STATE OF NORTH CAROLINA
v. Guilford County
Nos. 00 CRS 99072
JAFET GALVAN GOMEZ 00 CRS 99073
Attorney General Roy Cooper, by Assistant Attorney General
Sandra Wallace-Smith, for the State.
Samuel L. Bridges for defendant-appellant.
THOMAS, Judge.
Defendant, Jafet Galvan Gomez, appeals convictions of
trafficking in more than 400 grams of cocaine by possession,
possession of cocaine with intent to sell or deliver, and
conspiracy to traffic in cocaine. The trial court consolidated the
offenses for judgment and sentenced defendant to prison for 175 to
219 months. For the reasons discussed herein, we find no error.
At trial, Greensboro Police Officer Brian A. Bissett testified
that he began surveillance of a Days Inn motel on Seneca Road on 9
August 2000, based on a tip from a confidential informant. Bissett
obtained a motel registration card indicating that Jose Espinoza
had checked into Room 233 at 11:45 a.m. on 9 August 2000, paying incash and requesting no maid service. Bissett saw Ruben Diaz and
Espinoza arrive at Days Inn by car and proceed to Room 233, where
they were admitted into the room by an unobserved party.
On 11 August 2000, Arturo Gonzalez Ortuno checked into room
244 under the name Arturo Gonzalez, pre-paying in cash for five
nights. The registration card listed an Eagle Vision automobile,
which motor vehicle records revealed was registered to Ortuno.
Bissett observed Diaz go from Room 233 to Room 244. Ortuno and
three other individuals came out of Room 244 and left the motel in
Ortuno's vehicle.
On 12 August 2001, Bissett examined the trash collected from
room 244 and found a receipt for $400 of Inositol, a compound often
used to “cut” or “step on” cocaine prior to sale. Bissett also
found a receipt for a set of digital scales and a piece of paper
with the calculation "24,500 X 6 = 147,000." Bissett stated that
$24,500 corresponded to the street value of a kilogram of cocaine
in the Greensboro area. Bissett saw defendant and Ortuno leave the
motel area in Ortuno's Eagle Vision. When they returned, the two
men entered room 233 for several minutes before returning to room
244. Based on his observations, Bissett enlisted Officers Richard
Kyle Shearer, Darren Koonce, and Jon Marsh to expand the scope of
the surveillance.
Shearer testified that he was positioned in an adjacent
parking lot in an unmarked vehicle, and was assigned to observe the
movements of the occupants of Rooms 233 and 244 as they went on and
off of the motel property. After receiving a radio call fromanother officer, Shearer followed an Eagle automobile from the
parking lot to Graham, North Carolina, without incident. At
approximately 3:00 p.m. on 12 August 2000, Shearer observed the
Eagle turn onto JJ Drive traveling south. The car stopped 400 to
500 yards from Shearer's position. With the aid of binoculars,
Shearer saw Ortuno and defendant exit the vehicle and open the
trunk. They moved items in the trunk, looked around, and drove the
car another thirty yards. Defendant walked down an embankment into
a wooded area. Ortuno shifted items in the trunk until defendant
motioned to him. Ortuno removed a “rather large” object from the
trunk, put it under his arm and joined defendant. Ten seconds
later, they walked back to the car without the object and drove
away. Shearer radioed his observations to Bissett. After
receiving a report that defendant and Gomez were back in the hotel
room, Shearer and Bissett searched the wooded area below the
embankment and found a boot box which held two packages containing
2003.2 grams of cocaine hydrochloride mixed with Inositol. They
saw no other objects resembling the item carried by Ortuno.
Shearer proceeded to the motel, where he arrested Diaz and
Espinoza.
During Koonce's testimony, the prosecutor introduced a
videotape recorded by Koonce, which reflected his surveillance of
Room 233 and the adjoining parking lot during the afternoon of 12
August 2000. The tape showed Ortuno enter a white Cavalier, remove
an object, and walk away with defendant. The tape later showed the
defendant and Ortuno leave the parking lot in the Eagle Vision,turning right onto JJ Drive. At this point, Shearer “picked up the
surveillance” of the car until it reappeared in the parking lot.
