HUNTER, JR., ROBERT N., Judge.
Larry Mackey ("defendant") appeals his convictions for three counts of discharging a weapon into occupied property and one count of assault with a deadly weapon. On appeal, defendant contends that the trial court erred by permitting a plea agreement to constitute proper notice of the State's intention to seek an aggravated sentence range and by denying his motion to suppress evidence based on his contention that the arresting officer exceeded the scope of a lawful search incident to arrest. After review, we hold that defendant received a trial free of prejudicial error, but also hold that defendant's sentence was based on an erroneous procedure.
Arlysa Ferguson dated defendant for over two years. On 20 August 2007, defendant called Ms. Ferguson on her home phone several times during the day but could not reach her. Defendant wanted to retrieve a cell phone and some of his personal belongings from Ms. Ferguson's home. Defendant finally spoke with Ms. Ferguson after she returned home later that day. Defendant arrived at Ms. Ferguson's house, but Ms. Ferguson refused to come outside to see him. However, they continued to speak by phone. Ms. Ferguson and defendant argued about a cell phone that he had purchased for her. Defendant wanted the phone returned, but Ms. Ferguson refused to go outside. Instead, she asked her brother Paxton to go outside and return the phone to defendant.
When Paxton returned, defendant again asked Ms. Ferguson to come outside and talk to him. When she again refused, defendant began shooting a gun into the sunroom where Ms. Ferguson was located. Ms. Ferguson testified that defendant "pulled the gun out and started shooting ... [and that she] tried to run and get away." Ms. Ferguson heard three or four shots fired into the sunroom located at the back of the house. Subsequently, she heard two shots fired toward the front of the home. Ms. Ferguson did not directly observe defendant fire those shots, but she testified she heard him yelling while he was running away.
At the time the shots were fired, there were four people inside the home. Defendant was the only person outside the home. Ms. Ferguson testified that after the gunfire ceased, she was crying and stated that defendant shot her. Someone called the police, and Officer T.J. Farmer responded to the call regarding the shooting at Ms. Ferguson's home.
Upon entering the residence, Officer Farmer found Ms. Ferguson hysterical and holding a bloody towel on her left leg. There were drops of blood and shattered glass on the floor and holes in the walls. Ms. Ferguson reported to Officer Farmer that her ex-boyfriend, defendant, had been calling her all day and had finally come over to her residence. She further indicated that the shots were fired while defendant was outside the home. Ferguson was treated at the hospital where x-rays indicated that she had a bullet lodged in her leg. At the time of trial, Ferguson had a scar from the wound. The shooting also left several bullet holes in the house. Three bullet casings were recovered from inside the sunroom by investigators.
On 31 August 2007, approximately eleven days after the shooting, Officer George Nickerson, Jr., of the Charlotte-Mecklenburg Police Department executed a traffic stop after observing a vehicle run a red light. There were two individuals in the vehicle, the driver and defendant. Defendant was sitting in the front passenger seat. Following the stop, the driver and defendant each gave Officer Nickerson a fictitious name. In addition, the driver did not possess a driver's license. At this time, Officer Nickerson noticed a strong odor of unburned marijuana emanating from the vehicle, and subsequently told defendant and the driver to exit the vehicle so that he could execute a search of the vehicle. At this point, defendant was patted down to make sure he had no weapons on his person. Defendant was not arrested but was informed by Nickerson that he could not leave. While the vehicle was searched, defendant was not handcuffed and was less than "six feet from the vehicle." During the search, Officer Nickerson found a loaded Smith and Wesson
Firearms expert William McBrayer analyzed the three casings found at Ms. Ferguson's home and the weapon recovered from the vehicle. Mr. McBrayer testified that he had no doubt that the three cartridge casings found at the scene were expelled from the recovered Smith and Wesson Model No. 915 weapon when the weapon was fired. Defense counsel objected to McBrayer's testimony regarding the evidence seized from the vehicle during the search incident to defendant's arrest and made a motion to suppress such evidence. The trial court denied defendant's motion to suppress and concluded that defendant had no reasonable expectation of privacy to confer standing to contest the search under the Fourth Amendment because defendant did not have a possessory or ownership interest in the vehicle.
Defendant chose not to present evidence and pled not guilty. The jury was properly instructed by the trial court. Following deliberation, the jury convicted defendant of three counts of discharging a weapon into occupied property and one count of assault with a deadly weapon. During defendant's sentencing hearing, the State asserted that it intended to seek a sentence in the aggravated range. Defense counsel objected and asserted that the State did not provide adequate notice that it intended to seek a sentence in the aggravated range for defendant. In response, the State contended that it had given defense counsel written notice of its intent to seek an aggravated sentence at a previous proceeding; however, the district attorney could not recall the date of the proceeding. No written notice was contained in the record on appeal. Defense counsel's objection was overruled by the trial court. During the sentencing hearing, the jury found as an aggravating factor that defendant committed the crimes for which he was convicted while on pretrial release on another charge.
The court then determined the prior record level for felony sentencing and prior conviction level for misdemeanor sentencing purposes to be a total of 6 points, based upon a prior felony conviction for common law robbery (4 points) and two prior misdemeanor convictions for assault on a female (2 points).
