “[u]nder the ‘fruit of the

poisonous tree’ doctrine, evidence must be suppressed if it was obtained as the result

of illegal police conduct or was the ‘fruit’ of that unlawful conduct.” State v. Graves,

135 N.C. App. 216, 221, 519 S.E.2d 770, 773 (1999).

      In analyzing Defendant’s argument on this issue, we find our decision in State

v. Harwood, 221 N.C. App. 451, 727 S.E.2d 891 (2012), instructive. In Harwood, a

deputy sheriff received an anonymous tip that the defendant would be selling

marijuana to an unidentified individual at a certain convenience store later that day

and that he would be driving a white vehicle. Id. at 452, 727 S.E.2d at 894. The

deputy, accompanied by another deputy, drove to the convenience store in an

unmarked vehicle. As they pulled into the convenience store parking lot, they saw a

white vehicle begin to back out of a parking space. As the white vehicle backed out,

they identified the defendant as the driver and began following the vehicle. Id. at

452-53, 727 S.E.2d at 894. After traveling a short distance, the deputies observed the

defendant’s vehicle accelerate and then turn off the highway onto a secondary road

and into a housing development. Id. at 453, 727 S.E.2d at 894. The defendant

proceeded to park his vehicle in the driveway of a residence that was not his

registered address. Id.




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                                    Opinion of the Court



      The deputies pulled into the driveway behind the defendant’s vehicle, exited

their vehicle with weapons drawn, identified themselves, and ordered the defendant

and his passenger to exit the vehicle. A deputy approached the defendant, placed

him on the ground and handcuffed him. Id. at 453, 727 S.E.2d at 894-95. One of the

deputies told the defendant about the anonymous tip that he had received, and the

defendant admitted that he had traveled to the convenience store for the purpose of

selling marijuana. The deputy then asked if the defendant had any more marijuana

and if he would be “‘willing to let [the deputies] go back to his residence and look’” for

marijuana, and the defendant agreed. Id. at 453, 727 S.E.2d at 895. The deputies

subsequently discovered at his residence a loaded rifle as well as two ammunition

canisters containing various quantities of marijuana, cocaine, and pills. Id. At trial,

the defendant moved to suppress the evidence found at his residence on the ground

that the initial stop of his vehicle was not based on reasonable suspicion. Id. at 454,

727 S.E.2d at 895. The trial court denied the motion, and the defendant appealed.

Id.

      In viewing the totality of the circumstances surrounding the vehicle stop, we

noted that “[w]here the justification for a warrantless stop is information provided by

an anonymous informant, a reviewing court must assess whether the tip at issue

possessed sufficient indicia of reliability to support the police intrusion on a detainee’s

constitutional rights.” Id. at 459, 727 S.E.2d at 898 (citation and quotation marks



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                                    Opinion of the Court



omitted). We stated that “[t]he reasonable suspicion at issue in an anonymous tip

situation requires that the tip be reliable in its assertion of illegality, not just in its

tendency to identify a determinate person. The type of detail provided in the tip and

corroborated by the officers is critical in determining whether the tip can supply the

reasonable suspicion necessary for the stop. Where the detail contained in the tip

merely concerns identifying characteristics, an officer’s confirmation of these details

will not legitimize the tip.” Id. at 459-60, 727 S.E.2d at 899 (internal citations,

quotation marks, brackets, and ellipses omitted).

       Based on these principles, we held that

              [a]fter analyzing the totality of the circumstances before us
              in this case, we conclude that the anonymous tip at issue
              here did not exhibit sufficient indices of reliability. The tip
              in question simply provided that Defendant would be
              selling marijuana at a certain location on a certain day and
              would be driving a white vehicle. The record contains no
              information about who the caller was, no details about
              what the caller had seen, and no information even as to
              where the caller was located. . . . [T]he tip in this case
              lacked any detail concerning the nature of Defendant’s
              present and planned activities, such as the time at which
              Defendant would be at the gas station, the type of vehicle
              that Defendant would be driving, the identity of the person
              to whom the sale would be made, or the manner in which
              the sale would be conducted. Put another way, while the
              tip at issue here included identifying details of a person
              and car allegedly engaged in illegal activity, it offered few
              details of the alleged crime, no information regarding the
              informant’s basis of knowledge, and scant information to
              predict the future behavior of the alleged perpetrator. As
              a result, since nothing inherent in the tip itself provided
              investigating officers with the reasonable articulable


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             suspicion required to justify detaining Defendant, the only
             way that Defendant’s detention could be upheld would be
             in the event that the tip contained sufficient details,
             corroborated by the investigating officers, to warrant a
             reasonable belief that Defendant was engaging in criminal
             activity.

