An unpublished opinion of the North Carolina Court of Appeals does not constitute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.



                                 NO. COA13-915
                        NORTH CAROLINA COURT OF APPEALS

                                Filed: 15 April 2014

STATE OF NORTH CAROLINA

      v.                                      Iredell County
                                              No. 11CRS050709
WILLIE E. MCLENDON



      Appeal by defendant from judgment entered 9 January 2013 by

Judge Joseph Crosswhite in Iredell County Superior Court.                     Heard

in the Court of Appeals 5 February 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      John F. Oates, Jr., for the State.

      C. Scott Holmes for defendant-appellant.


      HUNTER, Robert C., Judge.


      Willie E. McLendon (“defendant”) appeals from a judgment

entered 9 January 2013 by Judge Joseph Crosswhite in Iredell

County     Superior     Court   sentencing     him   to    175   to   219   months

imprisonment      for    one    count    of    trafficking       in   cocaine     by

transportation of 400 or more grams and one count of trafficking

in cocaine by possession of 400 or more grams.                        On appeal,

defendant argues that the trial court: (1) erred by failing to
                                              -2-
enter   findings       of    fact       regarding         the    voluntariness       of   his

consent to a vehicle search when denying his motion to suppress

evidence;      and    (2)    committed         plain       error    by   permitting       law

enforcement     witnesses         for    the     State      to   express    lay    opinions

improperly commenting on his guilt.                         After careful review, we

find no prejudicial error.

                                        BACKGROUND

       The evidence presented at trial tended to establish the

following     facts:        On     1    February         2011,   Sergeant   Dow       Hawkins

(“Sgt. Hawkins”) of the Iredell County Sheriff’s Office (“ICSO”)

stopped      defendant      for    speeding         on    Interstate     77.    Upon      Sgt.

Hawkins’s      request      for        license      and     registration,         defendant

provided Sgt. Hawkins with his valid Pennsylvania driver license

and a rental agreement for the vehicle he was driving.                                    When

Sgt. Hawkins asked defendant who had rented the vehicle, he

answered that his cousin had, but when asked what his cousin’s

name was, defendant appeared unable to recall it and said only

that    it    was    listed       on    the    rental       agreement.         The    rental

agreement showed that the car had been rented at the Atlanta

International Airport to Kimberly Trent.                           Defendant told Sgt.

Hawkins      that    he   was     travelling         to     Pennsylvania       from    North

Carolina.      While polite and cooperative, defendant appeared to
                                         -3-
Sgt. Hawkins to be nervous.

       Sgt.    Hawkins     testified     that    he   was     inclined       to    issue

defendant a warning citation and end the traffic stop, but as he

was returning to his patrol car, defendant reminded him that

they had met previously.           On 25 January 2011, Sgt. Hawkins was

on the scene after another ICSO officer, Sergeant Randy Cass

(“Sgt. Cass”), had stopped defendant for speeding.                      A passenger

accompanied      defendant     that    day,     and   they    were     found       to   be

carrying $11,000.00 in cash between them.                In the course of this

stop,    the    officers    learned    that     the    passenger       had    a    prior

federal drug conviction.               However, neither defendant nor his

passenger was arrested or charged with any crime, and the money

was not seized.

       After being reminded of the circumstances surrounding the

previous traffic stop, Sgt. Hawkins contacted his supervisor,

ICSO Lieutenant Chad Elliott (“Lt. Elliott”), for backup.                           When

Lt. Elliott arrived, he and Sgt. Hawkins discussed the matter in

Sgt. Hawkins’s patrol car.             Footage from Sgt. Hawkins’s dash-

mounted       video   camera   shows     that     Sgt.       Hawkins    then        asked

defendant to get out of his vehicle, and while still holding

onto    defendant’s      license   and    rental      agreement,       Sgt.       Hawkins

requested consent to search the vehicle.                 Defendant consented to
                                        -4-
the search, and Sgt. Hawkins returned defendant’s paperwork to

him.

       Thereafter,       Sgt.     Hawkins      and    Lt.    Elliott      searched

defendant’s vehicle.        A Ziploc bag containing cocaine was found

concealed in a black travel bag stowed in the trunk.                      Personal

items belonging to defendant were also found in the black bag.

