State v. Bradley

870 S.E.2d 297

STATE of North Carolina

v.Connor Orion BRADLEY, Defendant.

No. COA20-873

Court of Appeals of North Carolina.

Filed March 15, 2022

Attorney General Joshua H. Stein, by Assistant Attorney General Ebony J. Pittman, for the State.

Stephen G. Driggers, Raleigh, for Defendant-Appellant.

WOOD, Judge.

¶ 1 Defendant Connor Orion Bradley ("Defendant") appeals two judgments revoking his probation. On appeal, Defendant argues the trial court erred by revoking his probation based on the findings he (1) possessed Schedule II and Schedule IV controlled substances and (2) maintained a place for a controlled substance. For the reasons stated herein, we affirm the trial court's revocation of Defendant's probation.

I. Factual and Procedural Background

¶ 2 On September 5, 2019, Defendant entered a guilty plea to one count of indecent liberties with a child in 18 CRS 052027. The trial court sentenced Defendant to a term of 16 to 29 months in confinement, suspended the sentence, and placed Defendant on 30 months of supervised probation.

¶ 3 On September 30, 2019, Defendant's probation officer, Ilissa Epps, filed a probation violation report. In the report, Epps attested under oath

1. The Defendant committed the offense of driving while his ... license was revoked .... The Defendant also committed the criminal offenses of driving a vehicle with no registration, no inspection, and [fictitious title / registration card and tag] ....

2. The Defendant committed the criminal offense of failure to register his address within 3 business days of change of address.... This is in violation of ... [N.C. Gen. Stat. §] 14-208.9(A).

¶ 4 On November 6, 2019, Defendant entered another guilty plea to one count of failing to register his new address as a sex-offender in file number 19 CRS 052656. That same day, the trial court entered an order finding Defendant had violated the terms and conditions of his probation as set out in the violation report. Defendant was sentenced to an intermediate punishment of 38 days in prison and was given credit for 38 days served. Also, on November 6, 2019, the trial court entered judgment against Defendant sentencing him to 17 to 30 months in confinement. The trial court suspended this sentence and placed Defendant on 30 months of supervised probation under the same conditions set forth in 18 CRS 052027.

¶ 5 After Defendant was placed on probation for failure to register his address as a sex offender, he submitted to a risk assessment. The risk assessment found Defendant to be a "high risk offender." As a result, the Division of Community Corrections amended the conditions of Defendant's probation by requiring he submit to a curfew and wear an electronic monitoring device.

¶ 6 Less than five months after Defendant's probation began, Epps once again filed a probation violation report in each case. The violation report for 18 CRS 052027 alleged Defendant had 1) failed to pay any money since being placed on probation, 2) failed to pay any supervision fees since being placed on probation, and 3) committed the criminal offense of possession with the intent to deliver a schedule IV controlled substance, maintaining a place for a controlled substance, simple possession of a scheduled II controlled substance, and simple possession of a schedule IV controlled substance. The violation report for 19 CRS 052656 alleged Defendant 1) failed to pay any money since being placed on probation and 2) committed the criminal offense of possession with the intent to deliver a schedule IV controlled substance, maintaining a place for a controlled substance, simple possession of a scheduled II controlled substance, and simple possession of a schedule IV controlled substance.

¶ 7 The trial court held a hearing on these violation reports on July 29, 2020. At the hearing, Defendant denied he had "knowingly and willfully and without legal justification violated the terms and conditions of his probation."

¶ 8 The State presented evidence which tended to show the following: On March 19, 2020, Amanda Gooch ("Gooch") was driving her grandmother's vehicle in which Defendant was a passenger in the front passenger seat. While driving, Gooch was pulled over by Officer McKenzie for careless and reckless driving. Officer McKenzie then conducted a traffic stop during which time Corporal Faulk and Officer Lucas arrived. Corporal Faulk walked up to the vehicle, retrieved Gooch's driver's license, and ran the vehicle's registration. Upon observing Defendant to be moving excessively in the passenger seat while the traffic stop was ongoing, Officer Lucas pulled Defendant out of the vehicle. The officers next asked Gooch and Defendant for permission to search the vehicle but were denied consent.

¶ 9 An officer then shined his flashlight into the vehicle's passenger side and observed a plastic container with marijuana on the floorboard. A search of the vehicle ensued. The officers additionally discovered Alprazolam (Xanax ) and Oxycodone inside the glove box and Clonazepam, a glass marijuana pipe, and one Cigarillo in the center console. Defendant denied owning any of these substances and alleged the substances belonged to Gooch. Gooch at first claimed all the substances belonged to herself; then claimed the substances belonged to nobody; and thereafter claimed half of the substances belonged to herself and the other half belonged to Defendant.