Id. at 460-61, 727 S.E.2d at 899 (internal citations, quotation marks, brackets, and

ellipses omitted).

      We therefore concluded that

             [n]othing in the subsequent activities of the investigating
             officers “buttressed” the tip through “sufficient police
             corroboration.” The information obtained by or known to
             [the sheriff’s deputy] prior to observing Defendant at the
             convenience store did not provide any additional
             particularized justification for detaining him. . . . The
             observations made by the investigating officers at the
             convenience store consisted of nothing more than
             identifying a “determinate person” at a determinate
             location, a degree of corroboration that does not suffice to
             justify an investigative detention. Although [the sheriff’s
             deputy] watched Defendant drive away from the
             convenience store and ultimately pull his vehicle into the
             driveway of a residence with an address that differed from
             his own, Defendant could just as easily have been visiting
             an acquaintance, giving Mr. White a ride home, or turning
             around as opposed to engaging in evasive or unlawful
             conduct. Thus, the information provided and known to [the
             sheriff’s deputy] prior to the seizure did not contain the
             range of details required . . . to sufficiently predict
             Defendant’s specific future action; it was peppered with
             uncertainties and generalities.      Therefore, given the
             limited details contained in the tip, and the failure of the
             officers to corroborate the tip’s allegations of illegal
             activity, the tip lacked sufficient indicia of reliability to
             justify the warrantless stop in this case. As a result, the
             investigating officers lacked the reasonable articulable


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             suspicion necessary to support their decision to detain
             Defendant.

Id. at 461-62, 727 S.E.2d at 899-900 (internal citations, quotation marks, brackets,

and ellipses omitted).

      We believe the same result is required here. Detective Williams received an

anonymous uncorroborated tip approximately one to three months earlier that

Collins — not Defendant — was selling drugs out of the Shop. This tip did not contain

any identifying characteristics of Defendant or predict any present or future illegal

activity on his part.

      Moreover, during her surveillance of the Shop, Detective Williams merely

observed Defendant (1) park in front of the Shop; (2) get out of his vehicle and enter

the hair salon adjacent to the Shop; (3) exit the hair salon shortly thereafter; (4) speak

with Collins and two unidentified individuals on the corner outside the Shop; and (5)

return to his car and drive away.

      At no time did Detective Williams see any transaction take place or observe

Defendant exchange anything with Collins or the other two individuals at the Shop.

Nor did she hear any of the conversations that Defendant had with these individuals.

      Detective Williams testified on cross-examination as follows:

             Q. Okay. So between 9:00 p.m. and 10:59 p.m. before
             [Defendant] got [to the Shop], did you see any crimes occur?

             A. Just speculation of what occurred with the people
             coming and going.


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           Q. Did -- prior to [Defendant] getting there, did you see
           anyone handling or carrying money or handling or carrying
           drugs?

           A. No, sir.

           Q. Or handling or carrying a firearm?

           A. No, sir.

           Q. All right. When [Defendant] got there, did you see him
           commit any crimes?

           A. I didn’t see him do anything but meet with the subjects.

           ....

           Q. Did you see [Defendant] exchange anything with anyone
           before he left your location?

           A. No, sir.

           Q. Did you see him carrying anything in his hands or in a
           bag before he left your location?

           A. No, sir, I did not.

           Q. Did he ever have anything in his hands?

           A. No, sir.

           Q. Did he take anything from his car into the barber shop?

           A. No, sir, not that I could see in his hands.

(Emphasis added.)




