Appeal by defendant from judgments entered 31 March 2000 and
order entered 30 April 2001 by Judge Robert H. Hobgood in Wake
County Superior Court. Heard in the Court of Appeals 18 April
2002.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Kimberly W. Duffley, for the State.
Law Offices of Robert J. Willis, by Robert J. Willis, for
defendant-appellant.
MARTIN, Judge.
Defendant, Benancio Caravajal, appeals from judgments
sentencing him to consecutive terms of imprisonment totaling a
minimum of 397 months and a maximum of 477 months and imposing
fines totaling $600,000, which were entered upon jury verdicts
finding him guilty of four counts of trafficking in more than 28
grams, but less than 200 grams, of cocaine by possession; guilty of
three counts of trafficking in more than 28 grams, but less than
200 grams, of cocaine by delivery; guilty of four counts of
conspiracy to traffic in cocaine by sale and delivery; guilty ofthree counts of sale of a controlled substance within 300 feet of
a school; and guilty of one count of conspiracy to sell and deliver
cocaine. He also appeals from the denial of his motion for
appropriate relief, filed within ten days after entry of judgment.
Evidence
The State's evidence at trial tended to show that in 1999,
Terry Clarita (hereinafter “Clarita”) was working as a foreman for
Cisco Construction Company. Clarita suspected that several men
under his supervision were selling cocaine at the construction site
to his brother, Keith Clarita, who was addicted to the substance
and also working for Cisco at the time. Clarita eventually
contacted Detective Cullifer with the Wake County Sheriff's
Department and agreed to set up purchases of cocaine from defendant
and Abel Zenon, who were working for Cisco. While working for the
sheriff's department, Clarita made four purchases of cocaine on the
following dates: 19 February 1999, 24 February 1999, 2 March 1999,
and 19 March 1999. In each of the four transactions, Clarita dealt
with Zenon. After each purchase, Clarita immediately turned the
substance which he had purchased over to law enforcement officers
and he was interviewed by Special Agent Lacy Pittman of the North
Carolina State Bureau of Investigation.
Zenon testified for the State. Zenon testified that he lived
on Maywood Avenue and that defendant had rented a room from him.
Prior to living with Zenon, defendant had lived in a house on Weeks
Drive with several people including his brother and cousin
Virqilio, who had sold drugs to Keith Clarita, Terry Clarita'sbrother. Zenon had acted as a translator for Virqilio in those
transactions. Defendant began working for Cisco in December of
1998. Defendant does not speak English.
The day before Clarita's first purchase of cocaine, he called
Zenon and told him that he wanted “two balls,” meaning two ounces
of cocaine. Zenon told Clarita that he would have it for him the
next morning, 19 February 1999. Clarita, Zenon, and defendant were
working at Lufkin Middle School. Zenon testified that on the
morning of 19 February 1999, defendant gave Zenon a ride to work
and on the way, he stopped at the Weeks Drive address and picked up
some of his family members. According to Zenon, defendant got out
of his vehicle at the Weeks Drive address, went inside the house
wearing his jean jacket, and then returned still wearing the jean
jacket.
Agent Pittman and Detective Cullifer gave Clarita $1,800 for
the purchase of the cocaine and placed a body wire on his person so
that they could listen to Clarita's conversation. Additionally,
Clarita and his vehicle were searched for drugs. Detective Herring
drove ahead of Clarita and set up surveillance in the parking lot
at the school; Agent Pittman and Detective Cullifer followed
Clarita.
After arriving at the school, Clarita went into the building
and found defendant and Zenon working together hanging sheetrock.
