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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. ANAEL SALINAS VALLADARES
Filed: 3 August 2004
1. Evidence_prior bad acts_sale and use of cocaine_intent, knowledge, motive
The admission of testimony mentioning defendant's prior bad acts, including the sale and
use of cocaine, was admissible in a prosecution for conspiracy to traffic in cocaine and for
trafficking in cocaine by possession. Defendant testified that he never used cocaine and his
defense was that he had accompanied a friend without knowledge that the friend was involved in
a drug deal; under these circumstances, the testimony was proper to show defendant's intent,
knowledge, and motive.
2. Evidence_character for truthfulness_not pertinent to cocaine trafficking
Evidence of a defendant's character for truthfulness was correctly excluded as not
pertinent to cocaine trafficking.
3. Evidence_law abiding person_pertinent_exclusion not prejudicial
Evidence of a cocaine trafficking defendant's character as a law-abiding person tended to
establish that defendant did not commit the crime and was incorrectly excluded, but there was no
prejudice because the State presented overwhelming evidence of defendant's guilt.
4. Evidence_identity of confidential informant_factors favoring nondisclosure
The trial court's refusal to disclose the identity of a confidential informant to a cocaine
trafficking defendant was not error where the factors favoring nondisclosure outweighed the
factors favoring disclosure.
5. Drugs_cocaine trafficking_weight as element_instruction required
A conviction for trafficking in cocaine by possession was remanded for resentencing for
simple possession where the court did not tell the jury that the weight of the cocaine was an
element that had to be proven beyond a reasonable doubt.
Appeal by defendant from judgment entered 31 October 2002 by
Judge Evelyn W. Hill in Wake County Superior Court. Heard in the
Court of Appeals 22 April 2004.
Attorney General Roy Cooper, by Special Deputy Attorney
General Karen E. Long, for the State.
Osborn & Tyndall, P.L.L.C., by Amos Granger Tyndall, for
Defendant Anael Salinas Valladares was arrested and charged
with conspiracy to traffic in cocaine and trafficking in cocaine by
possession. The State's evidence tended to show that defendant and
Joshua Lee Gerrehgy (Gerrehgy) had worked in construction for
various employers since 1996. Over time, the two became friends.
Gerrehgy, defendant, defendant's brother, and another friend
took a three-day vacation to Ocean City, Maryland, over the
Memorial Day weekend in 1998. Defendant arranged for the purchase
of a couple of grams of cocaine, and the four men contributed funds
to cover the cost. It was the first time Gerrehgy had used
After that vacation, Gerrehgy began using cocaine while
visiting defendant on the weekend. After getting an alcohol buzz,
defendant would call a friend who would sell him a gram or two of
cocaine. Then Gerrehgy, defendant, and other friends would pay for
the drugs. The group would take the cocaine to a club and use it
in the bathroom.
Gerrehgy quit using drugs in August of 1999 after an incident
in which he got high, totaled his car, and lost his job. However,
Gerrehgy began to use again in 2000 after going to defendant's
house. The group drank and sent one of defendant's roommates out
to buy half an ounce of cocaine. The cocaine was fronted which
means that the group got the drugs immediately and paid later.
Gerrehgy testified that defendant had a few sources, but he
got most of his drugs from Miguel Colon. Gerrehgy began usingevery Friday night, and he started selling cocaine to help pay for
Two weeks before the arrest, defendant told Gerrehgy that he
wanted to sell cocaine to make money. Gerrehgy agreed to give
defendant some customers, and on the day before the arrest,
Gerrehgy met a man who wanted to buy some cocaine. Gerrehgy
arranged for defendant to meet the man, and defendant delivered a
half gram to him later that day. The next day, the same man asked
for more cocaine.
Billy Wade also called Gerrehgy looking for an ounce.
Gerrehgy and defendant put their money together and made
arrangements to pick up an ounce and deliver it to Wade's
apartment. Originally, Gerrehgy gave defendant $600 to make the
purchase; defendant contributed $200.
On 7 June 2002, Gerrehgy and defendant went to Colon's
trailer, and Gerrehgy waited in the living room while defendant
went in the back room with Colon to make this first deal. While
Gerrehgy was waiting, he received a call from Wade requesting
another ounce. Gerrehgy did not have enough money to purchase
another ounce, so defendant loaned him another $200, and Colon
fronted the rest of the money for two hours while the men made the
deal. Defendant and Gerrehgy paid a total of $1,700 for two and
one-quarter (2¼) ounces. Two ounces were for Wade, and one-quarter
of an ounce was for defendant's deal with the man to whom he had
sold drugs the day before. Gerrehgy paid $600, and defendant
contributed $400. The men also agreed to pay the remaining $700 to
Colon later. Gerrehgy got a message from Bear telling Gerrehgy to deliver
Wade's two ounces to Bear at the Burger King. Gerrehgy had dealt
with Bear in the past and trusted him. In fact, Bear was a
confidential informant who was working undercover.