The tape showed defendant and Ortuno speaking with Diaz on the
balcony of Room 233. Ortuno retrieved a bag from the trunk of the
Cavalier and entered Room 233 briefly with defendant before they
returned to Room 244. Defendant and Ortuno then returned to the
parking lot. Ortuno leaned into the passenger side of the Eagle
before the men entered the white Cavalier and drove to the west
side of the building. The tape showed defendant with a white bag
driving away from the motel in the Cavalier. Ortuno left with a
blue bag in the Eagle. Upon the vehicles' departure, Koonce
monitored Room 244 until Shearer arrived to arrest Diaz and
Espinoza.
Marsh testified that he was assigned to follow the Eagle
Vision when it left the motel on 12 August 2000. He initially
tailed the vehicle as it traveled eastward on Interstate 40,
eventually stopping at a strip mall at Highway 54 and Chapel Hill
Road. Marsh saw a male remove something from the trunk of the
vehicle and carry it into the store. He then followed the Eagle
Vision back to the motel. Later, Bissett notified Marsh of the
cocaine recovered from the woods off of JJ Drive. When the two
cars left the motel parking lot, Marsh was contacted by Bissett and
stopped the Eagle Vision on Interstate 40. Following Ortuno's
arrest, Marsh searched the vehicle and found a “pretty thick” stack
of money wrapped in a blue apron.
Bissett obtained Espinoza's consent to search Room 233 andfound three kilograms of cocaine “in plain view in the nightstand.”
A search of Room 244 yielded $24,954 in cash and a gun.
Ortuno testified pursuant to a plea agreement, claiming
defendant offered him $6,000 to help move “some packages of
marijuana” that were being brought to defendant from Winston-Salem
by his friends “Ruben Diaz and Jose.” Ortuno met with defendant at
his hotel room at the Best Western in Burlington. Diaz and Jose
arrived with the packages and checked into a second room. As
defendant inspected the packages, Ortuno saw that they contained
cocaine and protested that he had agreed to assist with marijuana.
Defendant responded that Ortuno could not back out now, because he
knew what they were doing. When defendant acted as though he was
reaching for his pistol, Ortuno relented.
Ortuno drove defendant in Ortuno's Eagle Vision to a Motel 8,
where Ortuno rented a room with money supplied by defendant. They
went back to the Best Western where defendant announced to Diaz and
Jose that they were changing hotels. Diaz and Espinoza transported
the packages in the trunk of a white Cavalier to the Motel 8, where
defendant rented a second room for Diaz. The following day,
defendant and Ortuno again changed hotels, moving to a Howard
Johnson's next to the Motel 8. Defendant received a telephone call
from a man named Salamon and told Ortuno to take him to Salamon's
place of business in Burlington. Defendant took two packages of
cocaine from the Cavalier, and they drove to Salamon's business.
After inspecting the cocaine, Salamon told defendant that “it was
not all right[,]” and refused to accept it. Defendant put thecocaine in a boot box and returned with it to the hotel. Defendant
told Diaz that he would not help him move the cocaine, because it
was “not all right.” Defendant eventually agreed to try again if
they “wait[ed] for a couple of days.” He told Ortuno to hide the
cocaine in some woods next to the hotel. Ortuno drove with
defendant to the wooded area. Ortuno walked a few steps with the
boot box before giving it to defendant, who searched for a hiding
place in “the most wooded part.” Defendant then ordered Ortuno
back to the Howard Johnson's and told him to retrieve a bag from
the white Cavalier which contained the three remaining packages of
cocaine.
When they returned to the room, Ortuno asked to be paid.
Defendant took money wrapped in a blue apron from the trunk of the
Cavalier and gave it to Ortuno, who wrapped the bundle in a chain
and hid it in his car next to the driver's seat. Defendant left
the hotel in the Cavalier. Ortuno drove eastward on Interstate 85,
where he was stopped and arrested by police, who seized the $6,000
and the chain.
Before his first appearance in court, Ortuno waited in a room
with defendant, Diaz and Espinoza. Defendant asked Ortuno to take
all of the blame for the drugs “because . . . [defendant] had had
problems in California and in Atlanta for the same, and . . . some
people from federals [sic] in Atlanta were looking for him[.]”