Clarita advised Zenon that he was ready to do the deal. Zenon then
spoke to defendant in Spanish, which conversation Clarita did not
understand, and picked up a jean jacket with different coloredsleeves that was lying on a T-square. Zenon testified that
defendant asked him to take his jean jacket and go with Clarita
outside to do the drug transaction. Zenon put on the jean jacket
and he and Clarita walked outside to Clarita's van. The two men
sat in the van which was approximately 100 feet from the school;
Clarita gave Zenon $1,800 in exchange for which he received the
cocaine from Zenon. Clarita testified that during this
transaction, Zenon mentioned that Clarita might be able to get a
discount if he bought a larger quantity of cocaine. Zenon also
told Clarita that he could get Clarita more cocaine the following
Monday or whenever Clarita wanted more. Zenon did not refer to
defendant at any time during the transaction; however, Zenon
testified that after the transaction was completed, he gave the
money and the jacket to defendant. At lunchtime, defendant gave
Zenon $200 for his assistance in the transaction. The substance
which Clarita received from Zenon was analyzed by the SBI
laboratory and was found to be cocaine base weighing 56 grams.
Clarita's second purchase of cocaine occurred on 24 February
1999 at Lufkin Middle School. Clarita called Zenon the night
before to arrange the purchase of two ounces of cocaine. As with
the previous purchase, the officers searched Clarita's vehicle and
person and then gave him $1,800. Zenon testified that on the
morning of 24 February 1999, defendant again drove him to work and
they stopped by the house on Weeks Drive. Defendant entered and
exited the house wearing his jean jacket. Clarita testified that
when he arrived at the school, Zenon was exiting from a portabletoilet and came directly over to Clarita's truck. Zenon got into
the truck, which was parked on school grounds. Clarita testified
that during this transaction, Zenon was wearing the same blue jean
jacket that he was wearing during the first transaction. Zenon
took the cocaine from the pocket of the jacket and exchanged it for
the money. Clarita testified that he had seen defendant wearing
the jean jacket and knew that it belonged to defendant. Zenon
testified that defendant gave him $200 for his assistance in the
transaction. The substance which Clarita received from Zenon was
analyzed by the SBI laboratory and found to be cocaine base
weighing 57.6 grams.
Clarita's third purchase of cocaine occurred on 2 March 1999
at Lufkin Middle School. The day before, Clarita approached
defendant and told him that he needed four ounces of cocaine.
Defendant grinned and told Clarita to talk to Zenon. The next
morning, the officers searched Clarita's vehicle and person and
gave him $3,600. Zenon testified that defendant, who was wearing
the jean jacket, drove him to work and stopped at the house on
Weeks Drive on the way. Clarita parked approximately 200 yards
from the school; he was wearing the body wire and officers were
videotaping the transaction. Clarita went into the school and
found defendant and Zenon working together. Zenon testified that
when Clarita entered the building, Zenon told defendant that
Clarita was ready to do the deal and defendant then took off his
jacket and gave it to Zenon. Clarita and Zenon went outside and
got into Clarita's truck where Clarita gave Zenon $3,600 and Zenontook cocaine from the jacket and gave it to Clarita. This was the
same jean jacket Zenon had worn in the previous transactions.
After completing the transaction, Zenon gave defendant the money
and returned the jacket to him. Later the same day, defendant gave
Zenon some money. The substance which Clarita received from Zenon
was analyzed by the SBI laboratory and found to be cocaine weighing
110.6 grams.
Clarita's fourth and final purchase of cocaine from Zenon
occurred at North Carolina State University on 19 March 1999. On
that morning, Clarita met with Detective Cullifer and Agent
Pittman, who gave him $1,800 and placed the body wire on him. On
that morning, defendant did not go to the Weeks Drive address prior
to going to work. Clarita went into the building where defendant
and Zenon were working. Defendant gave Zenon his jean jacket and
Zenon left the building with Clarita. The two men got into
Clarita's truck and Zenon took cocaine out of a pocket of the jean
jacket and gave it to Clarita in exchange for $1,800. Zenon then
returned to the building and gave defendant the jean jacket and
money. Later that day, defendant gave Zenon an unknown amount of
money. Clarita testified that other than the four times that he
purchased the cocaine from Zenon, he had not seen Zenon wearing the
blue jean jacket. The substance which Clarita received from Zenon
was analyzed by the SBI laboratory and found to be cocaine weighing
54.7 grams.