Gerrehgy and defendant parked near the dumpster at Burger King
to avoid being seen by too many people. Bear got into the vehicle,
looked at the cocaine, and said that he would return with the
money. When Bear walked away, three or four police cars pulled up
and blocked Gerrehgy's car. The police arrested Gerrehgy and
Wake County ABC agent, Brad Pearson, testified that his
informant, Bear, contacted Gerrehgy to make the deal on 7 June
2002. Bear told Pearson that he thought he could purchase two
ounces from Gerrehgy, so he called Gerrehgy back and made
arrangements to buy the second ounce. Pearson heard Gerrehgy tell
Bear that the cocaine would be fronted and that the deal would have
to be done quickly.
Pearson contacted agents, Wesley Nipper and Louis Knuckles,
and made preparations for the takedown. The plan involved having
Bear confirm that Gerrehgy had the cocaine. Then Bear would leave
the car, remove his hat, and rub his head as a signal to arrest the
Nipper was parked about 50 yards from the Burger King and
observed Gerrehgy pull into the parking lot. The agents watched as
Bear approached Gerrehgy's vehicle. A few minutes later, Knuckles
saw Bear give the takedown signal, and he radioed for the others to
move in. As defendant and Gerrehgy were taken into custody,Knuckles and Nipper recalled seeing a clear plastic bag containing
a white, rocky substance in the backseat of Gerrehgy's car. The
bag was located near defendant's leg. Later, it was taken into
evidence and determined to be cocaine.
Pearson took defendant into custody and read him his rights.
Defendant told him that he spoke English and agreed to talk.
Defendant admitted that he had loaned Gerrehgy $400 for the cocaine
and expected to get some money back. Defendant also agreed to
think about participating in the substantial assistance program.
After being arrested, Gerrehgy told Nipper that defendant
loaned him $400 for the purchase and that defendant owed another
$700. Gerrehgy also volunteered to participate in the substantial
assistance program, but he did not know until a week before trial
that he would have to testify against defendant as part of that
Defendant testified that he left El Salvador and came to the
United States in 1996. He said that he learned English by reading
and watching television, but he did not understand all English
words. Defendant indicated that he and Gerrehgy worked together in
1996. Initially, the two were not close friends, but they became
closer around June of 1997.
Defendant stated that everything Gerrehgy said in his
testimony was a lie. Defendant testified that he never used
cocaine and never saw Gerrehgy use cocaine.
On June 7, defendant admitted to loaning Gerrehgy $400, but
never asked why Gerrehgy needed the money. Defendant thought that
the men were going to Gerrehgy's house to drink a few beers. Instead, Gerrehgy took defendant to a trailer on Poole Road.
Defendant sat on the sofa while Gerrehgy spoke with some Hispanic
men in the back room. Defendant thought Gerrehgy was buying some
pot for his own personal use.
The men left and went to Gerrehgy's house. Defendant stated
that he did not know that Gerrehgy had any drugs. On the way,
Gerrehgy received two phone calls on his cell phone. Gerrehgy said
that the first caller was his girlfriend; defendant did not know
who the second caller was because Gerrehgy talked too fast, and
defendant could not understand what he said.
At Gerrehgy's house, defendant drank a soda while Gerrehgy
went into a back room. Gerrehgy told defendant that they were
going to Burger King. After arriving at Burger King, Gerrehgy
instructed defendant to get in the backseat, but did not explain
why. Another guy entered the car and sat in the front seat.
Defendant saw Gerrehgy take something out of his pocket before
showing it to the man. As the police moved in, Gerrehgy threw the
bag in the backseat. After defendant was arrested, he told the
officer that he loaned Gerrehgy the money, but never said that it
was to purchase drugs.
Rodney Smith and Miguel Cerpas testified that they had known
defendant for one to three years and had never seen illegal drugs
at defendant's residence.
