Appeal by defendant from judgments entered 15 February 2001 by
Judge W. Allen Cobb, Jr. in New Hanover County Superior Court.
Heard in the Court of Appeals 25 April 2002.
Attorney General Roy Cooper, by Assistant Attorney General Amy
L. Yonowitz, for the State.
William H. Dowdy, for defendant-appellant.
TYSON, Judge.
Mario Martinez (“defendant”) appeals from the trial court's
entry of judgment after a jury returned a verdict finding defendant
guilty of trafficking in marijuana by transportation of more than
ten pounds but less than fifty pounds, trafficking in marijuana by
possession of more than ten pounds but less than fifty pounds, and
possession with intent to sell and deliver marijuana. We find no
error.
I. Facts
The evidence at trial tended to show that officers of the New
Hanover County Sheriff's Department (“officers”) served a valid
search warrant based upon a known informant's tip on Daniel Goff
(“Goff”) at his residence on 21 August 2000 at approximately 8:00p.m. The search revealed illegal drugs, contraband, and large
quantities of cash. Goff, a college student in his early twenties,
communicated a statement to Officer Sidney Causey (“Officer
Causey”) that normally he purchased his marijuana from two Hispanic
males. Officer Causey testified that Goff was “crying and I'm sure
he was scared and he provided us with this information, which I
believed was true.” Goff stated that the two Mexican males were
currently en route to deliver a twenty-five pound shipment of
marijuana to his house. Goff informed Officer Causey that he had
spoken to them about an hour earlier, and that they would be
arriving in a small white four-door automobile, which would “come
right to my door.”
The officers established surveillance in the immediate area.
While the officers were waiting in Goff's house, Goff received a
cellular telephone call from two men who were driving to his house.
Officer Causey overheard the conversation and verified that two
Hispanic men would be arriving at Goff's residence in approximately
twenty minutes.
Approximately twenty minutes later, a white four-door Neon
automobile, occupied by two Hispanic males, turned into Goff's
driveway, and parked next to Goff's front door. The “take down”
signal was given, and both men were seized and removed from the
vehicle. The officers searched the trunk and found large plastic
bags that smelled like marijuana. Both men were arrested.
Mario Martinez (“defendant”) was searched and $1,780.00 cash
was found in his pocket. The driver, Carlos Zavala (“Zavala”), wasalso searched and $30.00 cash was found on his person.
On 11 February 2001, defendant filed a motion to suppress
evidence. A hearing was conducted, and the trial court denied the
motion. Defendant was tried on 13 February 2001 and did not offer
any evidence. Defendant moved to dismiss at the close of the
State's evidence. The trial court denied his motion. The jury
returned a verdict of guilty against defendant for trafficking in
marijuana by transportation of more than ten pounds but less than
fifty pounds, trafficking in marijuana by possession of more than
ten pounds but less than fifty pounds, and possession with intent
to sell and deliver marijuana.
Defendant was sentenced to twenty-five months minimum and
forty months maximum for trafficking in marijuana by
transportation, twenty-five months minimum and thirty months
maximum for trafficking in marijuana by possession, and six months
minimum and eight months maximum for possession with the intent to
sell and deliver marijuana, all in the presumptive range and all to
run consecutively. Defendant appeals.
II. Issues
Defendant assigns as error the trial court's (1) denying
defendant's motion to suppress, (2) admitting accomplice testimony
into evidence, (3) denying defendant's motion to dismiss for
insufficiency of the evidence, (4) jury instructions, and (5)
giving multiple verdict sheets to the jury.
III. Motion to Suppress
Defendant argues that he was subjected to a warrantless searchthat violated the Fourth Amendment prohibition against unreasonable
searches and seizures. This argument is without merit. Our review
of a motion to dismiss is
de novo. State v. Brooks, 337 N.C. 132,
140-141, 446 S.E.2d 579, 585 (1994).
“Police officers may arrest without a warrant any person who
they have probable cause to believe has committed a felony.”
State
v. Hunter, 299 N.C. 29, 34, 261 S.E.2d 189, 193 (1980) (citing G.S.
§ 15A-401(b)(2)a;
United States v. Watson, 423 U.S. 411, 46 L. Ed.
2d 598 (1976)). “A warrantless arrest is lawful if based upon
probable cause,
Brinegar v. United States, 338 U.S. 160, 93 L. Ed.
1879 (1949);
State v. Phillips, 300 N.C. 678, 683-84, 268 S.E.2d
452, 456 (1980), and permitted by state law.”
State v. Mills, 104
N.C. App. 724, 728, 411 S.E.2d 193, 195 (1991) (citing
State v.
Wooten, 34 N.C. App. 85, 88, 237 S.E.2d 301, 304 (1977)). “A
search of a motor vehicle which is on a public roadway or in a
public vehicular area is not in violation of the fourth amendment
[sic] if it is based on probable cause, even though a warrant has
not been obtained.”