¶ 10 Defendant remained outside of the vehicle while the search was conducted. Corporal Faulk testified that during the search Defendant appeared "unsteady on his feet" and was "falling in and out." Due to Defendant's appearance and conduct, the officers called Emergency Medical Services to treat Defendant. Defendant refused medical treatment; and, furthermore, at no point was a blood test performed on Defendant to determine what substance, if any, caused Defendant's appearance of impairment.

¶ 11 After conducting a hearing on the probation violations, the trial court revoked Defendant's probation for 18 CRS 052027 and 19 CRS 052656 by written judgments entered July 29, 2020. Defendant gave oral notice of appeal in open court at the hearing.

II. Discussion

¶ 12 In North Carolina, a court may revoke a defendant's probation when the defendant commits a criminal offense in any jurisdiction in violation of N.C. Gen. Stat. § 15A-1343(b)(1) ; violates a condition of his probation when the defendant has previously "received a total of two periods of confinement" under N.C. Gen. Stat. § 15A-1344(d2) (2021); or "absconds by willfully avoiding supervision or willfully making the defendant's whereabouts unknown to the supervising probation officer" in violation of N.C. Gen. Stat. § 15A-1343(b)(3a) (2021). N.C. Gen. Stat. § 15A-1344(a) (2021). Upon revocation of probation, the sentence the defendant "may be required to serve is the punishment for the crime of which he had previously been found guilty." State v. Hewett , 270 N.C. 348, 352, 154 S.E.2d 476, 479 (1967)rev'd on other grounds , Hewett v. North Carolina , 415 F.2d 1316 (1969).

¶ 13 In reviewing a trial court's decision to revoke a defendant's probation, we review for abuse of discretion. State v. Murchison , 367 N.C. 461, 464, 758 S.E.2d 356, 358 (2014). An abuse of discretion occurs when "a ruling ‘is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.’ " State v. Maness , 363 N.C. 261, 279, 677 S.E.2d 796, 808 (2009) (quoting State v. Peterson , 361 N.C. 587, 602, 652 S.E.2d 216, 227 (2007) ). Generally, "when judgment is suspended in a criminal action upon good behavior or other conditions, the proceedings to ascertain whether or not the conditions have been violated are addressed to the sound discretion of the judge ...." State v. Guffey , 253 N.C. 43, 45, 116 S.E.2d 148, 150 (1960).

¶ 14 Although Defendant would have us find "substantial evidence" is the standard for evidence in a probation hearing, our Supreme Court established in State v. Guffey the evidentiary standard in a probation hearing is "competent evidence." Id. , 253 N.C. at 45, 116 S.E.2d at 150 (citations omitted); see Hewett , 270 N.C. at 353, 154 S.E.2d at 480 ("[T]he alleged violation of a valid condition of probation need not be proven beyond a reasonable doubt."). Competent evidence is evidence that is admissible or otherwise relevant. Competent Evidence BLACK'S LAW DICTIONARY (7th ed. 1999)).

A. Competent Evidence to Support a Judgment of Simple Possession

¶ 15 Defendant first contends the evidence was insufficient for the trial court to find he possessed Oxycodone, Xanax, and Clonazepam. We disagree.

¶ 16 "Possession of any item may be actual or constructive." State v. Alston , 131 N.C. App. 514, 519, 508 S.E.2d 315, 318 (1998), superseded by statute on other grounds, Act of Aug. 12, 2004, ch. 186, 2004 N.C. Sess. Laws 186; see State v. Perry , 316 N.C. 87, 96, 340 S.E.2d 450, 456 (1986) (stating when a defendant is prosecuted for contraband "the prosecution is not required to prove actual physical possession of the materials[,]" rather, "[p]roof of constructive possession is sufficient and that possession need not always be exclusive"); see also See State v. Harvey , 281 N.C. 1, 187 S.E.2d 706 (1972) ; State v. Fuqua , 234 N.C. 168, 66 S.E.2d 667 (1951). Actual possession occurs when the party has "physical or personal custody of the item." Alston , 131 N.C App. at 519, 508 S.E.2d at 318. Constructive possession occurs when the accused "has both the power and intent to control its disposition or use." Harvey , 281 N.C. at 12, 187 S.E.2d at 714 (1972) ; see Alston , 131 N.C. App. at 519, 508 S.E.2d at 318. Circumstances which are sufficient to support a finding of constructive possession include "close proximity to the controlled substance and conduct indicating an awareness of the drugs, such as efforts at concealment or behavior suggesting a fear of discovery ...." State v. Turner , 168 N.C. App. 152, 156, 607 S.E.2d 19, 22-23 (2005)...