During the State's rebuttal, Jorge Galeana (Galeana) testified
that he had known defendant for about two years. Galeana had been
to defendant's house and remembered seeing Gerrehgy there. He had
seen cocaine at defendant's house, but not when Gerrehgy was there Earlier on the day of the arrest, Galeana recalled that
Gerrehgy and defendant had a thirty-five to forty-minute
conversation about cocaine. Both men spoke in English. Galeana
also testified that defendant asked him if he wanted to sell
cocaine, but Galeana turned him down.
Defendant was found guilty of conspiracy to traffic in cocaine
and trafficking in cocaine by possession. He was sentenced to 35-
42 months in prison.
Defendant appeals. On appeal, defendant argues that the trial
court erred by (1) allowing the State to introduce evidence of
prior bad acts under Rule 404(b), (2) preventing defendant from
presenting evidence of his character for truthfulness and his
character as being law-abiding, (3) denying his motion to discover
the identity of the confidential informant, and (4) failing to
instruct the jury as to each element of the offense of trafficking
in cocaine by possession. With regard to the first three
assignments of error, we conclude that there was no prejudicial
error. Accordingly, the conviction of conspiracy to traffic in
cocaine is upheld. However, since the trial court made an
instructional error, the charge of trafficking in cocaine by
possession is vacated and remanded for resentencing.
I. 404(b) Evidence
 Defendant argues that the trial court erred by admitting
portions of Gerrehgy's testimony which mentioned defendant's other
bad acts, including using cocaine in the past and selling cocaine
on the day before the arrest. We disagree.
Under N.C. Gen. Stat. § 8C-1, Rule 404(b) (2003): Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
This rule is a general rule of inclusion of such evidence, subject
to an exception if its only probative value is to show that the
defendant has the propensity or disposition to commit an offense of
the nature of the crime charged. State v. West, 103 N.C. App. 1,
9, 404 S.E.2d 191, 197 (1991) (emphasis added). We believe that
this evidence was not offered for the sole purpose of showing that
defendant had the propensity to commit the crimes charged.
Instead, it was admitted to demonstrate that defendant had the
motive and intent to possess cocaine to sell.
We are also guided by this Court's decision in State v.
Johnson, 13 N.C. App. 323, 185 S.E.2d 423 (1971), appeal dismissed,
281 N.C. 761, 191 S.E.2d 364 (1972). In that case, defendant was
charged with possession of marijuana, but denied knowledge of the
marijuana or that he had anything to do with it. Id. at 324-25,
185 S.E.2d at 424-25. We allowed evidence which revealed that
defendant sold marijuana two weeks earlier and noted that [i]t was
competent for the State to show by the challenged evidence the
defendant's intent and guilty knowledge as well as his motives.
Id. at 325, 185 S.E.2d at 425.
In the case at bar, defendant testified that he never used
cocaine and never saw Gerrehgy use cocaine. Additionally, his
defense was that he was not involved in buying or selling cocaine
and that he accompanied Gerrehgy without knowledge that Gerrehgywas making a drug deal. Under these circumstances, it was proper
to allow evidence of the prior drug use and the cocaine sale on the
previous day to show defendant's intent, knowledge, and motive.
Therefore, this assignment of error is rejected.
II. Evidence of Defendant's Character
 Defendant argues that the trial court erred by preventing
defendant from introducing evidence of his character for
truthfulness and his character as a law-abiding person.
Rule 404(a) is a general rule of exclusion, prohibiting the
introduction of character evidence to prove that a person acted in
conformity with that evidence of character. State v. Bogle, 324
N.C. 190, 201, 376 S.E.2d 745, 751 (1989). One of the exceptions
to Rule 404(a) permits the accused to offer evidence of a
'pertinent trait of his character' as circumstantial proof of his
innocence. Id. In criminal cases, in order to be admissible as
a 'pertinent' trait of character, the trait must bear a special
relationship to or be involved in the crime charged. Id. With
these general principles in mind, we turn to consider whether
defendant's character for truthfulness and his character as a law-
abiding person were pertinent traits.
Our courts have examined whether the traits of honesty and
truthfulness are pertinent in drug cases. In Bogle, our Supreme
Truthfulness and honesty are closely
related concepts. Webster's Ninth New
Collegiate Dictionary defines 'truthful' as
'telling or disposed to tell the truth.' It
defines 'honest' as 'free from fraud or
deception.' In common usage, a person is
'truthful' if he speaks the truth. He is
'honest' if his conduct, including his speech,is free from fraud or deception. Neither
trafficking by possession nor by transporting
marijuana necessarily involves being
untruthful or engaging in fraud or deception.
