An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-946


Filed: 15 April 2003


    v .                             Guilford County
                                Nos. 01 CRS 082537-39


    v.                            Guilford County
                                Nos. 01 CRS 082546-47

    Appeal by defendants from judgments filed 21 August 2001 by Judge Catherine C. Eagles in Guilford County Superior Court. Heard in the Court of Appeals 26 March 2003.

    Attorney General Roy Cooper, by Assistant Attorneys General Kathleen U. Baldwin and John G. Barnwell, for the State.

    William B. Gibson for defendant-appellant Santiago Iberra Torres.

    D. Tucker Charnes for defendant-appellant Rey Espinoza Morales.

    BRYANT, Judge.

    Santiago Ibarra Torres (Torres) and Rey Espinoza Morales (Morales) (collectively defendants) appeal from judgments filed 21 August 2001 entered consistent with jury verdicts finding (A) Torres guilty of (1) trafficking in cocaine by transportation and (2) by possession, (3) possession with intent to sell and deliver cocaine, and (4) conspiracy to traffic in cocaine and (B) Morales guilty of the same offenses except for conspiracy to traffic incocaine.
    Prior to trial, defendants asked to be represented by the same attorney. The trial court inquired of each defendant as to whether they had been advised of their entitlement to obtain separate counsel, especially if the interests of one defendant differed from those of the other. Both defendants replied they understood their rights and wished to pursue joint representation.
    The evidence presented at trial revealed that, a few days prior to 11 April 2001, Officers Allen S. Wallace and Tom Kroh with the Greensboro Police Department began to investigate Torres. The officers met with Neil Blair (Blair), an informant who had bought drugs from Torres on prior occasions and agreed to telephone Torres to set up another transaction. When Blair telephoned Torres, he initially talked about “purchasing keys,” which are “[k]ilos of crack cocaine.” During the course of several telephone conversations with Torres, Blair finally arranged for the purchase of two ounces of cocaine for $1,800.00 with an understanding that bigger purchases would follow. The exchange was to take place at a certain car wash on 11 April 2001.
    Prior to the exchange, Officer Wallace provided Blair with a listening device that would allow the police to monitor his conversation with Torres and also searched Blair and his vehicle to ensure that he did not have any narcotics or money other than the purchase money supplied to him by the police. Officers Wallace and Kroh then followed Blair to the car wash. Ten to fifteen minutes later, Torres arrived in his white SUV. The SUV pulled into a carwash bay out of the officers' view. Blair got out of his parked vehicle and walked toward the SUV in which two Hispanic men, Torres and Morales, were sitting. Torres, who was sitting on the passenger side, stepped out of the SUV to talk to Blair. Morales exited the vehicle shortly thereafter and climbed into the back of the SUV where he retrieved a Ziploc plastic bag. He then “reach[ed] over the front seat” and “handed the [package of] dope to Santiago [(Torres)].” The package was dusty because it had been kept in a vacuum cleaner that was located in the SUV. Torres “dusted it off” and, giving it to Blair, said it was “good dope.” Blair gave Torres the $1,800.00 in exchange.
    Blair and Torres again started to talk about “keys” of cocaine, which Torres agreed to sell to Blair for $25,000.00 per kilogram. When Torres told Blair he “got it now” and appeared to point to the SUV, Blair thought there were additional drugs in the vehicle. Having been previously instructed to alert the police, through use of the words “big dope,” if he saw or heard mention of “any further cocaine” during his meeting with Torres, Blair gave the arranged signal. In explaining why he did so, Blair testified at trial that, in addition to what Torres had told him, he relied on his past dealings with Torres. Specifically, Blair stated: “knowing that he is a big dope dealer,” “the people that I know who are big dope dealers, they get their stuff from Santiago,” and “all the people that I know who have dealt with him.” Defendants objected to this testimony as inadmissible character evidence under Rule 404(a), but their objections were overruled by the trialcourt.
    When the police moved in to arrest defendants, Torres told Morales to be quiet. Officer Wallace's search of Torres revealed the $1,800.00 purchase money located in Torres' pocket, a Motorola pager, and a Sprint cellular telephone. The Sprint cell phone contained fifty-two telephone numbers, including Blair's. Blair was found in possession of a Ziploc plastic bag containing what was later identified as 56.6 grams   (See footnote 1)  of cocaine. The police also inspected the SUV for drugs but did not find any. The SUV search did, however, yield a black notebook that contained “all kind[s] of notations and numbers” as well as two pieces of paper with telephone numbers on them and another cellular telephone. The notebook, which served to record money transactions, names, pager and telephone numbers, listed transfers of $15,000.00, $16,500.00, $3,300.00, with a notation on the side that “appear[ed] to be the word 'weed.'” The notebook recorded several other transactions, noting amounts as high as $27,400.00.
    At the end of the State's evidence, defendants made a motion to dismiss for insufficiency of the evidence, which the trial court denied. Torres then testified on his own behalf, stating he was selling cellular telephones illegally, not drugs, and that the notebook entries reflected these transactions. Morales did not testify. At the end of all the evidence, Torres renewed his motion to dismiss, and the trial court denied the motion. Following thejury verdict, the trial court consolidated Morales' convictions and gave him a sentence of thirty-five to forty-two months. The trial court arrested judgment on the possession with intent to sell and deliver cocaine charge and imposed a sentence of thirty-five to forty-two months on Torres for trafficking in cocaine by transportation. The trial court then consolidated Torres' trafficking in cocaine by possession and conspiracy convictions, again imposing a sentence of thirty-five to forty-two months, which was to run at the expiration of the trafficking by transportation sentence.