State v. Isleib, 319 N.C. 634, 638, 356 S.E.2d
573, 576 (1987) (citing
United States v. Ross, 456 U.S. 798, 809,
72 L. Ed. 2d 572, 584 (1982)).
“'In utilizing an informant's tip, probable cause is
determined using a 'totality-of-the circumstances' analysis which
'permits a balanced assessment of the relative weights of all the
various indicia of reliability (and unreliability) attending an
informant's tip.'”
State v. Holmes, 142 N.C. App. 614, 621, 544
S.E.2d 18, 22 (2001) (quoting
State v. Earhart, 134 N.C. App. 130,133, 516 S.E.2d 883, 886 (1999)).
“Once [officers] corroborated
the description of the defendant and his presence at the named
location, [they] had reasonable grounds to believe a felony was
being committed in his presence which in turn created probable
cause to arrest and search defendant.”
Wooten, 34 N.C. App. at 88,
237 S.E.2d at 304.
Transporting twenty-five pounds of marijuana is a felony.
See
N.C. Gen. Stat. § 90-95(h)(1)(2001). Although Goff was not a known
informant, the officers independently verified the information that
he provided to them. Based on Goff's information and the officers'
independent verification of that information, the officers had
probable cause to believe that defendant and Zavala were committing
a felony in their presence.
Goff informed the officers that his suppliers, two Hispanic
males, were currently driving to his house in a small white four-
door automobile to deliver approximately twenty-five pounds of
marijuana. Goff also told Officer Causey that the two Hispanics
would park their car right in front of his front door.
The officers independently verified and corroborated Goff's
information. Officer Causey overheard a cellular telephone
conversation between Goff and the two Hispanic men. Officer Causey
verified that they would be arriving at Goff's house in
approximately twenty minutes when he overheard Goff's telephone
conversation with Zavala and defendant, which corroborated the time
frame Goff originally communicated to Officer Causey.
Approximately twenty minutes later, the officers observed a smallwhite four-door automobile, containing two Hispanic males, turn
into Goff's drive-way and park next to his front door. At that
moment, the officers had corroborated the (1) description of the
transporting automobile, (2) a description of the two occupants,
(3) the proximity of the automobile's position to the front door,
and (4) the arrival time of the automobile. All of Goff's
information was proven reliable up to that point. The officers had
probable cause to believe that a felony was being committed in
their presence.
The trial court properly denied defendant's motion to dismiss.
This assignment of error is overruled.
IV. Accomplice Testimony
Defendant contends that the trial court erred by admitting the
testimony of defendant's accomplice Zavala. Defendant argues that
this testimony constituted the “uncorroborated testimony of an
accomplice,” and that Zavala's testimony violated hearsay rules.
Defendant in his brief has failed to show this Court what hearsay
rule the trial court violated. That portion of this assignment of
error is dismissed.
In defendant's brief he cites
State v. Keller, 297 N.C. 674,
256 S.E.2d 710 (1979), for the proposition that “uncorroborated
testimony of an accomplice is to be received with caution, and can
be accepted
only if it establishes every element of the offense
charged.” (Emphasis supplied). This assertion misstates the law.
“It is well-established that the uncorroborated testimony of
an accomplice will sustain a conviction so long as the testimony
tends to establish every element of the offense charged.”
Keller,
297 N.C. at 679, 256 S.E.2d at 714 (emphasis supplied) (citations
omitted).
Keller further states that the fact that an accomplice “may
have lied earlier bears only on the credibility, not the
sufficiency, of his testimony. The credibility of witnesses is a
matter for the jury rather than the court. Contradictions and
discrepancies in the state's [sic] evidence do not warrant
dismissal of the case.”
Id. (citations omitted).
“It is well settled in this jurisdiction that although the
jury should receive and act upon such testimony with caution, the
unsupported testimony of an accomplice is sufficient to sustain a
conviction if it satisfies the jury beyond a reasonable doubt of
the guilt of the accused.”
State v. Tilley, 239 N.C. 245, 249, 79
S.E.2d 473, 476, (1954) (citations omitted). Defendant had ample
opportunity to cross-examine Zavala and challenge his credibility
before the jury. The trial court properly admitted the testimony
of Zavala. This assignment of error is overruled.
V. Sufficiency of the Evidence
Defendant contends that there was insufficient evidence to
support a guilty verdict, and the trial court should have dismissed
the case at the close of the State's evidence. Defendant argues
that the State's evidence only shows defendant's mere presence as
a passenger in an automobile where twenty-five pounds of marijuana
was discovered in the trunk. We disagree.
“'An accused's possession of narcotics may be actual orconstructive. He has possession of the contraband material within
the meaning of the law when he has both the power and intent to
control its disposition or use.'”
State v. Weems, 31 N.C. App.