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      As discussed above, when a law enforcement officer is acting on an anonymous

tip, the “officer must have something more than an unparticularized suspicion or

hunch before stopping a vehicle.” State v. McArn, 159 N.C. App. 209, 213, 582 S.E.2d

371, 374 (2003). In McArn, an anonymous caller reported to the Lumberton Police

Department that a white Nissan vehicle on Franklin and Sessoms Street was

involved in the sale of illegal drugs. Id. at 210, 582 S.E.2d at 373. An officer

proceeded to the area and observed a white Nissan vehicle. Id. The officer stopped

the vehicle, which was operated by the defendant and also occupied by a passenger

and the defendant’s children.      Id.   The officer then searched the vehicle and

discovered no illegal drugs but upon searching the defendant discovered a “packet of

cocaine” in his mouth. Id. at 210-11, 582 S.E.2d at 373. The defendant was arrested

and indicted for possession of a controlled substance. Id. at 211, 582 S.E.2d at 373.

      At trial, the defendant moved to suppress the cocaine. Id. Upon the trial

court’s denial of the motion, he pled guilty to the possession charge, reserving his

right to appeal the denial of his motion. Id. On appeal, we held that the officer who

stopped the defendant’s vehicle “had no reason to suspect the vehicle’s driver or

occupants of illegal conduct apart from the anonymous tip.” Id. at 210, 582 S.E.2d at

373. We explained that

             the tipster never identified or in any way described an
             individual. Therefore, the tip upon which [the officer]
             relied did not possess the indicia of reliability necessary to
             provide reasonable suspicion to make an investigatory


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             stop.    The anonymous tipster in no way predicted
             defendant’s actions. The police were thus unable to test
             the tipster’s knowledge or credibility. Moreover, the tipster
             failed to explain on what basis he knew about the white
             Nissan vehicle and related drug activity.

Id. at 214, 582 S.E.2d at 375.

      Based on these facts, we reversed the trial court’s denial of the defendant’s

motion to suppress, holding that “the conclusion of the trial court, that the tip created

a sufficient reasonable suspicion to justify stopping defendant’s vehicle, was error.”

Id. This reasoning applies equally here.

      Nor did a reasonable suspicion sufficient to warrant stopping Defendant’s

vehicle arise based on Defendant’s conduct after leaving the Shop. Upon following

Defendant’s vehicle, Detective Santiago did not observe Defendant commit any illegal

actions or motor vehicle infractions. Rather, he merely observed Defendant legally

turn into a business parking lot and subsequently drive around the “cloverleaf” exit

ramps of an interchange. Based upon Detective Santiago’s report of this information

to Detective Williams, Detective Williams then ordered Corporal Timberlake — who

also did not observe Defendant commit any traffic violations — to initiate a stop of

Defendant’s vehicle.

      Such lawful conduct did not give rise to reasonable suspicion sufficient to

justify the stop of Defendant’s vehicle. See Harwood, 221 N.C. App. at 462, 727 S.E.2d

at 900 (finding that despite defendant’s actions in turning onto secondary road and



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                                  Opinion of the Court



parking in driveway of house that was not his own after leaving site of alleged drug

sale referenced in anonymous tip did not give rise to reasonable suspicion supporting

stop of defendant’s vehicle).

      Consequently, we hold that the trial court’s findings of fact do not support its

legal conclusion that reasonable suspicion existed to stop Defendant’s vehicle. We

therefore reverse the trial court’s order denying Defendant’s motion to suppress and

vacate Defendant’s convictions stemming from his guilty plea to the offenses arising

from the 15 June incident. See State v. Jackson, 199 N.C. App. 236, 244, 681 S.E.2d

492, 498 (2009) (“In this case, the cocaine and weapon found in the car were

discovered as a direct result of the illegal search and, therefore, should have been

suppressed as fruit of the poisonous tree. . . . The trial court’s order denying

Defendant’s motion to suppress is REVERSED and its judgment is VACATED.”).

II. Rule 404(b) Evidence

      Defendant’s final argument on appeal is that the trial court erred in allowing

the State to introduce under Rule 404(b) evidence regarding the 15 June 2012

incident at his trial on the charges stemming from the 12 September and 19

September incidents. Specifically, he contends that this evidence was inadmissible

and that its admission constituted prejudicial error.

      We conclude that Defendant has failed to establish that any such error was

sufficiently prejudicial to warrant the vacating of his charges stemming from the 12



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                                  Opinion of the Court



September and 19 September incidents. See State v. Williams, 156 N.C. App. 661,

665, 577 S.E.2d 143, 146 (2003) (applying prejudicial error analysis upon

determination that Rule 404(b) evidence of past drug transaction was erroneously

admitted). “A defendant is prejudiced by errors when there is a reasonable possibility

that, had the error in question not been committed, a different result would have been

reached at the trial out of which the appeal arises.” State v. Carpenter, 361 N.C. 382,

392, 646 S.E.2d 105, 112 (2007) (citation, quotation marks, and ellipses omitted).