    The issues are whether the trial court: (I) abused its discretion in admitting statements about Torres' reputation as a drug dealer; (II) erred in allowing defendants to be represented by the same counsel; (III) erred in failing to arrest judgment on Torres' conspiracy conviction in light of Morales' acquittal on the same charge; and (IV) erred in denying Morales' motion to dismiss due to insufficient evidence on the element of possession.   (See footnote 2) 

    Torres first takes issue with the admission of the followingstatements by Blair: “knowing that [Torres] is a big dope dealer,” “the people that I know who are big dope dealers, they get their stuff from Santiago,” and “all the people that I know who have dealt with him.” Torres argued at trial that this testimony should have been excluded under Rule 404(a) of the North Carolina Rules of Evidence, which provides: “Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion.” N.C.G.S. § 8C-1, Rule 404(a) (2001). Contrary to Torres' contention, Blair's statements were not offered to show Torres acted in conformity with his reputation as a drug dealer but to explain his reason for believing more drugs were present in the SUV and his subsequent signal to the police. During defendants' prior cross-examination of Officer Wallace, defendants had placed in issue Blair's credibility by questioning the reason for Blair's belief that there were additional drugs in the SUV. As such, Blair's statements were relevant to portray the events surrounding the drug transaction. See State v. Rannels, 333 N.C. 644, 658, 430 S.E.2d 254, 261 (1993) (where evidence tended to show the circumstances under which the defendant's confession was made, it was relevant and not impermissible character evidence). Moreover, where “[t]he evidence cast[s] more light on [an] important question[] than it [does] on [the] defendant's character[,] [i]ts probative value . . . outweigh[s] its prejudicial effect under Evidence Rule 403.” Id. We thus conclude that the trial court did not abuse its discretion in admitting Blair's statements for thepurpose of explaining his actions on 11 April 2001. See State v. Schultz, 88 N.C. App. 197, 362 S.E.2d 853 (1987) (abuse of discretion standard applied to review of Rule 404 and 403 challenge), aff'd, 322 N.C. 467, 368 S.E.2d 386 (1998).

    Torres next argues the trial court erred in allowing defendants to proceed with joint representation since “the evidence against Torres was much stronger than the evidence against his co- defendant.” Torres contends that because defendants' trial counsel “could [therefore] not effectively argue to the jury the innocence of [d]efendant Morales without effectively destroying [d]efendant Torres' case,” each defendant was denied his right to due process and effective assistance of counsel. We disagree.
    “Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest.” Wood v. Georgia, 450 U.S. 261, 271, 67 L. Ed. 2d 220, 230 (1981). “Requiring or permitting a single attorney to represent co- defendants, often referred to as joint representation, is not per se violative of constitutional guarantees of effective assistance of counsel. This principle recognizes that in some cases multiple defendants can appropriately be represented by one attorney.” Holloway v. Arkansas, 435 U.S. 475, 482, 55 L. Ed. 2d 426, 433 (1978). In Cuyler v. Sullivan, the United States Supreme Court considered whether (1) a state trial court must inquire into the propriety of multiple, i.e. joint representation when no partylodges an objection and (2) the mere possibility of a conflict of interest warrants the conclusion that the defendant was deprived of his right to counsel. Cuyler v. Sullivan, 446 U.S. 335, 64 L. Ed. 2d 333 (1980). The Supreme Court held that while state trial courts have a duty to investigate timely objections to joint representation, the Sixth Amendment does not require “state courts themselves to initiate inquiries into the propriety of multiple representation in every case.” Id. at 346, 64 L. Ed. 2d at 345.
        Absent special circumstances, therefore, trial courts may assume either that multiple representation entails no conflict or that the lawyer and his clients knowingly accept such risk of conflict as may exist. Indeed, as the Court noted in Holloway, trial courts necessarily rely in large measure upon the good faith and good judgment of defense counsel. “An 'attorney representing two defendants in a criminal matter is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial.'” Unless the trial court knows or reasonably should know that a particular conflict exists, the court need not initiate an inquiry.