By defendant's first assignment of error, he argues the trial
court erred by denying his motion to dismiss the charges at the
conclusion of all the evidence. We disagree. In reviewing the denial of the motion to dismiss, this Court
must determine whether the evidence, when viewed in the light most
favorable to the State, is sufficient to allow a reasonable juror
to find defendant guilty of each essential element of the offense
beyond a reasonable doubt. See State v. Jones, 147 N.C. App. 527,
545, 556 S.E.2d 644, 655 (2001), appeal dismissed and disc. rev.
denied, 355 N.C. 351, 562 S.E.2d 427 (2002). The State is entitled
to all favorable inferences reasonably drawn from the evidence.
State v. Tucker, 347 N.C. 235, 243, 490 S.E.2d 559, 563 (1997),
cert. denied, 523 U.S. 1061, 140 L. Ed. 2d 649 (1998). Moreover,
testimony tending to support the State's case is deemed credible.
See State v. Lucas, 353 N.C. 568, 581, 548 S.E.2d 712, 721 (2001)
(citing State v. Gibson, 342 N.C. 142, 463 S.E.2d 193 (1995)).
Trafficking in cocaine by possession requires proof that
defendant knowingly possessed more than 400 grams of cocaine. N.C.
Gen. Stat. § 90-95(h)(3) (1999); State v. Williams, 136 N.C. App.
218, 220, 523 S.E.2d 428, 430 (1999). “An accused has possession
of a controlled substance within the meaning of the law when he has
both the power and intent to control its disposition or use.”
State v. Matias, 143 N.C. App. 445, 448, 550 S.E.2d 1, 3 (citing
State v. Weems, 31 N.C. App. 569, 230 S.E.2d 193 (1976)), aff'd,
354 N.C. 549, 556 S.E.2d 269 (2001). Possession of cocaine with
intent to sell or deliver contains the additional element of an
intent to sell or deliver the drug. State v. Carr, 145 N.C. App.
335, 341, 549 S.E.2d 897, 901 (2001). The conspiracy charge
requires a showing that defendant entered into an agreement with atleast one other person to traffic in cocaine. State v. Holmes, 120
N.C. App. 54, 64, 460 S.E.2d 915, 921, disc. review denied, 342
N.C. 416, 465 S.E.2d 545 (1995).
The State adduced ample evidence that defendant controlled the
disposition and use of the two kilograms of cocaine he delivered to
Salamon and later hid in the woods. Ortuno's testimony is
sufficient to show defendant's possession of more than 400 grams of
cocaine, his intent to sell or deliver the cocaine to Salamon and
his entry into an agreement with Diaz and Espinoza to do so. See
generally, State v. Reagan, 35 N.C. App. 140, 143, 240 S.E.2d 805,
808 (1978). Moreover, the receipts for Inositol and digital
scales, the substantial quantity of the cocaine, and the large
amounts of cash found in Ortuno's car and the two motel rooms
provided additional evidence of an intent to sell and of
conspiracy. See State v. Morgan, 329 N.C. 654, 659, 406 S.E.2d
833, 835 (1991) (drug quantity); State v. Jones, 97 N.C. App. 189,
202, 388 S.E.2d 213, 220 (1990) (cash and scales); State v.
Harrison, 93 N.C. App. 496, 499, 378 S.E.2d 190, 192 (1989)
(cutting agents). We therefore reject defendant's argument.
By defendant's second assignment of error, he argues the trial
court committed plain error in allowing Shearer, Koonce, Marsh, and
Bissett to offer in-court identifications of him without a proper
foundation. He also cites as plain error the court's admission of
Ortuno's testimony relating out-of-court statements allegedly made
to Ortuno by defendant while awaiting trial. However, defendant
offers “'no explanation, analysis or specific contention in hisbrief supporting the bare assertion'” of plain error. State v.
Allen, 141 N.C. App. 610, 617, 541 S.E.2d 490, 496 (2000) (quoting
State v. Cummings, 352 N.C. 600, 636, 536 S.E.2d 36, 61 (2000),
cert. denied, 532 U.S. 997, 149 L. Ed. 2d 641 (2001)), appeal
dismissed and disc. review denied, 353 N.C. 382, 547 S.E.2d 816
(2001). “By failing to provide argument in support of plain error,
defendant has thereby waived appellate review” of these issues.
Id. (citing N.C.R. App. P. 10(c)(4)).
NO ERROR.
Judges WALKER and BIGGS concur.
Report per Rule 30(e).
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