Moreover, “[t]he party who asserts that evidence was improperly admitted usually

has the burden to show the error and that he was prejudiced by its admission.” State

v. LePage, 204 N.C. App. 37, 43, 693 S.E.2d 157, 162 (2010) (citation and quotation

marks omitted).

      Because of the clear evidence of Defendant’s guilt of the charges stemming

from the sale of drugs by him to Detective Ridings on 12 September and 19

September, Defendant cannot show prejudice resulting from the admission of the

evidence as to the 15 June incident. Defendant was identified by a confidential

informant as being in the business of selling heroin. While working undercover,

Detective Ridings purchased heroin from Defendant on two separate occasions. Both

of these transactions were recorded by a recording device worn by Detective Ridings.

These recordings were entered into evidence at trial.         Thus, the evidence of




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                                   Opinion of the Court



Defendant’s guilt of the offenses stemming from his sale of drugs to Detective Ridings

on 12 September and again on 19 September was overwhelming.

      We likewise reject Defendant’s argument that because Washington was a

passenger in the Pontiac Vibe on 19 September, the improper admission of the

evidence regarding the 15 June incident could have prejudiced the jury into simply

assuming that the hydrocodone found in the Pontiac Vibe on 19 September belonged

to Defendant — rather than Washington. “Possession of . . . drugs need not be

exclusive. It is well established in North Carolina that possession of a controlled

substance may be either actual or constructive.” State v. Jenkins, 167 N.C. App. 696,

700, 606 S.E.2d 430, 433 (internal citations and quotation marks omitted), aff'd per

curiam, 359 N.C. 423, 611 S.E.2d 833 (2005). We have held that “[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. Johnson, 203 N.C. App. 718, 724, 693 S.E.2d 145, 148

(2010) (citation and quotation marks omitted). “A defendant constructively possesses

contraband when he or she has the intent and capability to maintain control and

dominion over it.” State v. Miller, 363 N.C. 96, 99, 678 S.E.2d 592, 594 (2009) (citation

and quotation marks omitted). Furthermore, our Supreme Court has recognized that

             actual and constructive possession often so shade into one
             another that it is difficult to say where one ends and the
             other begins. This ambiguity is likely attributable to the
             fact that both actual and constructive possession will


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                                  Opinion of the Court



             support a finding of “possession” within the meaning of our
             statutes, making it unnecessary to distinguish between the
             two in many instances. Nonetheless, it is important
             analytically to appreciate that actual possession may be
             proven by circumstantial evidence[.]

State v. McNeil, 359 N.C. 800, 813, 617 S.E.2d 271, 279 (2005) (internal citations and

quotation marks omitted).

      In the present case, we believe abundant evidence existed for the jury to

conclude that Defendant had actual possession of the hydrocodone found in the center

console of his vehicle on 19 September. The Pontiac Vibe was clearly under his control

as he had previously driven the same vehicle — alone — to the 12 September meeting

with Detective Ridings. The hydrocodone was found during a search of the Pontiac

Vibe on 19 September immediately after Defendant had sold the 11 envelopes

containing a mixture of heroin and morphine to Detective Ridings. The hydrocodone

was in the center console of the vehicle, which was within the reach of Defendant who

was in the driver’s seat. Thus, the State demonstrated that Defendant had the

“power and intent” to control the hydrocodone’s disposition or use.

      Moreover, at a minimum, he had constructive possession of the hydrocodone.

We have held that

             [a] person is said to have constructive possession when he,
             without actual physical possession of a controlled
             substance, has both the intent and the capability to
             maintain dominion and control over it.

             As the terms “intent” and “capability” suggest, constructive


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                                  Opinion of the Court



             possession depends on the totality of circumstances in each
             case. No single factor controls, but ordinarily the question
             will be for the jury. The fact that a person is present in a
             vehicle where drugs are located, nothing else appearing,
             does not mean that person has constructive possession of
             the drugs. There must be evidence of other incriminating
             circumstances to support constructive possession.