Defendant    was     then       arrested      for    trafficking     cocaine     by

possession and transportation.

       Defendant filed a motion to suppress on 4 January 2013.

Trial began on 8 January 2013 with a hearing on defendant’s

motion.        Sgt. Hawkins, Lt. Elliott, and Sgt. Cass testified

for the State in opposition to defendant’s motion.                   The State’s

witnesses   testified       to    the   circumstances       precipitating      both

stops, defendant’s behavior and demeanor at both stops, unusual

circumstances      that    occurred     during      both   stops   that   prompted

suspicion   in     the    minds   of    the    officers,    and    the    officers’

request for consent to search defendant’s vehicle during the

second stop.       Specifically, Sgt. Hawkins testified that “after

returning all of his items to him, his driver’s license, his

rental agreement, telling him that, you know, he could have a

good day, basically, releasing him from the traffic stop, yes, I

did ask for consent to search the vehicle.” Defendant did not
                                        -5-
offer the video footage from Sgt. Hawkins’s patrol car or any

other evidence at this hearing; rather, the video footage was

admitted into evidence at trial.                The trial court denied the

motion to suppress by written order entered 14 January 2013.

The jury returned a verdict of guilty against defendant on both

counts, and he was sentenced to 175 to 219 months imprisonment.

Counsel for defendant gave notice of appeal in open court.

                                    DISCUSSION

                        I. The Motion to Suppress

      Defendant    first      argues    that    the       trial   court       erred   in

denying his motion to suppress.               Specifically, he contends that

the trial court failed to enter any findings of fact regarding

the   voluntariness     of    his     consent    to    the    vehicle     search      in

contravention     of   N.C.    Gen.    Stat.    §   15A-977(f).          We    find   no

error.

                Appellate review of the denial of a
           motion to suppress is limited to determining
           whether   the   trial    judge’s   underlying
           findings of fact are supported by competent
           evidence,   in    which   event    they   are
           conclusively binding on appeal, and whether
           those factual findings in turn support the
           judge’s ultimate conclusions of law.

State v. Williams, 195 N.C. App. 554, 555, 673 S.E.2d 394, 395

(2009)   (internal      quotation       marks       and      citations        omitted).

Nevertheless,     “[t]he      trial    court’s        conclusions    of       law     are
                                            -6-
subject to de novo review on appeal.”                       State v. Simmons, 201

N.C. App. 698, 701, 688 S.E.2d 28, 30 (2010).

       N.C. Gen. Stat. § 15A-977(f) provides that, when ruling on

a motion to suppress, “[t]he judge must set forth in the record

his findings of facts and conclusions of law.”                             “The [trial

court’s] findings of fact must include findings on the issue of

voluntariness.”          State v. Johnson, 304 N.C. 680, 683, 285 S.E.2d

792, 795 (1982).               However, “the trial court does not err in

failing to issue specific findings of fact when there is no

material conflict in the evidence.”                   State v. Malunda, __ N.C.

App. __, __, 749 S.E.2d 280, 283 (2013).

       Here,     the    trial     court     entered   a     written    order    denying

defendant’s motion to suppress which set out findings of fact

and conclusions of law.               However, it did not enter findings of

fact pertaining to the voluntariness of defendant’s consent to

the    search.         Thus,    the   trial    court’s      failure   to   enter   such

findings may only be excused if there was no material conflict

in the evidence on that issue.                 See Malunda, __ N.C. at __, 749

S.E.2d at 283.           “[A] material conflict in the evidence exists

when    evidence        presented      by     one   party    controverts       evidence

presented by an opposing party such that the outcome of the

matter to be decided is likely to be affected.”                       State v. Baker,
                                  -7-
208 N.C. App. 376, 384, 702 S.E.2d 825, 831 (2010).

    Here, the State was the only party to put on evidence at

the hearing on defendant’s motion to suppress.              Sgt. Hawkins

testified that when he asked defendant for his consent to the

vehicle   search,   “[h]is   response   was   yeah,   you   can.”   Upon

further questioning by defense counsel, Sgt. Hawkins testified

as follows:

           Q:   But I think you already testified that
           once you concluded . . . the traffic stop
           portion of this investigation, you gave
           [defendant] his things back, his items back,
           and . . . basically told him he was free to
           go, and you couldn’t stop him if he didn’t
           want to.     So you already testified you
           concluded that much?