569, 570, 230 S.E.2d 193, 194 (1976) (quoting
State v. Harvey, 281
N.C. 1, 12, 187 S.E.2d 706, 714 (1972)).
“Proving constructive possession where defendant had
nonexclusive possession of the place in which the drugs were found
requires a showing by the State of other incriminating
circumstances which would permit an inference of constructive
possession.”
State v. Carr, 122 N.C. App. 369, 372, 470 S.E.2d 70,
73 (1996) (citations omitted);
State v. Matias, 143 N.C. App. 445,
550 S.E.2d 1,
aff'd, 354 N.C. 549, 556 S.E.2d 269 (2001). “Evidence
of constructive possession is sufficient to support a conviction if
it would allow a reasonable mind to conclude that defendant had the
intent and capability to exercise control and dominion over the
controlled substance.”
Matias, 143 N.C. App. at 448, 550 S.E.2d at
3 (citing
State v. Peek, 89 N.C. App. 123, 365 S.E.2d 320 (1988)).
Defendant did not have exclusive control of the automobile.
The drugs were discovered in the trunk, not the passenger area of
the automobile where defendant sat. After thoroughly reviewing the
entire record, we conclude that there were sufficient “other
incriminating circumstances” for the jury to reasonably infer that
defendant had the power and intent to control the twenty-five
pounds of marijuana found in the trunk of the car in which he was
riding. Those “other incriminating circumstances” include: (1)
this was a planned drug transaction, (2) Goff testified that he hadpre-arranged to have twenty-five pounds of marijuana delivered to
his house, (3) Zavala testified that he had been paid by defendant
to be his courier to and from Goff's house, (4) Goff had purchased
drugs from Zavala and defendant on five or six previous occasions,
(5) defendant had delivered drugs to Goff's house previously, (6)
the officers independently corroborated and verified everything
that Goff had reported to them about the drug transaction in
process, and (7) defendant was found with $1,780.00 in cash on his
person at the scene. We hold that these are sufficient other
incriminating circumstances to support a conviction based on
constructive possession when defendant was not in exclusive control
of the vehicle where the drugs were found. This assignment of
error is overruled.
VI. Jury Instructions
A. Trial Court's Instruction
Defendant contends that the trial court committed plain error
instructing the jury about the law of knowingly possessing
marijuana. Defendant argues that no evidence existed to show that
he had knowledge of the marijuana seized in the automobile, and
that “[t]he instruction invited the jury to speculate as to
[defendant's] guilt and to return an erroneous verdict.”
Defendant did not object to the trial court's instruction
during trial. Defendant must show not only that the instruction
was error, but that the instruction probably impacted the jury's
finding defendant guilty.
See e.g., State v. Odom, 307 N.C. 655,
660, 300 S.E.2d 375, 378 (1983). Defendant's sole contention is that no evidence of defendant's
knowledge of the marijuana in the automobile existed at trial. We
have held that the State presented sufficient evidence to show that
defendant had the intent and capability to exercise control and
dominion over the marijuana based on constructive possession.
Defendant has failed to show that the instruction was erroneous.
This assignment of error is overruled.
B. Requested Instruction
Defendant contends that there was no basis to convict
defendant of knowingly possessing marijuana, “using either actual
or constructive possession . . . because the evidence only shows
the [defendant's] mere presence [in the automobile].” Defendant
concludes therefore that “the only other basis to uphold
[defendant's] convictions is that [defendant] was acting in
concert.” Defendant requested the trial court to instruct the jury
that the defendant's mere presence in the automobile was
insufficient to show defendant acted in concert. The trial court
refused, but gave the following instruction on the law of
constructive possession:
the defendant's physical proximity, if any, to
the substance does not by itself permit an
inference that the defendant was aware of its
presence or had the power or intent to control
its disposition or use . . . such an inference
may be drawn only from this and other
circumstances which you find from the evidence
beyond a reasonable doubt.
The substance of defendant's requested instruction was contained in
this instruction. Since we have held that there was evidence to
support the conviction based on constructive possession, thisassignment of error is overruled.
VII. Multiple Verdict Sheets
Defendant assigns error to the trial court's giving multiple
verdict sheets to the jury. Defendant has failed to cite any
authority in support of his argument. Rule 28(b)(5) of the N.C.
Rules of Appellate Procedure states that "the body of the argument
shall contain citations of authority upon which the appellant
relies. . . . Assignments of error . . . in support of which no .
. . authority is cited, will be taken as abandoned.” N.C.R. App.
P. 28(b)(5) (2001). This assignment of error is abandoned.
N.C.R.
App. P. 28(b)(3) (2001).
See also Byrne v. Bordeaux, 85 N.C. App.
262, 354 S.E.2d 277 (1987).
After carefully reviewing the entire record, we hold that
defendant received a trial by a jury of his peers before an able
judge free from errors he assigned.
No error.
Judges MARTIN and THOMAS concur.
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