Jenkins, 167 N.C. App. at 700, 606 S.E.2d at 433 (internal citations, quotation marks,

brackets, ellipses, and emphasis omitted).

      In determining whether “other incriminating circumstances” exist in this

context, our Supreme Court has held that “[o]ur cases addressing constructive

possession have tended to turn on the specific facts presented. . . . [T]wo factors

frequently considered are the defendant’s proximity to the contraband and indicia of

the defendant’s control over the place where the contraband is found.” Miller, 363

N.C. at 99-100, 678 S.E.2d at 594-95.

      For example, in State v. Matias, 354 N.C. 549, 556 S.E.2d 269 (2001), the

defendant was a passenger in a vehicle stopped in a parking lot by law enforcement

officers after they detected the odor of marijuana emanating from it. Id. at 550-51,

556 S.E.2d at 270. After ordering the occupants of the vehicle to leave the car, the

officers searched it and found various types of drugs. Id. at 551, 556 S.E.2d at 270.

On appeal, this Court held that there was sufficient evidence of “other incriminating

circumstances” — namely, the fact that marijuana was being smoked in the vehicle

— to support the charge of possession and affirmed the defendant’s conviction despite



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                                  Opinion of the Court



the defendant not having exclusive control of the subject vehicle. Id. at 552-53, 556

S.E.2d at 271; see also McNeil, 359 N.C. at 813, 617 S.E.2d at 279 (finding

constructive possession of cocaine by defendant despite his lack of exclusive control

over area where drugs were discovered).

      Here, the State presented evidence that (1) Defendant drove the Pontiac Vibe

to a prearranged site where he proceeded to sell heroin and morphine to Detective

Ridings and then immediately left the scene in that vehicle; and (2) hydrocodone was

discovered shortly thereafter by law enforcement officers upon their search of the

vehicle.   This evidence easily qualifies as “other incriminating circumstances”

sufficient to establish constructive possession despite the fact that Defendant was not

alone in the vehicle, and, as a result, Defendant cannot show prejudice from the

admission of evidence regarding the 15 June incident.

      For these reasons, Defendant’s argument on this issue is without merit.

However, because (1) the trial court consolidated all of Defendant’s convictions for

sentencing purposes; and (2) we are vacating his convictions for the offenses

stemming from his 15 June 2012 charges, we must remand for resentencing by the

trial court. See State v. Hardy, __ N.C. App. __, __, 774 S.E.2d 410, 420 (2015) (“When

the trial court consolidates multiple convictions into a single judgment but one of the

convictions was entered in error, the proper remedy is to remand for resentencing

when the appellate courts are unable to determine what weight, if any, the trial court



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                                        Opinion of the Court



gave each of the separate convictions in calculating the sentences imposed upon the

defendant.” (citation, quotation marks, and ellipses omitted)).

                                           Conclusion

       For the reasons stated above, we reverse the denial of Defendant’s motion to

suppress and vacate the trial court’s judgment as to the following charges to which

Defendant pled guilty: (1) possession with intent to sell or deliver cocaine (12 CRS

55869); (2) possession with intent to sell or deliver heroin (12 CRS 55869); (3)

possession of marijuana up to one half of an ounce (12 CRS 55869); (4) possession of

a firearm by a felon (12 CRS 55870); (5) driving with a revoked license (12 CRS

55871); (6) carrying a concealed gun (12 CRS 55870); and (7) maintaining a vehicle

for the purpose of selling a controlled substance (12 CRS 55870)4.                     We find no

prejudicial error as to Defendant’s remaining convictions. Finally, we remand for

resentencing.

       REVERSED IN PART; VACATED IN PART; NO PREJUDICIAL ERROR IN
       PART; REMANDED FOR RESENTENCING.

       Judges BRYANT and INMAN concur.

       Report per Rule 30(e).




       4  The charges of carrying a concealed gun and maintaining a vehicle for the purpose of selling
a controlled substance are listed in the indictment under case number 12 CRS 55871. However, they
are numbered 12 CRS 55870 in Defendant’s plea agreement and the trial court’s judgment. Therefore,
in order to avoid any possible confusion, we wish to make clear that we are vacating both the carrying
a concealed gun conviction and the maintaining a vehicle for the purpose of selling a controlled
substance conviction.

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