Consequently, we hold that the traits of
truthfulness and honesty are not 'pertinent'
character traits to the crime of trafficking
in marijuana by possession or transportation.
Id. at 202, 376 S.E.2d at 752 (citations omitted). In this case,
evidence of defendant's character for truthfulness is not pertinent
to the crimes of conspiring to traffic in cocaine and trafficking
cocaine by possession. Therefore, the trial court did not err in
excluding this evidence.
 Our courts have also addressed whether a criminal
defendant may introduce evidence of his character as a law-abiding
person. In deciding whether a trait is pertinent or relevant, it
is well established that the trait may be general in nature[.]
State v. Squire, 321 N.C. 541, 548, 364 S.E.2d 354, 358 (1988).
An example of a character trait of a general nature which is
nearly always relevant in a criminal case is the trait of being
law-abiding. Id. Evidence of law-abidingness tends to establish
circumstantially that defendant did not commit the crime charged.
Bogle, 324 N.C. at 198, 376 S.E.2d at 749. We conclude that the
trait of being law-abiding is pertinent because such evidence would
make it less likely that defendant is guilty of conspiracy to
traffic in cocaine and trafficking in cocaine by possession.
However, this does not end the analysis. We must consider
whether this error prejudiced defendant. Pursuant to N.C. Gen.
Stat. § 15A-1443(a)(2003):
A defendant is prejudiced by errors relating
to rights arising other than under the
Constitution of the United States when thereis a reasonable possibility that, had the
error in question not been committed, a
different result would have been reached at
Furthermore, our Supreme Court has indicated that such errors are
harmless when there is overwhelming evidence of defendant's guilt,
including his confession. State v. Collins, 345 N.C. 170, 174,
478 S.E.2d 191, 194 (1996). In this case, there was not a
reasonable possibility that a different result would have been
reached, even if the trial court had admitted the evidence. The
State presented overwhelming evidence of defendant's guilt,
including defendant's own admission of his participation in the
crimes charged. This assignment of error is overruled.
III. Identity of the Confidential Informant
 Defendant contends that the trial court erred by denying
his motion to learn the identity of the confidential informant.
It is well established that the [S]tate is privileged to withhold
from a defendant the identity of a confidential informant, with
certain exceptions. State v. Newkirk, 73 N.C. App. 83, 85, 325
S.E.2d 518, 520, disc. reviews denied, 313 N.C. 608, 332 S.E.2d 81
(1985). However, if revealing the informant is relevant and
helpful to the defense or is necessary to make a fair determination
of the case, the trial court may require disclosure. Id. at 86,
325 S.E.2d at 520. Once defendant has made a 'plausible' showing
of the materiality of the informer's testimony, the trial court
must balance the public's interest with defendant's right to
present his case[.] Id. (citations omitted). Two factors weighing
in favor of disclosure are (1) the informer was an actual
participant in the crime compared to a mere informant, and (2) the[S]tate's evidence and defendant's evidence contradict on material
facts that the informant could clarify[.] Id. (citations omitted).
Several factors vitiating against disclosure are whether the
defendant admits culpability, offers no defense on the merits, or
the evidence independent of the informer's testimony establishes
the accused's guilt. Id. at 86, 325 S.E.2d at 520-21.
In this case, the factors favoring nondisclosure outweigh the
factors favoring disclosure. Although defendant offered some
defense (that he had no knowledge of or involvement with the
cocaine), there was plenty of evidence, independent of the
informant's testimony, to establish guilt. Gerrehgy testified that
he and defendant hatched a plan to buy cocaine to resell.
Similarly, Galeana described a conversation in which defendant
asked him if he wanted to sell cocaine, too. Finally, and perhaps
most importantly, defendant was arrested with drugs in his
possession and admitted culpability by telling the arresting
officer that he contributed $400 towards the purchase of cocaine
with the expectation that he would get money back.
Even if we assume that the confidential informant participated
in the commission of the crime, that single factor would not
warrant disclosure of the informant. This was not a close case in
which the informant's testimony would clarify key differences in
the evidence. The State presented substantial evidence, including
defendant's own admissions, which tended to show that defendant was
guilty of the crimes charged. Because the factors favoring
nondisclosure outweighed the factors favoring disclosure, the trialcourt did not err in denying defendant's motion to learn the
informant's identity. This assignment of error is overruled.
