NO. COA02-862
Appeal by defendant from judgment dated 29 August 2001 by
Judge James E. Ragan, III in Wayne County Superior Court. Heard in
the Court of Appeals 16 April 2003.
Attorney General Roy Cooper, by Assistant Attorney General
Floyd M. Lewis, for the State.
Angela Humes Brown for defendant appellant.
BRYANT, Judge.
Alejandro Trujillo (defendant) appeals a judgment dated 29
August 2001 entered consistent with a jury verdict finding him
guilty of trafficking in marijuana by possession.
At trial, the State introduced evidence tending to show that,
on 16 January 2001, United Parcel Service (UPS) employees contacted
the Wayne County Sheriff's Department about three boxes they
suspected to contain drugs. After a police dog gave a positive
response to each of the three boxes, Sergeant Thomas Effler
obtained search warrants. Upon opening the boxes, the police
discovered a large quantity of compressed marijuana bricks. Each
of the boxes listed the same Texas address and telephone number forthe sender. The contact telephone number was also the same for all
of the boxes. In addition, the packaging in each box, which
contained Styrofoam, tape, plastic, dryer sheets, and some type of
oil or grease wrapped around each brick of marijuana, was
consistent. The three boxes contained a total of 103.66 pounds of
marijuana, with the boxes holding individual amounts of 43.08
pounds, 37.42 pounds, and 23.16 pounds.
Two of the boxes were addressed to Antonio Perez at 320 Dollar
Street, Goldsboro, North Carolina and 320 Dollar D. Town Road,
Goldsboro, North Carolina. Because these addresses did not exist
in Wayne County, Deputy Michael Cox, dressed in a UPS uniform,
delivered the two boxes to 320 Dollard Town Road. Upon his
arrival, Jesus Benitez (Benitez) answered the door of the mobile
home. Deputy Cox placed the first box on the steps and went back
to the UPS van for the second box. The first box was no longer on
the steps when Deputy Cox returned with the second box. Defendant
was at the door and took the second box from Deputy Cox while
Benitez signed for the delivery. According to Deputy Cox, neither
man questioned the delivery, nor were they surprised by the arrival
of the boxes. Deputy Cox delivered the third box to a Hispanic
store located at 1484 Highway 111 South.
Approximately five to ten minutes after the delivery to the
mobile home, defendant drove away with a woman and an infant.
Police officers stopped the vehicle driven by defendant and
escorted everyone back to the mobile home. A search of a diaper
bag found in the vehicle revealed a letter from the North CarolinaDivision of Motor Vehicles (DMV) which was addressed to defendant
at 1484 Highway 111 South, Goldsboro, North Carolina. Inside the
mobile home, officers found the two boxes sitting unopened in the
middle bedroom. A search of a walk-in closet in the master bedroom
resulted in the further discovery of five Western Union receipts
for money transfers. The transfers were from “Alejandro Trujillo
Gomez” or “Trujillo” at 1484 Highway 111 South in Goldsboro to
“David Laniers Gomez” or “Laniers” in Houston, Texas. The officers
also found telephone bills addressed to defendant in a kitchen
cabinet.
At the close of the State's evidence, the trial court denied
defendant's motion to dismiss. Defendant did not introduce any
evidence and renewed his motion to dismiss, which the trial court
again denied.
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The issues are whether the trial court erred by: (I) admitting
into evidence the Western Union receipts, the telephone bills, and
the DMV letter and (II) denying defendant's motion to dismiss.
I
Defendant first contends the trial court erred by admitting
the Western Union receipts, the telephone bills, and the DMV letter
into evidence. Defendant argues the danger of unfair prejudice
substantially outweighed the probative value of the evidence,
requiring exclusion of the items under Rule 403 of the North
Carolina Rules of Evidence. We disagree.
“'Relevant evidence' [is] evidence having any tendency to makethe existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence.” N.C.G.S. § 8C-1, Rule 401 (2001).
Relevant evidence may, however, “be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice.”
N.C.G.S. § 8C-1, Rule 403 (2001). Because “evidence which is
probative in the State's case will [necessarily] have a prejudicial
effect on the defendant; the question, then, is one of degree.”