Id. at 347, 64 L. Ed. 2d at 345-46 (citations and footnotes omitted).
    In this case, there was no reason for the trial court to believe a conflict existed that would require separate representation. The trial court questioned defendants individually, and both responded they were aware that, if they felt conflicts of interests existed, they had the right to obtain separate counsel. Neither defendant nor their attorney lodged an objection at a later point in the trial. Furthermore, while Torresargues he was deprived of a fair trial because his trial counsel could not effectively defend Morales without destroying Torres' case, his brief points to no evidence in support of this proposition. As such, Torres has failed to present both the existence of an actual conflict and any resulting prejudice therefrom. See id. at 348, 64 L. Ed. 2d at 346-47 (“a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance”); State v. Yelton, 87 N.C. App. 554, 561, 361 S.E.2d 753, 758 (1987) (“prejudice [from joint representation will] be presumed only upon a demonstration 'that counsel “actively represented conflicting interests” and that “an actual conflict of interest adversely affected his lawyer's performance”'”) (quoting Burger v. Kemp, 483 U.S. 776, 783, 97 L. Ed. 2d 638, 650 (1987)). Accordingly, the trial court did not err in permitting joint representation.

    Torres further raised the issue of whether his conspiracy conviction should have been set aside based on Morales' acquittal on this offense. “A criminal conspiracy is an agreement between two or more people to do an unlawful act or to do a lawful act in an unlawful manner.” State v. Morgan, 329 N.C. 654, 658, 406 S.E.2d 833, 835 (1991).
        The general rule is that if all participants charged in a conspiracy have been legally acquitted, except the defendant, then the inconsistent charge or conviction against the sole remaining defendant must be set aside. The logic behind this rule is that if all but one have been acquitted of conspiring with theothers charged, there are none left with whom the remaining party could have agreed; without an unlawful agreement there is no conspiracy.

State v. Gibson, 333 N.C. 29, 51, 424 S.E.2d 95, 107-08 (1992), overruled on other grounds by State v. Lynch, 334 N.C. 402, 432 S.E.2d 349 (1993). We therefore agree with Torres and hold that his conviction for conspiracy to traffic cocaine must be vacated.

    In his brief to this Court, Morales argues the trial court erred in denying his motion to dismiss because there was insufficient evidence on the element of possession.
    In reviewing a defendant's motion to dismiss, the trial court must determine whether, considered in the light most favorable to the State, there is substantial evidence of each essential element of the offense charged and that the defendant is the perpetrator. State v. Cockerham, 129 N.C. App. 221, 223-24, 497 S.E.2d 831, 832 (1998). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). Possession is an essential element of the offenses of which Morales was found guilty, see N.C.G.S. § 90-95(h)(3) (2001), and may be either actual or constructive, State v. Bowens, 140 N.C. App. 217, 222, 535 S.E.2d 870, 873 (2000). A defendant has actual possession of a substance if it is on his person, he is aware of its presence, and either by himself or with others, he has the power and intent to control its disposition or use. State v. Crawford, 104 N.C. App. 591, 600, 410 S.E.2d 499, 504 (1991).    In this case, Morales contends the trial court only instructed the jury on actual possession and the State did not present substantial evidence thereof. We disagree and hold that there was sufficient evidence on the element of actual possession. After Torres stepped out of the SUV at the car wash to talk to Blair about the drugs, Morales was the one who went into the back of the SUV to retrieve the cocaine from inside of a vacuum cleaner. He reached over the front passenger seat and handed the cocaine, which was in a Ziploc plastic bag, to Torres. Torres in turn gave the cocaine to Blair in exchange for the $1,800.00, telling him it was “good dope,” and a conversation about “keys” ensued. Consequently, there was sufficient evidence from which a reasonable juror could conclude that Morales knew the plastic bag contained cocaine and that he not only had actual, physical possession of it but also the power and intent to control its disposition. We therefore overrule this assignment of error.
    No error in part and vacated in part and remanded for resentencing.
    Judges TIMMONS-GOODSON and GEER concur.
    Report per Rule 30(e).

Footnote: 1
    Two ounces are equivalent to 56.7 grams.
Footnote: 2
    Torres argued in his brief to this Court that the trial court also erred in denying his motion to dismiss. Because Torres presented no argument or authority in his brief to support this assignment of error, it is deemed abandoned. See N.C.R. App. P. 28(b)(6). Furthermore, we do not address Torres' contention that Blair's statements about Torres' reputation as a drug dealer were inadmissible hearsay. Torres neither objected to the testimony on this basis at trial nor asserts plain error in his assignment of error. See N.C.R. App. P. 10(b)(1), (c)(4). Accordingly, he did not preserve this issue for appeal.

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