STATE OF NORTH CAROLINA
v. Henderson County
Nos. 00 CRS 4416-17,
DAVID LEE SANCHEZ 55095
Attorney General Roy Cooper, by Assistant Attorney General
Scott K. Beaver, for the State.
James L. Goldsmith, Jr., for defendant-appellant.
EAGLES, Chief Judge.
David Lee Sanchez (“defendant”) appeals from judgments entered
on jury verdicts finding him guilty of trafficking by possession of
methamphetamine, trafficking by sale of methamphetamine, and
conspiracy to commit trafficking of methamphetamine by sale. After
careful consideration of the briefs and record, we discern no
error.
The State's evidence tended to show that on 15 September 2000,
the Henderson County Sheriff's Department was conducting an
undercover drug buying operation in the parking lot of a Holiday
Inn Express in Henderson, North Carolina. Officer Chris Denny was
working undercover as a “biker” and had arranged to purchasemethamphetamines from Frank Flores. Flores and defendant arrived
at the parking lot in a green Chevrolet Tahoe. Defendant was in
the passenger seat. Officer Denny approached Flores and asked him
if he had the methamphetamines. Flores replied “[y]es, I do” and
held up approximately one pound of methamphetamines wrapped in
green cellophane. Officer Denny then returned to his car and
retrieved a McDonald's bag which contained the money for the drug
buy. Officer Denny testified that defendant never spoke to him but
kept his hand “shoved up under his shirt” and “basically stared me
down the entire time the transaction was taking place.” Once the
transaction was completed, Officer Denny gave the signal for the
surveillance team to move in and arrest Flores and defendant.
Officer Fred Westphaul provided backup for Officer Denny
during the drug transaction. Officer Westphaul testified that he
was positioned so that he was able to look directly down on the
Tahoe automobile and watch the transaction. Officer Westphaul
testified that he observed the defendant as Officer Denny
approached him and that defendant “never turned his head from
[Officer Denny] whatsoever.” Additionally, Officer Westphaul
stated that he could not see defendant's right hand because it was
concealed underneath his sweatshirt. Once the transaction was
completed and the responding officers arrived for the “takedown,”
Officer Westphaul stated that he saw defendant “immediately take
his hand out of his sweatshirt. I saw what looked like to me a
pistol in his hand.” One of the officers yelled for defendant to
“[s]how me your hands.” Defendant then “immediately went towardthe floorboard, and then when he came up with both hands, both
hands were empty.” Detective Jeff Patterson recovered a .45-
caliber handgun from the floorboard on the passenger side of the
vehicle. On 18 September 2000, defendant was indicted for
trafficking by possession of methamphetamine, trafficking by sale
of methamphetamine, and conspiracy to commit trafficking of
methamphetamine by sale. Prior to trial, defendant made a motion
in limine seeking to exclude two conversations between Flores and
Officer Denny which took place prior to the undercover operation.
In the first conversation, which was not recorded, Flores stated
that his nephew, “David,” could meet Officer Denny in Georgia and
sell him the drugs. However, Officer Denny refused to deal with
Flores' nephew in Georgia. In the second conversation, which was
recorded, Flores made general references to his nephew. The trial
court initially withheld ruling on the motion, pending the State
making a showing of a prima facie case of conspiracy. The trial
court later allowed Officer Denny to testify regarding the
statements.
The matter came to trial at the 14 March 2001 criminal session
of Henderson County Superior Court before Judge Dennis J. Winner.
The jury returned guilty verdicts on all counts. The trial court
sentenced defendant to three concurrent terms of 225 months to 279
months imprisonment. Defendant appeals.
On appeal, defendant contends that the trial court erred in
admitting the statement of a co-defendant and failing to grantdefendant's motion to dismiss for insufficiency of the evidence.
After careful consideration, we discern no error.
Defendant first argues that the trial court erred by admitting
the statements made by Flores to Officer Denny. Specifically,
defendant contends that the State failed to make a prima facie
showing that a conspiracy existed between Flores and defendant
prior to the admission of the statements. We disagree.
“'A criminal conspiracy is an agreement between two or more
persons to do an unlawful act or to do a lawful act in an unlawful
way or by unlawful means.'” State v. Jackson, 103 N.C. App. 239,
244, 405 S.E.2d 354, 357 (1991) (quoting State v. Lipford, 81 N.C.
App. 464, 465, 344 S.E.2d 307, 308 (1986)), aff'd, 331 N.C. 113,
413 S.E.2d 798 (1992). We find this Court's opinion in Jackson
persuasive. In Jackson, this Court determined that the
circumstances of a drug transaction, in which the defendant
accompanied the seller to the transaction, remained seated in the
vehicle and looked around the parking lot, made it reasonable for
a jury to infer that defendant was present “merely to ensure the
safety of the [drugs].” Jackson, 103 N.C. App. at 244, 405 S.E.2d
at 357. This evidence, coupled with the fact that firearms were
found in the vehicle, provided sufficient evidence of a conspiracy
to traffic in drugs. Id.
Here, we conclude that a jury could likewise infer from the
evidence presented that defendant was present merely to protect the
drugs, thus providing sufficient evidence of a conspiracy.
Defendant arrived with Flores, remained seated during thetransaction, “stared down” Officer Denny, all the while keeping his
hand on a firearm that was concealed under his sweatshirt.
Furthermore, a firearm was recovered from the automobile after the
transaction was completed and defendant was arrested. Accordingly,
based on this evidence, we hold that the State had made a prima
facie showing of conspiracy to support admission of the statements
made by Flores to Officer Denny. The assignment of error is
overruled.
We next consider whether the trial court erred in denying
defendant's motion to dismiss for insufficiency of the evidence.
Specifically, defendant argues that there was no evidence that he
ever possessed the methamphetamine, actually or constructively.
Defendant asserts that his mere presence in the automobile in which
the drugs were present was not sufficient to show possession.
Defendant contends that the car and the drugs were under Flores'
possession and that he did not have the power or intent to control
the drugs. We are not persuaded.
To survive a motion to dismiss, the State must present
substantial evidence of each essential element of the charged
offense. State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434
(1997). “'Substantial evidence is relevant evidence that a
reasonable mind might accept as adequate to support a conclusion.'”
Id. at 717, 483 S.E.2d at 434 (quoting State v. Olson, 330 N.C.
557, 564, 411 S.E.2d 592, 595 (1992)).
Here, defendant disputes having ever had possession of the
drugs. “A person is said to have constructive possession when he,without actual physical possession of a controlled substance, has
both the intent and the capability to maintain dominion and control
over it.” Jackson, 103 N.C. App. at 243, 405 S.E.2d at 357. A
person's mere presence where the drugs are located, without other
incriminating circumstances, is not sufficient to support
constructive possession. Id. (quoting State v. James, 81 N.C. App.
91, 93, 344 S.E.2d 77, 79 (1986)). Again, however, we find Jackson
persuasive. As we have previously determined, it was reasonable
for the jury to infer that defendant was present to ensure the
safety of the drugs. This evidence, in consideration with Flores'
statements to Officer Denny regarding his nephew “David,” was
sufficient evidence of other incriminating circumstances to support
constructive possession and withstand a motion to dismiss.
Accordingly, we discern no error.
No error.
Judges McCULLOUGH and HUDSON concur.
Report per Rule 30(e).
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