State v. Mercer, 317 N.C. 87, 93-94, 343 S.E.2d 885, 889 (1986).
The admission or exclusion of evidence under Rule 403 rests within
the trial court's sound discretion, and the trial court's ruling
will only be reversed for abuse of discretion “upon a showing that
[it] was so arbitrary that it could not have been the result of a
reasoned decision.”
State v. Thompson, 314 N.C. 618, 626, 336
S.E.2d 78, 82 (1985).
The Western Union receipts in defendant's name were found in
a closet of the mobile home's master bedroom, and the telephone
bills in defendant's name were found in a kitchen cabinet. The DMV
letter to defendant listed the same address as the Hispanic store.
These items of evidence were relevant to connect defendant to the
two locations to which the boxes of marijuana were addressed and
delivered. Although defense counsel speculated out of the jury's
presence as to other possible reasons for the State's introduction
of the Western Union receipts, the evidence before the jury was
only probative of defendant's constructive possession of the
marijuana found in the mobile home. The trial court did not abuseits discretion by permitting these items to be introduced into
evidence, and this assignment of error is therefore overruled.
II
Defendant further argues the trial court erred by denying his
motion to dismiss due to insufficiency of the evidence. He argues
the State failed to introduce sufficient evidence of his actual or
constructive possession of the marijuana. We disagree.
Evidence is sufficient to withstand a motion to dismiss when
it gives “rise to a reasonable inference of [the] defendant's guilt
based on the circumstances.”
State v. Styles, 93 N.C. App. 596,
603, 379 S.E.2d 255, 260 (1989). A conviction for trafficking in
marijuana by possession requires proof of either actual or
constructive possession.
State v. Harvey, 281 N.C. 1, 12, 187
S.E.2d 706, 714 (1972). The doctrine of constructive possession
applies when a person without actual physical possession of a
controlled substance “has the intent and capability to maintain
control and dominion over” it.
State v. Williams, 307 N.C. 452,
455, 298 S.E.2d 372, 374 (1983). When “sufficient incriminating
circumstances exist, constructive possession of the contraband
materials may be inferred even where possession of the premises is
nonexclusive.”
State v. Kraus, 147 N.C. App. 766, 770, 557 S.E.2d
144, 147 (2001);
State v. Carr, 122 N.C. App. 369, 372, 470 S.E.2d
70, 73 (1996) (“[p]roving constructive possession where [a]
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 ofconstructive possession”)
.
“As the terms 'intent' and 'capability' suggest, constructive
possession depends on the totality of circumstances in each case.
No single factor controls, but ordinarily the question will be for
the jury.”
State v. James, 81 N.C. App. 91, 93, 344 S.E.2d 77, 79
(1986). Furthermore, “'[i]ntent is a mental attitude which seldom
can be proved by direct evidence, but must ordinarily be proved by
circumstances from which it can be inferred.'”
State v. Autry, 101
N.C. App. 245, 252, 399 S.E.2d 357, 362 (1991) (quoting
State v.
Kendrick, 9 N.C. App. 688, 691, 177 S.E.2d 345, 347 (1970)).
In this case, the State's evidence shows defendant was present
during the delivery of the first two boxes, and Deputy Cox saw him
take the second box into the mobile home. Defendant did not
question why or appear surprised that boxes addressed to an Antonio
Perez at 320 Dollar Street and 320 Dollar D. Town Road were being
delivered to 320 Dollard Town Road. The third box, which was
consistent with the first two boxes as to labeling, packaging,
contents, and sender information, was delivered to an address used
by defendant according to the address on the DMV letter. Receipts
of money transfers by defendant were found in the mobile home's
master bedroom, and telephone bills addressed to defendant were
found in a kitchen cabinet. Although Benitez remained at the
mobile home after the delivery, the two boxes remained unopened in
defendant's absence. When viewed in the light most favorable to
the State, this evidence was sufficient to give rise to a
reasonable inference that defendant was aware of the contents ofthe two boxes delivered to 320 Dollar Town Road and had the intent
and capability to maintain control over the marijuana contained
therein. Accordingly, the trial court did not err in denying
defendant's motion to dismiss.
No error.
Judges HUNTER and ELMORE concur.
Report per Rule 30(e).
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