An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-862


Filed: 6 May 2003


    v.                            Wayne County
                                No. 01 CRS 050854

    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.


    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.

    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.

    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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