IV. Instructional Error
 Defendant argues that the trial court erred by failing to
instruct the jury on each element of the offense of trafficking in
cocaine by possession. The parties agree that the trial court
appropriately instructed the jury on the charge of conspiracy to
traffic in cocaine. The trial court mentioned all of the elements,
including the amount of cocaine at issue (at least 28 grams and
less than 200 grams of cocaine). Therefore, this assignment of
error is limited to the charge of trafficking in cocaine by
At the outset, we note that defendant failed to preserve this
issue by raising an objection at trial. N.C.R. App. P. 10(b)(2)
(2004). However, N.C.R. App. P. 10(c)(4) allows plain error review
of certain questions that were not properly preserved at trial and
are not otherwise deemed preserved by rule of law. Our courts have
applied plain error analysis to errors in jury instructions. State
307 N.C. 655, 300 S.E.2d 375 (1983). In his assignments
of error, defendant properly contends that the trial court
committed plain error. Therefore, we will apply plain error
analysis to the trial court's jury instruction on this charge.
A trial judge is required . . . to instruct the jury on the
324 N.C. at 195, 376 S.E.2d at 748. This includes
instruction on elements of the crime. Id.
The trial judge has
great discretion in the manner in which he charges the jury, but he
must explain every essential element of the offense charged. State v. Young,
16 N.C. App. 101, 106, 191 S.E.2d 369, 373 (1972).
In its brief, the State concedes that the trial court did not
charge on the amount of the drugs. Our courts have established
that such an omission is erroneous.
In State v. Gooch,
307 N.C. 253, 255, 297 S.E.2d 599, 601
(1982), the trial court failed to instruct the jury that it had to
find that defendant possessed more than one ounce of marijuana to
return a guilty verdict on the charge of possession of over one
ounce of marijuana. In Gooch:
The trial judge properly referred to the
offense as possessing a quantity of marijuana
more than one ounce; however, the court told
the jury in the final mandate that it needed
to find only that defendant possessed
marijuana to find him guilty of the stated
at 256, 297 S.E.2d at 601.
Our Supreme Court explained that
[p]ossession of more than one ounce
is an essential element of the
offense and the trial judge's failure to so charge was error. Id.
The case at bar is very similar to Gooch.
court correctly described the charge as trafficking in cocaine by
possession, which is the unlawful possession of at least 28 grams
of cocaine but less than 200 grams of cocaine. However, the trial
court never mentioned that the weight of the drugs was one of the
elements which had to be proven beyond a reasonable doubt.
Therefore, as it did in Gooch,
the trial court erred in failing to
instruct on the amount of drugs.
Defendant contends that this instructional error entitles him
to a new trial. We cannot agree. In Gooch,
our Supreme Court
rejected this argument and explained: Defendant is not, however, entitled to a
new trial. In failing to submit the amount
requirement . . . the trial court essentially
submitted to the jury the offense of simple
possession of marijuana and the jury convicted
defendant of that offense.
at 257, 297 S.E.2d at 602 (citation omitted). Ultimately, the
Court recognized the decision as a guilty verdict of simple
possession of marijuana and remanded the case for resentencing.
at 258, 297 S.E.2d at 602.
We believe that a similar result is warranted in the case at
bar. The sole distinction between trafficking in cocaine by
possession, N.C. Gen. Stat. § 90-95(h)(3)(a) (2003), and simple
possession of cocaine, N.C. Gen. Stat. § 90-95(a)(3), is the amount
of drugs. To convict defendant of trafficking in cocaine by
possession, the jury would have to find that defendant (1)
knowingly possessed cocaine, and (2) in an amount that was 28 grams
or more, but less than 200 grams. N.C. Gen. Stat. § 90-95(h)(3)(a).
In contrast, defendant could be found guilty of simple possession
if he possessed any
amount of cocaine. N.C. Gen. Stat. § 90-
95(a)(3). Thus, by failing to mention the amount requirement, the
trial court submitted and the jury found defendant guilty of simple
possession of cocaine. As the Supreme Court did in Gooch,
remand this portion of the case to the Wake County Superior Court
for resentencing as upon a verdict of guilty of simple possession
In summary, we conclude that the trial court did not commit
prejudicial error on issues related to defendant's first three
assignments of error. Accordingly, the charge of conspiracy to
traffic in cocaine is upheld. However, because of theinstructional error, we vacate the trial court's judgment on the
trafficking in cocaine by possession charge. This portion of the
case is remanded to the trial court for resentencing as upon a
verdict of guilty of simple possession of cocaine.
No error in part, vacated in part, and remanded in part for
Judges HUDSON and LEVINSON concur.
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