Clarita testified that at some point after the four drug
transactions, he told defendant and Zenon that he wanted to buyfifteen ounces of cocaine. Thereafter, defendant, with Zenon
translating, was “bugging” him about when the fifteen ounce buy was
going to occur. Zenon testified that on 31 March 1999, he told
defendant that Clarita wanted to purchase fifteen ounces of
cocaine. Later the same day, Zenon and defendant drove to Weeks
Drive and defendant went into Virqilio's house. Defendant returned
to the truck and, about ten minutes later, Virqilio came out to the
truck and gave defendant two balls of cocaine wrapped in aluminum
foil. Defendant then put the two balls into a white carton in his
truck and drove to Zenon's house. Later that evening, Zenon saw
defendant weighing the cocaine. Defendant placed the cocaine on
the kitchen table; Zenon put it into a kitchen cabinet so that his
wife would not see it. Zenon told defendant that he did not want
to be involved in any more drug deals and that defendant would need
to do future exchanges himself. Defendant and Zenon were arrested
on 1 April 1999. At the time of his arrest, no cocaine was located
in defendant's truck or on his person. Police did, however, locate
412.1 grams of cocaine in a kitchen cabinet in Zenon's residence.
Zenon testified that on none of the four occasions when he
delivered the cocaine to Terry Clarita did defendant ever show him
the cocaine while they were riding in the truck together to go to
work. In fact, Zenon testified that he did not see the cocaine
until he gave it to Clarita on any of the four occasions.
Defendant did not testify at trial and offered no evidence.
Verdicts
With regard to the transaction alleged to have occurred on 19February 1999, the jury found defendant guilty of trafficking in 28
grams or more, but less than 200 grams, of cocaine by possession;
trafficking in 28 grams or more, but less than 200 grams, of
cocaine by delivery; conspiracy to traffic in cocaine by delivery;
and selling a controlled substance within 300 feet of a school.
The jury found defendant not guilty of trafficking in 28 grams or
more, but less than 200 grams, of cocaine by transportation.
With regard to the transaction alleged to have occurred on 24
February 1999, the jury found defendant guilty of trafficking in 28
grams or more, but less than 200 grams, of cocaine by possession;
conspiracy to traffic in cocaine by sale and delivery; and selling
a controlled substance within 300 feet of a school. He was found
not guilty of trafficking in cocaine by transportation, and not
guilty of trafficking in cocaine by delivery on that date.
With regard to the transaction alleged to have occurred on 2
March 1999, the jury found defendant guilty of trafficking in 28
grams or more, but less than 200 grams, of cocaine by possession;
trafficking in 28 grams or more, but less than 200 grams, of
cocaine by delivery; conspiracy to traffic in cocaine by sale and
delivery; and selling a controlled substance within 300 feet of a
school. Defendant was found not guilty of trafficking in cocaine
by transportation on that date.
With regard to the transaction alleged to have occurred on 19
March 1999, defendant was found guilty of trafficking in 28 grams
or more, but less than 200 grams, of cocaine by possession;
trafficking in 28 grams or more, but less than 200 grams, ofcocaine by delivery; and conspiracy to traffic in cocaine by sale
and delivery. The jury found defendant not guilty of trafficking
in cocaine by transportation on that date, and the trial court
dismissed the charge of selling a controlled substance within 300
feet of a school.
Finally, with regard to the charge of conspiracy to sell and
deliver cocaine alleged to have occurred on 1 April 1999, the jury
found defendant guilty.
Defendant first contends the evidence was insufficient to
support his convictions and the trial court erred by failing to
dismiss all of the charges. At trial, however, defendant moved to
dismiss only the four charges of sale of a controlled substance
within 300 feet of a school; his motion to dismiss the charge
concerning the transaction occurring on 19 March 1999 at North
Carolina State University was allowed since the sale did not take
place within 300 feet of an elementary or secondary school. N.C.
Gen. Stat. § 90-95(e)(8). By his failure to move for dismissal of
the remaining charges, defendant has preserved for review, on
appeal from the judgments entered upon the verdicts in this case,
only the denial of his motions to dismiss the charges of sale of a
controlled substance within 300 feet of a school on 19 February
1999, 24 February 1999, and 2 March 1999. N.C.R. App. P. 10(b)(1).
In reviewing a motion to dismiss, this Court must determine
“whether there is substantial evidence of each essential element of
the offense charged, or of a lesser offense included therein, andof the defendant's being the perpetrator of such offense.”
