STATE OF NORTH CAROLINA
v
.
GUIJUL SIRIGUANICO
Attorney General Roy Cooper, by Assistant Attorney General
John P. Barkley, for the State.
Jeffrey Evan Noecker, for defendant-appellant.
CAMPBELL, Judge.
Defendant appeals from convictions of cocaine possession and
trafficking in cocaine by possession. We find no error.
Evidence for the State tended to show that law enforcement
officers were working with an informant named Tony Rodriguez (“the
informant”) to arrange a cocaine transaction in the Goldsboro,
North Carolina area. The informant met with co-defendant Ventura
Medrano (also known as “Chico”) on 10 September 1999 seeking to
purchase cocaine. Defendant was also present at this meeting.
That night, Chico and defendant rode with the informant in his
vehicle, a Ford Bronco (“Bronco”), over to Mariano Medrano's
(“Medrano”) house (Chico's cousin who was also a co-defendant) to
arrange the cocaine purchase for the following morning. On the morning of 11 September 1999, Chico, the informant,
defendant and Daniel Romero (“Romero”), a third co-defendant,
picked up a package of cocaine from Medrano on their way to
Wilmington, North Carolina (“Wilmington”) for a fishing trip.
However, additional testimony revealed that another purpose of the
Wilmington trip was to “deal.” The package was placed under the
seat of the informant's Bronco. Testimony indicated that the men,
fearing they might be stopped and arrested by law enforcement
officers for cocaine possession, talked for approximately thirty
minutes about who would ride in the Bronco with the informant.
Ultimately, defendant rode with the informant. The co-defendants
followed in a van.
Upon arriving in Wilmington, the informant and defendant
exited the Bronco, and entered an apartment that had been wired to
transmit video and audio signals to law enforcement officers
waiting outside. The apartment contained a small set of scales
(such as would be used for weighing drugs), plastic bags, tape and
other items used for the sale and distribution of drugs. No one
else was present in the apartment. The van carrying the other
three men drove past the apartment and stopped at a nearby gas
station.
After entering the apartment, the informant returned to the
Bronco to obtain the package of cocaine and carried it into the
apartment wrapped in a blanket. Defendant was present as the
informant unwrapped the package and placed the cocaine on the
scales. While defendant never held the cocaine, he helped theinformant adjust the weights while the cocaine was on the scales.
Moments later when defendant went into the restroom, the law
enforcement officers entered the apartment and arrested defendant.
Defendant was charged with trafficking in cocaine by
possession, trafficking in cocaine by transportation, trafficking
in cocaine by delivery, conspiracy to traffick in cocaine,
conspiracy to sell and deliver cocaine, and possession of cocaine
with intent to sell and deliver cocaine. Defendant was arraigned
and entered pleas of not guilty to all charges.
Prior to trial, defendant filed a motion to dismiss the
charges against him. The motion was heard by the trial court
before the jury was empaneled. After hearing arguments of counsel,
the court took the motion under advisement until the close of the
States's evidence.
At the close of the State's evidence, defendant renewed his
motion to dismiss all of the charges. After hearing arguments of
counsel, the trial court granted the motion with respect to the
indictments for trafficking in cocaine by delivery, conspiracy to
traffick in cocaine, and conspiracy to sell or deliver cocaine.
The motion was denied with respect to the remaining charges.
Defendant did not testify on his own behalf or present any
evidence at trial. Thereafter, at the close of all the evidence,
defendant again moved to dismiss all remaining charges against him.
This motion was denied.
After the trial, the jury deliberated and returned verdicts of
guilty of possession of cocaine and trafficking in cocaine bypossession. On 17 August 2000, Judge Ernest B. Fullwood sentenced
defendant to a term of 175 months to 219 months in the North
Carolina Department of Corrections on the trafficking charge and
also fined him $250,000.00. Judgment was arrested in respect to
the cocaine possession charge. Defendant appeals these judgments.
By defendant's first assignment of error he argues that the
trial court erred in failing to grant his motion to dismiss all the
charges against him because there was insufficient evidence as to
each charge. We disagree.
When ruling on a defendant's motion to dismiss a criminal
action, “the trial court is to determine whether there is
substantial evidence (a) of each essential element of the offense
charged, or of a lesser offense included therein, and (b) of
defendant's being the perpetrator of the offense. If so, the
motion to dismiss is properly denied.” State v. Earnhardt, 307
N.C. 62, 65-66, 296 S.E.2d 649, 651-52 (1982) (citing State v.