           A:   I can’t -- once the traffic stop is
           over, I can’t detain him. I’m not going to
           hold the items from him. I’m not going to
           hold his driver’s license. I’m not going to
           hold the rental agreement. I’m not going to
           hold those things and grill him about other
           avenues and ask him for consent to search.
           I’m going to give them back to him.

           Q:   That’s correct.     The stop was over at
           that point for the      traffic investigation,
           agreed?

           A:   Yes.

           Q:   At that point, once that was over, you
           then on your own said, “oh, by the way, do
           you mind -- would you give me consent to
           search?”

           A:   Yes.
                                           -8-


              Q:   And that’s when you contend my client
              consented to search at that point?

              A:   He did.

Similarly, Lt. Elliott testified that:               “After I started walking

up to Mr. McLendon, I asked him if he would give me consent to

search the vehicle. He consented to the search.”

       Although the video evidence defendant presented at trial

does materially conflict with this testimony in that it shows

Sgt. Hawkins asking for consent to search the vehicle while

still       holding     defendant’s        license   and     rental     agreement,

defendant failed to present this video at the hearing on the

motion to suppress.           The only evidence that the trial court

could have considered when it entered its findings of fact was

produced by the State. Thus, because defendant failed to put on

any evidence at the suppression hearing, there could not have

been    a    material    conflict     in    the   evidence   on   the    issue   of

voluntariness.

       The trial court found as fact that:

              [Sgt.] Hawkins . . . returned to [defendant]
              the   rental  agreement  and   his  driver’s
              license . . . and asked for permission to
              search   the   vehicle.      [Sgt.]  Hawkins
              indicated that . . . [d]efendant did give
              him permission to search, at which time he
              motioned to [Lt.] Elliott who did exit the
              vehicle to assist in the search. [Lt.]
                                  -9-
            Elliott did indicate that he also asked . .
            . [d]efendant for consent to search, and
            this was given as well.

These findings were supported by the State’s evidence in the

form of Sgt. Hawkins’s and Lt. Elliott’s testimony as set forth

above.   Thus, because these findings are supported by competent

evidence, they are binding on appeal.           See Williams, 195 N.C.

App. at 555, 673 S.E.2d at 395.           Furthermore, these findings

support the trial court’s conclusion “that the . . . consent

search of the car was proper.”

    Because defendant failed to present any evidence at the

hearing on his motion to suppress, there was not a material

conflict in the evidence that would have required the trial

court to enter findings as to the voluntariness of defendant’s

consent to the vehicle search.          The trial court’s findings of

fact are supported by evidence presented at the hearing, and

those findings support the trial court’s conclusions of law.

Accordingly, defendant’s argument is overruled.

                         II. Officer Testimony

    Next,    defendant   argues   the   trial   court   committed   plain

error by permitting law enforcement witnesses for the State to

express lay opinions improperly commenting on his guilt.            After

careful review, we find no plain error.
                                        -10-
      We review this issue for plain error because trial counsel

failed     to    object   to   the   officers’     testimony.     See   State   v.

Lawrence, 365 N.C. 506, 512, 723 S.E.2d 326, 330 (2012).

                [T]he plain error rule . . . is always to be
                applied   cautiously   and    only   in  the
                exceptional case where, after reviewing the
                entire record, it can be said the claimed
                error is a “fundamental error, something so
                basic, so prejudicial, so lacking in its
                elements that justice cannot have been
                done,” or “ where [the error] is grave error
                which amounts to a denial of a fundamental
                right of the accused,” or the error has
                “resulted in a miscarriage of justice or in
                the denial to appellant of a fair trial” or
                where the error is such as to “seriously
                affect the fairness, integrity or public
                reputation of judicial proceedings” or where
                it can be fairly said “the instructional
                mistake had a probable impact on the jury’s
                finding that the defendant was guilty.”

Id.   at   516-17,     723     S.E.2d   at   333   (alterations   in    original)

(quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378

(1983)).