State
v. Bates, 313 N.C. 580, 581, 330 S.E.2d 200, 201 (1985).
Substantial evidence has been defined as “that amount of relevant
evidence that a reasonable mind might accept as adequate to support
a conclusion.”
State v. Porter, 303 N.C. 680, 685, 281 S.E.2d 377,
381 (1981). Further, the evidence should be considered in the
light most favorable to the State and the State is entitled to
every reasonable inference to be drawn therefrom.
Bates, 313 N.C.
at 581, 330 S.E.2d at 201. Any contradictions or discrepancies in
the evidence are for resolution by the jury and do not warrant
dismissal.
State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980).
The evidence in the present case, considered in the light most
favorable to the State, was sufficient to show that on each of the
dates recited above, defendant was on property used for a secondary
school and that he delivered cocaine to Zenon, knowing that Zenon
would, in turn, deliver the cocaine to Clarita while on the school
property. Thus, the evidence was substantial as to each element
required to prove defendant's guilt and his motions to dismiss the
charges were properly denied.
Defendant also contends that the imposition of consecutive
sentences by the trial court in this case was grossly
disproportionate to the offenses committed by defendant and
constituted cruel and unusual punishment under both the Eighth and
Fourteenth Amendments to the Constitution of the United States and
Article I, Section 27, of the North Carolina Constitution. We are
unpersuaded. Historically, our Supreme Court “has analyzed cruel and/or
unusual punishment claims by criminal defendants the same under
both the federal and state Constitutions.”
State v. Green, 348
N.C. 588, 603, 502 S.E.2d 819, 828 (1998),
cert. denied, 525 U.S.
1111, 142 L. Ed. 2d 783 (1999). “The imposition of consecutive .
. . sentences, standing alone, does not constitute cruel or unusual
punishment.”
State v. Ysaguire, 309 N.C. 780, 786, 309 S.E.2d 436,
441 (1983). Additionally, we note that “[o]nly in exceedingly
unusual non-capital cases will the sentences imposed be so grossly
disproportionate as to violate the Eighth Amendment's proscription
of cruel and unusual punishment.”
Id.
In the present case
, the sentences imposed do not exceed
statutory limits. See N.C. Gen. Stat. § 90-95(h)(3)a (2001)
(trafficking in cocaine in amount of “28 grams or more, but less
than 200 grams,” punishable by “minimum term of 35 months and a
maximum term of 42 months”). Our Supreme Court has held “that
sentences that are within the statutory limits and impose
consecutive sentences do not constitute cruel and unusual
punishment.”
State v. Handsome, 300 N.C. 313, 317, 266 S.E.2d 670,
674 (1980) (citations omitted). Therefore, we find no merit in
defendant's contention that the sentences imposed upon him
constitute cruel or unusual punishment. In summary, we find no
error in defendant's trial or in the judgments from which he
appeals.
Appeal From Order Denying Motion For Appropriate Relief
In his motion for appropriate relief, defendant asserted thatthe verdicts were contrary to the weight of the evidence, entitling
him to relief pursuant to G.S. § 15A-1414(b)(2) and (b)(3).
Specifically, defendant contends the jury's verdicts of not guilty
with respect to some of the charges are irreconcilable with its
verdicts of guilty of other offenses which are alleged to have
occurred at the same time.
A motion to set aside the verdict as being contrary to the
weight of the evidence is addressed to the sound discretion of the
trial court, and its ruling will not be overturned absent a showing
that the ruling was a manifest abuse of that discretion.
Bates,
313 N.C. 580, 330 S.E.2d 200;
State v. Witherspoon, 293 N.C. 321,
237 S.E.2d 822 (1977). We have carefully considered the evidence
in this case and find it substantial to warrant the submission of
each of the charges to the jury and to support the jury's verdicts
with respect thereto. Thus, we find no abuse of the trial court's
discretion in the denial of defendant's motion for appropriate
relief.
COA01-772 - No error.
COA01-830 - Affirmed.
Judges TYSON and THOMAS concur.
Report per Rule 30(e).
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