The court consolidated two counts of discharging a weapon into occupied property and sentenced defendant to 42 to 60 months' imprisonment. On the third count, the court sentenced defendant to 30 to 45 months' imprisonment to begin at the end of the consolidated sentences. Defendant was also sentenced to 75 days' imprisonment for the assault with a deadly weapon conviction. Defendant timely filed notice of appeal with this Court on 14 May 2009.
Defendant alleges that the State failed to give him proper written notice of its intent to prove aggravating factors for sentencing pursuant to N.C. Gen.Stat. § 15A-1340.16 (2007) for the three charges of discharging a weapon into an occupied property. We agree.
Alleged statutory errors are questions of law, State v. Hanton, 175 N.C. App. 250, 255, 623 S.E.2d 600, 604 (2006), and, as such, are reviewed de novo. Staton v. Brame, 136 N.C. App. 170, 174, 523 S.E.2d 424, 427 (1999). Section 15A-1340.16(a6) states:
The plain language of the statute requires the State to provide written notice at least 30 days prior to trial of each aggravating factor it seeks to prove.
On appeal, defendant contends that he was improperly sentenced in the aggravated range because the State did not provide proper notice of its intent to present evidence of aggravating factors as required by N.C.
The standard of review on appeal from a defendant's motion to suppress is limited to determining whether the trial court's findings are supported by competent evidence, in which case they are binding on appeal, and whether those findings support the trial court's conclusions of law. State v. Hendrickson, 124 N.C. App. 150, 153, 476 S.E.2d 389, 391 (1996).
"If no exceptions are taken to findings of fact, `such findings are presumed to be supported by competent evidence and are binding on appeal.'" State v. Baker, 312 N.C. 34, 37, 320 S.E.2d 670, 673 (1984) (citation omitted). Defendant has not assigned error to any of the trial court's findings of fact, so the findings are all binding on appeal. Our only inquiry is whether the findings of fact support the conclusions of law.
With regard to defendant's standing to challenge the legality of a search, the burden rests with defendant to prove that he had a legitimate expectation of privacy in the item that was searched. Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633, 642 (1980).
We first determine whether defendant had standing to contest the search of the vehicle by Officer Nickerson. The trial court made the following uncontested findings of fact which are pertinent to defendant's standing to suppress the items found during the search of the vehicle.
Our Supreme Court has ruled that an occupant of a vehicle has standing to challenge the search of her purse. See State v. Icard, 363 N.C. 303, 677 S.E.2d 822 (2009). Based upon these findings of fact, the trial court then concluded that:
Defendant assigns as error the trial court's conclusion that defendant "did not have standing to contest the search incident to arrest." He argues that the search of the vehicle was improper under Arizona v. Gant, ___ U.S. ___, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), and State v. Carter, ___ N.C.App. ___, 682 S.E.2d 416 (2009). However, defendant also correctly acknowledges that neither Gant nor Carter addressed the issue of standing to contest the validity of a search. In those cases, standing was not addressed, as the defendants in each case clearly had standing. Here, we must first consider standing.
Although a passenger who has no possessory interest in the vehicle has standing to challenge the propriety of a stop of the vehicle, Brendlin v. California, 551 U.S. 249, 251, 127 S.Ct. 2400, 2403, 168 L.Ed.2d 132, 136 (2007) ("When a police officer makes a traffic stop, the driver of the car is seized within the meaning of the Fourth Amendment.... We hold that a passenger is seized as well and so may challenge the constitutionality of the stop."), or to challenge a "detention beyond the scope of the initial seizure," State v. Jackson, ___ N.C.App.
150 N.C. App. 347, 350, 562 S.E.2d 921, 924 (2002).
In VanCamp, the defendant was also a passenger who had no possessory interest in the vehicle. This Court held that
Id. at 350, 562 S.E.2d at 925. In State v. Warren, our Supreme Court held that where the vehicle in which the defendant was a passenger was not owned by him, and he "`specifically declined to come forward with any evidence of ownership or possession' of the automobile, the trial court was correct in concluding that defendant failed to show a legitimate expectation of privacy." 309 N.C. 224, 227, 306 S.E.2d 446, 449 (1983); cf. State v. Greenwood, 301 N.C. 705, 707-08, 273 S.E.2d 438, 440-41 (1981) (holding defendant failed to show search of a pocketbook that did not belong to defendant violated defendant's Fourth Amendment rights); State v. Jones, 299 N.C. 298, 261 S.E.2d 860 (1980); State v. Alford, 298 N.C. 465, 259 S.E.2d 242 (1979); Icard, 363 N.C. 303, 677 S.E.2d 822.
Based upon the uncontested findings of fact, defendant was a passenger who did not own the vehicle, and he asserted no possessory interest in the vehicle or its contents. Under VanCamp and Warren, the trial court properly concluded that the defendant did not have standing to challenge the search of the vehicle and denied his motion to suppress evidence obtained from the search. Because defendant did not have standing, we need not address defendant's arguments regarding the search.
After review, we conclude that the trial court erred by ruling that the State provided sufficient notice of its intent to seek an aggravated range sentence for defendant. However, we conclude that the trial court properly denied defendant's motion to suppress the evidence found in the vehicle during a lawful search incident to arrest. As such, we affirm the order of the trial court with regard to its ruling on defendant's motion to suppress, but vacate defendant's sentence and remand to the trial court for resentencing in accordance with this opinion.
Vacated and remanded.
Judges JACKSON and STROUD concur.