      North Carolina Rule of Evidence 701 provides:

                If a witness is not testifying as an expert,
                his or her testimony in the form of opinions
                or inferences is limited to those opinions
                or inferences which are (a) rationally based
                on the perception of the witness and (b)
                helpful to a clear understanding of his
                testimony or the determination of a fact in
                issue.

N.C. Gen. Stat. § 1A-1, Rule 701 (2013).               The testimony of a lay
                                           -11-
witness    is    improper       to   the    extent       that    it     “invade[s]     the

province of the jury, . . . dr[a]w[ing] inferences from the

evidence—a task reserved for the jury—to express an opinion as

to [a d]efendant’s guilt.”            State v. Turnage, 190 N.C. App. 123,

129, 660 S.E.2d 129, 133, rev’d on other grounds, 362 N.C. 491,

666 S.E.2d 753 (2008).

       This case is comparable to State v. Carrillo, 164 N.C. App.

204, 209-10, 595 S.E.2d 219, 223 (2005), where a law enforcement

officer testifying as a lay witness (1) offered his opinion that

the defendant knew he was transporting a package of drugs and

was not caught up in trafficking by mere happenstance and (2)

testified regarding training he had received on how drugs are

distributed       and     the     relevance        of    that        training    to    the

defendant’s case.          The officer’s testimony in both regards was

found to have improperly expressed an opinion of guilt and was

thus    erroneously       admitted.        Id.    at    210,    595    S.E.2d    at   224.

However, because the defendant was unable to satisfy his burden

of     showing    that,    absent     the     improper         testimony,       the   jury

probably would have reached a different verdict, the plain error

standard    was    not     met.       Id.     at       211,    595    S.E.2d     at   224.

Specifically, additional evidence at trial showed that:

            [T]he package was intercepted by the U.S.
            Customs agents and contained three ceramic
                                      -12-
            turtles with a substantial amount of cocaine
            concealed inside.    The package was mailed
            from a location in Mexico that U.S. Customs
            agents had identified as a mail origination
            point for cocaine sent to the United States.
            The package was addressed to defendant at
            his   residence.   Defendant  accepted   the
            package.   It was found inside his residence
            minutes after he had taken possession of it.
            Broken pieces of similar turtles containing
            traces of cocaine were also found inside his
            apartment.

Id. at 210-11, 595 S.E.2d at 224.

    Here, like the officer in Carrillo, Sgt. Cass improperly

expressed his opinion as to defendant’s guilt when he responded

“absolutely” after having been asked by the prosecutor, “Did you

consider    Mr.    McLendon    a    [drug]     mule     on     January     25th?”

Similarly, like the Carrillo officer’s testimony regarding his

training on drug distribution and its relevance to the case then

at bar, Lt. Elliott’s testimony regarding his training on what

constitutes   a    “criminal   indicator”      and    his    statement    that    a

“mountain   full   of   [criminal]     indicators”      was    present    at     the

second traffic stop was also impermissible.

    However, given the similarities between the present case

and Carillo and the absence of any indication that but for this

improper    testimony   the    jury    probably      would    have     reached    a

different   verdict,    defendant     has    failed   to     satisfy    the    high

standard of plain error.           See Carrillo, 164 N.C. at 211, 595
                                       -13-
S.E.2d at 224.        Even in the absence of the officers’ improper

testimony, the State presented evidence sufficient to convict

defendant      of   trafficking      in       cocaine    by        possession     and

transportation.

    “The     elements   the    State    must    prove    beyond      a   reasonable

doubt to support a conviction of trafficking in cocaine . . . by

possession is that defendant: ‘(1) knowingly possess[ed] cocaine

. . . and (2) that the amount possessed was [the requisite

statutory amount].’”      State v. Cardenas, 169 N.C. App. 404, 409,

610 S.E.2d 240, 243-44 (2005) (quoting State v. White, 104 N.C.

App. 165, 168, 408 S.E.2d 871, 873 (1991)).                    “Possession of a

controlled      substance      may      be      actual        or     constructive.

Constructive possession exists when a person, while not having

actual possession, has the intent and capability to maintain

control and dominion over a controlled substance.”                         State v.