Roseman, 279 N.C. 573, 580, 184 S.E.2d 289, 294 (1971)). Whether
the evidence presented is substantial is a question of law for the
court. State v. Stephens, 244 N.C. 380, 384, 93 S.E.2d 431, 433
(1956). Substantial evidence is "such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion."
State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980).
“If the evidence is sufficient only to raise a suspicion or
conjecture as to either the commission of the offense or the
identity of the defendant as the perpetrator of it, the motion to
dismiss should be allowed.” Earnhardt, 307 N.C. at 66, 296 S.E.2dat 652 (citing State v. Cutler, 271 N.C. 379, 383, 156 S.E.2d 679,
682 (1967)).
Defendant's first assignment of error presents this Court with
the issue of whether there was sufficient evidence to prove
defendant was in possession of cocaine so that reasonable minds
might conclude that he was guilty of cocaine possession and
trafficking in cocaine by possession. We find that there was
sufficient evidence.
Our statutes provide that a person who possesses twenty-eight
grams or more of cocaine
(See footnote 1)
shall be guilty of the felony known as
“trafficking in cocaine.” N.C. Gen. Stat. § 90-95(h)(3) (2001).
The possession element of this felony can be proven by showing
either actual possession or constructive possession. In
determining whether possession is constructive, this Court has
recognized that:
'Where such materials are found on the
premises under the control of an accused, this
fact, in and of itself, gives rise to an
inference of knowledge and possession which
may be sufficient to carry the case to the
jury on a charge of unlawful possession.' It
is not necessary to show that an accused has
exclusive control of the premises where [drugs
and/or drug] paraphernalia are found, but
'where possession . . . is nonexclusive,
constructive possession . . . may not be
inferred without other incriminating
circumstances.'
State v. McLaurin, 320 N.C. 143, 146, 357 S.E.2d 636, 638 (1987)
(citations omitted).
In the case sub judice, there was substantial evidence of
other incriminating circumstances to establish that defendant was
in nonexclusive, constructive possession of 990 grams of cocaine.
Defendant was aware of and present during all conversations related
to the cocaine purchase. Defendant, knowing that cocaine was in
the Bronco, rode in the Bronco with the informant to transport the
cocaine to Wilmington. Once in Wilmington, defendant accompanied
the informant inside the apartment and remained inside while the
informant returned to the Bronco to retrieve the package of
cocaine. After the informant returned with the cocaine, defendant
watched as the informant opened the cocaine package in his presence
and placed the cocaine on the scales. Finally, although he never
touched the cocaine, defendant actively assisted the informant in
weighing the cocaine on the scales. All of this substantial
evidence of other incriminating circumstances was sufficient to
support the trial court's denial of defendant's motion to dismiss
the charges against him.
By defendant's second assignment of error he argues that the
trial court committed plain error in admitting statements made by
the informant even though he did not testify at trial. We
disagree.
“This Court has held many times that an objection to, or
motion to strike, an offer of evidence must be made as soon as the
party objecting has an opportunity to discover the objectionablenature thereof; and unless objection is made, the opposing party
will be held to have waived it.” State v. Black, 308 N.C. 736,
739, 303 S.E.2d 804, 805-06 (1983). However, to prevent the
potential harshness of a rigid application of this rule, our State
adopted the “plain error” rule that is recognized by our federal
courts. Id. at 740, 303 S.E.2d at 806. The “plain error” rule:
[I]s 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 740-41, 303 S.E.2d at 806-07 (quoting United States v.
McCaskill, 676 F.2d 995, 1002 (4th Cir. N.C.), cert. denied, 459
U.S. 1018, 74 L. Ed. 2d 513 (1982)).
During defendant's trial, evidence concerning statements made
by the informant was admitted without objection from defendant's
counsel. However, after reviewing the record and the transcript,
we find no plain error. The essential evidence regarding
defendant's knowledge and participation in the drug deal came from
witnesses who did testify at the trial and not from the statements
of the informant. The co-defendants involved in this case provided
testimony establishing defendant's knowledge of the cocaine andtheir plans to transport it to Wilmington. Those same co-
defendants, as well as several law enforcement officers, testified
regarding defendant's presence in the informant's Bronco with the
cocaine while en route to Wilmington. Finally, the law enforcement
officers that videotaped defendant inside the Wilmington apartment
testified that defendant participated in weighing the cocaine on
the scales. Therefore, any statements made by the informant and
admitted during the trial were not so prejudicial as to result in
the denial of a fair trial to defendant.
For the aforementioned reasons, we find that defendant's
convictions of cocaine possession and trafficking in cocaine by
possession should be upheld.
No error.
Judges GREENE and McCULLOUGH concur.
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