Graham,   90   N.C.   App.    564,   568,     369   S.E.2d     615,      618   (1988)

(internal quotation marks and citations omitted).

            An inference of constructive possession can
            . . . arise from evidence which tends to
            show that a defendant was the custodian of
            the vehicle where the controlled substance
            was found. . . . Moreover, power to control
            the automobile where a controlled substance
            was found is sufficient, in and of itself,
            to give rise to the inference of knowledge
            and possession sufficient to go to the jury.
                                     -14-
State v. Dow, 70 N.C. App. 82, 85, 318 S.E.2d 883, 886 (1984).

       “To establish . . . trafficking by transportation the State

must show that defendant knowingly . . . transported . . . the

requisite amount of cocaine.” State v. Lopez, __ N.C. App. __,

__, 723 S.E.2d 164, 172 (2012).             “Transportation is defined as

‘any    real   carrying     about   or   movement       from      one   place    to

another.’”     State v. Doe, 190 N.C. App. 723, 730, 661 S.E.2d

272, 277 (2008) (quoting State v. Outlaw, 96 N.C. App. 192, 197,

385 S.E.2d 165, 168 (1989)).

            [T]o   convict    an   individual  of   drug
            trafficking the State is not required to
            prove that defendant had knowledge of the
            weight   or   amount   of   [the  controlled
            substance] which he knowingly possessed or
            transported.   Instead, the statute requires
            only that the defendant knowingly possess or
            transport the controlled substances; if the
            amount exceeds [the requisite statutory
            amount], then a conviction for trafficking
            may be obtained.

State v. Shelman, 159 N.C. App. 300, 306, 584 S.E.2d 88, 93

(2003).

       Here, while the vehicle defendant was driving was a rental

vehicle that had been rented to someone other than defendant, he

was    nevertheless   the    custodian      of   the    vehicle    at    the    time

immediately    preceding     the    traffic      stop   and    vehicle    search.

Thus, as the custodian of a vehicle found to contain cocaine,
                                              -15-
the   jury        was    able    to     infer    that       defendant    constructively

possessed that cocaine.               See Dow, 70 N.C. App. at 85, 318 S.E.2d

at 886.       Further, the cocaine was found in defendant’s black

travel      bag    also       containing      defendant’s       personal   possessions,

indicating an intent on his behalf to exert dominion and control

over the contraband, and thus also supporting an inference by

the jury that defendant constructively possessed the cocaine.

See Graham, 90 N.C. App. at 568, 369 S.E.2d at 618.

      There       is    also    ample    evidence       apart    from   the    challenged

testimony whereby the jury could have reached its guilty verdict

on the transportation element.                       First, Sgt. Hawkins testified

that he observed defendant travelling north on Interstate 77

before pulling him over for speeding; thereafter, cocaine was

discovered in the vehicle’s trunk.                      Based on this information,

the jury could find there had been a “carrying about or movement

[of   the    cocaine]         from    one    place     to   another”    and    thus    that

defendant     had       transported         cocaine    within    the    meaning   of   the

statute.      See Outlaw, 96 N.C. App. at 197, 385 S.E.2d at 168.

      Finally,          the    amount    of     cocaine      exceeded    the   requisite

statutory amount.             After it was seized, the cocaine was analyzed

and weighed by the ICSO crime lab.                          The total weight of the

seized cocaine was found to be 1,374.7 grams, an amount well in
                                   -16-
excess of the statutory threshold of 400 grams.

    Accordingly,     although     the     admission      of   the    officers’

testimony   was   erroneous,    defendant    has    failed    to    demonstrate

that this error had a probable impact on the jury, and thus, it

did not rise to the level of plain error.

                                CONCLUSION

    We conclude that the trial court did not err by failing to

enter   findings    of   fact     regarding        the   voluntariness      of

defendant’s consent to the vehicle search because there was no

material conflict in the evidence submitted at the hearing on

defendant’s motion to suppress.         Additionally, we conclude that

the trial court’s admission of Sgt. Cass’s and Lt. Elliott’s

improper testimony does not rise to the level of plain error.



    NO PREJUDICIAL ERROR.

    Judges GEER and MCCULLOUGH concur.

    Report per Rule 30(e).
